author: WEINZWEIG, Judge:

text:
    Antea DASHI, Plaintiff/Appellant, v. NISSAN NORTH AMERICA, INC., et al., Defendants/Appellees.
    No. 1 CA-CV 18-0389
    Court of Appeals of Arizona, Division 1.
    FILED June 13, 2019
    Shumway Law, PLLC, Phoenix, By G. Lynn Shumway, Co-Counsel for Plaintiff/Appellant
    Ghelfi Law Group, PLLC, Phoenix, By Brent Ghelfi, Co-Counsel for Plaintiff/Appellant
    Klein Thomas, Phoenix, By Paul R. Lee, Thomas M. Klein, Briana Campbell, Counsel for Defendants/Appellees
    The Center for Auto Safety, The Attorneys Information Exchange Group, By Larry E. Coben, Counsel for Amici Curiae
    Presiding Judge David D. Weinzweig delivered the opinion of the Court, in which Judge Kent E. Cattani and Judge James P. Beene joined.
   WEINZWEIG, Judge:

¶1 The Supremacy Clause of the United States Constitution bars a state common-law tort claim under the doctrine of implied preemption when it presents an obstacle to the purposes and objectives of a federal law or regulation. A federal agency may trigger implied obstacle preemption when it refuses to set formal equipment standards to advance a regulatory purpose or objective. At issue here is the National Highway Traffic Safety Administration's ("NHTSA") refusal to set formal standards for advanced automatic braking technologies in light vehicles, and whether that refusal preempts Arizona common-law tort claims against Nissan for manufacturing the 2008 Nissan Rogue without these safety features. The superior court dismissed the lawsuit as preempted. We affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 This products liability case stems from an April 2015 car collision. Antea Dashi was driving her Honda Accord on a one-way street when she missed her intended exit. Rather than traverse side-streets to reach her destination, Dashi decided to turn around and return to the exit against oncoming traffic. A second vehicle stopped in the street behind Dashi as she performed an illegal U-turn, and a third vehicle followed behind the second vehicle, creating a backup. Unaware of Dashi's unfolding turn, the third vehicle, a 2008 Nissan Rogue, swerved around the second vehicle and crashed into Dashi's then-perpendicular vehicle. Dashi suffered serious head injuries.

¶3 Dashi sued Nissan in the superior court, asserting state common-law tort claims. As relevant here, she alleged the collision would not have occurred if Nissan had equipped the 2008 Nissan Rogue with then-available automatic emergency braking ("AEB") systems, including Forward Collision Warning ("FCW") and Crash Imminent Braking ("CIB"). FCW "uses information from forward-looking sensors to determine whether or not a crash is likely or unavoidable" and warns the driver to "brake and/or steer to avoid a crash or minimize the force of the crash." Federal Motor Vehicle Safety Standards; Automatic Emergency Braking ("FMVSS AEB"), 82 Fed. Reg. 8391, 8392 (Jan. 25, 2017). CIB "uses information from forward-looking sensors to automatically apply the brakes in driving situations in which a crash is likely or unavoidable and the driver makes no attempt to avoid the crash." Id. Dashi asserted that Nissan's failure to install this "safety technology rendered the 2008 Nissan Rogue unreasonably dangerous and defective."

¶4 Nissan moved for summary judgment under Arizona Rule of Civil Procedure 56, arguing that Dashi's claims are preempted under federal law. The superior court agreed and dismissed the lawsuit. The court found that NHTSA decided "[vehicle] manufacturers [should have] options with regard to which [automatic braking] safety features to adopt," which "preempts the state court tort action based on whether the lack of FCW and [CIB] technology renders the 2008 Nissan Rogue as defective." This timely appeal followed. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1).

DISCUSSION

¶5 We "review de novo issues of law relating to alleged federal preemption of state law claims." Conklin v. Medtronic, Inc. , 245 Ariz. 501, 504, ¶ 7, 431 P.3d 571 ,574 (2018). Nissan bears the burden of establishing the preemption defense. See id. at 504, ¶ 8, 431 P.3d at 574.

¶6 Dashi argues that federal law does not preempt her state common-law design-defect and negligence claims because her lawsuit would not interfere with the purposes or objectives of federal regulations. Nissan counters that Dashi's claims were properly dismissed under the doctrine of implied preemption because her requested relief-a jury-imposed requirement that light vehicles in Arizona, manufactured in 2008 or later, must be equipped with FCW and CIB systems-would erect an obstacle to federal policy objectives.

A. Federal Preemption Law

¶7 Congressional intent is the touchstone of federal preemption under the Supremacy Clause. Cipollone v. Liggett Grp., Inc. , 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992). There is a presumption against preemption, based on "the assumption that the historic police powers of the States were not to be superseded ... unless that was the clear and manifest purpose of Congress," particularly in "a field which the States have traditionally occupied." Wyeth v. Levine , 555 U.S. 555, 565, 129 S.Ct. 1187, 173 L.Ed.2d 51 (2009).

¶8 Preemption may be express or implied. Id. This case is about implied conflict preemption, which has two forms: (1) impossibility preemption and (2) obstacle preemption. Geier v. Am. Honda Motor Co. , 529 U.S. 861, 899, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000). Relevant here is the second form, which preempts state law that "stands as an obstacle to the accomplishment and execution of the full purposes and objectives" of a federal law or regulation. Williamson v. Mazda Motor of Am., Inc. , 562 U.S. 323, 330, 131 S.Ct. 1131, 179 L.Ed.2d 75 (2011) (quoting Hines v. Davidowitz , 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941) ).

¶9 A federal agency may trigger implied obstacle preemption when it refuses to adopt a specific equipment standard in furtherance of a federal regulatory objective, thus deliberately leaving manufacturers with equipment alternatives. Geier , 529 U.S. at 881, 886, 120 S.Ct. 1913. At issue in Geier was the preemptive effect of Federal Motor Vehicle Safety Standard 208 ("FMVSS 208"), where the Department of Transportation ("DOT") rejected a requirement that all vehicle manufacturers install airbags as standard equipment, and instead left manufacturers the ability to choose from a diverse menu of passive restraint devices. Id. at 874-75, 879, 120 S.Ct. 1913. A motorist sued Honda under state tort law for "negligently and defectively" designing her 1987 Honda Accord "because it lacked a driver's side airbag." Id. at 865, 120 S.Ct. 1913. Honda argued the claim was preempted because it conflicted with the federal objectives set forth in FMVSS 208. Id. at 894, 120 S.Ct. 1913.

¶10 The Court first discerned the federal purposes and objectives at issue based on "the regulation [and] its history," DOT's "explanation of its objectives," and its "current views of the regulation's pre-emptive effect." Williamson , 562 U.S. at 330, 131 S.Ct. 1131 (discussing Geier , 529 U.S. at 875-81, 120 S.Ct. 1913 ). The regulation and DOT's explanation of its objectives "made clear that manufacturer choice was an important means for achieving its basic objectives," id. at 331, 131 S.Ct. 1131, and that DOT "deliberately sought variety" in hopes that "a mix of several different passive restraint systems" would lead to the "development of alternative, cheaper, and safer passive restraint systems" and would "lower costs, overcome technical safety problems, encourage technological development, and win widespread consumer acceptance," Geier , 529 U.S. at 875, 878-79, 120 S.Ct. 1913. The Court also heard from DOT, which argued in favor of preemption, informing the Court that FMVSS 208 "embodies the [DOT] Secretary's policy judgment that safety would best be promoted if manufacturers installed alternative protection systems in their fleets rather than one particular system in every car." Id. at 881, 120 S.Ct. 1913.

¶11 In the end, the Court held that the state tort claims were preempted because they stood " 'as an obstacle to the accomplishment and execution of' the important means-related federal objectives" in FMVSS 208. Id. (quoting Hines , 312 U.S. at 67, 61 S.Ct. 399 ). The Court determined that FMVSS 208 reflected "significant considerations," including DOT's policy judgment that "safety would best be promoted if manufacturers" had a "variety and mix" of alternative restraint mechanisms, including airbags, seatbelts and interlock devices. Id. at 876-78, 881, 120 S.Ct. 1913. And the state tort claim at issue would have created "a rule of state tort law imposing" a duty on all car manufacturers "to install airbags rather than other passive restraint systems, such as automatic belts or passive interiors." Id. at 881, 120 S.Ct. 1913.

B. DOT And NHTSA

¶12 Nissan contends NHTSA's denial of rulemaking for AEB standards likewise preempts Dashi's tort claim here. Congress authorized DOT to "prescribe motor vehicle safety standards" and "carry out needed safety research and development" under the National Traffic and Motor Vehicle Safety Act of 1966 ("Safety Act"), Pub. L. No. 89-563, 80 Stat. 718 (1966) (recodified as amended at 49 U.S.C. § 30101 et seq. ). DOT has delegated these duties to NHTSA. 49 C.F.R. § 1.95(a). NHTSA's regulatory mission is to "[s]ave lives, prevent injuries, and reduce economic costs due to road traffic crashes, through education, research, safety standards and enforcement activity." NHTSA's Core Values , National Highway Traffic Safety Administration, www.nhtsa.gov/about-nhtsa/nhtsas-core-values (last visited June 11, 2019).

¶13 The Safety Act contains dueling guidance on the issue of preemption. An express preemption clause directs that "a State may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle or motor vehicle equipment only if the standard is identical to the standard prescribed under this chapter," 49 U.S.C. § 30103(b)(1), while a saving clause states that "[c]ompliance with" a federal safety standard "does not exempt a person from any liability at common law," 49 U.S.C. § 30103(e). The Supreme Court has concluded, however, that "the saving clause does not foreclose or limit the operation of" implied obstacle preemption. Williamson , 562 U.S. at 329, 131 S.Ct. 1131.

¶14 To determine whether Dashi's lawsuit erects an obstacle in DOT and NHTSA's path to "the accomplishment and execution of ... [federal] purposes and objectives," id. at 330, 131 S.Ct. 1131 (quoting Hines , 312 U.S. at 67, 61 S.Ct. 399 ), we must first discern the purposes and objectives at issue. We thus examine the regulatory history, text and commentary, along with NHTSA's explanation of objectives and "current views" on preemption. See id. at 330-36, 131 S.Ct. 1131.

1. Regulatory History And Explanations Of Objectives

¶15 The record reveals DOT's and NHTSA's palpable and enduring interest in the development and deployment of AEB technologies, including FCW and CIB. NHTSA "began a thorough examination of the state of forward-looking advanced braking technologies" in 2010, "analyzing their performance and identifying areas of concern or uncertainty, in an effort to better understand their potential." Advanced Braking Technologies That Rely on Forward-Looking Sensors; Request for Comments , 77 Fed. Reg. 39,561, 39,562 (July 3, 2012). Since then, NHTSA has marshalled enormous amounts of data and information on AEB systems, collaborated with stakeholders and "continue[s] to explore test procedures and [the] effectiveness of these systems and to refine the performance criteria that should be used to assess these systems." Id. ; FMVSS AEB, 82 Fed. Reg. at 8391-94.

¶16 By 2012, NHTSA had concluded that "these technologies show promise for enhancing vehicle safety by helping drivers to avoid crashes or mitigate the severity and effects of crashes," and it "solicited comments on the results of its research thus far to help guide its continued efforts in this area." FMVSS AEB, 82 Fed. Reg. at 8392.

¶17 In recent years, NHTSA has used a diverse regulatory arsenal and assorted non-rulemaking tools to advance and achieve its AEB-related objectives, including to "improve vehicle safety" and "incentivize the installation of [AEB] technologies in a way that allows for continued innovation and technological advancement," while remaining "more responsive to safety issues and more proactive about preventing them." Id. at 8391, 8393-94. NHTSA expects this calibrated approach will "produce benefits substantially similar to those that would eventually result from the rulemaking." Id. at 8394.

¶18 NHTSA has "encouraged" and "incentivize[d]" light-vehicle manufacturers to install AEB technologies and has secured commitments from nearly all light-vehicle manufacturers, "representing more than 99 percent of light motor vehicle sales in the United States," to "voluntarily install[ ] forward crash warning and crash imminent braking" in their vehicles. Id. at 8391.

¶19 NHTSA has frequently issued "guidance documents to promote the development and adoption of safer designs of evolving, complex electronic vehicle safety systems." Id. at 8394 ; see infra ¶¶ 27-32. DOT and NHTSA released detailed policies with "vehicle performance guidance for automated vehicles" in 2016, 2017 and 2018, to accomplish two goals: "First, to make sure that new technologies are developed and deployed safely; and second, to leave room for flexibility and safety innovations." FMVSS AEB, 82 Fed. Reg. at 8394 ; see infra ¶¶ 27-32.

¶20 And beginning in 2011, NHTSA incorporated AEB technologies into the New Car Assessment Program ("NCAP"), a federal government program that tests and scores all new vehicles on safety criteria and publishes the information for consumers. Id. at 8392 ; see also 49 C.F.R. §§ 575.301 - 302. NHTSA has "used NCAP to encourage light vehicle manufacturers to offer, and consumers to demand, levels of crash protection above and beyond those required by the safety standards." FMVSS AEB, 82 Fed. Reg. at 8394.

¶21 Then in 2015, NHTSA announced it would explore and pursue formal AEB requirements for large commercial vehicles, granting a petition for rulemaking to "establish a safety standard to require automatic forward collision avoidance and mitigation systems on certain heavy vehicles." Federal Motor Vehicle Safety Standard; Automatic Emergency Braking , 80 Fed. Reg. 62,487, 62,487 (Oct. 16, 2015). This process continues.

2. The Decision Not To Set Formal AEB Standards

¶22 Nissan's preemption argument emphasizes NHTSA's January 2017 refusal to set formal AEB standards for light-vehicle manufacturers. See FMVSS AEB, 82 Fed. Reg. at 8391. Consumer advocates filed a petition for rulemaking under 49 C.F.R. Part 552 in January 2016, asking NHTSA to "promulgate a safety regulation that will require all light vehicles to utilize three established and proven [AEB] technologies as standard equipment." Petition for Rulemaking: Requesting a Regulation to Require the Use of Automatic Emergency Braking Systems for Passenger Motor Vehicles , at 1 (Jan. 13, 2016). The consumer advocates asserted that "NHTSA ha[d] been studying the AEB technologies since the 1990s" and was "well aware that enhanced automobile safety technologies can prevent or substantially reduce the number of deaths and injuries caused by motor vehicle crashes." Id. at 2-3.

¶23 A year later, NHTSA and DOT denied the petition, refusing to "begin a rulemaking proceeding to mandate that all light vehicles be equipped with three types of automatic emergency braking (AEB) technologies." FMVSS AEB, 82 Fed. Reg. at 8391.

¶24 NHTSA made plain that its refusal to cement AEB standards did not signify a lack of interest. Just the opposite. NHTSA offered a full-throated endorsement of AEB technologies, touting their "important safety benefits" and life-saving "promise" to "prevent human choice or error from causing crashes," and describing them as "vital to automated vehicles." Id. at 8393-94. NHTSA emphasized its steadfast interest in the technologies, explaining it "ha[d] already invested substantial resources and taken significant steps to increase the installation of these technologies" and remained "focused on trying to accelerate the safe development and deployment of highly automated and connected vehicles." Id. at 8393.

¶25 Even so, NHTSA concluded that formal rulemaking was not flexible or responsive enough to achieve NHTSA's objectives. Id. at 8393-94. It stressed that AEB technology continues to "evolv[e] very quickly," and cautioned that formal rules and standard setting "must be undertaken with great care" to encourage and facilitate-rather than strangle or impede-the innovation, technological advancement and "introduction of successively better versions of these technologies." Id. at 8393. To that end, NHTSA described and heralded the success of its current regulatory efforts and non-rulemaking strategies, which it asserted "will lead to the installation of a growing array of AEB technologies in substantially all light vehicles and will foster innovation and competition in this technologically dynamic area." Id. at 8391.

3. Current Views On Preemption

¶26 Our final source is DOT's and NHTSA's express views on implied preemption. We do not have the benefit of an express agency position on this issue, but can glean their positions from the record and their amicus curiae briefs in Williamson .

Federal Automated Vehicle Policies

¶27 In recent federal policy documents on automated vehicles, DOT and NHTSA have delineated a "clear" division of state and federal roles for motor vehicle regulation, including in September 2016, when they stated that "DOT and the Federal Government are responsible for regulating motor vehicles and motor vehicle equipment, and States are responsible for regulating the human driver and most other aspects of motor vehicle operation." U.S. Department of Transportation & National Highway Traffic Safety Administration, Federal Automated Vehicles Policy: Accelerating the Next Revolution in Roadway Safety ("2016 Automated Vehicles Policy "), at 38 (Sept. 2016). DOT "strongly encourage[d] States to allow DOT alone to regulate" the safety design and performance aspects of automated driving systems technology. Id. at 37. As relevant here, DOT said: "The Supreme Court has also found that State laws may be preempted if they stand as an obstacle to the accomplishment and execution of a NHTSA safety standard," even citing Geier in support. Id . at 38.

¶28 DOT reiterated this position in September 2017, drawing a bright line between the role of state and federal governments in regulating automated driving systems. "NHTSA remains responsible for regulating the safety design and performance aspects of motor vehicles and motor vehicle equipment; States continue to be responsible for regulating the human driver and vehicle operations." U.S. Department of Transportation & National Highway Traffic Safety Administration, Automated Driving Systems 2.0: A Vision for Safety ("Automated Driving Systems 2.0 "), at ii (Sept. 2017).

¶29 DOT responded to concerns raised by state governments that sought confirmation of NHTSA's authority and "reassurance that the Federal Government has tools to keep their roadways safe." Id. at 3. DOT emphasized that "NHTSA has broad enforcement authority to address existing and new automotive technologies and equipment," and the "enforcement authority concerning safety-related defects in motor vehicles and motor vehicle equipment extends and applies equally to current and emerging [automated driving systems]." Id. DOT reminded the public that NHTSA is "commanded by Congress to protect the safety of the driving public against unreasonable risks of harm that may arise because of the design, construction, or performance of a motor vehicle or motor vehicle equipment, and to mitigate risks of harm, including risks that may arise in connection with [automated driving systems]." Id.

¶30 DOT confirmed the 2016 and 2017 guidance in October 2018, restating that NHTSA has "broad authority over the safety of ... automated vehicle technologies equipped in motor vehicles," while advising that its authority extends to "establish[ing] Federal safety standards for new motor vehicles introduced into interstate commerce in the United States, and to address[ing] safety defects determined to exist in motor vehicles or motor vehicle equipment used in the United States." U.S. Department of Transportation, Preparing for the Future of Transportation: Automated Vehicles 3.0 ("Automated Vehicles 3.0 "), at 6 (Oct. 2018). And DOT again cited Geier , explaining that compliance with federal safety standards will not protect manufacturers from "tort liability for harm caused by negligent conduct," but "[t]he Federal standard would supersede if the effect of a State law tort claim would be to impose a performance standard on a motor vehicle or equipment manufacturer that is inconsistent with the Federal standard." Id.

¶31 Meanwhile, DOT warned that "[c]onflicting State and local laws and regulations surrounding automated vehicles [can] create confusion, introduce barriers, and present compliance challenges," id. at v, and acknowledged that NHTSA's equipment safety standards are "likely to raise questions about preemption and the future complementary mix of Federal, State and local powers," id. at 6. DOT described a balancing approach to these issues. "The Department will carefully consider these jurisdictional questions as NHTSA develops its regulatory approach to [automated driving system] and other automated vehicle technologies so as to strike the appropriate balance between the Federal Government's use of its authorities to regulate the safe design and operational performance of an [automated driving system]-equipped vehicle and the State and local authorities' use of their traditional powers." Id.

¶32 Dashi argues that the guidance documents only address "highly automated vehicles," such as "a Tesla," and are "irrelevant" to AEB systems, which she describes as the "lowest level" of automated technology. But the 2016 policy document instructs that its guidance "should generally apply to the full spectrum of automated vehicle systems," including "lower levels of automated vehicle systems," clarifying that manufacturers of lower levels of automation "should apply elements of this Guidance during product development, testing and deployment." 2016 Automated Vehicles Policy at 9-10, 31. The 2018 policy document likewise explains that DOT and NHTSA "consider[ ] automation broadly, addressing all levels of automation." Automated Vehicles 3.0 at vii. And in refusing to set formal AEB standards, NHTSA described AEB technologies as "vital to automated vehicles." FMVSS AEB, 82 Fed. Reg. at 8393-94.

DOT And NHTSA Amicus Briefs

¶33 Also instructive are DOT and NHTSA's amicus curiae briefs on the obstacle preemption issue in Williamson v. Mazda Motor of America, Inc. , 562 U.S. 323, 131 S.Ct. 1131, 179 L.Ed.2d 75 (2011). The briefs stress the importance of whether the federal agency has deliberately preserved a manufacturer's choices to accomplish an important end or merely set a minimum safety standard, leaving manufacturers with the option to exceed the bare minimum of compliance. As regards the former, the federal government has "consistently" rejected preemption where any "purported 'option' ... [is] simply the byproduct of NHTSA's setting of a minimum standard," U.S. Amicus Brief II at 18-19, emphasizing that "[m]anufacturers always have the 'option' of exceeding a minimum safety standard when NHTSA has decided to permit, not to mandate, a more stringent alternative because of considerations of cost or feasibility," U.S. Amicus Brief I at 15.

C. Discerning The Federal Purposes And Objectives

¶34 The record shows that DOT and NHTSA are intensely interested in AEB technologies, having announced and pursued research and important regulatory objectives to encourage and expedite the innovation and deployment of safe and effective AEB systems.

¶35 We are persuaded by NHTSA's own words and commentary, its deliberate actions and accomplishments, its historical and current focus, and its informed refusal to set formal AEB standards at this moment. NHTSA has deliberately crafted and carefully calibrated a framework to achieve its objectives, using various non-rulemaking tools to achieve real success. NHTSA has pursued extensive negotiations with all light-vehicle manufacturers, issued formal guidance and worked to educate consumers about the importance of AEB systems. These calculated and meaningful efforts of federal regulators confirm NHTSA's longstanding, apparent interest in AEB technologies, and represent tangible proof of its overt, concrete goals to expand the universe of AEB-equipped vehicles and maximize the effectiveness of the life-saving technologies.

¶36 We construe NHTSA's refusal to set formal AEB standards as part and parcel of this regulatory approach, reflecting (1) its effort to balance the potential benefits and pitfalls associated with rapidly improving technologies, and (2) its conclusion that safety benefits will arise if manufacturers install alternative AEB systems rather than a singular system for all vehicles. See Hurley v. Motor Coach Indus., Inc. , 222 F.3d 377, 382 (7th Cir. 2000) (preemption turns on whether "the decision to leave options open to bus manufacturers was made with specific policy objectives in mind"); Hernandez-Gomez v. Volkswagen of Am., Inc. , 201 Ariz. 141, 145, 32 P.3d 424, 428 (App. 2001) (finding preemption where NHTSA regulation "gave manufacturers an unfettered choice among ... options" and state law action would eliminate choice and require manufacturers to install a certain option "to avoid common-law liability").

As in Geier , NHTSA's decision reflects a thoughtful conclusion that "manufacturer choice [is] an important means for achieving its basic objectives," and will lead to the development of "alternative, cheaper, and safer" AEB systems. Williamson , 562 U.S. at 331-32, 131 S.Ct. 1131 (quoting Geier , 529 U.S. at 879, 120 S.Ct. 1913 ).

¶37 NHTSA expressly links its refusal to set formal AEB standards to safety concerns, which is important for preemption purposes. NHTSA states that its "non-rulemaking tools" are "help[ing] [it] accomplish two goals," including "to make sure that new technologies are developed and deployed safely," and "to leave room for flexibility and safety innovations." FMVSS AEB, 82 Fed. Reg. at 8394.

¶38 We are also persuaded by NHTSA's decision to move forward and set formal AEB standards for large commercial vehicles. At a minimum, it shows the federal government will cement formal AEB standards when it deems appropriate, based on its expertise and considered judgment.

¶39 Last, DOT and NHTSA have stressed their "broad enforcement authority to address existing and new automotive technologies and equipment," 2016 Automated Vehicles Policy at 46, and emphasized preemption principles in recent guidance on automated vehicles and automated technologies, including AEB systems, even citing Geier . They have reminded the states that Congress "commanded [NHTSA] to protect the safety of the driving public against unreasonable risks of harm that may occur because of the design, construction, or performance of a motor vehicle or motor vehicle equipment." Id.

D. Dashi's Common-Law Tort Claims Are Preempted

¶40 Turning to Dashi's tort claims, we must decide whether they would represent an obstacle to NHTSA's achievement of a significant regulatory objective. We conclude they would.

¶41 NHTSA has concluded there is room for improvement in automatic emergency braking system technologies before the federal government settles on a definitive formal standard. NHTSA declined to adopt formal AEB standards because it determined that driver safety-its core mission-is best served if NHTSA has regulatory space to use non-rulemaking tools rather than prematurely cement a definitive AEB standard, and manufacturers have regulatory space to choose between alternative AEB systems. To that end, the record reflects a careful regulatory balance, where NHTSA accelerates the safe development and deployment of AEB systems in light vehicles, and encourages manufacturers to improve the safety and effectiveness of existing AEB technology, while preserving the regulatory agility to react and pivot as technology and circumstances warrant.

¶42 If successful, Dashi's design-defect and negligence claims would impose a duty on manufacturers whose vehicles drive in or through Arizona to install FCW and CIB systems or face liability from Arizona juries for making and peddling uncrashworthy vehicles. Dashi's claims would frustrate NHTSA's federal regulatory objectives by thrusting a jury-imposed AEB standard on Nissan inside Arizona's borders. The claims would disrupt NHTSA's careful balance, diminish its non-traditional efforts, compromise its ultimate safety goals, muzzle innovation and competition in this evolving space, and strip the federal government of leverage in NHTSA's ongoing negotiation efforts. Cf. Crosby v. Nat'l Foreign Trade Council , 530 U.S. 363, 377, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000) ("Quite simply, if the Massachusetts law is enforceable the President has less to offer and less economic and diplomatic leverage as a consequence .... [T]he state Act reduces the value of the [bargaining] chips created by the federal statute. It thus 'stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.' ") (quoting Hines , 312 U.S. at 67, 61 S.Ct. 399 ).

¶43 Moreover, an Arizona-specific AEB standard might spawn a patchwork quilt of liability exposure, where a single AEB-unequipped vehicle on an interstate road-trip oscillates between crashworthy and possibly uncrashworthy as it navigates from one state to the next. As a practical matter, then, all manufacturers would immediately need to install FCW and CIB systems in their light vehicles.

¶44 At a minimum, the proliferation of state-specific AEB tort standards would pressure NHTSA to act, forcing its hand to pick a dispositive AEB standard before it is prepared to do so. Dashi's state tort claims are preempted.

E. Dashi's Counterarguments

¶45 Dashi asserts several arguments to defeat implied preemption. We examine each in turn.

1. Geier Applies Here

¶46 Dashi first argues Geier "does not apply here" because it involved nascent technology while, by contrast, AEB technologies were technologically "mature" in the mid-90's and presumably had no room for innovation. But the record provides otherwise. To begin, in refusing to set formal AEB standards, NHTSA described AEB equipment as a "technologically dynamic area," using the word "innovation" four separate times. Indeed, NHTSA refused to cement a singular standard at this moment because the technology continues to evolve, and it feared "inadvertently stymieing innovation and stalling the development and introduction of successively better versions of these technologies." FMVSS AEB, 82 Fed. Reg. at 8393-94.

¶47 Dashi also contends that Geier is "distinctly different" because it involved "an actual rule, as required by the Act," rather than a denial of rulemaking. But implied conflict preemption turns on NHTSA's policy objectives, whether articulated in guidance documents or formal legislation. See Williamson , 562 U.S. at 330, 131 S.Ct. 1131. The Supreme Court has not limited obstacle preemption analysis to formal rules and regulations. To the contrary, Geier clarified that implied preemption does not require a "specific expression of agency intent to pre-empt, made after notice-and-comment rulemaking." 529 U.S. at 885, 120 S.Ct. 1913. What is more, the decision itself examined more than formal rules or legislation, including DOT's administrative comments, much to the dissent's chagrin. Id. at 887, 120 S.Ct. 1913.

¶48 Dashi's argument also misconstrues a denial of rulemaking petition as inconsequential, but these denials are reviewable in federal court, Pub. Citizen, Inc. v. Nat'l Highway Traffic Safety Admin. , 489 F.3d 1279, 1287 (D.C. Cir. 2007) (judicial review of NHTSA's denial of a petition for rulemaking begins in district court), and often represent, like here, the functional equivalent of an affirmative safety-motivated rule.

¶49 In sum, we reject the argument that informal efforts short of federal statutes or formal regulations are not enough to trigger obstacle preemption. Preemption is appropriate to ensure NHTSA can continue its flexible and responsive approach regarding AEB technologies without interference from state law tort actions.

2. Neither Sprietsma Nor Williamson Defeat Preemption

¶50 Dashi next argues that preemption does not apply here under Sprietsma v. Mercury Marine , 537 U.S. 51, 123 S.Ct. 518, 154 L.Ed.2d 466 (2002), and Williamson v. Mazda Motor of America, Inc. , 562 U.S. 323, 131 S.Ct. 1131, 179 L.Ed.2d 75 (2011). We disagree.

¶51 Sprietsma harms rather than helps Dashi's cause. It confirms that implied obstacle preemption turns on deliberate federal inaction, and instructs the courts to focus on why a federal agency decided not to constrain the choices of manufacturers. The plaintiff sued a boat manufacturer in state court for failing to install propeller guards, and the manufacturer moved to dismiss under implied obstacle preemption because the U.S. Coast Guard had decided not to regulate propeller guards, leaving the manufacturers to choose design options for themselves. Sprietsma , 537 U.S. at 54-55, 123 S.Ct. 518. The Supreme Court rejected preemption, however, because the Coast Guard was not motivated by concrete regulatory aspirations and "nothing in its official explanation would be inconsistent with a tort verdict premised on a jury's finding that some type of propeller guard should have been installed on this particular kind of boat." Id. at 67, 123 S.Ct. 518. Instead, the Coast Guard had simply decided that propeller guard regulations were unnecessary and unwarranted based on "available [accident] data" and the "stringent" requirements for federal regulation, along with cost concerns and uncertainties about a "universally acceptable" solution. Id. at 66-67, 123 S.Ct. 518.

¶52 Most important, the Sprietsma Court recognized the "sharp contrast" to Geier , where NHTSA's refusal to regulate was driven by a "policy judgment that safety would best be promoted if manufacturers installed alternative protection systems in their fleets rather than one particular system in every car." Id. at 68, 123 S.Ct. 518 (quoting Geier , 529 U.S. at 881, 120 S.Ct. 1913 ).

¶53 So too here. NHTSA has abjured formal AEB standards at this time because it is convinced the technology is a game-changer for vehicle safety and wants to ensure that manufacturers have the breathing room to innovate until they get it right.

¶54 The same is true under Williamson , which only confirms that implied obstacle preemption requires a link between the federal "regulatory objective and the need for manufacturer choice to achieve that objective." Williamson , 562 U.S. at 338, 131 S.Ct. 1131 (J. Sotomayor, concurring). The plaintiffs there pressed tort claims against Mazda in state court for equipping a minivan's rear non-outboard seats with simple lap belts instead of lap-and-shoulder belts, and Mazda moved to dismiss based on implied obstacle preemption because NHTSA had authorized manufacturers to equip those seats with either simple lap belts or lap-and-shoulder belts. See id. The Supreme Court found no preemption because NHTSA had not deliberately preserved a choice for vehicle manufacturers under some grand design to advance significant federal policy objectives. Id. at 336, 131 S.Ct. 1131. Instead, in NHTSA's words, the relevant regulation had "simply set a minimum standard of [lap] seatbelts for rear inboard and aisle seats, based on its assessment at the time of technical feasibility and cost-benefit analyses." U.S. Amicus Brief I at 14-15. As such, any choice left to manufacturers was merely a byproduct of NHTSA's minimum seatbelt standard, which necessarily left a choice for manufacturers to install the safer and more expensive option. Williamson , 562 U.S. at 335-36, 131 S.Ct. 1131.

¶55 At the same time, the Williamson Court reaffirmed Geier and distinguished between NHTSA's regulatory actions in Williamson and Geier . Id. at 330, 131 S.Ct. 1131 ("At the heart of Geier lies our determination that giving auto manufacturers a choice among different kinds of passive restraint devices was a significant objective of the federal regulation."). In particular and unlike in Geier , NHTSA had not preserved a choice for manufacturers in Williamson to select between two old-fashioned seatbelt options to "ensur[e] a mix of devices," id. at 333, 131 S.Ct. 1131, "lead[ing] to better information about the devices' comparative effectiveness and to the eventual development of 'alternative, cheaper, and safer passive restraint systems,' " id. at 331-32, 131 S.Ct. 1131 (quoting Geier , 529 U.S. at 879, 120 S.Ct. 1913 ).

¶56 NHTSA's actions in connection with AEB technology bear no resemblance to its actions in Williamson . NHTSA did not set a minimum AEB standard; indeed, it refused to set any AEB standard. And manufacturers continue to have AEB choices because NHTSA determined that preservation of such choice represented the safest course forward "to make sure that new technologies are developed and deployed safely," and "to leave room for flexibility and safety innovation." FMVSS AEB, 82 Fed. Reg. at 8394.

3. Dashi's Remaining Arguments Are Not Persuasive

¶57 Dashi argues that preemption is inappropriate because it would create "complete immunity from design defect liability to an entire industry," citing Medtronic, Inc. v. Lohr , 518 U.S. 470, 487, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996). But Lohr was decided four years before Geier and 15 years before Williamson . And more broadly, we interpret Geier and Williamson to preempt only state tort claims against manufacturers for their choices relating to alternative safety technologies. Preemption does not, however, extend to tort claims if the device a manufacturer chooses to install does not work as intended. Thus, prospective plaintiffs can sue Nissan for designing and installing defective AEB systems in Nissan vehicles. See, e.g. , King v. Ford Motor Co. , 209 F.3d 886, 892 (6th Cir. 2000) ; 49 U.S.C. § 30103(e) ("Compliance with a motor vehicle safety standard prescribed under this chapter does not exempt a person from liability at common law."); Geier , 529 U.S. at 868, 120 S.Ct. 1913 ("The saving clause assumes that there are some significant number of common-law liability cases to save.").

¶58 And last, Dashi contends that "state regulatory action can only be preemptive if NHTSA has promulgated a standard 'applicable to the same aspect of performance.' " But this language is pulled from the Safety Act's express preemption clause, which is not at issue here, and the Supreme Court has held that "the saving clause does not foreclose or limit the operation of" implied obstacle preemption. Williamson , 562 U.S. at 329, 131 S.Ct. 1131.

CONCLUSION

¶59 We affirm summary judgment for Nissan based on the doctrine of implied obstacle preemption.

      Dashi refers to this technology as "automatic emergency braking," but we use the federal government's term.

      The parties have identified minute entries in four other cases where the superior court has reached different conclusions on the implied preemption issue.

      Passive restraints are safety devices (e.g., airbags or automatic seatbelts) that require no action from vehicle occupants.

      We note that Dashi has taken inconsistent positions on the relevance of these documents, first offering the federal automated vehicle policies as a centerpiece of her argument in the opening brief, but later changing course in her reply brief.

      The Solicitor General filed two amicus curiae briefs in Williamson at the Supreme Court's invitation. Brief for the United States as Amicus Curiae, 2010 WL 1653014 ("U.S. Amicus Brief I") ; Brief for the United States as Amicus Curiae Supporting Petitioners, 2010 WL 4150188 ("U.S. Amicus Brief II"). We take judicial notice of the briefs. Lake v. Memphis Landsmen, LLC , 405 S.W.3d 47, 66 (Tenn. 2013) (attaching "considerable weight" to the federal government's amicus brief in Williamson as "expressing the agency's view" on preemptive effect); MCI Sales & Serv., Inc. v. Hinton , 329 S.W.3d 475, 497, n.21 (Tex. 2010) (same).

      Only months ago, Nissan drivers filed a federal class action lawsuit against Nissan for installing AEB systems in newer models that were ineffective, showing that AEB technologies continue to evolve and were not well established in 2009. See Class Action Complaint, Bashaw v. Nissan N. Am., Inc. et al. , Case No. 3:18-cv-07292-JCS, 2018 WL 6329394 (N.D. Cal. Nov. 30, 2018). We simply note the complaint was filed. See Regan v. First Nat'l Bank , 55 Ariz. 320, 327, 101 P.2d 214 (1940) ("courts [may] take judicial notice of other actions involving similar parties and issues and of the pleadings therein").

      Dashi relies on a 1996 NHTSA report that used "mature" in connection with FCW technology, but her reliance is misplaced. The report never implies the technology is advanced or even purports to reach the issue. The report does, however, say that "collision avoidance systems" are in the "early stage" of development.

      The Coast Guard itself also argued that its decision had no "preemptive effect." Id. at 68, 123 S.Ct. 518.

      DOT, NHTSA and the Solicitor General thus shared their "current view" that the "regulation [did] not pre-empt this tort suit." Id. at 335-36, 131 S.Ct. 1131.

      Dashi also relies on Freightliner Corporation v. Myrick , 514 U.S. 280, 115 S.Ct. 1483, 131 L.Ed.2d 385 (1995), to argue the absence of federal regulation does not justify preemption. But Myrick was decided before Geier and Williamson . And unlike here, the Myrick Court had "no evidence that NHTSA decided that trucks and trailers should be free from all state regulation of stopping distances and vehicle stability." 514 U.S. at 286, 115 S.Ct. 1483.


source: Caselaw Access Project

license: Public Domain

text:
    Chris GRINDLING, Respondent/Petitioner-Appellee, v. STATE of Hawai'i, Petitioner/Respondent-Appellant.
    SCWC-16-0000474
    Supreme Court of Hawai'i.
    JUNE 13, 2019
    Peter A. Hanano for petitioner
   RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

OPINION OF THE COURT BY POLLACK, J.

In this case, Christopher Grindling brought a petition for post-conviction relief contending that the trial court violated his constitutional right to have each element of an offense proven beyond a reasonable doubt, when the court accepted a stipulation to elements of the charged offenses without engaging him in a colloquy to obtain his consent. Grindling also argued that he received ineffective assistance of trial and appellate counsel relating to the trial court's error in accepting the stipulation. The circuit court granted Grindling's petition, concluding that the trial court's failure to conduct a colloquy with Grindling was plain error and that Grindling had received ineffective assistance both at trial and on appeal.

On appeal, the Intermediate Court of Appeals (ICA) held that plain error review was improper in a post-conviction proceeding. The ICA vacated the circuit court decision and remanded the case to afford Grindling's trial and appellate counsel an opportunity to address the ineffective assistance claims.

On review, we reaffirm that it is the duty of the trial court to conduct a colloquy with the defendant to obtain a knowing and voluntary waiver of the constitutional right to have each element of the charged offenses proven beyond a reasonable doubt; therefore, a court's failure to comply with this duty is not grounds for finding ineffective assistance of trial counsel. We further hold that plain error review applies to post-conviction proceedings, and the circuit court correctly noticed plain error in this case. We therefore vacate the ICA's judgment on appeal and affirm the circuit court decision on this ground.

I. FACTS AND PROCEDURAL HISTORY

A. Background

After law enforcement recovered suspected methamphetamine and drug paraphernalia from his residence and vehicle while executing two search warrants, Christopher Grindling was charged on August 31, 2007 with promoting a dangerous drug in the third degree in violation of § 712-1243(1) (1993) of the Hawaii Revised Statutes (HRS) and prohibited acts related to drug paraphernalia in violation of HRS § 329-43.5(a) (1993).

In September 2007, Grindling appeared for arraignment in the Circuit Court of the Second Circuit (trial court or circuit court as specified ) and entered pleas of not guilty. In the months that followed, Grindling filed numerous pro se motions, including a motion to dismiss his counsel, Cary Virtue, Esq., which was denied, and a subsequent motion to waive counsel.

At a hearing in March 2008, Grindling clarified that he did not really want to waive counsel but did not wish to be represented by Virtue. After the court determined that Grindling had not made a showing that justified appointing replacement counsel, the trial court granted Grindling's motion to waive counsel and appointed Virtue as standby counsel. At a later hearing, the court reconsidered its determination, discharged Virtue, and appointed substitute counsel. In June 2008, substitute counsel moved to withdraw, and the trial court appointed Steven Songstad, Esq., as counsel and indicated that Songstad would be Grindling's last court-appointed counsel.

Jury trial commenced on August 4, 2008. During trial, the State informed the court that the parties had entered into a stipulation establishing the chain of custody and receipt into evidence of four packets and a pipe recovered in the search of Grindling's residence and vehicle, and that the results of chemical testing of the packets' contents and the pipe residue identified the presence of methamphetamine. The trial court did not address Grindling regarding the stipulation, and the State read the stipulation to the jury.

The jury convicted Grindling on both charges, and the court sentenced Grindling to five years in prison on each count, with the terms to run consecutively (judgment of conviction). Grindling was also required to pay a $ 105 Crime Victim Compensation fee in each count.

B. Appeal

Cynthia Kagiwada, Esq., replaced Songstad as Grindling's counsel on appeal after Songstad moved to withdraw as counsel. After the filing of the opening brief in the Intermediate Court of Appeals (ICA), Grindling filed a pro se pleading entitled "Ex Parte Objection to Court Appointed Counsel," and later, a supplement to the opening brief. Neither the opening brief nor Grindling's supplement to the opening brief raised any points of error concerning the trial court's acceptance of the evidentiary stipulation.

Thereafter, the ICA granted a motion by Kagiwada to remand the case to the trial court for consideration of a motion to withdraw as counsel. During the remand hearing, the trial court allowed Kagiwada to withdraw from representing Grindling. The court then entered into a discussion with Grindling regarding his lack of counsel. Grindling stated that he wanted a lawyer but expressed his frustration with his previous court-appointed attorneys. This led to the following exchange:

THE COURT: All right. Well, what do you want to do about a lawyer, you gonna represent yourself or what?
THE DEFENDANT: I want an attorney, but I don't want [ ] another one that does nothing, therefore I have no choice but to represent myself.
THE COURT: That's-if you-
THE DEFENDANT: I am forced into it due [to] the fact that these attorneys don't want to do anything.
....
THE COURT: ... You know, we've had these discussions several times about what a bad idea that is; you remember all that?
THE DEFENDANT: And yeah, and I agree with you. It is a bad idea, but I am forced into it. ...
....
THE COURT: I just want to know quite clearly that you-you want to represent yourself. If that is what you want to do, then that's fine. I just want to make sure that you are clear about that.
THE DEFENDANT: Yeah. I-I-I-we are clear about that. Like I said, I-I have no choice. ...

The trial court at this point determined Grindling had waived his right to appointed counsel "based on [his] collective behavior with [his] five previous counsel" and that he would represent himself on appeal.

On March 19, 2010, the ICA issued a Summary Disposition Order (SDO) in which it determined that the trial court should have held an evidentiary hearing to establish Grindling's objections on the record to ascertain the bases for his request for replacement of Virtue as his trial counsel. The ICA also concluded that although Grindling moved to waive his right to counsel, "he really wanted substitute counsel." The ICA found, however, that these errors were harmless beyond a reasonable doubt because Grindling was without counsel for only about one week, approximately four months before trial began.

Accordingly, the ICA affirmed the judgment of conviction.

C. HRPP Rule 40 Proceedings

On April 4, 2012, Grindling filed a "Petition to Vacate, Set Aside, or Correct Judgment or to Release Petitioner From Custody" (Petition ) in the circuit court pursuant to Hawai'i Rules of Penal Procedure (HRPP) Rule 40, alleging that he had not been given access to correctional programs, which resulted in his being denied parole. Grindling later filed amendments to the Petition in May 2012, alleging eight grounds. The circuit court issued an order, finding that Grindling's Petition raised potentially colorable claims that had not been waived or previously ruled upon with regard to, inter alia, his assertions of ineffective assistance of appellate counsel and denial of counsel on appeal.

In 2016, Grindling, now represented by counsel, filed a motion to supplement the Petition, which the circuit court granted. The supplemental ground asserted that Grindling's state and federal constitutional rights to a fair trial were violated when the circuit court, prior to accepting the stipulation, failed to conduct an on-the-record colloquy with him regarding his waiver of the right to proof of an element of a charge. Grindling also contended that that his federal and state constitutional rights to effective assistance of trial and appellate counsel were violated by his trial counsel's inaction and appellate counsel's failure to raise the trial court's error on appeal.

In response to the claims raised in the supplemental ground, the State argued that Grindling waived these claims when he represented himself pro se on direct appeal, engaged in conduct that demonstrated his desire to reject counsel, and failed to raise the issue in a separate HRPP Rule 40 petition that he had filed in 2015 (2015 Petition), which had been assigned to a different circuit court judge and denied.

At a hearing held on the Petition, the State conceded that the trial court erred when it did not enter into a colloquy with Grindling with regard to the stipulation, but the State argued that the trial court's omission was not plain error. The circuit court disagreed, finding that the stipulation "established proof of an element to the offenses charged, i.e. the presence of methamphetamine," and concluding that the trial court's failure to conduct the colloquy was plain error. In addition, the circuit court found that Grindling was denied his constitutional right to the effective assistance of trial counsel when Songstad did not request a colloquy or object to the trial court's omission, as well as his constitutional right to the effective assistance of appellate counsel when Kagiwada failed to raise the trial court's error on appeal. On June 14, 2016, the circuit court issued "Findings of Fact, Conclusions of Law, and Order Granting Supplemental Ground to Petition to Vacate, Set Aside, or Correct Judgment or to Release Petitioner from Custody" (Order Granting Petition) and ordered that a new trial be held. The State timely appealed.

D. ICA Proceedings

Before the ICA, the State argued that Grindling could have raised the supplemental claims on direct appeal or in the 2015 Petition and thus those claims were waived. The State also contended that Grindling should be judicially estopped from raising a claim based on ineffective assistance of appellate counsel because he represented himself on direct appeal and that the circuit court applied the wrong standard with respect to Grindling's ineffective assistance of counsel claims.

The ICA issued an SDO on April 5, 2018. The ICA held that the circuit court did not err in ruling that there was no waiver of Grindling's supplemental claims, pointing to the circuit court's unchallenged finding that Grindling "has consistently requested the assistance of counsel" through all stages of this case. However, the ICA concluded that the "circuit court's application of a plain error standard of review to Grindling's collateral attack on his conviction was improper." Quoting United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982), the ICA noted that there is a "well-settled principle that to obtain collateral relief a prisoner must clear a significantly higher hurdle than would exist on direct appeal," and held that the circuit court therefore should only have applied the standard for ineffective assistance of trial and appellate counsel. (Quoting 456 U.S. at 164-66, 102 S.Ct. 1584.)

The ICA thus ruled that the circuit court erred by applying a plain error standard of review to Grindling's "collateral attack on his convictions" rather than the standard for ineffective assistance of trial and appellate counsel. And, because the record did not indicate that Songstad or Kagiwada had an opportunity to address Grindling's claim that they were constitutionally ineffective as required by HRPP Rule 40(f), the ICA vacated the circuit court's Order Granting Petition and remanded the case to the circuit court for further proceedings.

II. STANDARDS OF REVIEW

We consider a court's conclusions of law regarding a petition for post-conviction relief de novo, including its determination of whether a claim is waived under HRPP Rule 40(a)(3). Fragiao v. State, 95 Hawai'i 9, 15, 18 P.3d 871, 877 (2001). A court's findings of fact in connection with a petition for post-conviction relief are reviewable under the clearly erroneous standard. Wilton v. State, 116 Hawai'i 106, 110 n.7, 170 P.3d 357, 361 n.7 (2007).

III. DISCUSSION

In its application for writ of certiorari, the State contends that the ICA gravely erred when it upheld the circuit court's determination that Grindling did not waive his supplemental claims in the Petition.

A. Grindling Did Not Waive His Right to Counsel by Conduct Because He Was Not Presented with a Clear Choice to Continue with Present Counsel.

Waiver in a HRPP Rule 40 proceeding is governed by HRPP Rule 40(a)(3), which provides that "an issue is waived if the petitioner knowingly and understandingly failed to raise it," when it could have been raised previously, unless the petitioner is able to show the existence of extraordinary circumstances to justify the petitioner's failure to raise the issue. There is a rebuttable presumption that a petitioner's failure to appeal a ruling or to raise a potential issue in a prior proceeding is a knowing and understanding failure. HRPP Rule 40(a)(3).

The State argues that both the circuit court and the ICA erred in concluding that Grindling did not waive his supplemental claims when they were not raised in the supplement to his opening brief on direct appeal. The State points to the trial court's determination on remand that Grindling had waived his right to appellate counsel "based on [his] collective behavior with [his] five previous counsel."

This court has long held that a defendant's waiver of the right to counsel must be voluntarily, knowingly, and intelligently made. See State v. Tarumoto, 62 Haw. 298, 300, 614 P.2d 397, 399 (1980). "[A]lthough a waiver must be knowing and intentional, it 'may be expressed or implied,' meaning 'it may be established by express statement or agreement, or by acts and conduct from which an intention to waive may be reasonably inferred.' " In re Contested Case Hearing on Water Use Permit Application Originally Filed by Kukui (Molokai), Inc., 143 Hawai'i 434, 441, 431 P.3d 807, 814 (2018), (quoting Coon v. City & Cty. of Honolulu, 98 Hawai'i 233, 261, 47 P.3d 348, 376 (2002) ). With regard to a waiver of the right to counsel by conduct, a "[w]aiver may be shown by conduct of an unequivocal nature." Tarumoto, 62 Haw. at 300, 614 P.2d at 399.

In State v. Char, the ICA considered the circumstances under which a defendant may waive the right to counsel by repeatedly rejecting court-appointed representation. 80 Hawai'i 262, 264, 909 P.2d 590, 592 (App. 1995). Upon granting the defendant's fourth request for substitute counsel, the trial court cautioned the defendant that this would be his last court-appointed attorney. Id. at 265, 909 P.2d at 593. Subsequently, the defendant again requested substitute counsel, prompting the court to grant counsel's motion to withdraw and determine that the defendant had waived his right to counsel. Id. The defendant represented himself at trial and, following his conviction, appealed to the ICA, arguing that his right to court-appointed counsel had been violated. Id. at 264-66, 909 P.2d at 592-94.

The ICA held that to determine whether a defendant had validly waived his right to counsel by conduct, six-factors had to be satisfied:

(1) the defendant requested a substitute court-appointed counsel; (2) the defendant was afforded a reasonable opportunity to show good cause for a substitute court-appointed counsel; (3) the trial court did not abuse its discretion when it decided that a substitute court-appointed counsel was not warranted; (4) the requirements of State v. Dickson, 4 Haw. App. 614, 619-20, 673 P.2d 1036, 1041 (1983)[ ], were satisfied; (5) the defendant was given a clear choice of either continuing with present counsel or being deemed to have waived by conduct his or her right to counsel; and (6) the defendant refused to continue with present counsel.

Id. at 268-69, 909 P.2d at 596-97 (internal references omitted). The ICA concluded in Char that the lower court's failure to give the defendant a reasonable opportunity to show good cause for a substitute court-appointed counsel was sufficient to find that the defendant had not validly waived his right to counsel through his conduct. Id. The ICA thus vacated the defendant's conviction and ordered a new trial. Id. at 269, 909 P.2d at 597.

Factor (5) of the Char framework requires that the court give the defendant a "clear choice" of either (1) continuing with present counsel or (2) being deemed to have waived the right to counsel by conduct. In this case, the trial court allowed Kagiwada to withdraw as appellate counsel before addressing Grindling about what "he was going to do about a lawyer," ultimately concluding that Grindling wanted to represent himself and that he had waived counsel by his "collective behavior with [his] five previous counsel." Because the trial court allowed Kagiwada to withdraw as counsel before addressing Grindling, he was not given a "clear choice" between continuing with his present counsel or being deemed to have waived by conduct his right to counsel as required by factor (5) of the Char framework.

Further, the record does not establish that Grindling unequivocally waived his right to counsel. During Grindling's interaction with the trial court on remand, Grindling expressly stated that he still wanted a lawyer but that he had no choice but to represent himself. He agreed that it was a bad idea to represent himself but that he was "forced into it." When asked to clarify whether he wanted to represent himself, Grindling again stated that he "ha[d] no choice."

Grindling's conduct did not constitute a valid waiver of his right to appellate counsel, and he was thus denied his right to counsel on appeal. Grindling therefore could not "knowingly and understandably fail[ ] to raise" the circuit court's failure to engage him in the required Murray colloquy or the claim of ineffective assistance of trial counsel on direct appeal.

B. The Merits of Grindling's Ineffective Assistance of Trial Counsel Claim.

The circuit court concluded that Grindling was denied his constitutional right to the effective assistance of trial counsel when his counsel did not request an on-the-record colloquy by the trial court and did not object to the trial court's failure to conduct a colloquy before the stipulation to elements of the charged offenses was accepted. In addressing the State's challenge to this ruling, the ICA concluded that it did not appear that Songstad had an opportunity to address Grindling's claim of ineffective assistance of counsel at the hearing on the Petition and remanded the case to the circuit court to afford such an opportunity.

To demonstrate that trial counsel is constitutionally ineffective, a defendant must demonstrate "1) that there were specific errors or omissions reflecting counsel's lack of skill, judgment, or diligence; and 2) that such errors or omissions resulted in either the withdrawal or substantial impairment of a potentially meritorious defense." State v. Silva, 75 Hawai'i 419, 440, 864 P.2d 583, 593 (1993) (quoting State v. Aplaca, 74 Haw. 54, 66-67, 837 P.2d 1298, 1305 (1992) ). Thus, to succeed on the claim of ineffective assistance of trial counsel, Grindling is initially required to show that Songstad's failure to bring the colloquy requirement to the trial court's attention was an omission reflecting a lack of skill, judgment, or diligence.

Our precedents make clear, however, that it is the duty of the trial court to conduct a colloquy to ensure a defendant's waiver of a fundamental right is undertaken knowingly, intelligently, and voluntarily-and not that of defense counsel. In State v. Murray-which set forth the mandatory colloquy requirement to a defendant's stipulation to an element of a charged offense-we stated that

a knowing and voluntary waiver of a defendant's fundamental right must come directly from the defendant, and requires the court to engage in a colloquy with the defendant....
....
Tachibana determined that the trial court must engage in an on-the-record colloquy to ensure that the defendant knowingly and voluntarily waived his constitutional right ....

116 Hawai'i 3, 11, 169 P.3d 955, 963 (2007) (emphases added) (citing State v. Ibuos, 75 Hawai'i 118, 121, 857 P.2d 576, 578 (1993) ; Tachibana v. State, 79 Hawai'i 226, 235, 900 P.2d 1293, 1302 (1995) ). Similarly, in State v. Ui, we noted that "it is necessary for a trial court to engage a defendant in an on-the-record colloquy before accepting a waiver of any of the rights we have held to be fundamental." 142 Hawai'i 287, 293, 418 P.3d 628, 634 (2018).

The failure of defense counsel to realize that a court neglected to fulfill its constitutional duty to conduct a colloquy as to a stipulation to an element of a charged offense, or to take action to correct the court's oversight, or to request a colloquy as a matter of due course are not omissions reflecting counsel's lack of skill, judgment, or diligence. We thus need not consider whether any such omission by the defense counsel would result in the withdrawal or substantial impairment of a potentially meritorious defense.

In sum, a trial court's constitutional duty to engage the defendant in a colloquy prior to accepting a stipulation to an element of a charged offense does not devolve upon defense counsel when the court does not fulfill its responsibility. Accordingly, Grindling's claim for relief based on the ineffectiveness of trial counsel is without merit. Thus, the ICA erred in remanding the case to the circuit court to allow Songstad an opportunity to address Grindling's claim of ineffective assistance of trial counsel.

C. The Availability of Plain Error on Collateral Review.

The ICA held that the HRPP Rule 52(b) plain error standard is unavailable on collateral review, citing United States v. Frady, 456 U.S. 152, 164-66, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). In Frady, the U.S. Supreme Court considered the application of the Federal Rules of Criminal Procedure (FRCP) Rule 52(b) -which authorizes federal courts to notice plain error in criminal proceedings-in a collateral review proceeding authorized by a federal statute, 28 U.S.C. § 2255. 456 U.S. at 163-64, 102 S.Ct. 1584. The section 2255 proceeding was not directly governed by the FRCP, but rather by the section 2255 Rules, a set of federal procedural rules promulgated for that specific purpose. See id. at 166 n.15, 102 S.Ct. 1584. The Court reasoned that FRCP Rule 52(b) plain error review was not available in a section 2255 proceeding because under its precedents there existed a "well-settled principle that to obtain collateral relief a prisoner must clear a significantly higher hurdle than would exist on direct appeal." Id. at 166, 102 S.Ct. 1584. Instead, a petitioner was required to meet the "cause and actual prejudice" standard to obtain relief in a section 2255 proceeding based on an unobjected-to error, which requires a showing of "both (1) 'cause' excusing [the] double procedural default, and (2) 'actual prejudice' resulting from the errors of which he [or she] complains." Id. at 167, 102 S.Ct. 1584.

Relying on Frady, the ICA in this case held that the supplemental claims should be governed exclusively by the standards for ineffective assistance of trial and appellate counsel and not the HRPP Rule 52(b) plain error standard. This analysis is flawed for several reasons.

First, unlike in Frady, the collateral review in this case was not authorized by a statute but instead by HRPP Rule 40. This court has not promulgated a separate set of procedural rules for post-conviction proceedings analogous to the section 2255 Rules, and it is self-evident that the HRPP-including HRPP Rule 52(b) -apply in a HRPP Rule 40 proceeding.

Second, the Court's decision in Frady was predicated on the "cause and actual prejudice" standard of review being a "significantly higher hurdle than" the plain error standard of review. Frady, 456 U.S. at 166, 102 S.Ct. 1584. In contrast, the legal standard for identifying ineffective assistance of counsel is not a higher standard of review than plain error-indeed, it is not a standard of review at all. Rather, the test for ineffective assistance is applied in the first instance by a reviewing court. A court considering whether ineffective assistance occurred does not consider the rulings or actions of the trial court but rather the conduct of counsel. And, to the extent the two standards are comparable, plain error represents the "higher hurdle" because it requires a proponent to demonstrate an impairment of "substantial rights." HRPP Rule 52(b). When evaluating a claim for ineffective assistance, we consider "the possible, rather than the probable, effect" of counsel's error and "no showing of 'actual' prejudice is required." Wilton v. State, 116 Hawai'i 106, 119, 170 P.3d 357, 370 (2007) (quoting Briones v. State, 74 Haw. 442, 464, 848 P.2d 966, 977 (1993) ). Thus, the central logic underlying the United States Supreme Court's holding in Frady is inapplicable to the ineffective assistance standard.

Lastly, this court has implicitly rejected Frady repeatedly in the years since it was decided, by considering-and in some instances applying-the plain error standard in the context of collateral review. See, e.g., Raines v. State, 79 Hawai'i 219, 224-25, 900 P.2d 1286, 1291-92 (1995) (applying plain error in a post-conviction proceeding based on incorrect jury instruction); Dan v. State, 76 Hawai'i 423, 429, 879 P.2d 528, 534 (1994) (considering the merits of defendant's plain error argument in a post-conviction proceeding); Briones, 74 Haw. at 460, 467 n.18, 848 P.2d at 975, 978 n.18 (noting the availability of post-conviction plain error review when an error on appeal does not satisfy the standard for ineffective assistance of appellate counsel). The ICA therefore erred in concluding that plain error was not the proper standard of review.

D. The Circuit Court's Plain Error Conclusion Was Correct.

We now turn to whether the circuit court's application of plain error in this case was proper. The relevant inquiry in determining whether a lower court's plain error may be noticed is whether the error affected substantial rights. State v. Hernandez, 143 Hawai'i 501, 512, 431 P.3d 1274, 1285 (2018). As this court made clear in State v. Murray, "[t]he defendant's right to have each element of an offense proven beyond a reasonable doubt is a constitutionally and statutorily protected right." 116 Hawai'i 3, 10, 169 P.3d 955, 962 (2007) (internal references omitted). A knowing and voluntary waiver of such a right must come from the defendant and requires the court to engage in a colloquy with the defendant. Id. at 11, 169 P.3d at 963. "[A] reviewing court has discretion to correct plain error when the error is 'not harmless beyond a reasonable doubt.' " State v. Ui, 142 Hawai'i 287, 297, 418 P.3d 628, 638 (2018) (quoting State v. Nichols, 111 Hawai'i 327, 335, 141 P.3d 974, 982 (2006) ).

Grindling was charged with promoting a dangerous drug in the third degree in violation of HRS § 712-1243(1) and prohibited acts related to drug paraphernalia in violation of HRS § 329-43.5(a). At trial, the court accepted the stipulation establishing the chain of custody of several packets and a pipe received into evidence and the results of chemical testing of the evidence, which found the presence of methamphetamine. As the circuit court correctly found, the stipulation "established proof of an element to the offenses charged, i.e. the presence of methamphetamine." The trial court thus erred by not first conducting an on-the-record colloquy with Grindling to obtain a waiver of his right to have each element of the offenses against him proven beyond a reasonable doubt. See Murray, 116 Hawai'i at 14, 169 P.3d at 966 (holding that the family court committed plain error when it, inter alia, accepted a stipulation without engaging the defendant in a colloquy regarding waiving proof of an element of the charge). Without the results confirming the presence of methamphetamine in this case, the jury could not have found Grindling guilty of the charged crimes and the trial court's error was therefore not harmless. See Ui, 142 Hawai'i at 298, 418 P.3d at 639 (holding that the "erroneously admitted stipulation formed the only basis from which a trier of fact could infer" the defendant's specific blood alcohol content exceeded the legal limit in a prosecution for operating a vehicle under the influence of an intoxicant and concluding that the district court's plain error was not harmless).

The circuit court correctly concluded that the trial court's failure to conduct an on-the-record colloquy with Grindling before accepting the stipulation establishing an element of the charged offenses was plain error. Ui, 142 Hawai'i at 298, 418 P.3d at 639 ; Murray, 116 Hawai'i at 14, 169 P.3d at 966. We thus affirm the circuit court's Order Granting Petition on plain error grounds.

IV. CONCLUSION

Based on the foregoing, we vacate the ICA's May 2, 2018 Judgment on Appeal, vacate that portion of the circuit court's Order Granting Petition as to ineffective assistance of trial and appellate counsel, and otherwise affirm the Order Granting Petition.

      HRS § 712-1243(1) provides in relevant part that "[a] person commits the offense of promoting a dangerous drug in the third degree if the person knowingly possesses any dangerous drug in any amount."

      HRS § 329-43.5(a) stated in relevant part,
      It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of this chapter.

      In this opinion, "trial court" refers to the court that presided over the trial and remand proceedings in Grindling's case, and "circuit court" refers to the court that presided over the post-conviction proceedings.

      The Honorable Shackley F. Raffetto presided over the trial and remand proceedings.

      The State filed an ex parte motion to strike the supplement to opening brief, which the ICA granted over Grindling's opposition.

      Grindling, pro se, filed a motion to effectively reinstate his supplement to the opening Brief, which the ICA granted. The State filed a supplemental answering brief to which Grindling filed a reply.

      The ICA's SDO can be found at State v. Grindling, No. 29307, 122 Hawai'i 352, 2010 WL 1020355 (App. Mar. 19, 2010).

      The Petition was amended and supplemented with additional claims. The term "Petition" refers collectively to these supplemental filings as well.

      HRPP Rule 40(a) provides in relevant part:
      (a) Proceedings and Grounds. The post-conviction proceeding established by this rule shall encompass all common law and statutory procedures for the same purpose, including habeas corpus and coram nobis; provided that the foregoing shall not be construed to limit the availability of remedies in the trial court or on direct appeal. Said proceeding shall be applicable to judgments of conviction and to custody based on judgments of conviction ....
      The Honorable Joseph E. Cardoza presided over the Rule 40 proceedings.

      In May 2014, Grindling filed an amended petition, pro se, in which he raised six grounds, several of which reiterated claims that the circuit court had previously found colorable.

      The ICA's SDO can be found at Grindling v. State, No. CAAP-16-0000474, 142 Hawai'i 154, 2018 WL 1633820 (App. April 5, 2018).

      HRPP Rule 40(f) states in relevant part as follows:
      Where the petition alleges the ineffective assistance of counsel as a ground upon which the requested relief should be granted, the petitioner shall serve written notice of the hearing upon the counsel whose assistance is alleged to have been ineffective and said counsel shall have an opportunity to be heard.

      The State also maintained on appeal that the circuit court erroneously allowed Grindling to re-litigate and obtain discovery, inter alia, on previously ruled upon claims. The ICA did not address the merits of this challenge.

      The State also argues that the circuit court erred when it disregarded its argument regarding Grindling's re-litigation of his discovery claims. The State maintains that upon remand, Grindling will continue to attempt to re-litigate pre-trial discovery issues that have been previously ruled upon. Accordingly, the State requests that this Court provide guidance on this point.

      HRPP Rule 40(a)(3) provides as follows:
      (3) INAPPLICABILITY. Rule 40 proceedings shall not be available and relief thereunder shall not be granted where the issues sought to be raised have been previously ruled upon or were waived. Except for a claim of illegal sentence, an issue is waived if the petitioner knowingly and understandingly failed to raise it and it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or any other proceeding actually conducted, or in a prior proceeding actually initiated under this rule, and the petitioner is unable to prove the existence of extraordinary circumstances to justify the petitioner's failure to raise the issue. There is a rebuttable presumption that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure.

      "Dickson set forth three areas of 'specific waiver inquiry' factors to assist trial courts: (1) the particular facts and circumstances relating to the defendant that indicate the defendant's level of comprehension; (2) the defendant's awareness of the risks of self-representation; and (3) the defendant's awareness of the disadvantages of self-representation." State v. Phua, 135 Hawai'i 504, 512, 353 P.3d 1046, 1054 (2015).

      Because the ICA concluded that factor (2) had not been met, the ICA did not discuss factors (3) through (6). See Char, 80 Hawai'i at 269, 909 P.2d at 597. We do not address whether satisfaction of the six factors identified by the ICA would necessarily result in a valid waiver of counsel.

      As discussed infra, Section III.D, this court held in Murray that "the trial court must conduct a colloquy [with the defendant] regarding waiver of proof of an element of the offense." State v. Murray, 116 Hawai'i 3, 12, 169 P.3d 955, 964 (2007).

      Grindling is therefore also not judicially estopped from claiming ineffective assistance of appellate counsel because of the flawed nature of the purported waiver of counsel. The State alternatively argues that the supplemental claims are waived because Grindling could have raised them in the 2015 Petition. HRPP Rule 40(a)(3) states that claims may be waived if they are not brought "in a prior proceeding actually initiated under this rule." (Emphasis added.) The filing of the Petition predated the filing of the 2015 Petition. Therefore, Grindling's failure to include the supplemental claims in the 2015 Petition did not constitute a waiver under HRRP Rule 40(a)(3).

      Nevertheless, a prosecutor or defense counsel may certainly assist the court by reminding it of the required colloquy or pointing out an omission when it occurs.

      The ICA's SDO also instructed the circuit court to allow Kagiwada the opportunity to address Grindling's claim of ineffective assistance of appellate counsel with regard to the failure to raise the trial court's error on appeal. As discussed infra, the circuit court correctly concluded that the trial court's failure to engage in a colloquy with Grindling was plain error and ordered that Grindling receive a new trial. Because a new trial renders moot Grindling's ineffective assistance of appellate counsel claim, which was based on an appeal of the original trial court decision, we need not address the merits of Grindling's ineffective assistance of appellate counsel claim or the ICA's disposition thereof. See State v. Cordeiro, 99 Hawai'i 390, 428, 56 P.3d 692, 730 (2002) (noting that "a decision on other issues in the appellate court may effectively moot an ineffective assistance claim" (quoting State v. Silva, 75 Haw. 419, 438, 864 P.2d 583, 592 (1993) )). We accordingly vacate the portion of the circuit court's Order Granting Petition as to Grindling's ineffective assistance of appellate counsel claim.

      The circuit court vacated the conviction both on grounds of ineffective assistance of counsel and plain error. We therefore consider whether the court's ruling may be affirmed based upon its alternative plain error ruling. State v. Pacquing, 139 Hawai'i 302, 313 n.19, 389 P.3d 897, 908 n.19 (2016) ("[W]here the decision below is correct it must be affirmed by the appellate court even though the lower tribunal gave the wrong reason for its action.") (quoting State v. Taniguchi, 72 Haw. 235, 239, 815 P.2d 24, 26 (1991) ).

      HRPP Rule 52(b) provides as follows:
      Plain Error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.

      The State requests that this court review the circuit court's orders compelling discovery related to Grindling's Petition. The State does not allege any actual consequences of the discovery order in relation to this case. Rather, the State asks only that this court "provide guidance," essentially requesting an advisory opinion. We decline to do so.