THE APPELLATE RECORD

January 2014

CONGRATULATIONS TO OUR NEW BOARD!

2014 HSBA Appellate Section Board: Chair: Ms. Bethany C.K. Ace Vice Chair: Ms. Mitsuko T. Louie Secretary: Mr. Christopher Goodin Treasurer: Mr. Robert Nakatsuji HSBA CLE Liaison: Ms. Mitsuko T. Louie HAWSCT Liaison: Mr. Matthew Chapman ICA Liaison: Mr. Daniel J. Kunkel

FEATURED ARTICLE:
Our End of Year Luncheon with Speaker ICA Chief Judge Craig Nakamura
By: Bethany C.K. Ace (Section Chair; Damon Key Leong Kupchak Hastert) With Summary of Remarks by ICA Chief Judge Craig Nakamura

On December 13, 2013, the HSBA Appellate and Litigation Sections held a joint annual luncheon at the Pacific Club (thank you, Mr. Matthew Chapman for hosting us!). We elected our new board listed above and thanked our outgoing chair, Ms. Rebecca Copeland, for all of her tireless efforts to make the section what it is today. Thank you to all who came. You made it another well-attended and lively event. It was a great way to end our year! We were fortunate enough to have ICA Chief Judge Craig Nakamura as our guest speaker. Below is a summary of ICA Chief Judge Nakamuras remarks,
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which touched upon the history and current operation of the ICA, changes in ICA practices resulting from recent Hawaii Supreme Court decisions on appellate fees and costs, and practice pointers.

History/Current Operation of the ICA The ICA was created through an amendment to the Hawaii Constitution that was approved by voters in 1978. The ICA, originally consisting of three judges, began operating in April 1980. The Legislature authorized an additional judge in 1992 and two more in 2001, bringing the number of ICA judges to its current total of six. Initially, Hawaiis appellate system used a pass-down model. Appeals were filed with the Hawaii Supreme Court, which would designate certain appeals for assignment to the ICA. However, effective July 1, 2006, the appellate structure was changed to a pass-through model, in which virtually all appeals are filed with, and decided by, the ICA, with the Hawaii Supreme Court exercising discretionary review of the ICAs decisions. Every year approximately 550 to 600 new appeals are docketed with the ICA and an additional 3,000 motions and other requests for relief are filed. While this is a daunting case load, in the past fiscal year, the ICA was able to terminate approximately 40 more appeals than were docketed. The ICA has also been making progress in reducing the number of older cases that are pending.

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Chief Judge Nakamura highlighted recent Hawaii Supreme Court decisions relating to attorneys fees and costs that have had an impact on the ICAs practices: 1. Costs on Appeal. The ICAs prior practice had been to focus on which party prevailed on the issues raised on appeal in awarding appellate costs. However, in the wake of Hawaiian Association of Seventh-Day Adventists v. Wong, 130 Hawaii 36, 305 P.3d 452 (2013), and Mikelson v. United Services Auto. Assn, No. SCWC-12-0000535, 2013 WL 5526334 (Hawaii Oct. 3, 2013), the ICA has issued orders denying requests for appellate costs where the case is remanded and no prevailing party in the underlying litigation has yet been determined. Reviewability of the ICAs attorneys fees and costs orders. The Hawaii Supreme Court recently ruled that an ICA attorneys fees and costs order that was filed after the ICAs judgment on appeal was not reviewable by certiorari. See State v. Schoenlein, No. SCWC-29269 (Hawaii Nov. 14, 2011). To ensure the reviewability of the ICAs attorneys fees and costs orders, the ICA generally has not been filing its judgments on appeal until motions and requests for appellate attorneys fees and costs have been resolved. Tips for Practitioners Chief Judge Nakamura had the following suggestions for practitioners: 1. Compliance with Jenkins. Although Jenkins v. Cades Schutte Fleming & Wright, 76 Hawaii 115, 869 P.2d 1334 (1994), is almost twenty years old, the ICA still dismisses a significant number of appeals due to noncompliance with the standards imposed by Jenkins. Practitioners, especially the party planning to appeal, should make sure that a separate judgment that complies with Jenkins is filed. Generally, this means a separate judgment that addresses every claim, including counterclaims and cross-claims, and every party in the litigation. Citations to the record in briefs. When citing to the Record on Appeal and to transcripts, cite the docket entry number in the Judiciary Electronic Filing and Service System (JEFS) and the PDF page number. The ICA uses JEFS to find record citations in briefs, and citing to the docket entry number and PDF page number provides the most helpful way to locate the citation. For

Recent Hawaii Supreme Court Decisions Affecting ICA practices

2.

2.

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example, citing only to the date of the transcript makes it difficult to locate the transcript, especially where multiple transcripts are filed. In his remarks, Chief Judge Nakamura expressed his deep appreciation and gratitude for the ICA judges and staff. Chief Judge Nakamura said that the ICA is filled with dedicated, talented, and hard-working people who are committed to doing their jobs in the best way possible, serving the community, and advancing the cause of justice. He also said that it was an honor and privilege to work with the people at the ICA and publically thanked them for their devoted service. The HSBA Appellate Section couldnt agree more! Thanks again to Chief Judge Nakamura for speaking at our event and giving us such invaluable tips.

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December 2013 Published Appellate Opinions

By: Rebecca A. Copeland (Law Office of Rebecca A. Copeland, LLC)

In December, the Hawaii Supreme Court issued thirteen published opinions, and the Intermediate Court of Appeals also issued one. Below is a brief synopsis of each: In State v. McKnight, SCWC-28901 (December 31, 2013), the HAWSCT held that extending the computer-use requirement to the act of traveling, as that terms is used in the electronic enticement statute, and to the agreement to meet element, would be absurd, and, thus, not necessary for the state to prove the elements of the crime. The court also held that statements obtained in violation of the defendants constitutional right against self-incrimination were properly suppressed at trial. In State v. Condiamat, SCWC-11-0000540 (December 27, 2013), the HAWSCT held that the complaint that charged the defendant with harassment complied with the constitutional right to due process even though the charge used the word or, and regardless of whether one concludes that the disjunctively charged acts were synonymous or non-synonymous. According to the court, The acts charged disjunctively were contained within a single subsection of a statute and were reasonably related so that the complaint sufficiently apprised the defendant of the nature of the charged acts and allowed the defendant to prepare a defense. In State v. Bailey, SCWC-12-0000396 (December 24, 2013), the HAWSCT held that that proof that any part of an offense occurred on the island of Oahu is sufficient to establish venue in the first judicial circuit, and that the State must prove beyond a reasonable doubt that substantial bodily injury was caused by the defendant in order to disprove the mitigating defense that reduces the offense of Kidnapping from a Class A to a Class B felony because the victim was not suffering from substantial bodily injury when released. In Sierra Club v. Castle & Cook Homes Hawaii, SCWC-11-0000625 (December 23, 2013), the HAWSCT held that that if the Hawaii Senate expressly
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rejects the nomination of a Land Use Commission (LUC) board member for a second term, then the board member is effectively disqualified from continuing to serve on the LUC. In State v. Santiago, SCWC-11-0001078 (December 20, 2013), the HAWSCT held that that a defendant may not be convicted of both robbery in the first degree and assault in the second degree inasmuch as (1) the element of infliction of severe bodily injury is common to both offenses, (2) the jury apparently relied on the same conduct of [the defendant] to satisfy this element for both offenses, (3) the findings incorporated in the verdicts that [the defendant] was reckless in inflicting severe bodily injury for the second degree robbery conviction but acted intentionally or knowingly in engaging in the same conduct for the first degree assault conviction were inconsistent, and, thus, the defendant could not be convicted of both offenses. In Blake v. Cnty. of Kauai Planning Commission, SCWC-11-0000342 (December 19, 2013), the HAWSCT vacated the circuit courts dismissal of claims on ripeness ground, and held that the complaints filed against the County of Kauais Planning Commissions final approval of a subdivision application were ripe because the approval satisfied the requirement of final agency action under the ripeness doctrine. In Pacific Lightnet, Inc. v. Time Warner Telecom, Inc. SCWC-28948 (December 18, 2013), the HAWSCT held that the circuit court erred in applying the doctrine of primary jurisdiction, and in failing to instruct the jury based on the filed-rate doctrine under which a there is no recovery if claims are not filed within 120 days of receipt of billing. In State v. Basnet, SCWC-11-0000762 (December 18, 2013), the HAWSCT held that a family court must arraign a defendant pursuant to Hawaii Rules of Penal Procedure Rule 10(a) within fourteen days of the defendants demand for jury trial. In AOAO of Tropics at Waikele v. Sakuma, SCWC-12-0000870 (December 17, 2013), the HAWSCT held that the deadline to file a notice of appeal does not begin to run from the date on which a post-judgment reconsideration motion is deemed denied because the deemed denial date did not trigger the running of the deadline to file the notice of appeal since there was no entry of an order as required by Hawaii Rules of Appellate Procedure Rule 4(a)(3). In Minton v. Quintal, SCWC-11-0000317 (December 13, 2013), the HAWSCT held that the City and County of Honolulus ban of two stagehands from working in certain City owned facilities because of the two mens involvement in a charitable concert that featured the Citys mayor interfered with their constitutionally
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protected liberty interest, and that the City violated the mens due process rights by instituting the ban without affording the men a hearing. In Kilakila O Haleakala v. Brd. of Land & Natural Resources, SCWC-110000353 (December 13, 2013), the HAWSCT held that even though the agency refused to hold a contested case hearing, an appeal from the Boards decision could still move forward because the formal hearing that was held was sufficient to meet the contested case hearing requirement because it resolved the rights, duties, and privileges of the University of Hawaii related to the conservative district use permit sought by the school. In State v. Kong, SCWC-11-0000393 (December 10, 2013), the HAWSCT held that the circuit court did not abuse its discretion in sentencing the defendant to consecutive terms of imprisonment based on his extensive criminality, the circuit court correctly considered the defendants PSI report, and because the defendant voluntarily and intelligently self-terminated from the Maui Drug Court program, he waived his right to a termination hearing. In Kealoha v. Machado, SCWC-11-0001103 (December 3, 2013), the HAWSCT affirmed the circuit courts dismissal of a complaint filed against the Office of Hawaiian Affairs alleging that the OHA trustees improperly expended trust funds on Hawaiians, as opposed to native Hawaiians as defined by the Hawaiian Homes Commission Act. The Plaintiffs had argued that under the Act, OHA may only expend trust funds solely in the interest of Native Hawaiians. The HAWSCT held that the plaintiffs complaint failed to state a claim. According to the court, the legislative history and treatment of the statute shows that lawmakers did not view the term solely to be significant in describing OHAs expenditures of the pro rata portion of the public land trust. In Slingluff v. State, 30233 (December 31, 2013), the ICA held that physicians employed by the State, including prison doctors, exercising purely medical discretion in the diagnosis and treatment of potentially injured or sick people, are not protected from medical malpractice claims by the doctrine of qualified immunity under Hawaii law.

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Upcoming Events:
February Section Meeting
On Monday, February 3, 2014, from noon to 1:00 p.m. in the HSBA Large Conference Room, the Appellate Section will hold its regular monthly meeting. This is a special presentation co-sponsored by the HSBA Family Law Section and the Hawaii LGBT Law Association. Our presentation will be A Conversation on the Hawaii Marriage Equality Act of 2013 and Its Impacts on Legal Practice in Hawaii. The guest speakers will include Associate Justice (Ret.) Steven H. Levinson, Clyde Wadsworth of Alston Hunt Floyd & Ing and Hawaii LGBT Legal Association, and Steve Hartley of Hartley & McGehee Family Law and the HSBA Family Law Section. The presentation is approved for 1.0 hour of MCPE credit. The event is brown bag with beverages and dessert provided. The deadline to RSVP is Thursday, January 30, 2014 to Chris Goodin at cgoodin@cades.com.

Ninth Circuit Court of Appeals Q&A Session

On Tuesday, February 18, 2014, a panel of the 9th Circuit Court of Appeals has agreed to an informal Q&A session with lawyers regarding the appeals process, briefing, argument, etc. The event is co-sponsored by the Hawaii Chapter of the Federal Bar Association and the HSBA Appellate Section. The event will be in 1132 Bishop Street, Courtroom, Suite 250L (the U.S. Bankruptcy Court). Normal courthouse security screening will be in effect. Please arrive by 11:30 a.m. (for a prompt start of the program at noon) and bring a government-issued photo ID for entry. There is no cost to attend.

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Useful Appellate Links:

The Hawaii Judiciary: www.courts.state.hi.us United District Court for the District of Hawaii: www.hid.uscourts.gov United States Court of Appeals for the Ninth Circuit: www.ca9.uscourts.gov United States Supreme Court: www.supremecourt.gov Hawaii State Bar Association: www.hsba.org

Blogs by our Members:

www.hawaiilitigation.com (by our Member Louise Ing) www.hawaiioceanlaw.com (by our Member Mark M. Murakami) www.hawaiiopinions.blogspot.com (by our Member Ben Lowenthal) www.insurancelawhawaii.com (by our Member Tred R. Eyerly) www.inversecondemnation.com (by our Member Robert H. Thomas) www.hawaiiappellatelaw.com (by our Member Charley Foster) www.recordonappeal.com (by our Member Rebecca A. Copeland)

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Appellate Resources:
HAWAII APPELLATE SECTION WEBSITE: The Appellate Sections website includes useful appellate resources, including handouts from prior monthly meetings, copies of this newsletter, and power point presentations from the Appellate Sections programs at the 2012 and 2013 HSBA Bar Coventions. www.hawaiiappellatesection.org

HAWAII APPELLATE PRACTICE MANUAL: The Hawaii Appellate Practice Manual (2012) includes information for filing appeals in Hawaii, including how to efile documents on the Judiciarys E-Filing System, how to supercede a judgment, and how to brief and argue cases. The manual also includes useful appellate forms. The Manual was co-sponsored by the Appellate Section and the Hawaii State Bar Association, and is available through the HSBA. FEDERAL APPELLATE PRACTICE MANUAL: The Federal Appellate Practice Manual (2013) includes valuable information and insight into practicing appeals in the federal arena, with special emphasis on the United States Supreme Court and United States Court of Appeals for the Ninth Circuit. The Manual was cosponsored by the Appellate Section and the Hawaii State Bar Association, and is available through the HSBA. HAWAII APPELLATE PRACTICE MANUAL SUPPLEMENT: Appellate Motions Practice a supplement to the 2012 Hawaii Appellate Practice Manual, offering insight and practice tips into state appellate motions practice, and including additional forms. The Supplement was co-sponsored by the Appellate Section and the Hawaii State Bar Association, and is available through the HSBA.

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The Appellate Record is presented as a courtesy to the Members of the Hawaii State Bar Associations Appellate Section by its Board. Mahalo and enjoy!

Stay tuned for the next edition of The Appellate Record!

If you are interested in contributing to our newsletter in any way, please contact the Sections Chair Bethany C.K. Ace at bcka@hawaiilawyer.com

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