the appellate record - august 2013

8/22/2019 The Appellate Record - August 2013

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The Appellate Record, August 2013 Page 1

THE APPELLATE RECORD

August 2013

FEATURED ARTICLE:2013 Hawaii Bar Convention Preview!

The Hawaii State Bar Convention will be held this year on Friday,

September 27, 2013, at the Hilton Hawaiian Village. The Appellate Section has an

exciting (whether or not youre an appellate nerd) and informative line-up. As a

follow-up to the Hawaii Appellate Practice Manual published last year by the

Section (in conjunction with the HSBA), this year the Federal Appellate Practice

Manual will be unveiled at the convention. Many of the Sections members, and

experts in their fields, have been working hard to compile a manual thatcompliments the state version by providing information and advice on federal

appellate practice for Hawaii practitioners, with a special emphasis on practice in

the Ninth Circuit Court of Appeals and the United States Supreme Court.

Topics discussed in the Federal Appellate Practice Manual include standards

of review, requisites to filing an appeal, perfecting an appeal and filing the record

on appeal, the effect of appeal on the lower court proceedings, motions practice,

2013 HSBA Appellate Section Board:

Chair: Ms. Rebecca A. Copeland

Vice Chair: Mr. Mark J. Bennett

Secretary: Ms. Bethany C.K. Ace

Treasurer: Mr. Robert Nakatsuji

HSBA CLE Liaison: Ms. Mitsuko T. Louie

HAWSCT Liaison: Mr. Matthew Chapman

ICA Liaison: Mr. Daniel J. Kunkel


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appellate and amicus briefing, oral argument, post-decision practice, and obtaining

attorneys fees and costs. The manual also includes specialty practice areas

including bankruptcy, criminal, and immigration appeals.

Here are a few practice pointers from the manual as a preview:

On appeal, the determination of whether there is substantial evidence

to support a conclusion must take into account the applicable burden of

proof at the district court level. For example, differences between the

preponderance of the evidence and clear and convincing evidence

burdens of proof are significant and affect the scrutiny with which an

appellate court reviews a conclusion on appeal. Moreover, appellate

courts must review the record as a whole, not simply that portion of

the record supporting the verdict.

From Standards of Review, by Lisa Bail and Lisa Munger

In civil appeals, file your notice of appeal as soon as you receive

authority to do so from the client. There is no penalty for early filing

and missing the deadline to appeal could be incurable.

From Requisites to Filing an Appeal, by Bethany C.K. Ace, Mark M. Murakami, and

E. Kumau Pineda-Akiona

In cases where the facts involve abbreviations or technical

nomenclature, it can be helpful to include at a separate Table of

Abbreviations or a Glossary. Doing so should help the reader keep the

various terms clear.

FromAppellate Briefing, by Robert H. Thomas

Practitioners should note that, unlike in most other circuits, an aliens

departure from the United States may not automatically terminate

jurisdiction over his or her petition for review in the Ninth Circuit.

From Appealing Decisions Issued by the Executive Office for Immigration

Review, by Brett C. Rowan

Several of the manuals contributors will be presenting at the AppellateSections portion of the Bar Convention. Join the Section to learn more about

motions practice, standards of review, how to file your appeal, and oral arguments.

The Appellate Sections program will also include our popular Appellate

Panel. This not-to-be-missed event will feature special guests from the Hawaii


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Supreme Court: Chief Justice Mark E. Recktenwald, Justice Simeon R. Acoba, Jr.,

Justice Sabrina S. McKenna, and Justice Richard W. Pollack.

Between the appellate manual presentations and the Appellate Panel,

attendees of the Appellate Section program will earn 2.0 hours VCLE and 1.0

MCPE. Keep an eye out for more details from the Section and the HSBA as thedate approaches!

See you there!


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The Appellate Sections Discussion of the United States

Supreme Courts Decisions in the

Proposition 8 and DOMA cases

The legal landscape for same-sex couples is changing! At the July 19, 2013meeting of the HSBA Appellate Section, former Hawaii Supreme Court Justice

Steven Levinson and Intermediate Court of Appeals Associate Judge Daniel Foley

spoke to a packed house on the United States Supreme Courts decisions in Dennis

Hollingsworth, et al., v. Kristin M. Perry, et al., No. 12-144 (Californias Proposition

8) and United States v. Edith Schlain Windsor, In Her Capacity as Executor of the

Estate of Thea Clara Spyer, et al., No. 12-307 (Defense of Marriage Act).

In a nutshell, the Perry decision held that the proponents of Prop. 8 did not

have standing to appeal the district court's order that Prop. 8 was

unconstitutional. Standing in this case was a question of federal, not state law.Thus, the California Supreme Court's decision that the petitioners had standing

could not contravene federal law to the contrary. According to the court, the

petitioners did not have standing because they had no role in the enforcement of

Prop. 8 and had no personal stake in defending its enforcement. The opinion was

written by Chief Justice Roberts.

The Windsor decision held that the portions of the Defense of Marriage Act is

unconstitutional. According to the court, certain provisions in the act constitute a

deprivation of equal liberty protected by the Fifth Amendment. By defining

marriage as only between one man and one woman, the Act injured a class of people

that New York (in recognizing valid same-sex marriages) sought to protect whichviolated basic due process and equal protection principles. The court further

recognized that DOMA's principal effect is to identify and make unequal a subset of

state-sanctioned marriages, and forces couples to live as married for state purposes

but unmarried for federal purposes. The opinion was written by Justice Kennedy.

At the Appellate Section meeting, Judge Foley provided interesting insight

into the two opinions through his background representing same-sex couples before


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he became a judge. As the author of the HAWSCT opinion inBaehr v. Lewin the

case that started it all Justice Levinson added unique insight into the SCOTUS

opinion.

As the judges noted, that the effect of both decisions will continue to be felt

for some time. For Perry, many same-sex couples will now be allowed to marry especially given that California is the most populous state in the nation. As for the

after-effects of the Windsor decision, the decision has far-reaching consequences in

many areas of federal law, including federal income tax and immigration. As

recently as last week United States Secretary of State John Kerry stated that the

United States will begin issuing immigrant visas to same-sex couples.

Mahalo to Justice Levinson and Judge Foley for being our guests!


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This Month in Appellate History

The following United States Supreme Court Justices assumed office inAugust: Thomas Johnson, Robert Cooper Grier, James Clark McReynolds,

Hugo Black, Tom C. Clark, Ruth Bader Ginsburg, Stephen Breyer, Sonia

Sotomayor, and Elena Kagan.

On August 6, 2012, Richard W. Pollack was sworn in as an Associate Justiceof the Hawaii Supreme Court.

JEFS E-Filing Tip of the Month

When initiating a case in JEFS, the program requires certain fields to beentered, including the mailing address and email of the parties. For partiesrepresented by counsel, it is not necessary to enter these two fields because

the parties attorneys will receive service on behalf of the parties. For parties

appearingpro se, all of the information must be included.


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July Published Appellate OpinionsIn July, the Hawaii Supreme Court issued two published opinions (not counting the

one amended opinion) and the Intermediate Court of Appeals issued one. Below is a

brief synopsis of each:

In Heather R. Winfrey v. GGP Ala Moana LLC dba Ala Moana Center , SCWC

30589 (July 18, 2013), the HAWSCT held in favor of GGP on its general premises

liability claims because GGP could not have reasonably anticipated the woman

would be on the rooftop or in the exhaust vent (where she died), however the court

held that genuine issues of material fact precluded summary judgment on other tort

liability claims. The court reversed summary judgment because genuine issues of

material fact existed as to whether GGP breached duties related to its immediate

control over a force to which [the woman] was in dangerous proximity and her

entry onto the property in response to Ala Moanas invitation to the public.

In Bert Villon and Mark Apana v. Marriott Hotel Services, Inc. dba Wailea

Marriott Resort, and Reneldo Rodriguez and Johnson Basler v. Starwood Hotels &

Resorts Worldwide, Inc. dba Westin Maui Resort & Spa,SCCQ-11-0000747 (July 15,

2013), the HAWSCT answered a certified question and held that a hotel or

restaurant applying a service charge for the sale of food or beverage services

allegedly violates [Hawaii statutory law] by not distributing the full service charge

directly to its employees as tip income (in other words, as wages and tips of

employees), and (2) by failing to disclose this practice to the purchaser of the

services, the employees may bring an action [against the employer under relevantHawaii statutes] to enforce the employees rights and seek remedies.

InPatrick M. McGrail v. Administrative Director of the Courts, State of Haw.,

30605 (July 17, 2013), the ICA held that in an administrative revocation of drivers

license hearing, the hearing office is not permitted to consider the unsworn

statements of the officer who made the initial traffic stop, statements that were

included in the sworn police report, of the arresting officer, to make a determination

of whether the police had probable suspicion to support the stop.


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Upcoming Events:

August Appellate Section MeetingPlease join the HSBA Appellate Section for its regular monthly meeting on

Monday, August 19, 2013, from noon to 1:00 p.m., at the HSBA Large

Conference Room.

Our guests will be Intermediate Court of Appeals Associate Judges Lawrence

M. Reifurth and Lisa M. Ginoza. The topic is Transitioning from Trial to Appeal,

and has been approved for 1.0 MCPE.

RSVP to the Appellate Sections Secretary, Bethany C.K. Ace, at

[email protected].

2013 HSBA Bar ConventionPlease sign-up to join the HSBA Appellate Section at this years HSBA Bar

Convention to be held on Friday, September 27, 2013, at the Hilton Hawaiian

Village. The Appellate Sections time will be from 8:30 to Noon.

Our line-up will consist of discussions on federal and state appellate practice

including: state and federal motions practice, federal standards of review,

bankruptcy appeals, federal criminal appeals, and oral argument.

The section will also reprise the popular Appellate Panel with distinguished

guests Chief Justice Mark E. Recktenwald, Justice Simeon R. Acoba, Jr., Justice

Sabrina S. McKenna, and Justice Richard W. Pollack.


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Coming Soon:FEDERAL APPELLATE PRACTICE MANUAL: The Appellate Section is

pleased to announce that it will publish another appellate manual in conjunction

with the Hawaii State Bar Association. This years manual will be entitiled

Federal Appellate Practice Manual. The manual will provide 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. Our contributors and/or editors include: Rebecca

A. Copeland, G. Richard Morry (editor), Marissa Luning (editor), Mitsuko Louie

(editor and contributor). Ninth Circuit Judge Richard Clifton, Christphoer Goodin,

Doug Fredrick, John Duchemin, Monica Suematsu, Kimberly Asano, Cal Chipchase,

Elijah Yip, Robert Thomas, Mark Murakami, Steven Gray, Johnathan Bolton, Lisa

Munger, Lisa Bail, Trent Kakuda, Bethany C.K. Ace, and Brett Rowan.

HAWAII APPELLATE PRACTICE MANUAL SUPPLEMENT: Appellate

Motions Practice a suplement to the 2012 Hawaii Appellate Practice Manual, will

be available for the first time at the 2013 Bar Convention. The Supplement will

offer insight and practice tips into state appellate motions practice, and include

additional forms.


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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 Chair Rebecca A. Copeland)


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Appellate Section Website:

The Appellate Sections website includes useful appellate resources, includinghandouts from prior monthly meetings, copies of this newsletter, and power point

presentations from the Appellate Sections program at the 2012 HSBA Bar

Covention.

www.hawaiiappellatesection.org

Hawaii Appellate Practice Manual:

The Hawaii Appellate Practice Manual includes information you need to know for

filing appeals in Hawaii, including how to e-file 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 for

purchase at the link below.

http://www.hsba.org/resources/8/Manuals/Publications%20List%20Fillable%20(upd

ated%209-1-2012).pdf


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Stay tuned for the September 2013 edition ofThe Appellate Record!

If you are interested in contributing to our newsletter in any way, please contact the

Sections Chair Rebecca A. Copeland at [email protected]

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!

the appellate record - august 2013

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