The Appellate Record - November 2013

8/14/2019 The Appellate Record - November 2013

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The Appellate Record, November 2013 Page 1

THE APPELLATE RECORD

October 2013

FEATURED ARTICLE:Talk Story with Ninth Circuit Judge Clifton

By: Bethany C.K. Ace (Damon Key Leong Kupchak Hastert)

Circuit judges can maintain their chambers anywhere within the circuit.

Lucky for us, we have Judge Clifton resident on our little rock in the middle of the

Pacific. On Halloween (thus the pirate), Judge Clifton came to the offices of Damon

Key Leong Kupchak Hastert for its monthly roundtable discussion to talk storyabout the Ninth Circuit.

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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Here are a few key take away points from the discussion.

Briefs: Youve heard it before and youre hearing it again: get to the point.If your main point is buried in page 39, youre in trouble. Direct and concise

briefing is both persuasive and easy to read. Dont use every word allotted in

the word count just for the sake of throwing everything and the kitchen sink

into the brief. He has seen a number of briefs exhausting the word count that

did not need nearly that amount of ink to effectively argue their case. The

table of contents, statement of the argument, and an introduction can be

effective tools to make your key points early in the brief.

Circuit vacancies: Judge Clifton noted the importance of having a circuitjudge hailing from Hawaii. He was the first judge appointed from Hawaii

since Judge Herbert Y.C. Choy (who was the first judge from Hawaii to serve

on the court). If and when Judge Clifton takes Senior Judge status, the

transition will cause a vacancy that can be filled with a nominee from

Hawaii.

Panel deliberations: The three-judge panel doesnt meet to discuss thecase until immediately after oral arguments. The judges may circulate or

exchange bench memos, but there is no preliminary vote or deliberation in

advance of the oral arguments. So even though the panels issue their

decisions on average roughly five weeks after oral arguments, dont thinkthat they have agreed on the disposition before your arguments.

Panel assignments: The judges travel around various courts of the circuitthroughout the year, including holding hearings in Hawaii several times a

year. The hearing schedules can be found at

http://www.ca9.uscourts.gov/calendar/. Priority for hearings in Hawaii is

given first to cases from Guam and the Northern Mariana Islands (given the


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burdens of travelling from there to other circuit court locations), and then to

Hawaii cases. Judges are seated for a particular calendar day and location,

then the cases are assigned to the available slots, with adjustments made

afterwards to reassign for conflicts or recusals.

The pro bono program: The Ninth Circuits pro bono program is aninvaluable asset of the court, both for those seeking representation and those

seeking oral argument experience (the pro bono program cases are

guaranteed oral argument unless dismissed on procedural issues). At

present, the program is oversubscribed, with practitioners from across the

nation enrolling in the program for the unique opportunity for guaranteed

oral argument. This and other administrative issues with how the cases are

being assigned are being reviewed. Also, other federal circuits are in the

process of implementing their own programs, which should reduce the

number of practitioners vying for the Ninth Circuit slots.

New resources: Our section got a shout out from Judge Clifton on our newFederal Appellate Practice Manual! The Ninth Circuit Appellate Lawyer

Representatives also released an informal guide to Ninth Circuit practice,

The Appellate Lawyer Representatives Guide to Practice in the United

States Court of Appeal for the Ninth Circuit (October 22, 2013), available at

the following link:

http://cdn.ca9.uscourts.gov/datastore/general/2013/10/07/Oct_7_13_Final_App

ellate_Practice_Guides.pdf

Judge Clifton could not overemphasize his desire that the Ninth Circuit and

the appeals process not be a mystery. Practitioners and the public should be able to

navigate the court procedures and understand how the court works, and heappreciates the opportunity to give his insight and help demystify it all. If you have

a request or recommendation for a Ninth Circuit talk story by Judge Clifton, please

contact the section at [email protected] and wed be happy to

forward it along.

A big mahalo to Judge Clifton for his unflagging community outreach!


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Third Annual Meet & GreetOn Monday, October 21, 2013, the HSBA Appellate Section held its Third

Annual Meet & Greet at the Hawaii Supreme Court Courtroom/Conference Room.Section Members enjoyed spending their lunch hour with Hawaii Supreme Court

Justices, Intermediate Court of Appeals Judges, their staff attorneys, law clerks,

and staff.

At the event, Chief Justice Recktenwald acknowledged the Section for its

accomplishments over the past year, and he recognized Justice Simeon R. Acoba, Jr.

for his many years of dedicated service to the Hawaii Judiciary.

Mahalo to everyone who attended for making this years event a success!


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This Month in Appellate History

! The following United States Supreme Court Justices assumed office inOctober: Gabriel Duvall, Joseph Story, John Marshall Harlen.

JEFS E-Filing Tip of the Month! Plan to file your appeal document on JEFS earlier in the day if you wait until

the day the document is due. If JEFS isnt working, or if you are having

trouble with the system that prevents you from e-filing the document, you

need to give yourself enough time to paper-file the document at the appellate

court Clerks Office. The Clerks Office closes at 4:30 p.m.


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OctoberPublished Appellate OpinionsIn October, the Hawaii Supreme Court issued five published opinions, andthe Intermediate Court of Appeals also issued four. Below is a brief synopsis of

each:

In State v. Gomez-Lobato, SCWC-11-0000338 (October 30, 2013), the HAWSCT

held that the Family Court erred in determining that the defendant had

voluntarily, knowingly, and intelligently waived his right to a jury trial because of a

language barrier that existed between the court and the defendant which, according

to the court, should have prompted the family court to ask additional questions to

verify the waiver.

In State v. Vaimili, SCWC-12-0000034 (October 30, 2013), the HAWSCT heldthat the circuit court correctly denied the defendants motion for relief from

forfeiture of bail bond because the relief was not available under HRCP 60(b) since

the rules of civil procedure do not apply to bond forfeiture proceedings, a surety may

recover its bond only if the surety filed a motion within 30 days of the judgment of

forfeiture which demonstrates good cause for setting the judgment aside, the motion

was not timely filed within the 30 day time period, and a separate judgment from

the denial of the motion to set aside is not required under HRCP 58.

In State v. Scott,SCWC-10-0000037 (October 16, 2013), the HAWSCT held that

the circuit court erred in denying the defendants request for written transcripts or

the DVD video recordings of his co-defendants trial since the charges arose from thesame incident, involved identical facts, and included the same key witnesses.

In State v. Apollonio,SCWC-30161 (October 10, 2013), the HAWSCT held that

the circuit court erred in entering a judgment of conviction for excessive speeding

since the state failed to allege the requisite mens rea in its oral charge of the

defendant. The court also held that the state failed to lay an adequate foundation

for the admission of the laser instrument reading.

In State v. Nakano,SCWC-30161 (October 8, 2013), the HAWSCT held that the

ICA correctly vacated the defendants conviction for OVUII since the charge was

defective for the failure to allege mens rea, but also held that, on remand, the state

cannot proceed with its prosecution based on the level of alcohol in his system

because the plea of no contest form entered in the case was silent as to method of

proof.

In Vinson v. AOAO of Sands of Kahana, 30696 (October 31, 2013), the ICA held

that the declaratory judgment related controversies between the parties were moot


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since the AOAO supplied Vinson with the information he requested in the suit, and

based on the enactment during the pending litigation of Act 98 (governing the

requirements of an AOAO related to membership list records). The court also

overturned an award of nearly thirty thousand dollars in attorneys fees and costs

because Vinson had not incurred the fees since all but $1,700 of the fees had been

paid by someone other than Vinson.

In In re Jack Wong Yuen, 29173 (October 30, 2013), the ICA held that a

sufficient interest in an estate was raised by the deceased daughter to establish her

standing to challenge the validity of a trust and will in probate court. The court

concluded that the presumption against intestacy does not govern a situation in

which there has been a testamentary instrument that may have been invalidated

based on lack of capacity or undue influence, and that the presumption did not strip

the daughter of her standing to contest the instrument.InIn re UPW, AFSCME, Local 646, AFL-CIO, Union, 29382 (October 30, 2013), the

ICA held that the Hawaii Labor Relations Board had jurisdiction to enter adecision on a petition filed by UPW that sought a declaratory ruling to determine

whether certain conduct by public employers constituted a prohibited practice

under the Hawaii public sector collective bargaining law.In Safeway, Inc. v. Nordic PLC Constr., Inc., CAAP-10-0000046 (October 30,

2013), the ICA held that the circuit court should have held an evidentiary hearing

on the issue of the existence of a contractual arbitration provision before denying an

application to compel arbitration.


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Upcoming Events:

November Section MeetingOn Monday, November 18, 2013, from noon to 1:00 p.m., at the HSBA

Large Conference Room.

Our guests will Mark J. Bennett, of Starn OToole, and Paul Alston, of Alston

Hunt. The topic will be a preview of the United States Supreme Courts docket for

this term including both civil and criminal cases.

A light lunch will be provided.

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

[email protected].

December End of Year LuncheonSAVE THE DATE!

On Friday, December 13, 2013, from noon to 1:00,the Appellate Section

will hold its End of Year Luncheon at the Pacific Club, a joint endeavor with the

HSBA Litigation Section. Our guest will be ICA Chief Judge Craig Nakamura.

The cost of the event will be $10.00 per person. Seating will be limited, so

please save the date and let us know if youd like to come as soon as we send out

the announcement at the beginning of December!


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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 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 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 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 co-

sponsored by the Appellate Section and the Hawaii State Bar Association, and isavailable 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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Stay tuned for the December 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!

Documents

The Appellate Record - November 2013