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THE APPELLATE RECORD August 2013

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

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 you’re 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 Section’s members, and experts in their fields, have been working hard to compile a manual that compliments 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,
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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. From Appellate Briefing, by Robert H. Thomas Practitioners should note that, unlike in most other circuits, an alien’s 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 manual’s contributors will be presenting at the Appellate Section’s 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. Panel. The Appellate Section’s program will also include our popular Appellate 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 the date approaches! See you there!

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The Appellate Section’s Discussion of the United States Supreme Court’s Decisions in the Proposition 8 and DOMA cases
The legal landscape for same-sex couples is changing! At the July 19, 2013 meeting 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 Court’s decisions in Dennis Hollingsworth, et al., v. Kristin M. Perry, et al., No. 12-144 (California’s 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 which violated 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 in Baehr 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
Ø The following United States Supreme Court Justices assumed office in August: Thomas Johnson, Robert Cooper Grier, James Clark McReynolds, Hugo Black, Tom C. Clark, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. Ø On August 6, 2012, Richard W. Pollack was sworn in as an Associate Justice of the Hawaii Supreme Court.

JEFS E-Filing Tip of the Month Ø When initiating a case in JEFS, the program requires certain fields to be
entered, including the mailing address and email of the parties. For parties represented 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 appearing pro se, all of the information must be included.

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July Published Appellate Opinions
In 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 Moana’s 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 relevant Hawaii statutes] to enforce the employees’ rights and seek remedies.” In Patrick M. McGrail v. Administrative Director of the Courts, State of Haw., 30605 (July 17, 2013), the ICA held that in an administrative revocation of driver’s 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 Meeting
Please 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 Section’s Secretary, Bethany C.K. Ace, at bcka@hawaiilawyer.com.

2013 HSBA Bar Convention
Please sign-up to join the HSBA Appellate Section at this year’s HSBA Bar Convention to be held on Friday, September 27, 2013, at the Hilton Hawaiian Village. The Appellate Section’s 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 year’s 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 Section’s website includes useful appellate resources, including handouts from prior monthly meetings, copies of this newsletter, and power point presentations from the Appellate Section’s 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 Judiciary’s EFiling 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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The Appellate Record is presented as a courtesy to the Members of the Hawaii State Bar Association’s Appellate Section by its Board. Mahalo and enjoy!

Stay tuned for the September 2013 edition of The Appellate Record!

If you are interested in contributing to our newsletter in any way, please contact the Section’s Chair Rebecca A. Copeland at rebecca@copelandlawllc.com

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