december 2014 appellate record

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The Appellate Record, December 2014 Page 1

THE APPELLATE RECORDDecember 2014

ELECTION OF THE 2015 BOARD

At the Sections annual meeting on December 16, discussed in the next

article, the following members were elected to the 2015 Appellate Section

Board:

Chair: Mr. Christopher Goodin

Vice Chair: Mr. Christopher Leong

Secretary: Ms. Michi Momose

Treasurer: Mr. Robert Nakatsuji

Mr. Matthew Chapman and Mr. Daniel Kunkel will remain as our liaisons to

the Hawaii Supreme Court and the Intermediate Court of Appeals,

respectively. A big mahalo from your outgoing chair to her 2014 Board for all

their hard work! And a big mahalo to those serving on our 2015 Board. I

look forward to seeing where you take the Section in the upcoming year!

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

HAWSCT Liaison: Mr. Matthew Chapman

ICA Liaison: Mr. Daniel J. Kunkel


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ANNUAL MEETING REVIEW

by Bethany C.K. Ace (Section Chair, Damon Key Leong Kupchak Hastert)

and Rebecca Copeland (Law Office of Rebecca A. Copeland, LLC)

The Section celebrated the end of its third year with its joint annual

meeting with the Litigation Section, featuring guest speaker Hawaii

Supreme Court Chief Justice Mark Recktenwald.

Chief Justice Recktenwald discussed the strides Hawaii has made in access

to justice, and noted that the state was recently ranked in the top five in this

category. The Chief Justice also praised the work of the many local

attorneys, including members of the Appellate Section, who volunteered as

part of the Courts in the Community Program for its recent Mililani High

School oral argument. The Chief Justice also noted the judiciary plan to ask


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for additional funding to add a staff attorney to the Intermediate Court of

Appeals, and a staff member to assist with the appellate mediation program.

The Sections outgoing chair, Bethany Ace, thanked her 2014 Board

and reviewed the numerous events sponsored by the Section in 2014,

including informative monthly lunch meetings, the Meet & Greet with the

Appellate Judiciary, and a well-attended HSBA Bar Convention seminar.

Then the Sections held their respective elections (see previous article). All

enjoyed the excellent food and ambience of the Mangos at the Pacific Club.

A special thanks to Chief Justice Recktenwald for speaking to the section,

Mr. Stuart Feeley and the Litigation Section for co-sponsoring the event, and

to Mr. Matthew Chapman for being our sponsoring member so that we could

have the luncheon at such a great venue!

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NOVEMBER MEETING:

FEATURING ASSOCIATE JUSTICE MICHAEL D. WILSON

by Christopher J.I. Leong (Incoming Vice-Chair; Damon Key Leong Kupchak

Hastert), Bethany C.K. Ace (Section Chair, Damon Key Leong Kupchak Hastert) andRebecca Copeland (Law Office of Rebecca A. Copeland, LLC)

Our November monthly meeting featured guest speaker Hawaii

Supreme Court Associate Justice Michael D. Wilson. Justice Wilson offered

his insight, advice and perspective as the Courts newest justice, including:

Appellate law is the means by which public policy gets refined;

An application for writ of certiorari to the court must be filed within 30

days of the ICAs judgment or dismissal order (except that one 30-dayextension is permitted);

The HAWSCT must act within 30 days after an objection to the writ is

filed or could have been filed;

In drafting its opinion, the court may or will consider (as applicable) a

variety of issues including statutory interpretation, factual interpretation,

constitutional issues, review of case law, legislative history, and whether

the record/facts are dispositive;

The appellate lawyer has the opportunity to establish the character of the

case (personal, financial, philosophical) by the way she presents the case

on appeal -- An appellate lawyer gives birth to the case in the appellatecourt;

Oral argument is like back-lot basketball always keep your eye on the

ball!

The story and the record are already developed by the time the court hears

oral arguments, so the case may be more focused at this stage;


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Often, when you have a case at its beginning stages, you might already be

thinking of what the issues would be if the case is appealed so that you

can develop the case properly in the lower court;

Cert applications are decided based on a random rotation of assigned

justices the assigned judge will make a recommendation whether to

accept the case and circulate a memo to the rest of the justices; and

Every appellate case is a statement on where we are headed as a society.


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NOVEMBER-DECEMBER 2014

PUBLISHED APPELLATE OPINIONS

By: Christopher J.I. Leong (Incoming Vice-Chair; Damon Key Leong Kupchak

Hastert)

Between November 20, 2014 and December 24, 2014, the Hawaii

Supreme Court issued five published opinions and the Hawaii Intermediate Court

of Appeals (ICA) issued seven. The following is a brief synopsis of those opinions.

State v. Barrios, No. CAAP-13-0000118 (Haw. App. Nov. 20, 2014). In this

criminal case, Barrios was convicted of a total of 146 counts of sexual assault in the

first degree, sexual assault in the third degree, and kidnapping, and was sentenced

to a maximum term of imprisonment of 100 years. On appeal, the conviction and

sentence were affirmed. The ICA concluded that evidence of Barrioss drug use

during commission of the crimes was admissible because it showed his motive, plan,

preparation, and opportunity to abuse the minor. The ICA also held that the

statement when a child needs justice, they come before a jury, made by the

prosecutor during closing was a proper appeal to the jury to do justice, that the

circuit court properly allowed the minor and the minors grandmother to speak

during the sentencing hearing, and that the circuit court properly sentenced Barrios

after considering the required statutory factors.

In re Tax Appeal of Kaheawa Wind Power, LLC, No. CAAP-12-0000728

(Haw. App. Nov. 20, 2014). In this tax appeal case involving real property taxassessments of twenty wind turbines on Maui, the ICA affirmed the tax appeal

courts final judgment. On appeal, the ICA held that under the relevant Maui

County Code sections, while the concrete foundations for the wind turbines were

subject to being assessed as real property, the wind turbines themselves as well as

the towers supporting them were neither improvements nor fixtures and were thus

not subject to assessment. The ICA also held that there was no explicit or implicit


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time limit for the County to make retroactive omitted property assessments

against Kaheawa, and therefore assessments for 2007, 2008, and 2009 were valid

even though those assessments were not noticed on Kaheawa until 2010.

DW Aina Lea Development, LLC v. Bridge Aina Lea, LLC., No. SCAP-

13-0000091 (Haw. Nov. 25, 2014). This case begins with the 1989 reclassification of

land in Waikoloa on the Big Island from agricultural to urban by the Land Use

Commission to allow development of a residential community. In 2008, the LUC

issued an order to show cause to the then-landowner why the land should not revert

to the former agricultural classification due to failure to develop the land according

to the representations made to obtain the original reclassification. After

proceedings in the LUC, it issued an order reverting the land to the agricultural use

district. The circuit court reversed and vacated the LUC, and the subsequent

appeal was transferred to the Supreme Court. The court agreed with the circuit

court that the LUC erred in reverting the property without following therequirements of HRS 205-4 because the landowner had substantially commenced

use of the land. The court further concluded that the circuit court erred in denying

the LUCs motion to strike parts of the record on appeal which were parts of dockets

from unrelated LUC cases. Finally, the circuit court erred in concluding that the

landowners substantive due process and equal protection rights were violated

because it had notice of the order to show cause and notice that LUC might revert

the property, and it had a meaningful opportunity to be heard.

Duarte v. Young, No. CAAP-13-0004228 (Haw. App. Nov. 26, 2014). This

case involved neighbors with a history of verbal altercations. Based on Duartes

petition for harassment requesting a temporary restraining order and order of

injunction against Young, as well as testimony from the parties, the district court

entered an injunction. On appeal, the ICA vacated and remanded. The court

concluded that a single act (of yelling, in this case) does not constitute a course of

conduct so as to meet the definition of harassment under HRS 604-10.5(a)(2).

The court also concluded that the conduct cited by the district court in support of its

order did not indicate that Young communicated an intent to commit imminent

physical harm, bodily injury, or assault so as to constitute harassment under HRS

604-10.5(a)(1).

State v. Kam, No. CAAP-12-0000897 (Haw. App. Nov. 26, 2014). Kam was

convicted in district court of operating a vehicle under the influence of an intoxicant

(OVUII), and operating a vehicle after license and privilege have been suspended or

revoked for operating a vehicle under the influence of an intoxicant (OVLPSR-

OVUII). The ICA affirmed. The court first held that district court did not err in


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that a trial court is required to convene a competency hearing when it has reason to

believe that the defendants mental or physical fitness will become an issue; the

circuit court here abused its discretion in not ordering an examination based on

Harters conduct in the courtroom. Accordingly, the court vacated the conviction

and sentence and remanded to the circuit court.

State v. David, No. CAAP-12-0000109 (Haw. App. Dec. 15, 2014). David

was convicted of second-degree murder and second-degree assault. The convictions

were affirmed by the ICA but the sentence was vacated and the case was remanded

for resentencing. At the sentencing hearing, the prosecutor improperly relied on

Davids national origin to suggest an increased term of imprisonment. The ICA

held that a defendants race, ethnicity, or national origin cannot be used as a

justification for the imposition of a harsher penalty on the defendant. While the

ICA did not believe the circuit court had based its sentence on the prosecutors

improper statements, the circuit court was required to make its repudiation of theprosecutors arguments clear on the record.

Kawakami v. Kahala Hotel Investors, LLC, No. SCWC-11-0000594 (Haw.

Dec. 22, 2014). Kawakami held his wedding reception at the Kahala Hotel; Kahala

Hotel collected a 19% service charge on the purchase of food and beverages; Kahala

Hotel did not distribute the service charge directly to banquet employees as tip

income, but instead retained 15% of the service charge to the employees as a

management share that was then used to pay the employees wages. No

disclosure was made to Kawakami that part of the service charge was not paid to

employees as tip income. Kawakami then filed a class action alleging that Kahala

Hotel violated HRS 481B-14 by failing to either distribute the service charges as

tip income or disclosing to the plaintiff class that service charges were used to pay

for costs other than wages and tips of employees. The circuit court agreed with

Kawakami, but the ICA vacated the entry of summary judgment in his favor. The

Supreme Court vacated the ICAs judgment, holding that pursuant to HRS 481B-

14, a hotel or restaurant that applies a service charge for food or beverage services

must either distribute the service charge directly as tip income to the non-

management employees who provided the food or beverage services, or disclose to

its customers that the service charges are not being distributed as tip income.

State v. Monteil, No. SCWC-12-0000052 (Haw. Dec. 23, 2014). Monteil was

convicted of prostitution. The ICA and Supreme Court both affirmed on the ground

that the evidence was sufficient to sustain the conviction. The Supreme Court also

wrote to clarify the requirement ofState v. Lewis, 94 Haw. 292, 12 P.3d 1233 (2000),

that a trial court advise a defendant prior to trial of the defendants rights both to


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testify and not to testify. While Lewisdid not specify the content of such pretrial

advisements, the Monteilcourt specifically and prospectively required trial courts to

advise defendants that a decision not to testify may not be used inferentially by the

factfinder as evidence of guilt.

Nichols v. State, No. CAAP-12-0000043 (Haw. App. Dec. 24, 2014). In this

HRPP Rule 40 post-conviction proceeding, Nichols argued that the Hawaii Paroling

Authority improperly set his minimum term of imprisonment at 30 years, the same

as his maximum term of imprisonment as sentenced by the trial court. Nichols also

claimed ineffective assistance of counsel during the process to set his minimum

term. The circuit court dismissed and denied the Rule 40 petition. The ICA

affirmed, concluding that the record in this case provides clear support for the

HPAs exercise of its discretion in fixing Nichols minimum terms under the

Guidelines [for Establishing Minimum Terms of Incarceration]. The court did note,

however, that in future cases where the HPA sets the minimum term equivalent tothe maximum term, a more detailed explanation by the HPA for its decision

beyond merely listing the significant Guideline factors would assist the court in

reviewing whether the HPAs action was arbitrary and capricious.


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Stay Tuned For Upcoming Events!

January

We are pleased to announce that our first meeting of the year will be onJanuary 12, 2015 at the HSBA Office Large Conference Room. Our guest

speaker will be Hawaii Supreme Court Associate Justice Sabrina McKenna.

HAPPY

HOLIDAYS!


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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)
http://www.courts.state.hi.us/http://www.hid.uscourts.gov/http://www.ca9.uscourts.gov/http://www.supremecourt.gov/http://www.hsba.org/http://www.hawaiilitigation.com/http://www.hawaiioceanlaw.com/http://www.hawaiiopinions.blogspot.com/http://www.insurancelawhawaii.com/http://www.inversecondemnation.com/http://www.hawaiiappellatelaw.com/http://www.recordonappeal.com/http://www.recordonappeal.com/http://www.hawaiiappellatelaw.com/http://www.inversecondemnation.com/http://www.insurancelawhawaii.com/http://www.hawaiiopinions.blogspot.com/http://www.hawaiioceanlaw.com/http://www.hawaiilitigation.com/http://www.hsba.org/http://www.supremecourt.gov/http://www.ca9.uscourts.gov/http://www.hid.uscourts.gov/http://www.courts.state.hi.us/


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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 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 AppellateSection and the Hawaii State Bar Association, and is available through the HSBA.

HSBA Publication List (effective January 13, 2014) can be found at this link:

http://hsba.org/resources/1/CLE%20Flyers/Publications%20List.pdf
http://www.hawaiiappellatesection.org/http://hsba.org/resources/1/CLE%20Flyers/Publications%20List.pdfhttp://hsba.org/resources/1/CLE%20Flyers/Publications%20List.pdfhttp://www.hawaiiappellatesection.org/


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Stay tuned for the next edition ofThe Appellate Record!

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

Bethany C.K. Ace 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!
mailto:[email protected]:[email protected]

december 2014 appellate record

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