THE APPELLATE RECORD February 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:
Writs of Mandamus and Other Extraordinary Writs in the Hawaii Supreme Court: A Summary of the Presentation by Associate Justice Sabrina S. McKenna and Supreme Court Staff Attorney Shellie Park-Hoapili
By: Christopher T. Goodin and Mitsuko T. Louie (Cades Schutte)

At the January 23, 2013 meeting of the Appellate Section, Associate Justice Sabrina S. McKenna of the Hawaii Supreme Court and Supreme Court Staff Attorney Shellie Park-Hoapili discussed the topic of Writs of Mandamus and Other Extraordinary Writs in the Hawaii Supreme Court, including writs of prohibition and habeas corpus. According to Justice McKenna, in recent years the supreme court has annually received 100150 mandamus petitions and 7580 habeas petitions. The extraordinary writ petitions made up more than half of the courts docketed cases.
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Justice McKenna and Ms. Park-Hoapili provided a very informative presentation that covered: (1) how petitions are processed; (2) how often petitions are granted; (3) legal standards for relief; (4) specific cases where petitions were granted; (5) whether the denial of a mandamus petition has a spill-over effect on a subsequent appeal; and (6) motions to stay. These points are addressed in turn below.

1.

How Petitions are Processed

a. Lead justice and staff attorney. Justice McKenna is the lead justice and Ms. Park-Hoapili is the lead staff attorney with respect to petitions for extraordinary writs. If Justice McKenna is unavailable, Associate Justice Richard W. Pollack assumes the role of lead justice for such petitions. As the lead justice, 1520% of Justice McKennas work concerns extraordinary writ petitions. b. Initial review. As soon as a petition is filed, the lead justice and staff attorney review the petition to determine if the matter is urgent and requires immediate attention. c. Bench memorandum. After the petition is reviewed, the next step is for the staff attorney to prepare a memorandum recommending a disposition on the petition along with a proposed order. d. The initial factual record. The staff attorneys factual record is based on the petition and the documents attached thereto. Thus, it is critical that parties comply with Hawaii Rules of Appellate Procedure (HRAP) Rule 21(a), which states that Copies of any order or opinions or parts of the record that may be essential to an understanding of the matters set forth in the petition shall be attached to the petition. Justice McKenna noted that the supreme court does not receive a record from the lower court for mandamus petitions. Normally, apart from
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the parties filings, the only additional factual information readily available to the court is from the docket entries on the judiciarys information system, Hoohiki. e. Conference and circulation. After the bench memorandum is prepared, the lead justice will review it and meet with the staff attorney. To date, Justice McKenna has agreed with the recommended disposition about 90% of the time. If the reviewing justice agrees, the memorandum will be circulated to the other justices for comment and voting. f. Answer and supplemental filings. HRAP Rule 21(c) provides in part: If the court is of the opinion that the writ should not be entertained, it shall deny the petition. Otherwise, it shall order that an answer to the petition be filed by the respondents within the time fixed by the order. This is not necessarily an answer in the pleading sense under Hawaii Rules of Civil Procedure (HRCP) Rule 12 that merely admits or denies factual allegations and states defenses. Rather, practitioners should consider filing a document more akin to a memorandum in opposition to a motion for summary judgment with supporting documents. An audience member, Peter V.N. Esser, Esq., suggested that the answer should include as much information and supporting documents as possible. He noted that, if all of the relevant information and documents cannot be gathered in time, the answer should state that the filing party intends to seek leave to submit a supplemental filing. Mr. Esser observed that, before the supplemental filing occurs, it is essential that the party seek leave of court. He noted that, in a recent case, the supreme court struck a supplemental filing submitted without leave. g. Special master and trial. In addition to ordering additional briefing and setting oral argument, see Haw. R. App. P. 21(c), the supreme court may refer the matter to a special master for trial and report. See Otaka, Inc. v. Klein, 71 Haw. 376, 379, 791 P.2d 713, 715 (1990) (per curiam). Justice McKenna shared her experience as then-in-house counsel for one of the parties in the Otaka case. She recalled that the special master conducted a one-week trial and issued a report containing findings of fact and conclusions of law. h. Per curiam opinions. The supreme courts opinions in extraordinary writ cases are sometimes per curiam. According to Justice McKenna, the fact that the opinion is per curiam suggests that a staff attorney performed the bulk of the writing. 2. How Often Petitions are Granted

Less than 510% of extraordinary writ petitions are granted. Ms. ParkHoapili noted that the majority of the petitions are filed by criminal defendants, some of whom file petitions repeatedly. She observed that petitions are often denied because the petitioners have alternative remedies, including the regular appellate process. In the case of habeas petitions, Ms. Park-Hoapili observed that the
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supreme court has concurrent jurisdiction to grant habeas petitions with the trial courts. Consequently, if a petitioner has not first sought relief in the trial court, the supreme court will sometimes deny a petition without prejudice and direct the petitioner to first file with the trial court. 3. Legal Standards for Mandamus and Prohibition

A writ of mandamus and/or prohibition is an extraordinary remedy that will not issue unless the petitioner demonstrates a clear and indisputable right to the relief requested and a lack of other means to redress adequately the alleged wrong or to obtain the requested action. Kema v. Gaddis, 91 Hawaii 200, 204, 982 P.2d 334, 338 (1999). The specific showing required to obtain relief varies depending on whether the writ is sought against a judge or a non-judicial public official. a. Writs against judges. Ms. Park-Hoapili explained that, when a writ is sought against a judge, the issue is not simply whether the judge erred. Rather, to obtain relief, the petitioner must show specific types of errors. The petitioner may show that the judge exceeded his or her jurisdiction, that the judge flagrantly and manifestly abused his or her discretion, or that the judge refused to act where the judge had a duty to do so. b. Writs against other public officials. Ms. Park-Hoapili noted that, in order obtain a writ of mandamus against a non-judicial public official, the petitioner may show that the public official is not performing a task required by law. 4. Cases Where Extraordinary Writs Were Granted

Justice McKenna surveyed the following categories of cases where the Hawaii Supreme Court has granted petitions for extraordinary writs. a. Motions to disqualify counsel: Otaka, Inc. v. Klein, 71 Haw. 376, 791 P.2d 713 (1990) (per curiam) (substantially related matters); Sakai v. Valenciano, NO. SCPW-12-0000021, 2012 Haw. LEXIS 172 (Haw. May 17, 2012) (unpublished order) (confidential information). b. Exceeding jurisdiction: Murasko v. Loo, 125 Hawaii 39, 252 P.3d 58 (2011) (per curiam) (trial court prohibited from granting new trial after ten-day period prescribed by court rule). c. Trial court had a duty to act, but failed to do so: Ellis v. Circuit Court of the Second Circuit, NO. SCPW-12-0000482, 2012 Haw. LEXIS 187 (Haw. June 6, 2012) (unpublished order) (Hawaii Rule of Civil Procedure Rule 54(b) judgments did not divest the circuit court of jurisdiction over the remainder of the case).

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d. Constitutional violations: Privacy: Brende v. Hara, 113 Hawaii 424, 153 P.3d 1109 (2007) (per curiam) (right to privacy protected health information against disclosure outside of a tort action); Naipo v. Border, 125 Haw. 31, 251 P.3d 594 (2011) (per curiam) (right to privacy and physician-patient privilege protected non-partys medical records). Free speech: Breiner v. Takao, 73 Haw. 499, 835 P.2d 637 (1992) (per curiam) (free speech rights violated by gag order). Due process: Tanaka v. Nagata, 76 Hawaii 32, 868 P.2d 450 (1994) (per curiam) (due process requires that transferee of real property have opportunity to contest claims of fraudulent transfer). e. Flagrant and manifest abuse of discretion: Discovery: Honolulu Police Department v. Town, 122 Hawaii 204, 225 P.3d 646 (2010) (per curiam) (penal procedure subpoena rule did not allow a criminal defendant to subpoena police for discoverable material independently from penal procedure discovery rule); State ex rel. Marsland v. Ames, 71 Haw. 304, 788 P.2d 1281 (1990) (per curiam) (penal procedure rule did not allow the defendant to obtain certain disclosures from the prosecution). Abusive disciplinary investigation: Breiner v. Sunderland, 112 Hawaii 60, 143 P.3d 1262 (2006) (per curiam) (removing special assistant disciplinary counsel from an investigation because of abusive investigatory tactics). Exclusion of Expert Witness: State ex rel. Kaneshiro v. Huddy, 82 Hawaii 188, 921 P.2d 108 (1996) (per curiam) (exclusion of prosecutions expert witness). Bifurcation: Johnson v. Murakami, NO. 30409, 2010 Haw. LEXIS 74 (Haw. Apr. 26, 2010) (unpublished order) (failure to bifurcate the issue of divorce from all other matters where one spouse was terminally ill). Deferred Acceptance of No Contest (DANC) pleas: State v. Dannenberg, 74 Haw. 75, 837 P.2d 776 (1992) (trial court manifestly abused its discretion by granting defendants motion for DANC plea in a prostitution case, where mandatory sentencing scheme for prostitution offenses prohibited entry of DANC pleas); State v. Hamili, 87 Hawaii 102, 952 P.2d 390 (1998) (trial court manifestly abused its discretion by granting DANC plea, where sentencing structure for Prohibited Fishing with Gill Nets prohibited entry of DANC plea).

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f. Agency enforcement. Justice McKenna noted that, by statute, some agencies may enforce their decisions by obtaining writs of mandamus. g. Elections and reapportionment: Solomon v. Abercrombie, 126 Hawaii 283, 270 P.3d 1013 (2012) (reapportionment concerning inclusion of nonresident military personnel and nonresident college students). 5. Spill Over

According to Justice McKenna, the denial of a mandamus petition does not hurt a partys chance of success in a subsequent appeal on the same issue. Justice McKenna takes note of cases where there appears to have been an error, but mandamus relief is nevertheless unavailable under the applicable standard. 6. Motions to Stay

Finally, when filing a petition for an extraordinary writ, the petitioner may also consider asking the supreme court to stay the trial courts underlying order until the supreme court decides the petition. Justice McKenna noted that the stay would be decided by the full court, as opposed to a single justice.

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This Month in Appellate History

The United States Supreme Court was first called to assemble on February 1, 1790, in the Merchants Exchange Building in New York City, then the Nation's Capital. Due to transportation problems, Chief Justice Jay had to postpone the first actual meeting of the Supreme Court until the next day, February 2, 1790. On February 24, 1969, the United States Supreme Court issued its opinion in Tinker et al. v. Des Moines Independent School District et al., 393 U.S. 503 (1969).

On February 18, 1988, United States Supreme Court Justice Anthony M.

Kennedy assumed office.

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January Published Appellate Opinions

In January, the Hawaii Supreme Court issued 3 published opinions and the Intermediate Court of Appeals issued 5. Below is a brief synopsis of each: In Ralston v. Yim, SCWC-30082 (Jan. 25, 2013), the HAWSCT held that the movant in a summary judgment proceeding cannot support its initial burden of production by pointing solely to the non-moving partys lack of evidence if discovery has not concluded (affirming the ICA), and that granting what some courts call a no-evidence summary judgment (i.e., one that is brought before discovery cut-off but after an adequate time for discovery) is inconsistent with HAWSCT case law and Hawaii rules governing summary judgment. In State v. Kauila, SCWC-11-0000089 (Jan. 4, 2013), the HAWSCT vacated the conviction because the Defendants right to a jury trial was violated where he was charged with a misdemeanor, demanded a jury trial, the prosecution attempted but did not effectively amend the complaint from a misdemeanor to a petty misdemeanor, and the court held a bench trial. In State v. Ngo, SCWC-11-0000049 (Jan. 4, 2013), the HAWSCT vacated the conviction and held that the indictment against the Defendant charging him with the office of Accidents Involving Death or Serious Bodily Injury failed to allege the statutory requirements, and was, therefore, defective. In Hoku Lele, LLC v. City and County of Honolulu, CAAP-11-0001064 (Jan. 25, 2013), the ICA held that a "zoning verification" by the Director of the City and County's Department of Planning and Permitting is not an "action of the Director" which a property owner must administratively appeal to the Honolulu Zoning Board of Appeals within 30 days. The circuit court had dismissed the complaint for lack of jurisdiction because the property owner did not seek administrative review in the ZBA. The court also noted that the procedure employed by the City created a substantial risk of a procedural due process violation because it did not provide affirmative, conspicuous notice of the short administrative appeals deadline. In Thomas E. Fratinardo et al. v. The Employees Retirement System of the State of Hawaii, No. CAAP-12-0000054 (Jan. 28, 2013), the ICA held that the ERS properly construed the term compensation as used in Haw. Rev. Stat. Chapter 88 to exclude the car, firearm, and uniform allowances paid to now-retired police

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officers during their term of active duty in calculating the officers retirement benefits. In Association of Apartment Owners of the Waikoloa Beach Villas v. Sunstone Waikoloa, LLC, No. CAAP-11-000998 (Jan. 29, 2013), the ICA held that arbitration provisions in a condominium declaration were not unconscionable, and were enforceable against the Board of Directors. In Freddy Nobriga Enterprises, Inc., et al. v. Dept of Haw. Homelands, et al., No. 28805 (Jan. 30, 2013), the ICA held that the circuit court erred in granting summary judgment in favor of DHHL on Nobrigas claims for conversion and violation of his constitutional right to due process related to DHHLs roundup and sale of 115 head of cattle owned by Nobriga on the Island of Hawaii. According to the court, bare assertion[s] in DHHLs affidavit submitted in support of summary judgment were insufficient to show here were no genuine issues of material fact as to DHHLs ownership of the cattle. The court also held that DHHLs mistaken belief that its action were lawful were immaterial to the conversion claim because conversion does not require wrongful intent. Further, the court held that Nobriga made out a claim that DHHL violated his right to due process because DHHL gave him only oral notice that the roundups of cattle would take place rather than required written notice. In State v Kong, No. CAAP-11-0000393 (Jan. 31, 2013), the ICA held that the circuit court did not err in refusing to allow the Defendant to reenter the Maui Drug Court after he self-terminated from the program, the court did not err in imposing consecutive terms of imprisonment, and did not violate his due process rights by basing his sentence on crimes he did not commit.

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Upcoming Events: February Appellate Section Meeting

Please join the Appellate and Litigation Sections for a joint meeting on February 25, 2013, from Noon to 1:00 p.m., at the HSBA Large Conference Room. Our guest will be Intermediate Court of Appeals Judge Katherine G. Leonard discussing the topic Appealable Judgments, Judgments on Appeal, and Other Mysteries of Appellate Practice. RSVP to the Appellate Sections Secretary, Bethany C.K. Ace, at bcka@hawaiilawyer.com. A light lunch will be provided.

JEFS E-Filing Tip of the Month When initiating a case in the JEFS system, be sure to include all the
litigation parties to the case before adding attorneys. The JIMS system contains the necessary information for all attorneys who are licensed and active to practice in Hawaii via data exchanged with the HSBA.
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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, including handouts 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 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 Associations Appellate Section by its Board. Mahalo and enjoy!

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

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

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