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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


Primer on Amicus Practice

By: Christopher T. Goodin (Litigation Department, Cades Schutte LLP) and Mitsuko T. Louie (DCCA, Staff Attorney, Securities Enforcement Branch)

At the May 20, 2013 meeting of the HSBA Appellate Section, Robert H. Thomas1 and Daniel M. Gluck2 gave a presentation on the topic of Amicus

Mr. Thomas is a partner with Damon Key Leong Kupchak Hastert.

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Practice. Mr. Thomas joined the section from California via the HSBAs new teleconference set up, making the presentation both informative and tech-friendly. Below is a summary of the talk.

1. Purpose. Judges profess not to take amicus briefs too seriously, so why bother? Mr. Thomas explained that amicus briefs can have influence, particularly where they take the long view and explain the broader implications of the case. Amicus briefs can also be helpful where the they rescue an inept merits brief. 2. Cheerleader Briefs. During the Q&A portion of the talk, Judge Clifton said that an amicus brief should explain upfront how it differs from the merits brief it supports. Cheerleader briefs that repeat what was said in the merits brief are unhelpful. If amicus curiae does not have something different to say, consider filing a short letter or brief that simply expresses your support for a partys position without restating the partys argument. Mr. Gluck shared that the ACLU has in the past filed short statements of support. 3. Friend of a Party? Amicus curiae means friend of the court. Judges sometimes fault an amicus for actually being the friend of a party. But, as thenJudge Alito has observed, an amicus who makes a strong but responsible presentation in support of a party can truly serve as the courts friend. Neonatoogy Assocs., P.A. v. Commissioner of Internal Revenue, 293 F.3d 128, 131 (3d Cir. 2002). 4. Types of Briefs. There are several types of amicus briefs. Invitation briefs are filed in response to a courts request. For example, the U.S. Supreme Court frequently requests the views of the Solicitor General. Industry briefs are filed by organizations, such as the U.S. Chamber of Commerce and the ACLU, to develop or protect areas of law affecting a specific area of law. Litigation briefs are typically filed by litigants whose cases may be affected by a matter on appeal. Finally, expert briefs are filed by law professors and other experts who have studied the area of law involved in the case.

Mr. Gluck is a senior attorney with the American Civil Liberties Union of Hawaii.
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5. Procedure. The federal courts have well-defined rules for amicus practice. See S. Ct. R. 37; Fed. R. App. P. 29; 9th Cir. R. 29-1 to -3. The Hawaii state court rule of appellate procedure on amicus practice is somewhat looser. See Haw. R. App. P. 28(g). Still, while the Hawaii state court rules do not require an amicus curiae to request the consent of the parties before seeking leave of court, cf. 9th Cir. R. 29-3, its generally a good practice to request the parties consent before filing. Additionally, although the state court rule does not require the motion for leave to include the proposed amicus brief, cf. Fed. R. App. P. 29(a), its a good idea to include the amicus brief as an exhibit to the motion. Finally, while the state court rules do not specify a time for filing, cf. Fed. R. App. P. 29(e), amici should try to have the brief filed as soon as possible. 6. Drafting. In drafting an amicus brief for the first time, its helpful to start by reading some good briefs. Mr. Thomas provided some examples on his website.3 The point is to educate the court, not to be an overzealous advocate. Also, be a true friend to the party you support. Do no harm. Consider discussing the amicus brief with the party and allowing the party to review and comment on the brief before you file. Finally, an amicus is not strictly bound by the record and may, for example, cite to social science studies that illustrate the cases public policy implications.

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Kelo Eminent Domain Nine Years On

By: Robert H. Thomas* (Damon Key Leong Kupchak Hastert)

June marks the ninth anniversary of the U.S. Supreme Courts infamous 5-4 decision in Kelo v. City of New London, 545 U.S. 469 (June 23, 2005), a case with a distinct Hawaii pedigree. In Kelo, the majority held that New London, Connecticut possessed the power to seize the home of Susette Kelo using eminent domain, and did not run afoul of the Fifth Amendments Public Use Clause. The city condemned the property of Kelo and her neighbors because it believed that doing so would promote economic development under the theory that the land would be better used as support facilities for a proposed campus for a pharmaceutical company. The majority opinion (Stevens, J.) held that the taking of private property to transfer to another private owner qualified as a public use, relying on the Courts earlier unanimous decision in case upholding the constitutionality of the Hawaii Land Reform Act, Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984). In addition to creating a firestorm of public reaction nearly every state but Hawaii adopted rules limiting eminent domain in the wake of the Kelo decision in 2008 the Hawaii Supreme Court relied upon Kelo to hold that courts considering challenges to eminent domain takings have an obligation to consider the property owners objections that the seizure is for private and not public use, and cannot simply rely on the statements of the condemning authority that the taking will benefit the public. County of Hawaii v. C & J Coupe Family Ltd. Pship, 119 Haw. 352, 198 P.3d 615 (2008).

* For more from the world of eminent domain and land use, visit Roberts blog at www.inversecondemnation.com.

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HSC Closes Medical Marijuana Loophole State v. Woodhall (HSC May 31, 2013)

By: Benjamin E. Lowenthal (Law Office of Philip H. Lowenthal)

Background. Geoffrey Woodhall was charged with a single count of knowingly possessing marijuana in violation of promoting a detrimental drug in the third degree. HRS 712-1249(1). Woodhall was arrested after marijuana was found in a plastic baggie at the airport in Kona even though Woodhall had a medical marijuana registry card. Just before trial, the parties stipulated that Woodhall knowingly possessed 2.12 grams of marijuana at the Kona airport, that the airport was a public place, and that Woodhall had a valid medical marijuana certificate. Woodhall argued that the medical marijuana statutes allowed him to transport the pot even though it was in public so long as he wasnt smoking it in public. The prosecution countered that the medical-marijuana defense required strict compliance and that included a prohibition from taking it out in public. The district court found Woodhall guilty as charged, the ICA appealed, and Woodhall petitioned for cert. The Medical-Marijuana Defense. It is an affirmative defense to prosecution for any marijuana-related offense defined in this part that the person who possessed or distributed the marijuana was authorized to possess or distribute the marijuana for medical purposes pursuant to part IX of chapter 329. HRS 7121240.1(2). Furthermore, [a] qualifying patient . . . may assert the medical use of marijuana as an affirmative defense to any prosecution involving marijuana under this [part] or chapter 712; provided that the qualifying patient . . . strictly complied with the requirements of this part." HRS 329-125(a). Affirmative defenses place the burden of proof on the defendant to show the defense with preponderant evidence. HRS 701-115(2)(b). This standard directs the factfinder to decide whether the existence or nonexistence of the contested fact is more probable than its nonexistence. State v. Romano, 114 Hawai'i 1, 8, 155 P.3d
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1102, 1109 (2007). In other words, the defendant need only offer evidence sufficient to tip the scale slightly in his or her favor, and the [prosecution] can succeed by merely keeping the scale evenly balanced. Id. Here, however, the parties stipulated most of the facts to narrow in on the issue of the affirmative defense. The Controversy Centers on Statutory Interpretation. It was undisputed that Woodhall was authorized to possess . . . the marijuana for medical purposes pursuant to part IX of chapter 329[.] HRS 712-1240.1(1). But Woodhall still had to show that he was in strict compliance with HRS chapter 329. HRS 329-125. That was the problem. Medical use of marijuana includes the acquisition, possession, cultivation, use, distribution, or transportation of marijuana[.] HRS 329-121. But medical use doesnt apply [a]t any . . . place open to the public. HRS 329-122. Woodhall argued that it would be impossible to strictly comply because in order to acquire the marijuana for medical purposes, it may involve transporting it through some places that are open to the public. HSC Moves Away from Rigid Construction. Even the rule that penal statutes are to be strictly construed does not permit a court to ignore the legislative intent, nor does it require the rejection of that sense of words used which best harmonizes with the design of the statute or the end in view. State v. Murray, 63 Haw. 12, 621 P.2d 334 (1980). Accordingly, the HSC delved deeply into the legislative history behind the medical marijuana statutes. It examined the committee reports and the floor debates. The HSC observed that the medical marijuana statutes are incomplete and the law fails to address the problem raised in Woodhalls case. Given that ambiguityand the fact that the legislators themselves debated the transportation problemit was baffling what the strict compliance language in HRS 329-125 really meant. Applying the Rule of Lenity. In the end, the HSC resolved the ambiguity in favor of Woodhall. This allowed the HSC to depart from the literal language of the statute. [D]eparture from a literal construction of a statute is justified when such construction would produce an absurd result and . . . is clearly inconsistent with the purposes and policies of the act[.] Morgan v. Planning Dept, 104 Hawai'i 173, 185, 86 P.3d 982, 994 (2004). The departure invoked the rule of lenity. [W]here a criminal statute is ambiguous, it is to be interpreted according to the rule of lenity. Under the rule of lenity, the statute must be strictly construed against the government and in favor of the accused. State v. Bayly, 118 Hawai'i 1, 15, 185 P.3d 186, 200 (2008). And so, in construing the statute against the government, Woodhalls interpretation prevailed and he is entitled to an acquittal. Chief Justice Recktenwalds Dissent and Concurrence: Once you get the Marijuana, go Straight home. The CJ agreed with the majority that the
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legislature created an absurd situation: a patient cannot transport marijuana without going through public places. He agreed that there was no statutorilyauthorized way for a patient to obtain medical marijuana or transport it to the home. He concurred that a strict compliance of the statutes would render the obtaining and transporting of the marijuana meaningless. But the CJ felt that this did not justify the majority in holding that the patient can transport with the marijuana outside the home once it has been obtained. Because Woodhall did not present any evidence that he was heading home after immediately obtaining the marijuana. The Dangers of Broad Interpretations. The CJ took this opportunity to warn the majority about wading into the murky waters of legislative history. We cannot change the language of the statute, supply a want, or enlarge upon it in order to make it suit a certain state of facts. . . . Even when the court is convinced in its own mind that the Legislature really meant and intended something not expressed by the phraseology of the Act, it has no authority to depart from the plain meaning of the language used. State v. Klie, 116 Hawai'i 519, 525, 174 P.3d 358, 364 (2007). The power to construe a statute to avoid absurdities, he argued, is limited in nature and the majoritys construction was too broad.

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This Month in Appellate History

On June 13, 1966, the United States Supreme Court issued its opinion in Miranda v. Arizona, 384 U.S. 436 (1996), holding that both inculpatory and exculpatory statements made in response to interrogation by a defendant in police custody are admissible at trial only if the defendant is informed of his Miranda Rights. On June 28, 1978, the United States Supreme Court issued its opinion in Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978), ruled unconstitutional (under the Equal Protection Clause) the admission process of the Medical School at the University of California at Davis, which set aside 16 of the 100 seats for "Blacks," "Chicanos," "Asians," and "American Indians" (and established a separate admissions process for those 16 spaces). On June 29, 1992, the United States Supreme Court issued its opinion in Planned Parenthood v. Casey, 505 U.S. 833 (1992), upholding the constitutional right to have an abortion, but permitting additional restrictions in the first trimester of pregnancy. On June 26, 1996, the United States Supreme Court issued its opinion in United States v. Virginia, 518 U.S. 515 (1996), striking down Virginia Military Institutes long-standing male-only admission policy under the Equal Protection Clause. On June 23, 2005, the United States Supreme Court issued its opinion in Kelo v. City of New London, 545 U.S. 469, an eminent domain case holding that the general benefits a community enjoyed from economic growth qualified private redevelopment plans as a permissible "public use" under the Takings Clause of the Fifth Amendment. The following United States Supreme Court Justices assumed office in June: John Rutledge, Louis Brandeis, Fred M. Vinson, Warren E. Burger, and Harry Blackmun.

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May Published Appellate Opinions

In May, the Hawaii Supreme Court issued six published opinions and the Intermediate Court of Appeals issued two. Below is a brief synopsis of each: In State v. Woodhall, SCWC-11-0000097 (May 31, 2013), the HAWSCT reversed a conviction related to the transportation of medical marijuana, and holding that (1) Woodhall met his burden to establish that he was a valid medical marijuana user, (2) the medical use of marijuana is a defense to the criminal charge of which Woodhall was convicted, and (3) Woodhall met his burden to establish the affirmative defense. In County of Hawaii v. UNIDEV, LLC, SCWC-10-0000188 (May 22, 2013), the HAWSCT held that (1) the statute allowing for appeals from a court order concerning an arbitration proceedings is not an exclusive list of appealable orders, (2) an order compelling arbitration was final under the collateral order doctrine, and (3) the scope of the arbitration agreement encompassed all claims and counterclaims. In State v. Pali, SCWC-11-0000451 (May 21, 2013), the HAWSCT held that for purposes of the expungement of a drug conviction, the requirement that a defendant sentenced to probation has complied with other terms and conditions is satisfied if the defendant complete the probationary term and is discharged from probation. In Kutkowski v. Princeville Prince Golf Course, LLC, SCWC-28826 (May 14, 2013), that HAWSCT held hat the sale of an undivided parcel of real property triggered a lessee's right of first refusal to purchase a small part of that property. The court adopted the view held by a minority of jurisdictions that the sale of the larger parcel to a third party does manifest the seller's intent to sell the smaller parcel as well. According to the court, [t]he minority rule accords primacy to the parties intent in assenting to the [right of first refusal] in the first place." In De La Garza v. State, SCWC-11-0000595 (May 10, 2013), that HAWSCT held that due process requires that the prisoner have timely access to all of the adverse information contained in the [Hawaii Paroling Authority] file and that the disclosure must be given soon enough in advance that the inmate has a reasonable opportunity to prepare responses and rebuttal of inaccuracies.

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In Kaleikini v. Yoshioka, SCAP-11-0000611 (May 2, 2013), that HAWSCT held that attorneys' fees could be awarded against the City and County of Honolulu to a party who successfully prosecuted an appeal, but not against the State because fees were barred by sovereign immunity. According to the court, even though Kaleikini did not win on every appellate issue, they prevailed on the "disputed main issues" thus making them prevailing parties for purposes of the award of fees. In Kekona v. Bornemann, 29036 (May 31, 2013), the ICA held that $1.65 million punitive damage award was excessive. The court concluded that although Bornemanns conduct was sufficient to five rise to tort liability and some award of punitive damages based on intentional conduct, his action did not warrant the high punitive damages awarded. In Simmons v. Samulewicz, 30527 (May 9, 2013), the ICA held affirmed the circuit courts summary judgment on claims premised on the theory of joint venture and/or joint enterprise, including an agreement to purchase real estate, based on a cohabitation and subsequent engagement that was later dissolved. However, the court reversed summary judgment on an unjust enrichment claim.

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Upcoming Events: June Appellate Section Meeting

Please join the HSBA Appellate Section for its regular monthly meeting on Monday, June 17, 2013, from noon to 1:00 p.m., at the HSBA Large Conference Room. Our guest will be the Hawaii Supreme Courts newest Associate Justice, Richard W. Pollack. A light lunch will be provided. RSVP to the Appellate Sections Secretary, Bethany C.K. Ace, at bcka@hawaiilawyer.com.

Special FBA Appellate Event

The Ninth Circuit Court of Appeals is in town! Please join the Hawaii Chapter of the Federal Bar Association for an event that happens only three times per year. The FBA's special appellate presentation on "Appellate Practice Tips" will feature Honorable Jerome Farris, Honorable Dorothy W. Nelson, and Honorable Jacqueline H. Nguyen. Please join the FBA for this event, welcome the judges to Hawaii, and learn what appeal practice advice they have to offer! Light refreshments will be served. Join us on Wednesday, June 12, 2013, from Noon to 1:00, in the U.S. Bankruptcy Courtroom, 1132 Bishop Street, Suite 250L. Please arrive a few minutes early with your government-issued photo ID to make it through security.

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JEFS E-Filing Tip of the Month Just because there is e-filing for appeals, doesnt mean youll never have to
file paper copies. Be sure to check the Hawaii Appellate Rules to determine if filed paper copies are required, and, if so, how many: http://www.courts.state.hi.us/docs/court_rules/rules/hrap.htm#Appendix%20 %20A

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, Gemma-Rose Poland Soon, Bethany C.K. Ace, and Brett Rowan. 2013 HAWAII STATE BAR CONVENTION: The Appellate Sections time at this years Bar Convention is scheduled to include presentation of the Federal Appellate Practice Manual (with presentations by many of the contributors to the manual), Hawaii Appellate Motions Practice (with an insert for the Hawaii Appellate Practice Manual released last year), and an Appellate Panel. Our Appellate Panel will include distinguished Hawaii jurists including Hawaii Supreme Court Chief Justice Mark Recktenwald and Associate Justices Simeon Acoba, Sabrina McKenna, and Richard Pollack. Mark your calendars now for Friday, September 27, 2013.

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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 July 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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