THE APPELLATE RECORD

December 2014
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

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 Hawai i 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!
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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 Hawai i
Supreme Court Chief Justice Mark Recktenwald.

Chief Justice Recktenwald discussed the strides Hawai i 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) and
Rebecca 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-day
extension 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 appellate
court;
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 tax
assessments 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. SCAP13-0000091 (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 the
requirements 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 (OVLPSROVUII). The ICA affirmed. The court first held that district court did not err in
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allowing the State to amend its complaint before trial to allege the requisite mens
rea as required by State v. Nesmith, 127 Haw. 48, 276 P.3d 617 (2012). Kam did not
show that she was prejudiced by the amendment. Further, the court concluded that
the State introduced sufficient evidence of Kams prior OVUII conviction so as to
support the conviction for OVLPSR-OVUII in this case.
State v. Locken, No. CAAP-11-0000568 (Haw. App. Nov. 28. 2014). Locken
was convicted of third-degree assault, and the ICA affirmed. The ICA held that the
circuit court properly admitted prior bad act evidence regarding a prior occasion in
which Locken challenged someone to fight. One of the complainants, Wong, asked
Locken why he made a similar type of challenge in this case, and Lockens response
to that questioning directly led to the assault. The ICA also held that the circuit
court erred by imposing a blanket prohibition on defense counsel from asking
witnesses if they are lying, but that the error was harmless in this case. The ICA
further held that the circuit court did not err in denying recall of a defense witness
because defense counsel forgot to ask a question, and that such failure to ask did
not constitute ineffective assistance of counsel. Finally, the ICA held that the jury
instructions on self-defense were not erroneous.
AC v. AC, No. SCWC-12-0000808 (Haw. Nov. 28, 2014). In this appeal from
a child custody proceeding, the Supreme Court held that the family court abused its
discretion by strictly adhering to a three-hour trial limit. According to the record,
the family court had set the limit in advance of trial. At trial, Father was able to
completely present his evidence, but Mothers presentation of evidence was cut
short by the court despite her motion for additional time. The family court then
awarded sole legal and physical custody to Father. The ICA affirmed. On further
review, the Supreme Court concluded that [w]hile trial courts are given
considerable discretion in managing their calendars, the family courts strict
enforcement of the time limit here unduly curtailed Mothers ability to present
evidence relevant to the proper determination of the childrens best interests.
Accordingly, the Supreme Court vacated and remanded to the family court.
State v. Harter, No. SCWC-12-0000962 (Haw. Dec. 10, 2014). Harter was
convicted by a jury of second-degree assault against a law enforcement officer,
resisting arrest, and disorderly conduct. The ICA affirmed. On further review, the
Supreme Court concluded that the circuit court erred by not making a
comprehensive inquiry regarding a conflict of interest between Harter and her
counsel, and also that Harter did not voluntarily consent to the attorney-client
relationship. Thus, the denial of Harters motion for withdrawal and substitution of
counsel denied Harters right to effective assistance of counsel. The court also noted
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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 the
prosecutors 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 481B14, 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 nonmanagement 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 of State 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 Lewis did not specify the content of such pretrial
advisements, the Monteil court 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 to
the 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 on
January 12, 2015 at the HSBA Office Large Conference Room. Our guest
speaker will be Hawai i 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)

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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 efile 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 cosponsored 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 Appellate
Section 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

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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 next edition of

The Appellate Record!

If you are interested in contributing to our newsletter in any way, please contact the
Bethany C.K. Ace at bcka@hawaiilawyer.com

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