THE APPELLATE RECORD May 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:

Federal Appellate Practice

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

At the April 15, 2013 meeting of the HSBA Appellate Section, Judge Richard R. Clifton of the United States Court of Appeals for the Ninth Circuit, Mark M. Murakami,1 and Clare Conners2 gave a talk on the topic of Federal Appellate Practice. Mr. Murakami discussed civil appeals, Ms. Conners addressed some of the differences between civil and criminal appeals, and Judge Clifton offered helpful insights throughout the discussion and closed with three practice pointers. The talk is summarized below.

1 2

Mr. Murakami is a partner at Damon Key Leong Kupchak Hastert. Ms. Conners is an associate at Davis Levin Livingston.
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1. Civil Appeals a. Bar Admission. Attorneys admitted to practice before the District of Hawaii are not automatically admitted to practice before the Ninth Circuit. There is a separate admissions process for the Ninth Circuit. b. Jurisdiction. The Ninth Circuit has jurisdiction to review final judgments under 28 U.S.C. 1291, certain orders specified in Fed. R. Civ. P. 58, and interlocutory orders specified by statute (e.g., injunctions and arbitration orders). In addition, the Ninth Circuit has jurisdiction to review decisions under the collateral order doctrine and to allow discretionary appeals under 28 U.S.C. 1292(b). When dealing with post-judgment orders, as in collection cases, consider carefully researching when the orders become appealable. c. Discovery Orders. Discovery orders are not immediately appealable, though contempt orders for failure to follow discovery orders are immediately appealable. d. How to Appeal. An appeal is initiated by filing a notice of appeal. Even if different counsel is handling the appeal, the trial counsel should nevertheless file the notice of appeal and identify appellate counsel in the notice. e. Deadline. A notice of appeal must be filed within thirty days of entry of the appealable judgment or order. This deadline is jurisdictional. f. Mediation. The Ninth Circuits mediation program is based in San Francisco. Mr. Murakamis experience with the mediation program has been favorable. He noted that mediators have discretion to move briefing deadlines for the mediation.

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g. Briefs. i. Deadlines and Page/Word Limits. The briefing deadline is set by the clerk upon filing the notice of appeal. Typically, the answering brief is due a month after the opening brief, and the reply brief is due 14 days after the answering brief. Opening and answering briefs are subject to page limits of 30 pages (or 14,000 words) and reply briefs must be no longer than 15 pages (or 7,000 words). Fed. R. App. P. 32(a)(7). ii. Readable Fonts. Briefs often use the default fonts of Times New Roman and Courier. Consider employing more readable fonts, such as Century Schoolbook. See Requirements and Suggestions for Typography in Briefs and Other Papers, http://www.ca7.uscourts.gov/rules/type.pdf. Judge Clifton shared that he tried using different fonts in his court documents, but was met with institutional resistance and was directed to use Times New Roman. iii. Standards of Review. In researching for a brief, it is worth reviewing the Ninth Circuits guide on standards of review on its website. www.ca9.uscourts.gov (click Guides and Legal Outlines and then click Standards of Review). The guide is prepared and updated by Ninth Circuit staff attorneys. iv. E-filing. Briefs are e-filed with the Ninth Circuit. Consistent with 9th Cir. R. 25-5(d), the brief should be submitted in PDF format and generated by publishing to PDF from the original word processing file. This permits the electronic version of the brief to be searched and copied. Additionally, any citations for websites will probably appear as hotlinks. These features are useful for those judges and law clerks who review the briefs electronically. Judge Clifton noted that he reviews the briefs on his iPad. After e-filing, the clerk will direct the parties to submit hard copies. v. Good Briefing. Judge Clifton emphasized the crucial importance of good briefing. He noted that the briefs are the only communications between the parties and the panel before oral argument and that 90% of the courts work occurs before oral argument. The judges review the briefs and the law clerks write bench memos. Typically, for each case one of the three judges chambers is assigned to write the bench memo, which is subsequently circulated to the other two judges chambers for review and comment.3 Given the substantial amount of work before oral argument, judges typically have strong inclinations on disposition prior to argument and it is rare for the argument to change their minds. h. Oral Argument. The Ninth Circuit holds oral argument in Honolulu three times a year. Generally, appeals from the District of Hawaii are heard in Honolulu at the U.S. Bankruptcy Court. Some Hawaii cases are heard in San Francisco when the cases must be decided on an expedited basis.
3

All but two Ninth Circuit Judges participate in this bench memo pooling process. Page 3

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i. The Panel. Judge Clifton explained that there is a rotation system for Ninth Circuit Judges to sit in Honolulu because it is a desirable location. A judge who was part of a panel in Honolulu will probably not sit again in Honolulu for at least three to four years. j. En Banc. The Ninth Circuit rehears cases en banc approximately 20 times a year. The en banc panel is comprised of 11 judges, which consist of the Chief Judge (unless he recuses himself) plus ten judges drawn at random from the pool of (1) all active Ninth Circuit judges and (2) all senior Ninth Circuit judges who previously participated in the case. Judge Clifton noted that, of the cases reheard, typically four to five are reheard because they involve intra-circuit conflicts; two to three are reheard to overrule bad circuit precedent; and the rest are reheard because the court disagrees with the decision of the original three-judge panel. Judge Clifton noted that, when circuit precedent conflicts with intervening Supreme Court case law, it is not necessary for the Ninth Circuit to overrule the circuit precedent through the en banc process. Rather, a three-judge panel may recognize that the circuit precedent is no longer good law, even if the Supreme Court did not specifically disapprove or overrule the circuit precedent. k. Amicus Curiae. Unlike in Hawaii state appellate courts, amicus briefs are common in federal appellate courts. These briefs are helpful when they provide context for the case and explain its real-world implications. Judge Clifton noted that amicus briefs can be helpful, though they are not well read because most are simply cheerleader briefs or briefs that restate what has already been said in the parties briefs. Because of this, Judge Clifton recommended that an amicus brief explain its key points within the first few pages. 2. Criminal Appeals a. Deadline. In contrast to civil cases, the deadline to appeal for criminal defendants is normally ten days, though additional time may be obtained based on a showing of need. The government, on the other hand, has 30 days to appeal. This is partly because the government must obtain certain approvals from the Attorney Generals office before the appeal can be filed. b. Habeas. Unlike in civil cases, even after a criminal appeal is decided, the criminal defendant can file for habeas relief. c. Interlocutory Appeals. Interlocutory appeals are not favored in criminal matters, but they are available in some circumstances. For example, an order quashing a grand jury subpoena is immediately appealable. So, too, is an order granting or denying a motion to suppress evidence.

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d. Correction of Sentences. Even during the pendency of an appeal, the district court retains jurisdiction to correct criminal defendants sentences. 3. Judge Cliftons Practice Pointers a. Get to the Point. As noted, a principal brief is allowed up to 14,000 words. Most briefs come in just shy of the limit. Judge Clifton recommended that briefs be more succinct and include their main points through an introduction. He also suggested that the table of contents be detailed enough to provide a summary of the brief. General section headings are not very helpful. b. Simplify the Case. Generally speaking, the appellants odds of prevailing are not good. Eighty percent of district court decisions are affirmed. Take a step back from the case and try to distill why you should win to a single sentence or short paragraph. It helps to consider the equities of the situation. Judges want to do the right thing, so show them why a decision in your favor is the correct way to go. c. Keep Your Target Audience in Mind. The audience includes judges and their law clerks. For unique or unusual state law issues, it helps to provide the court with some background. And, although the judges are very familiar with general legal standards, their law clerks (who tend to be recent law school graduates) may not be. So consider providing a little background on those general legal standards to assist the law clerks.

A video of our April meeting is available at this (http://www.hawaiioceanlaw.com/hawaiioceanlaw/2013/04/new-video-federalappeals-my-presentation-to-the-hawaii-state-bar-appellate-law-section.html), courtesy of Mark Murakami.

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This Month in Appellate History

On May 18, 1896, United States Supreme Court issued its opinion in Plessy v. Ferguson, 163 U.S. 537 (1896), upholding the constitutionality of state laws requiring racial segregation in public facilities under the doctrine of "separate but equal." On May 17, 1954, the United States Supreme Court issued its unanimous opinion in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), overturning the decision in Plessy v. Ferguson and declaring state laws establishing separate public schools for black and white students unconstitutional. On May 20, 1996, the United States Supreme Court issued its opinion in Romer v. Evans, 517 U.S. 620 (1996), ruling unconstitutional a Colorado constitutional amendment that would have prevented any city, town, or county in the state form taking any legislative, executive, or judicial action to recognize gay and lesbian individuals as a protected class. The following United States Supreme Court Associate Justices took their oath of office in May: Robert Trimble (May 9, 1826), Stanley Matthews (May 12, 1881), and Owen Josephus Roberts (May 20, 1930).

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April Published Appellate Opinions

In April, the Hawaii Supreme Court issued four published opinion and the Intermediate Court of Appeals issued three. Below is a brief synopsis of each: In State v. Cramer, SCWC-11-0000085 (April 29, 2013), the HAWSCT held that the denial of a continuance requested by the defendant to allow new counsel to prepare prior to sentencing was erroneous because the circuit court did not examine certain factors to determine whether the governmental interests outweighed the right to privately retained counsel, including the length of the delay requested, the impact the delay would have on the prosecution, witnesses, or the court, or whether the delay was for a dilatory purpose. In Kobashigawa v. Silva, SCWC-30639 (April 26, 2013), the HAWSCT held that an objection in a motion in limine to exclude evidence is sufficient to preserve error for appellate review and no later objection at trial is needed as long as the trial court unequivocally rules that the evidence is admission in response to the motion in limine. In Distr. Council 50 of Intern'l Union of Painters & Allied Trades v. Lopez, SCWC-28762 (April 17, 2013), the HAWSCT held that because the Department of Consumer Affair's Contractors License Board consideration of "the cost and extent of the work" is necessary in "determining if the work qualified as 'incidental and supplemental' to the project" in determining whether a C-5 specialty licensed contractor may perform jalousie window work if the contractor does not otherwise hold a specialty glazing license (generally necessary for jalousie work). In Jou v. Schmidt, SCWC-29868 (April 16, 2013), that HAWSCT held that "[w]hen a medical provider has challenged a reduction or denial of payment from an insurer prior to exhaustion of benefits under an insured's policy, the provider's pursuit of his or her claim for those benefits, even if ultimately unsuccessful, is not unreasonable for purposes of seeking attorney's fees and costs." In Kauai Springs, Inc. v. Planning Commission of the County of Kauai, 29440 (April 30, 2013), the ICA vacated and remanded the circuit court's decision that held that the Planning Commission of the County of Kauai erred in denying Kauai Spring's combined application for a permits that would allow the company to continue operating a spring water bottling facility on land zoned for agricultural use. Specifically, the ICA held that (1) two of the permits were not automatically approved based on the expiration of the applicable time periods, (2) the public trust
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doctrine related to water resources requiring the Planning Commission to consider public trust duties relating to Kauai Springs' use of the water. Because the ICA held hat the Planning Commission failed to consider the proper criteria related to its public trust duties, the court held that the case should be remanded to the Planning Commission. In International Display Sys. v. Okimoto, 30488 (April 29, 2013), the ICA held that because a International Display Systems failed to establish that the State Department of Transportation-Airport Division acted in bad faith or arbitrarily and capriciously in cancelling the Kahului Airport Project (and the underlying solicitation of the project) due to declining economy and insufficient funds, the Administrative hearings officer did not err in dismissing the administrative hearing on IDS's bid protest (filed because the project was awarded to another bidder). In Haw. State Teachers Ass'n v. Univ. Laboratory Sch., CAAP-12-0000295 (April 15, 2013), the ICA held that although the circuit court was correct in its decision that a motion to compel was premature, the circuit court exceeded its authority in dismissing the action. The ICA remanded the case to the circuit court to determine whether "unfair disadvantage" would result from its dismissal, and whether a stay or dismissal without prejudice is instead appropriate.

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Upcoming Events: May Appellate Section Meeting

Please join the HSBA Appellate Section for its regular monthly meeting on May 20, 2013, from noon to 1:00 p.m., at the HSBA Large Conference Room. Our presentation will be on "Amicus Practice," including tips on drafting and filing amicus briefs at the state and federal level. The presenters will include ACLU Senior Staff Attorney Daniel M. Gluck and former Hawaii Supreme Court Justice Steven Levinson. A light lunch will be provided. RSVP to the Appellate Sections Secretary, Bethany C.K. Ace, at bcka@hawaiilawyer.com.

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JEFS E-Filing Tip of the Month There is an option on the JEFS system to upload sealed documents. If your
supporting document is a sealed document (per court order), select the "seal" box to the right of the document name to prevent it from being viewed by the public. Be sure this option is not inadvertently chosen for documents that are not sealed.

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 June 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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