The Appellate Record, October 2014

The Appellate Record is the official newsletter of the Hawaii State Bar Association's Appellate Section, and includes a detailed update on published Hawaii opinions since March 2014 and other appellate matters.
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  The Appellate Record, October 2014Page 1 THE APPELLATE RECORD October 2014 MEETING PRESENTATION ROUND UP by Bethany C.K. Ace (Section Chair, Damon Key Leong Kupchak Hastert)and Rebecca Copeland (Law Office of Rebecca A. Copeland, LLC)  At our  April meeting , we were fortunate enough to have recentlyretired Justice Simeon R. Acoba, Jr. give us his words of wisdom and of experience, in a presentation entitled “Trends in Hawaii Jurisprudence.”Justice Acoba’s topics included the right to privacy (in both the civiland criminal context), standing in administrative law, and cases involvingthe public trust doctrine. Current and future trends in these areas include: 2014HSBA Appellate Section Board: Chair: Ms. Bethany C.K. Ace Vice Chair: Ms. Mitsuko T. LouieSecretary: Mr. Christopher GoodinTreasurer: Mr. Robert NakatsujiHSBA CLE Liaison: Ms. Mitsuko T. LouieHAWSCT Liaison: Mr. Matthew ChapmanICA Liaison: Mr. Daniel J. Kunkel  The Appellate Record, October 2014Page 2 ã Determining the scope of the right to privacy in the civil context – forexample, HIPAA provides a federal floor/minimum to the right toprivacy but Hawai‘i can impose more stringent requirements;ã Further analysis on the scope of the right to privacy in the criminalcontext in light of continuing technological changes;ã Whether there will continue to be an expansion of standing inadministrative law related to “interested persons” – there is currently atrend toward a wider opening of the courts to allow more lawsuits, forexample, expanding the definition of a “final and conclusive” decisionby an agency;ã Further analysis of the current trend toward the expansion of theapplication of the Public Trust Doctrine (for example in  Kauai Springsv. Planning Comm’n of the Cnty. of Kauai , 2014 WL 812683 (Haw. Feb.28, 2014), the HAWSCT recently set forth a formula for applying thedoctrine in water cases);ã Further elaboration of the intersection/overlap between the PublicTrust Doctrine and Hawai‘i rights cases (which often go hand-in-hand).Justice Acoba also offered the additional information on appeals to theHawai‘i Supreme Court, practice tips, and advice:ã Nearly 50% of applications for certiorari that are filed in the lastfiscal year were accepted;ã On average, since 2012, the HAWSCT has issued 50 opinions peryear (2014 will be higher);ã Given the number of cert applications that are accepted and thelikelihood that a case will be scheduled for oral arguments, theHAWSCT is much more active now than in the past;ã To get your application for cert to stand out (and be more likely to beaccepted): be straightforward, be forthright; and make sure that yourarguments are supported by the law and the record.ã The court puts as much work and research into its analysis of a casewhere cert is ultimately rejected as it does in determining whether acase will be accepted;  The Appellate Record, October 2014Page 3 ã Amicus briefs can be helpful, and the court is open to allowing them if a motion is filed.Many thanks to Justice Acoba for yet another invaluable contribution to theappellate practice by sharing his insight! At our May meeting , we jointly presented with the Hawai‘i FamilyLaw Section for a panel discussion on a variety of appellate practice issues forfamily law appeals. Our presenters were appellate practitioners Peter V.N.Esser and Rebecca A. Copeland, both of whom represent clients in bothgeneral civil appeals and family law cases. We thank the Hawai‘i SupremeCourt for hosting us in their courtroom to accommodate attendees for bothsections and our co-sponsors in the Hawai‘i Family Law Section for comingup with this unique cross-over presentation. At our June meeting , we brainstormed on the current state of theHawai‘i Rules of Appellate Procedures, potential ideas and thoughts foramendments to the Hawai‘i Rules of Appellate Procedure. Although theSection does not specifically have influence over whether the rules may beamended in any particular way, they hope to present their ideas to theHawai‘i judiciary and the Appellate Rules Committee for consideration. Thediscussion at the June meeting was lively and produced a number of potentialideas. The members attending the meeting decided that the best course of action would be to form a committee of members to further explore the ideas,research any potential recommendations, and discuss whether and when the  The Appellate Record, October 2014Page 4 ideas may be presented to the Rules Committee. The appellate membercommittee has not yet been formed, but the Section is looking into doing so in2015. If your have any ideas you would like considered, or have a specialinterest in serving on the committee, please let one of the Section's boardmembers know. Also in June , the Section jointly presented with the Hawai‘i FederalBar Association a panel discussion of the visiting Ninth Circuit judges inbetween their hearings held on island. A big mahalo to Rebecca A. Copelandand her FBA counterpart for putting together this event! At our July meeting , Elijah Yip, a partner at Cades Schutte, formerchair of the Litigation Section, and blogger at, gave apresentation to the Section entitled “Social Media Ethics for Lawyers.” Elijahhas been a frequent speaker for the Section and we appreciate himcontinuing to keep us informed and updated on issues concerning technologyand social media relevant to our practices. At our  August meeting , Mark J. Bennett, a Director of Starn O’TooleMarcus & Fisher and former Attorney General of the State of Hawai‘i, andKenneth R. Kupchak, a Director of Damon Key Leong Kupchak Hastert,regaled those in attendance with their “Appellate War Stories,” includinglessons learned and insight gained from arguing before some of the highestcourts in the state and the country.

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