Chapter 6: Appeals and the Judiciary

“On July 30, 2015, Samuel Kaeo^[1] took a stand – by lying down.  Kaeo – his arms linked with those of other protestors through the insides of PVC pipes – laid in front of trucks scheduled to transport telescope components for the Daniel K. Inouye Solar Telescope … which was then under construction on the summit of Maui’s Haleakalā.”^[2]

Many people are familiar with the protests at Mauna Kea on the island of Hawaiʻi, featuring native Hawaiian protesters and elders who have literally blocked access to the site to prevent the construction of the world’s largest telescope there. The “TMT” (Thirty Meter Telescope) protests have been going on for years and the situation still has not been resolved.  Mauna Kea has a long rich cultural association with the native Hawaiian people. It is considered to be a sacred mountain. “The upper regions house the highest ranking spiritual spaces accommodating Hawaiian deities such as Wakea (Sky Father) and Papa (Earth Mother), Na Akua (divine deities), Na ‘Aumakua (divine ancestors). There are burial grounds of high ranking chiefs and priests. The mountain is regarded with great reverence where cultural and religious practices are still performed. The degree of passion and devotion to Mauna Kea as a culturally sacred place cannot be measured.”^[3]

Fewer people are familiar with the counterpart protests by Hawaiians at Maui’s Haleakalā. For reasons similar to  those for the TMT, western scientists wanted to site the world’s most powerful solar telescope (researching the sun) at Haleakalā on Maui. Scientists tested hundreds of sites for the telescope, but Haleakalā’s elevation (almost 2 miles above sea level), clear sky, and stable atmosphere made it the first choice of the National Solar Observatory to build the telescope.^[4]

However, they were also native Hawaiian protesters who did not want to see the telescope completed^[5] as “Haleakalā Crater is known as “where the gods live.”^[6] The summit was traditionally used by Native Hawaiians as a place for religious ceremonies, for prayer to the gods, to connect to ancestors, and to bury the dead. Native Hawaiians continue to engage in some of these practices at the summit.”^[7]

The protest that Professor Kaʻeo participated in on that July evening was designed to block a transport convoy of approximately twenty workers bringing material up to the telescope.  According to the ICA’s opinion, “At around 7 p.m. on the day in issue, Kaeo arrived at the Baseyard, spoke with [supervisor] McMullen, asked McMullen “is this the place where the transport was going to happen?”, and after being told it was, Kaeo told McMullen “you better get ready” and that they “were in for the night.” McMullen testified that initially there were about ten protesters, but the number continued to grow… by 10:00 p.m., over a hundred protesters were outside the Baseyard, holding signs and walking around the crosswalk located outside the gate.  At around 9:30p.m. and 10:00 p.m., the convoy attempted to exit the Baseyard through the MECO gate as scheduled…  but was unable to go any farther as the protesters approached the trucks and the trucks had to stop.”^[8]

“[L]ines of five or six people connected their hands through PVC pipes and used duct tape to secure the PVC pipes to their arms so the pipes could not be slipped off.  The first line of people laid themselves down approximately twenty feet from the Baseyard gate, preventing the convoy from moving forward.”^[9] The police were called and had to use a hacksaw to free the protesters from the pipes. The  police then arrested the protesters who had been taped together, including Kaʻeo.

Professor Kaʻeo was cited for disorderly conduct, a violation of HRS section 711–1101, and was convicted in May 2016. The elements of the crime specified:

A person commits the offense of disorderly conduct if,

1. with intent to cause physical inconvenience or alarm or recklessly creating a risk thereof
2. to a member or members of the public
3. by creating a hazardous or physically offensive condition by any act
4. which is not performed under any authorized license or permit[.]^[10]

All of the element must be met to convict a defendant of the crime. Kaʻeo appealed to the intermediate Court of Appeals, and when he lost, submitted a writ of certiorari to the Hawaiʻi Supreme Court, which was granted.

The case is interesting because it revolves around the definition of the word “public” in element 2. The definition of disorderly conduct requires proof that the defendant intentionally caused physical inconvenience or alarm to a member or members of the public.” Professor Kaʻeo’s argument was that because he was trying to block the transport convoy (and did block only them, not other traffic), that he did not cause inconvenience to “the public,” but was ended in constitutionally protected conduct and speech under the First and Fourteenth Amendments of the United States Constitution and article I, § 4 of the Hawai’i Constitution^[11]. He addressed the disorderly conduct charge by claiming that his activities were “directed toward a small, private entity – the DKIST– and did not cause any inconvenience or alarm to any member or members of the public[.]”^[12] In a split decision, the ICA majority found that the constitutional protections did not apply and found that the convoy workers did qualify as “member of the public,” this supplying an essential element of the offense of disorderly conduct. However, the dissenting judge, Judge Nakasone, filed a 12 page dissent in which she analyzed the phrase “members of the public” concluding that “the approximately 20 individuals involved in the … transport convoy were members of a select group, rather than members of the community as a whole or the general public.”^[13] She therefore found that the prosecution was missing one element of the crime and would have reversed the conviction.

On appeal, the Hawaiʻi Supreme Court did reverse the decision. The court did not address the constitutional claims but focused on the definition of the phrase “members of the public.” Like Judge Nakasone, the Supreme Court dissected the use of the word in statutes, grammar, semantics, the model penal code, and the dictionary. The court analyzed the phrase meticulously and with precision, concluding that the ICA majority opinion that public merely meant “a substantial number of persons affected or likely to be affected by the defendants contact” would make the law “incoherent.”^[14] The court held that, as used in this statute, the word “public” did not simply mean lots of people (in which case, the twenty convoy drivers would qualify and all of the elements for the crime would be met), but that it had to mean members of the community as a whole, and not the specific subset of people charged with the common goal of constructing the telescope (so the twenty convoy drivers were not part of the “community as a whole” and thus one element of the crime was missing.  The court found that the evidence failed on this element and they reversed Professor Kaʻeo’s conviction.^[15]

What can we glean from the story?

The courts take Hawaiian issues seriously. Native Hawaiians, the original inhabitants of these islands, have a special relationship with the land, which is preserved in our State Constitution. Even though this was a relatively trivial charge, misdemeanor disorderly conduct, because it was done in the context of a Hawaiian protest against what they saw as the misuse of some of their sacred land, this course went all the way up to the Hawaiʻi supreme court.

Second, note the structure of a criminal offense. Each element must be met, or the crime does not apply to the defendant. In this case, one of the elements was found to be missing, unless the whole crime fails. This isn’t like the situation where “most of” the elements must be met: all of them must be met. Therefore, while it may seem overkill that the both the ICA and the Supreme Court spent many pages parsing the exact meaning of “the public,” this is because in the law, details matter. The court doesn’t just wing it and use the dictionary definition of public, they compare it to other situation, other uses in the law, and try to come up with the best and most comprehensive interpretation that does justice to the case.

Third, you might have previously realized it, but we have two levels of appeal. The intermediate Court of Appeals is, as its name suggests, in between the trial court and the Supreme Court. As you will learn below, a losing party  gets one appeal, but if they lose that first appeal and want to appeal to the Supreme Court they have to file something called a writ of certiorari, which we will discuss more below.

Appeals

This chapter on appeals is placed after the chapter on trials, but not because chronologically appeals always come after trials, because they do not! This chapter covers appeals separately, because generally, in appeals, the court looks something different than a trial court does. Before we get to that, look at the chart of the many times when an appeal can arise.

You’ll see that at each of the major parts of a case, something can happen that can prevent the case from continuing on to trial. In the pleadings phase, one of the parties can move for a “judgment on the pleadings.” This means that the party is alleging that even if the court looks at the other side’s documents after all the pleadings have been filed (for the plaintiff, the complaint, and the reply if any, and for the defendant, the answer, and the counterclaim if any, and assumes their allegations are true, there is still something so fundamentally flawed that the opposing party must lose as a matter of law. For example, one such issue in a plaintiff’s complaint would be lack of jurisdiction. If the plaintiff gets into a bar fight in Waikiki and tries to sue the defendant for damages, but the plaintiff, instead of filing in Honolulu, where the incident took place, tries to file in his home county of Maui, the Maui court would have no jurisdiction over the case, and the defendant could successfully file a motion for judgment on the pleadings, no matter how many witnesses the plaintiff claims to have that the defendant started the fight. If that were to happen, the case would stop there, and the losing party could appeal to the ICA.

At the pre-trial phase of the case, where both sides are going through discovery,  some evidence may come out that completely undercuts one side’s view of the case. For example, in a medical malpractice case against a surgeon for operating on the wrong leg, the defendant may depose (take a sworn statement from) the operating room nurse that she reminded the doctor that it was the right leg that needed the surgery, not the left, undercutting the surgeon’s defense that the records incorrectly identified the leg, and so the plaintiff may make a motion for summary judgment, and if granted, the case would stop there, and the losing party could appeal to the ICA.

Even during trial, for instance, at the end of the plaintiff’s or prosecution’s case in chief, if the defendant thinks that it is obvious that the other side has not met their burden of proof, they can file a motion, and if granted, the case could be appealed to the ICA.

And of course, after trial, in many instances, the losing party can then also appeal to the ICA, as outlined below.

In these types of appeal, the appellate court will only look at questions of law. They won’t in general go in and re-determine any questions of fact. How are these two categories different? The questions of fact are the competing stories between the two parties – the trial court, or the jury if there is one – will determine whose set of facts is true. For example, in a bar fight case, the jury may look at multiple security cameras, witness phone videos, or eyewitness testimony to determine who actually provoked the fight and threw the first punch.

The other issue decided at trial is which law applies (the questions of law), and how to apply it correctly. Let’s take the hypothetical of a shoplifting case.  There are four degrees of theft, and while there are some variations from these standards based on what was stolen and who it was stolen from,^[16] here are general classifications based on the amount that was stolen and the seriousness of the maximum punishment:

• Theft in the First Degree is a theft of an item that is over $20,000 in value (felony B, up to 10 years in jail).
• Theft in the Second Degree is theft of an item that is over $750 (felony C, up to 5 years in jail).
• Theft in the Third Degree is for items higher than $250 (misdemeanor, up to 1 year in jail), and
• Theft in the Fourth Degree is for items valued at $250 or less (petty misdemeanor, up to 30 days in jail).

In this hypothetical, the defendant goes to Macy’s and takes a $350 toaster oven out of its box and surreptitiously swaps it for a $150 toaster oven, putting each one inside the other box, and then tries to pay for only the cheaper box with the more expensive toaster inside, but is stopped outside the store by security. In this case, determining which law applies may seem easy, because the theft is going to be the value of the more expensive toaster, $350, which is Theft in the Third Degree. Or is it?

• Should the price that the defendant actually paid for the cheaper toaster ($150) be deducted from the amount stolen ($350), so that the theft would only be a theft of $200, which is the lesser offense of Theft in the Fourth Degree?
• What if, unbeknownst to the defendant, another person already switched an even more expensive toaster for the $150 toaster, so while the defendant thought they were swapping in a $350 toaster for a $100 toaster, they were actually swapping in an $800 toaster, meaning that the amount of the theft should qualify as Theft in the Second Degree?

These are questions of law that are not left to the jury, but are for the judge to decide. On appeal, the appellate court will only look at the question of law. In our shoplifting hypothetical, if the prosecution tries to prove that the defendant had shopped at Macy’s for toaster ovens before and was well aware that the second toaster was the $800 model and not the $350 model, and the court denies that evidence, the fact of the defendant’s knowledge will not be discussed at the appellate level. The only issue on appeal will be the issue involving which was the correct charge, as that is the only matter of law.

As only issues of law can be reconsidered on appeal, if one of the parties has difficulty in getting some of their evidence submitted at trial, evidence that would tend to prove or disprove a fact, the attorney needs to file an objection to the trial court’s denial, so they can “preserve the issue on appeal.” For example, in our hypothetical shoplifting case, let’s say the defendant’s defense is an alibi, with the implication that the real guilty party is her identical twin sister. If the defendant’s brother was prepared to testify that the defendant was home with him at the time of the event, whereas the twin sister had told him that she was going shopping at Macy’s, but for some reason the trial court refused to allow the brother to testify, the defense counsel could object, and on appeal, the legal issue would be whether the trial court appropriately ruled against hearing the defendant’s brother. If the appellate court finds that the brother should have been allowed to testify, the appellate court still does not change the findings of fact themselves to determine that the defendant was wrongly charged and that the twin sister was the real guilty party. Instead, the court “remands” the case (sends the case back down) to the trial court for further action based on this new determination.

In addition to this type of appeal, there’s also a certain type of interim appeal from the judge’s decision that does not end the case but that is detrimental to a party’s success in carrying out their prosecution or their defense. The judge’s decision has to be one that cannot be corrected in a regular appeal after the case is over. Let’s use a hypothetical example of a trade secret case in which the plainitff company charges the defendant company of stealing the plaintiff’s secret formula, and demands that the defendant release its own secret formula so the plaintiff’s expert witnesses can compare the two. If the trial court judge rules that the defendant company must reveal its secret formula, the defendant will be irrevocably harmed if the plainitff loses the case, because even if the defendant’s formula is found to be significantly different, the formula is no longer a secret as it has been shared with the plaintiff company.  Therefore, even though the case is not over, the defendant in this hypothetical can file an appeal from the court’s decision. These appeals are called “interlocutory” (intermediate) appeals. They are a challenge to a non-final court order. These are allowed at both the state and the federal levels, but they are are limited. For example, in Hawaiʻi, the prosecution, which typically is not allowed to appeal a final verdict in the case, is allowed an interlocutory appeal for several types of non-final court orders that can seriously harm their cases, such as “[f]rom a pretrial order granting a motion for the suppression of evidence”^[17] , and we’ll see an example of what that looks like when we look at understanding of the docket sheet below.

One of the things that does always come after a trial are the post-trial motions. These are handled differently, depending on whether the case is a criminal case, or a civil case. In a criminal case, a “Rule 40” (Hawaiʻi Rules of Penal Procedure) motion can be made for specific allegations, such as the verdict violates the constitution, or there is newly discovered evidence. In some jurisdictions these are referred to as habeas corpus motions. You can find out more about Rule 40 motions in the LAW 176, Criminal Law, course.

The corresponding civil post-trial motion is found under Hawaiʻi Rule of Civil Procedure Rule 60, “Relief from judgment or order.” The most relevant grounds for making a post-trial motions are for mistakes, inadvertence, or excusable neglect; newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial; or fraud, misrepresentation, or other misconduct of an adverse party. The motion must be made within a reasonable time, and for these specific reasons, not more than one year after the judgment or order was entered, or proceeding was concluded.

So, in going back to the appeal process, how does that work? The Judiciary spells out all of the processes in the Hawaiʻi Rules of Appellate Procedure (HRAP). I need to emphasize that this book is not to be used as a guide to filing your own appeal. The appellate process is quite complex and involves multiple steps, such as filing notices on time, preparing the trial record and filing it with the court, etc. If you ever find yourself in the position of needing to file an appeal, please consult an attorney!

Here is an outline of the process, with the caveat that this chapter cannot possibly provide all of the same information in the Hawai‘i Rules Of Penal Procedure (HRAP), as the HRAP contains 50 pages of text and 27 pages of forms, and the HRAP also refers to a number of other different sets of court rules, such as the Hawaiʻi court record rules and the Hawaiʻi electronic filing and service rules, and states that “attorneys and pro se parties are deemed to be aware of, and are expected to comply with, all of the provisions of these rules.”^[19] So even if you don’t know these rules, the court will treat you as though you did.

If a party loses at the trial court and wants to appeal, they have a strict time frame, just as the parties have for filing their pleadings at the trial court level. They need to file a notice of appeal, with the correct fees, in general within 30 days after the entry of judgment.^[20]

The appellant has to file the notice of appeal on all the other parties so they know what is happening. The court may require the appellant to file a bond (money or a pledge to pay money) to ensure payment of the costs on appeal in a civil case, such as the cost to pay the court reporter to get a transcript of the trial court hearings. This also is a surprise for many appellants, who think that the court “just has” the court reporter’s transcript from the trial. Unfortunately, no; it is the job of the appellant to take the steps necessary to enable the clerk of the court to assemble and transmit the record to the ICA.

The appellant then has to write a “brief,” which is their written argument describing the error in interpreting the law made by the trial judge. The court will not reevaluate the evidence in the court files and make a new determination of the facts; the court generally reviews only the issue of law and at most will remand the case if it feels that the trial court erred in not admitting certain evidence.

After the appellant writes their brief, it is served on the appellee, who also needs to write their own brief. Sometimes appellees may resent the fact that they are dragged into an appeal when they won below, but that is just how the system works. An appellee who fails to write their own brief, describing why they think the court below was correct, risks having the court rule in the appellant’s favor and overturning the result at trial.

After each side has submitted their briefs, the court will schedule the oral argument. The ICA is composed of six judges, who sit in panels of three. The oral argument is a formal procedure, where each side has 30 minutes to present their case to the judges, but it is not 30 minutes whether they just talk, like making a speech. Instead, the individual judges on the court will interrupt each side with questions that they feel are important to have answered, which may not be the points that the party at the podium was prepared to speak about. Here is a sample of an oral argument, where the attorney is in yellow and the justices questions are in green. Notice that the attorney often has their statements cut off.

After the hearing, the court will issue its opinion.  The losing party can choose to appeal to the Hawaiʻi Supreme Court by requesting an appeal through a “writ of certiorari” (also known as the “writ of cert”).

The Supreme Court does not have to accept this appeal, and in fact, statistics show that the Supreme Court accepts few writs and rejects the substantial majority.^[21]

In this next video, we’ll walk through the docket sheet of a criminal case, State v. Naeole, a circuit court drug case with search and seizure issues, which will show you one way in which a writ of cert can be applied for and what happens after it is granted.

The Judiciary’s website: Online access to information and justice

If you’ve never been to the Judiciary’s website, you will be amazed at the amount of information that it provides.  There are two rows of drop-down links at the top that provide specific information relevant to you, whether you’re a member of the public seeking general information, a “litigant” (meaning someone involved as a party in a court case), or someone called to jury service.

There are two screenshots below. The first is a screenshot of the Judiciary’s homepage with the “self-help” tab depressed, showing you just some of the resources available under that link.

The second screenshot is the link under the “legal references” link, also on the menu bar, which shows you where the court rules are. These are the rules that have been cited in this chapter and last chapter, the Hawaiʻi Rules of Appellate Procedure, Hawaiʻi Rules of Civil Procedure, Hawaiʻi Rules of Penal Procedure, the Judicial Selection Committee Rules, and many more. There are over 30 sets of rules on this page, and trying to get through them can be tough for a layperson, as they are written using the language of lawyers. However, if you are determined and patient, you can read these rules and start to gain a more in-depth sense of our legal process.

The Judiciary offers a much more detailed level of services than was covered in the previous chapter, which was just meant to outline the basic process and prepare you for more detail in this chapter. The following video will go over the different services the Judiciary provides, including special programs, a new online dispute resolution program, and interpreter services.

The structure of an appellate court decision.

These judicial opinions, also known as cases, are how judges document the way they resolved a particular legal dispute and explaining their reasoning. Unless the topic of law is completely new, there will be multiple citations to previous court cases, primarily in the same jurisdiction if possible, that compare and contrast the facts of these other cases to explain how the court reached its decision. There are standard parts of a judicial opinion, and I’m going to outline them below, and then illustrate them by guiding you through reading the Hawaiʻi Supreme Court’s opinion in the case of State versus Naeole, which is the case we looked at earlier in the docket video. Remember I told you to remember the name Zachariah Wentling? In this video you’ll find out why! (If you skipped that video, go back and watch it before you start the next one.)

The first thing you see in any case is the caption, which lists not only the parties’ names, but their status at each level of the trial and appeal. Take a look at the screenshot below, which is color-coded to show you exactly why these designations are so long.

The material underneath the caption or the case number, the status of the case (which court it came from) with the case numbers for the courts below, the date of the opinion, and the judges or justices who participated in making the decision. The first judge (for the ICA) or the first justice (for the Supreme Court) listed is the chief judge or chief justice, which is why the initials CJ appear after their names, and the rest of the judges or justices are grouped with a “JJ” at the end, which means that they are associate judges or justices. While occasionally a court opinion is written without attribution, most typically the next line will contain the name of the primary author of the opinion. Unless there is a dissent written at the end of the opinion, all of the other judges listed agreed with the outcome of the case.

The next thing in the cases is a short synopsis of what the specific legal issue was, so that someone reading the case (other than the parties to the case, who presumably would be very interested in every word) will understand what the case is about and decide whether their research requires them to read the full case or not.

The next thing you will see are the facts of the case as determined by the trial court. There can also be a procedural history of the case, which talks about what happened after the case was filed in court. Next there often can be a “standard of review” listed in which the court states what standards they used in making their analysis. We’re not going to cover that in this chapter: we are sticking with the basics. Then the court will discuss the existing law in the case. This could be the constitution, state statutes or county ordinances, and, most frequently, other cases in the jurisdiction. Cases in the same court as the one currently hearing the case will be the most important to the court in deciding how to compare our current law.

Last, the court will come to a conclusion. There is never a tie in a court decision. The case doesn’t necessarily end once the appeal is written. If the court’s judgment on what law applies is final, such as the court finding that a case should never have been prosecuted because it violated the constitution, then the case is over. However, if the case involves additional actions that need to be done at the trial court, the court will send (remand) the case back down to the trial court level for further proceedings. You will see an example of that in the video below.

If you want to read the whole decision, the link is here: State v. Naeole.