On April 7, 2014, the HSBA Appellate Section hosted recently retired Hawaii Supreme Court Justice Simeon R. Acoba, Jr.
Justice Acoba provided an interesting and informative presentation entitled “Trends in Hawaii Jurisprudence.”
Justice Acoba’s topics included the right to privacy (in both the civil and criminal context), standing in administrative law, and cases involving the public trust doctrine. Current and future trends in these areas include:
• Determining the scope of the right to privacy in the civil context – for example, HIPAA provides a federal floor/minimum to the right to privacy but Hawaii can impose more stringent requirements;
• Further analysis on the scope of the right to privacy in the criminal context in light of continuing technological changes;
• Whether there will continue to be an expansion of standing in administrative law related to “interested persons” – there is currently a trend toward a wider opening of the courts to allow more lawsuits, for example, expanding the definition of a “final and conclusive” decision by an agency;
• Further analysis of the current trend toward the expansion of the application of the Public Trust Doctrine (for example in Kauai Springs v. Planning Comm’n of the Cnty. of Kauai, 2014 WL 812683 (Haw. Feb. 28, 2014), the HAWSCT recently set forth a formula for applying the doctrine in water cases); • Further elaboration of the intersection/overlap between the Public Trust Doctrine and Hawaii rights cases (which often go hand-in-hand).
Justice Acoba also offered the additional information on appeals to the Hawaii Supreme Court, practice tips, and advice:
• Nearly 50% of applications for certiorari that are filed in the last fiscal year were accepted;
• On average, since 2012, the HAWSCT has issued 50 opinions per year (2014 will be higher);
• Given the number of cert applications that are accepted and the likelihood that a case will be scheduled for oral arguments, the HAWSCT is much more active now than in the past;
• To get your application for cert to stand out (and be more likely to be accepted): be straightforward, be forthright; and make sure that your arguments are supported by the law and the record.
• The court puts as much work and research into its analysis of a case where cert is ultimately rejected as it does in determining whether a case will be accepted;
• Amicus briefs can be helpful, and the court is open to allowing them if a motion is filed.
Mahalo to the Appellate Section for hosting the event, and to Justice Acoba for providing his insight!