Record on Appeal

Meet Hawaii's Newest ICA Chief Judge

For the first time since the ICA was established, it has its first female Chief Judge.  

On April 24, 2018, ICA Associate Judge Lisa Ginoza was sworn in as Chief Judge of the court.  

(* Photo from the Hawaii Judiciary's website: Chief Justice Mark Recktenwald, Chief Judge Ginoza, newly sworn in First Circuit Court Judge James Ashford, and newly sworn in First Circuit District Family Court Judge Kevin Morikone)

Chief Judge Ginoza's current term runs for ten years until April 2028.  Prior to being sworn in as Chief Judge, she served as an Associate Judge on the court since May 2010.  She also previously served as First Deputy Attorney General for the State of Hawaii, and was an attorney in private practice. 

More about Chief Judge Ginoza is available on the Judiciary's website here.

Hawaii Supreme Court Certiorari Practice Pointers

A few months ago, the HSBA Appellate Section hosted a discussion on Hawaii Supreme Court certiorari practice. The speakers were appellate attorney Peter Esser and retired HAWSCT Associate Justice Steven Levinson.

The speakers provided many insights and practice pointers, including:

• It is important to consider the factors that could influence the decision whether to seek certiorari such as cost benefit analysis, whether there are any published decisions on point, if there was a dissent in the ICA decision, whether there are inconsistencies between the decision and either ICA or HAWSCT precedent, whether the issues are of public importance, whether the case involves public officials, if the case is criminal and the defendant obtained a long sentence, if there was a large verdict or substantial economic impact, if the constitutionality of a Hawaii law is an issue, if there was a denial of due process, the standards of review (de novo versus abuse of discretion), if there was delay, whether there is a cross-application for writ of certiorari, and whether the ICA’s decision creates “bad precedent”;
• The odds of certiorari acceptance are better from a published ICA opinion (if there is also something wrong with the ICA’s decision);
• The odds also better if there is a dissent in the ICA (especially if the opinion is published) – and this may be a signal to the HAWSCT by the ICA to take the case;
• Be aware of the difference between an inconsistency in existing case law and the case law being distinguishable;
• The certiorari deadline is 30 days after the ICA files its appealable order or judgment on appeal;
• The ICA’s judgment on appeal is typically filed the same day as the fee order (if there was a request for fees);
• The certiorari deadline may be extended by the clerk for a single 30 day period (if the request is properly and timely made) – making the deadline 60 days from the judgment on appeal or appealable order;
• A request for the clerk’s extension on the certiorari deadline is filed in the ICA case;
• The appellate rules do not provide for an extension on the 15 day timeframe to file a response to an application for writ of certiorari;
• A reply to an opposition to certiorari is permitted, but there is also no extension of this 7 day deadline;
• The HAWSCT will decide whether to accept certiorari within 30 days from the date the response is filed (or could have been filed);
• The current HAWSCT appears more likely to accept certiorari than in the past;
• There does not appear to be any meaningful difference between “grave error” (the stated standard for certiorari) and error;
• The HAWSCT almost always sets a case for oral argument if it accepts certiorari;
• The HAWSCT will also almost always issue a published opinion;
• Often, the current HAWSCT appears to be an “error correcting” court;
• In theory, the rejection of an application for transfer is not necessarily indicative of whether the court will later accept certiorari – but it may be marginally predictive and show a somewhat diminished chance for certiorari;
• Applications for Writ of Certiorari are considered by the justices on a rotating/assignment basis, and the lead chamber assigned to a particular certiorari application makes a recommendation (including providing a bench memo);
• If the recommendation is to grant, certiorari is accepted, and the recommending justice is in the majority, then that justice will author the court’s decision;
• Three justices are needed to accept certiorari;
• Some justices appear more inclined to accept certiorari than others;
• Some justices may recommend certiorari if the law can be improved;
• Some justices are more deferential to the ICA and the trial court judges, and thus less likely to recommend certiorari;
• The current court appears to have one justice who is a “swing vote”;
• Which justice you get reviewing your certiorari application is the luck of the draw;
• From July 1, 2017 through December 31, 2017, there was a 45% acceptance rate.

Mahalo to the Appellate Section, Justice Levinson, and Mr. Esser for an interesting and informative talk.