(f) Effect of Automation on Processes and
Procedures. Duties set out in
these rules may be performed by automation.
Rule 2.1. APPLICABILITY OF OTHER COURT RULES;
DEFINITIONS.
* * *
(b) Definitions. As used in the HRAP:
* * *
"attach"
or "append" means to fasten to a physical document or to submit as a
supporting document in JEFS or JIMS;
* * *
"document" means
pleading, motion, exhibit, order, judgment, decree, or other form of written
communication or memorialization whether prepared on
paper or electronically, including electronic documents, electronic forms,
electronic templates, and electronic reports;
* * *
"file"
or "filing" means the submission of documents either
"conventionally" or "electronically" as defined in the Hawaii Electronic Filing and Service Rules.
* * *
“JEFS” means the Judiciary
Electronic Filing System;
* * *
“JEFS User” means an individual
with a valid JEFS login and password;
* * *
“JIMS” means the Judiciary
Information Management System, the case management system developed by the Hawaii Judiciary and implemented by the Hawaii Supreme Court to record information and
documents related to all cases filed in the courts of the State of Hawaii;
* * *
["papers"
include pleadings, exhibits, documents and appendices;]
* * *
“proof of service” means a
certificate of service, an acknowledgment of service, a notice of electronic filing, or an affidavit or
declaration attesting to service;
* * *
"serve" and
"service" mean "conventional service" and "notice of
electronic filing" as defined in the Hawaii
Electronic Filing and Service Rules;
Rule 3. APPEALS
_ HOW TAKEN.
(a) Filing the notice of appeal. An appeal permitted by law from a court or
agency shall be taken by filing a notice of appeal, together with such fees as
are established by statute or these rules, with the clerk of the court within
the time allowed by Rule 4. Within 7 days after the conventional filing
of the notice of appeal, the clerk of the court shall [transmit a copy of]
electronically file the notice of appeal [to the appellate clerk]
with the appellate court. A
notice of appeal filed through JEFS is deemed filed with the clerk of the court
appealed from. Failure of an appellant to take any step other than the
timely filing of a notice of appeal does not affect the validity of the appeal,
but is ground only for such action as the appellate court deems appropriate,
which may include dismissal of the appeal.
* * *
(c) Content of the notice of appeal.
* * *
[(3) The notice of appeal shall
have affixed to it proof that service of the notice was made on all parties to
the appeal in the manner required by paragraph (e) of this rule. The clerk of
the court shall permit a notice of appeal to be filed without the proof of
service, but the person who filed the notice of appeal shall file the
proof of service within seven days after the filing of the notice of appeal.]
* * *
(d) Denomination of the parties. The party appealing shall be denominated the
appellant and by the appellant's denomination in the proceeding from which the
appeal is taken so that an appellant shall be denominated plaintiff_appellant or petitioner-appellant or defendant_appellant or respondent appellant. All other
parties shall be denominated appellees, and each appellee's denomination in the proceeding from which the
appeal is taken shall also be included so that each appellee
shall be denominated plaintiff_appellee or petitioner_appellee or defendant_appellee
or respondent_appellee. Any appellee
who supports the position of an appellant shall meet the time schedule for
filing [papers] documents that is provided for that appellant.
(e) Service of the notice of appeal.
(1)
The appellant shall serve [by mail or delivery,] a filed[_marked] copy of the notice of appeal on
[counsel of record for] each other party[, or, if a party is not
represented by counsel, to the party at the party's last known address]. Proof of service shall be filed, with the appellate
court, [or agency promptly] within 7 days after the filing
of the notice of appeal.
(2)
Additionally, in all actions where the court appealed from is not
required to enter findings of fact and conclusions of law prior to the entry of
an order, judgment, or decree, but is required to do so once a notice of appeal
is filed, the appellant shall [serve, by mail or delivery, a file_marked copy of the notice of appeal on the judge who
entered the order, judgment, or decree, together with a file_marked
copy of the request for entry of the required findings of fact and conclusions
of law, as set forth in Rule 10. The clerk of the court shall include the
findings of fact and conclusions of law in the record transmitted to the
appellate clerk.] comply with Rule 10(f).
(f) Payment of fees. If the fees are not paid, the clerk of the
court who filed the notice of appeal shall [notify] file a
notification with the appellate clerk [in writing] forthwith.
* * *
Rule 3.1. CIVIL APPEAL DOCKETING STATEMENT
* * *
(b) Time for filing. The CADS shall be filed with the notice of
appeal. The appellate clerk [of the court from which the appeal is
taken] shall not reject a notice of appeal for which there is no CADS.
(c) [Number of copies. Any person filing a CADS shall submit an
original and two copies.] Reserved
(d) [Transmission and s] Service of
the CADS. [The clerk of the court shall transmit two
copies of the CADS, along with the notice of appeal, to the appellate clerk.]
Any party who files a CADS shall serve a copy of
it on all other parties.
(e) Relationship to Rules 10 and 11. Upon notice from the appellate clerk that an
appeal has been accepted into the appellate conference program, preparation of
transcripts, the record, and briefs shall be stayed pending further
notification from the appellate clerk, notwithstanding anything to the contrary
in Rules 10, 11, and 28 of these rules. If an appeal is accepted into the
appellate conference program, the appellate clerk shall notify the parties, the
clerk of the court from which appeal is taken, and the court reporters.
Likewise, the appellate clerk shall notify the parties, the clerk of the court
from which appeal is taken, and the court reporters if an appeal is returned to
the appeals docket. The appellate clerk's notices [shall be in writing and]
may be transmitted by interoffice mail,
* * *
Rule 4. APPEALS _ WHEN TAKEN.
(a) Appeals in civil cases.
(1)
Time and place of filing. When a civil appeal is permitted by law, the notice of
appeal shall be filed within 30 days after entry of the judgment or appealable
order.
The notice of appeal shall be filed
with the clerk of the court from which the appeal is taken. If a notice of
appeal is mistakenly [filed with] submitted to the appellate
clerk, the appellate clerk shall note on it the date of receipt and shall [transmit
the notice to the clerk of the court appealed from] electronically file
the notice of appeal. The date of receipt by the appellate clerk shall be
deemed to be the date the notice of appeal was filed with the clerk of the
court. A notice of appeal filed through JEFS or JIMS is deemed filed with
the clerk of the court appealed from.
*
* *
(4)
Extensions of time to file the
notice of appeal.
* * *
(B)
Requests for extensions of time after expiration of the prescribed time.
The court or agency appealed from, upon a showing of excusable neglect,
may extend the time for filing the notice of appeal upon motion filed not later
than 30 days after the expiration of the time prescribed by subsections (a)(1)
through (a)(3) of this rule. However, no such extension shall exceed 30 days
past the prescribed time. Notice of an extension motion filed after the
expiration of the prescribed time shall be given to the other parties in
accordance with the rules of the court or agency appealed from.
* * *
(b) Appeals in criminal cases.
(1)
Time and place of filing. In a criminal case, the notice of appeal shall be filed [in
the circuit, district, or family court] within 30 days after [the]
entry of the judgment or order appealed from.
The notice of appeal shall be filed
with the clerk of the court from which the appeal is taken. If a notice of appeal is mistakenly [filed
with] submitted to the appellate clerk, the appellate clerk shall
note on it the date of receipt and shall [transmit the notice to the clerk
of the court appealed from] electronically file the notice of appeal. The date of the receipt by the appellate clerk shall be deemed
to be the date the notice of appeal was filed with the clerk of the court. A
notice of appeal filed through JEFS or JIMS is deemed filed with the clerk of
the court appealed from.
* * *
Rule 4.1. CROSS_APPEALS.
(a) Right of cross-appeal.
* * *
(2)
In civil cases involving multiple_party
plaintiffs or defendants, if one party files a timely notice of appeal, any
other party, whether on the same or opposite side as the party first appealing,
may file a notice of cross_appeal
[against all or any of the other parties to the
case as well as against the party who first appealed. If the cross_appeal operates against a party not affected by the
first appeal or in a manner different from the first appeal, that party may
file a further cross_appeal as if the cross_appeal affecting that party had been the first appeal].
* * *
(b) Manner and time of filing.
(1)
The cross_appellant shall file with the clerk
of the court appealed from a notice of cross_appeal
and pay the filing fee within 14 days after the notice of appeal is served on
the cross_appellant, or within the time prescribed
for filing the notice of appeal, whichever is later. If a notice of cross-appeal is mistakenly
submitted to the appellate clerk, the appellate clerk shall note on it the date
of receipt and shall electronically file the notice of appeal. The date of the receipt by the appellate clerk shall be deemed
to be the date the notice of appeal was filed with the clerk of the court. A
notice of appeal filed through JEFS or JIMS is deemed filed with the clerk of
the court appealed from.
* * *
(d) Abandonment or dismissal of appeal. If
the appellant abandons the initial appeal or the appellate court dismisses it,
the cross_appeal may nevertheless be prosecuted to
its conclusion, if allowed by law. Within 14 days after the entry of the order
dismissing the initial appeal, if there is a record to be transcribed, the cross_appellant shall, in accordance with Rule 10(b), serve
on each cross_appellee and file with the appellate
clerk [of the court appealed from], a [notice to prepare a reporter's]
request for transcripts of such parts of the proceedings as the cross_appellant deems necessary that are not already on
file.
* * *
Rule 8. STAYS, SUPERSEDEAS BONDS, OR INJUNCTIONS PENDING APPEAL.
* * *
(b) Stay may be conditioned upon giving of bond;
proceedings against sureties. Relief available in the appellate courts
under this rule may be conditioned upon the filing of a bond or other
appropriate security in the court or agency appealed from. If security is given
in the form of a bond or stipulation or other undertaking with one or more
sureties, the bond, stipulation, or undertaking shall comply with applicable
statutes, and each surety submits to the jurisdiction of the court or agency
appealed from and irrevocably appoints the clerk of the court as the surety's
agent upon whom any [papers] documents affecting liability on the
bond or undertaking may be served. Liability may be enforced on motion in the
court or agency appealed from without the necessity of an independent action.
The motion and such notice of the motion as the court or agency prescribes may
be served on the clerk of the court appealed from, who shall forthwith mail
copies to the sureties if their addresses are known.
* * *
Rule 9. RELEASE IN CRIMINAL CASES PENDING APPEAL.
(a) Appeals or relief from orders respecting
release prior to a judgment of conviction.
(1)
An appeal authorized by law from an order refusing or imposing
conditions of release prior to a judgment of conviction shall be determined
promptly. Upon the entry of an order refusing or imposing conditions of
release, the circuit, district, or family court shall state in writing the
reasons for the action taken. As soon as practicable after the filing of the
notice of appeal, the appellant shall file a copy of the court's order with the
appellate court. The appeal shall be heard without the briefs, unless otherwise
ordered by the appellate court upon such [papers] documents,
affidavits or declarations, transcripts, and copies of portions of the record
as the parties may present or the appellate court may require. Any [papers]
documents filed in accordance with this rule shall be served on all
other parties. The appellate court that has jurisdiction over the case or a
judge or justice thereof may order the release of the appellant pending the
appeal.
* * *
(b) Release pending appeal from a judgment of
conviction. Application for release after a judgment of
conviction shall be made in the first instance in the circuit, district, or
family court. If the court refuses release pending appeal, or imposes
conditions of release, the court shall state in writing the reasons for the
action taken. Thereafter, if an appeal is pending, a motion for release, or for modification of the conditions of release,
pending a review may be made to the appellate court before which the appeal is
pending or to a judge or justice thereof. The application shall be made by
filing a written motion with proof of service on all other parties. It shall be
determined promptly upon such [papers] documents, affidavits or
declarations, transcripts, and copies of portions of the record as the parties
shall present or the appellate court may require. Any [papers] documents
filed in accordance with this rule shall be served on all other parties. The
appellate court that has jurisdiction over the case or a judge or justice
thereof may order the release of the appellant pending disposition of the
motion.
* * *
Rule 10. THE RECORD ON APPEAL.
(a) Composition of the record on appeal. The
record on appeal shall consist of the [following:
(1)
the documents filed in the court or agency
appealed from;
(2)
written jury instructions given, or requested
and refused or modified over objection;
(3)
exhibits admitted into evidence or refused;
(4)
the transcripts prepared for the record on
appeal;
(5)
in a criminal case where the sentence is being
appealed, a sealed copy of the presentence investigation report; and
(6) the indexes prepared by the clerk of
the court appealed from.] trial court or ADLRO
record, as set out in Rule 2.19 and Rule 4 of the
(b) The transcript of proceedings.
(1) Request to prepare transcript.
(A)
When to request. When an
appellant desires to raise any point on appeal that requires consideration of
the oral proceedings before the court or agency appealed from, the appellant
shall file with the appellate clerk [of the court appealed from],
within 10 days after filing the notice of appeal, a request or requests to
prepare a reporter's transcript of such parts of the proceedings as the
appellant deems necessary that are not already on file. A request for
transcripts of audiotapes or videotapes may list more than one tape on the
request. The appellate clerk shall transmit the request(s) to prepare
transcript to the designated reporter(s), the clerk of the court appealed from,
and the supervising court reporter.
(B)
Form of request. Each
request shall be submitted on a form that substantially complies with Form 9 of
the Appendix of Forms and shall contain the following information:
* * *
(iv) Portions of the transcript requested.
Unless the appellant is statutorily
exempt from the transcript prepayment or deposit requirement, each request
shall be accompanied by either a certificate by the reporter being required to
prepare a transcript that the [fees for] reporter['s
services have] has been paid or has waived prepayment;
or a declaration that the party ordering the transcript has submitted to the
court reporter a deposit of the approximate cost of the transcript fees, as
computed by the reporter in advance in writing. at the rate established by the
Rules Governing Court Reporting in the State of Hawaii;
or a declaration that the party ordering the transcript has submitted to the
court reporter a deposit of the approximate cost of the transcript fees, as
computed in advance in writing at the rate of $150 for each hour of proceedings
to be transcribed. [If a request is accompanied by a deposit, the deposit
shall be further accompanied by directions to the clerk of the court to use it
to pay for the reporter's fees when the transcript is complete.]
* * *
(C)
Payment or Deposit for Transcript. Unless the appellant is exempt from the
transcript payment or deposit requirement or the reporter has waived such
requirement, a reporter need not commence preparation of the transcript until
the required deposit or transcript prepayment has been made to the court
reporter. If the appellant files a request for transcript without prepaying
the transcript fees, making the required deposit, or obtaining the reporter's
waiver of prepayment or deposit, the reporter shall, within [eleven (]11[)] days from the date of the filing of the request
for transcripts, [notify the appellate court in writing] file a
notification with the appellate clerk that prepayment, deposit, or waiver
of prepayment or deposit for the transcripts was not made. A copy of the notice
shall also be served on [counsel for] the party requesting the
transcript.
* * *
(D)
Service required. [The
appellant shall, within 5 days of filing a request for transcripts, either or
mail a file_marked copy of the request and its
accompanying documents to the reporter who is being required to prepare a
transcript, or deposit a file_marked copy of the
request and its accompanying documents in the reporter's court jacket.] [A
request for transcripts of audiotapes or videotapes may list more than one tape
on the request, provided that a separate copy of each request for each tape is
provided to the supervising court reporter]. The appellant shall serve [also
deliver or mail] a filed[_marked]
copy of the request for transcripts and its accompanying documents [to] on
[counsel for] all other parties[, or the parties themselves, if pro
se].
(E)
Expected completion date; time limitations. Upon receipt of a request for a transcript,
the reporter shall [time stamp or otherwise] acknowledge the date of
receipt on the request, indicate the expected completion date on the request,
and then [transmit] electronically file a copy of the acknowledged request [to] in
the appellate record [the
clerk of the appellate court] and shall serve a copy on [counsel
for] all parties[ or the parties themselves, if pro se]. If the
transcript cannot be completed within 45 days after the filing of the notice of
appeal, the reporter shall notify [counsel for] all parties[,
or the parties themselves, if pro se,] of the new date on which the
transcript is expected to be completed, provided that the transcript shall be
completed within 60 days after the filing of the notice of appeal, unless the
reporter obtains an additional extension of time from the appellate court. Any
such additional extension shall be granted upon demonstration by the court
reporter that good cause for the extension exists. [The court reporter shall
serve a copy of the extension order upon counsel for all parties or the parties
themselves, if pro se.] In the event of the failure of the reporter to file
the transcript within the time allowed, the appellate court may take
appropriate action, including the levying of a sanction against the court
reporter. Upon completion of each
transcript and receipt of payment, the court reporter shall file the transcript
through JEFS and shall designate the document as the "Transcript of
proceedings held on <date>."
(F)
Inadequate payment or deposit.
If, upon receiving a request for a transcript, the reporter determines
that the prepaid fees or the amounts deposited by the appellant with the
court reporter are inadequate to cover the cost of the transcript, the
reporter shall, within 10 days after receiving the request, file with the appellate
clerk [of the court] and [mail or deliver to the] serve upon
the appellant an estimate or revised estimate of the total cost of the
transcript and a notice of the additional amount required to be paid or
deposited with the court reporter. The appellant shall pay the reporter
and shall file a reporter's certificate of payment [or deposit] with
the appellate clerk within 10 days after [the mailing] service
of the reporter's notice. The reporter shall continue to work on the transcript
until the prepaid fees or initial deposit are earned or until the expiration of
the time allowed to make the additional payment or
deposit.
(G) Filing the Transcript in the
Appellate Case. [When a transcript is completed, payment of which is to
be made by the clerk of the court from the appellant's deposit, the reporter
shall bill the appellant at the rate authorized by the Rules Governing Court
Reporting in the State of Hawaii, with a copy
to the clerk of the court, and the clerk of the court shall pay the reporter
from the funds deposited and promptly refund any excess deposit to the
appellant or give notice to the appellant of any additional funds needed.]
Upon completion of each transcript and receipt of payment, the court reporter
shall file the transcript through JEFS and shall designate the document as the
"Transcript of proceedings held on <date>."
(H)
Cancellation of request for transcripts.
If, after a request to prepare a reporter’s transcript has been filed
but before the court reporter has begun preparation of the transcript, the
requesting party decides the transcript is not necessary for the appeal, a
written cancellation request, containing the same information as required by
subsection (b)(1)(B) of this Rule 10, shall be filed with the appellate
clerk [court or agency from which the appeal has been taken] and
served on [counsel for] all [other] parties[, or the parties
themselves, if pro se]. If, within
10 days after service of the request, [counsel or] a party[,
if pro se,] deems the cancelled transcript necessary, [he or she] the
party may, within the following 10 days either order the cancelled
transcript or, in the case the appellant has filed the cancellation request,
move [in] the appellate court [or agency appealed from]
for an order requiring the appellant to withdraw the cancellation request.
* * *
(2)
Certificate that no transcripts
to be prepared.
If the appellant deems it unnecessary to have transcripts prepared, the
appellant shall, within 10 days after filing the notice of appeal, file a
certificate to that effect with the appellate clerk [of the court
appealed from] and serve a copy of the certificate on each appellee.
* * *
(4)
Notice to appellee if fewer than
all transcripts are ordered. Unless transcripts of all oral proceedings
have been ordered, the appellant shall, within the 10_day time provided in
(b)(1)(A) of this Rule 10, file a statement of the points of error the
appellant intends to present on the appeal and shall serve on the appellee a copy of the statement. If, within 10 days after service
of the statement, the appellee deems a transcript of
other parts of the proceedings to be necessary, the appellee
shall file and serve on the appellant a designation of additional parts to be
prepared and included in the record on appeal. Unless within 10 days after
service of such designation the appellant has ordered such parts and has so
notified the appellee, the appellee
may within the following 10 days either order the parts or move in the appellate
court [or agency appealed from] for an order requiring the appellant to
do so.
* * *
(d) Agreed statement as the record on appeal. In
lieu of the record on appeal as defined in subsection (a) of this rule, the
parties may prepare and sign a statement of the case showing how the issues
presented by the appeal arose and were decided in the court or agency appealed
from and setting forth only so many of the facts averred and proved or sought
to be proved as are essential to a decision of the issues presented. The
statement, together with such additions, deletions, and modifications as the
court or agency may consider necessary to truthfully and fully present the
issues raised by the appeal, shall be approved by the court or agency appealed
from and shall then be certified as the record on appeal and [transmitted]
electronically filed by the clerk of the court appealed from within the
time provided by Rule 11. [It] The statement shall contain a copy
of the judgment [and the notice of appeal] or appealable order
with its filing date. The statement shall be accompanied by a list of such
exhibits admitted in evidence or rejected as the parties desire to have
transmitted on appeal.
* * *
(f) Request for findings of fact and conclusions
of law. In all actions where the court appealed from is not required to
enter findings of fact and conclusions of law prior to the entry of an order,
judgment, or decree, but is required to do so once a notice of appeal is filed,
the appellant shall, no later than 10 days after filing the notice of appeal,
file in the court appealed from a request for entry of findings of fact and
conclusions of law, naming the judge who tried the action and entered the
order, judgment, or decree being appealed. The appellant shall attach a filed[-marked]
copy of the notice of appeal to the request. The named judge shall enter the requested
findings of fact and conclusions of law within 28 days after the request has
been filed. To aid the court, the court may order the parties or either of them
to submit proposed findings of fact and conclusions of law after the filing of
the request.
Rule
11. TRANSMISSION OF THE RECORD.
(a) Duty of appellant. After the filing of
the notice of appeal, the appellant, or in the event more than one appeal is
taken, each appellant, shall comply with the applicable provisions of Rule 10[(b)] and shall take any other
action necessary to enable the clerk of the court to assemble and transmit the
record. It is the responsibility of each
appellant to provide a record, as defined in Rule 10[(a)] and the Hawaii Court Records Rules, that is sufficient
to review the points asserted and to pursue appropriate proceedings in the
court or agency from which the appeal is taken to correct any omission.
(b) Duty of the Clerk of the Court.
(1)
Unless otherwise provided, the clerk of the court shall, within 60 days
[from] after the filing of the notice of appeal, assemble,
certify, and electronically file an [transmit to the appellate clerk
a single] imaged index to the record on appeal and imaged copies
of each document filed in the record.[ , provided that] [w]When
all documents in the record on appeal, other than exhibits, are available in JIMS
[electronic format and accessible], the clerk of the court need not
transmit the physical or imaged documents, but shall [notify] file
a notification with the appellate clerk [in writing] that the [physical
documents will not be transmitted] documents are available in JIMS. If a complete record cannot be transmitted
within such a period, the appellate court, for good cause, may extend the time
upon stipulation or motion, provided that [transcripts completed after the
record has been transmitted to the appellate clerk and] an imaged copy
of any findings of fact and conclusions of law entered after the record on
appeal has been transmitted to the appellate clerk[,] shall be [transmitted
by the clerk of the court as a supplemental record] electronically filed
by the clerk of the court without further order of the appellate court.
(2)
If the notice of appeal is filed without payment of the required fees
and the appellant has not obtained an order allowing the appellant to proceed
in forma pauperis, the clerk of the court shall not
be required to prepare the record on appeal until the required fees are
received or an order allowing the party to proceed in forma pauperis
is obtained.
(3) [In preparing the record on
appeal, the clerk of the court shall consecutively number the pages of the
court or agency file and shall provide in the file a numbered index of all the
pages therein, provided that when an electronic or] An imaged record
shall provide[s] a navigation pane or frame for access to each
document or transcript[, the clerk need not
separately number the pages]. If any
documents, exhibits, and transcripts filed in the court or agency appealed from are not
mentioned in the numbered index, the
clerk of the court shall provide an additional index identifying each of them
with reasonable definiteness. [Documents of unusual bulk or weight, p] Physical
exhibits other than documents, and such other parts of
the record shall not be transmitted by the clerk of the court unless he or she
is directed to do so by appellate court order.
(c) Duty of the Appellate Clerk.
(1)
Upon the filing of the index to the record on appeal, the
appellate clerk shall [provide] serve notice upon all parties to
the appeal [with copies of the record index] of such filing. If
an index is claimed to be in error, the party claiming it to be so is obligated
to pursue appropriate proceedings in the court from which the appeal is taken
to correct it.
(2)
When the index to the record on appeal is not filed within the
time required, the appellate clerk shall give notice to [counsel for] the
appellant[, or to the appellant, if the appellant
is pro se,] that the matter will be called to the attention of the
appellate court on a day certain for such action as the appellate court deems
proper, including dismissal of the appeal.
(d) [Temporary retention of record in the
court or agency appealed from for use in preparing appellate papers. Notwithstanding
the provisions of (a) and (b) of Rule 11, the parties may stipulate, or the
court from which the appeal is taken on motion of any party may order, that the
clerk of the court shall temporarily retain the record for use by the parties
in preparing appellate papers. In that event, the clerk of the court shall
certify to the appellate clerk that the record, including the transcript or
parts thereof designated for inclusion and all necessary exhibits, is complete
for purposes of the appeal. Upon receipt of the brief of the appellee, or at such earlier time as the parties may agree
or the appellate court may order, the appellant shall, in writing, request the
clerk of the court to transmit the record.]
[(e) Retention of the record in the court
or agency appealed from by order of the appellate court. The
appellate court may order that a certified copy of the docket entries shall be
transmitted in lieu of the entire record, subject to the right of any party to
request at any time during the pendency of the appeal that designated parts of
the record be transmitted.
If the record or any part thereof is
required in the court or agency appealed from for its use pending appeal, the
court or agency may make an order to that effect, and the clerk of the court
shall retain the record or parts thereof subject to the request of the appellate
court and shall transmit a copy of the order and of the docket entries together
with such parts of the original record as the court or agency shall allow and
copies of such parts as the parties may designate.]
[(f) Stipulation of parties that parts of
the record be retained in the court or agency appealed from. The
parties may agree by written stipulation filed in the court or agency appealed
from that designated parts of the record shall be retained by the court or
agency unless thereafter the appellate court before which the case is pending,
or any party, shall request their transmittal. The parts thus designated shall
nevertheless be a part of the record on appeal for all purposes.]
[(g)] Record for preliminary hearing in the
appellate courts. If any party desires to make a motion for any
intermediate order in the appellate courts, before the record is transmitted,
the clerk of the court from which the appeal is taken shall electronically transmit
to the appellate clerk images of such parts of the original record
as any party shall request and designate in writing.
This rule applies to all motions for
intermediate orders including motions for dismissal, for release, for a stay
pending appeal, for injunctive relief, or for additional security on the bond
on appeal or a supersedeas bond.
* * *
Rule 12. RECEIPT OF THE NOTICE OF APPEAL [BY
THE APPELLATE COURTS]; FILING OF RECORD.
(a) Receipt of the notice of appeal [by the
appellate courts]. Upon receipt of the notice of appeal, [the
appellate clerk shall thereupon assign an appellate court] a case
number shall be systematically assigned to the case. Except as provided
below, an appeal shall be listed with the appellate courts under the title
given to the action in the court or agency appealed from with the appellant
identified as such, but if such title does not contain the name of the
appellant, his or her name, identified as the appellant, shall be added to the
title. In juvenile and paternity proceedings and whenever otherwise required by
law, the anonymity of the persons or parties involved shall be maintained by
the use of fictitious [names] titles and designations as provided
by Rule 3(c)(1).
(b) Filing the record, partial record, or [certificate]
notification. [Upon receipt of the record or the partial record,
or the clerk of the court's certificate, or the certified copy of the docket
entries, the appellate clerk shall immediately give notice to all parties of
the date on which it was filed.] The appeal is docketed with the Hawaii appellate courts on the date of filing of
the record, a partial record[, clerk of the
court's certificate, or certified copy of the docket entries,] or [when]
upon the clerk of the court’s [notifies] notification
[the appellate clerk the] the record on appeal (other than
exhibits) is available in [electronic format] JIMS.
* * *
Rule 15. RESERVED QUESTIONS.
(a) From what court A
circuit court, the land court, the tax appeal court and any other court
empowered by statute, may reserve for the consideration of the supreme court a
question of law arising in any proceedings before it. Questions may be reserved
on motion of any party or on the court's own motion. Reserved questions shall be electronically
filed by the clerk of the court.
(b) Record. The court reserving the question
shall electronically transmit images of as much of the record as
may be necessary to a full understanding of the questions reserved to the
appellate clerk. [Certified copies may be transmitted in lieu of the
original documents].
* * *
Rule
21. WRITS OF
MANDAMUS OR PROHIBITION DIRECTED TO A JUDGE; WRITS OF MANDAMUS DIRECTED TO A
PUBLIC OFFICER; OTHER EXTRAORDINARY WRITS.
* * *
(b) Writs of mandamus directed to a public
officer. An application for a writ of mandamus directed to a public officer
shall be made by filing a petition with the appellate clerk [of the
supreme court] with proof of service on the officer and the attorney general or
the chief legal officer of the county, as applicable. The petition shall
conform to the requirements of subsection (a) of this rule. Upon receipt of the
prescribed filing fee, the appellate clerk shall docket the petition and submit
it to the supreme court for a determination as to whether [it] the
petition will be entertained. If the court elects to entertain the
petition, it will be handled in the same manner as a petition under subsection
(a) of this rule.
* * *
Rule
24. PROCEEDINGS IN FORMA PAUPERIS.
(a) Leave to proceed on appeal in forma pauperis from the circuit, district, family, land or tax appeal court or from an agency determination to
the Hawaii appellate courts. A party to
an action in the circuit, district, family, land or tax appeal court, or before
an administrative agency who desires to proceed on appeal in forma pauperis shall file in the appellate court [or
agency] a motion for leave to so proceed, together with an affidavit or
declaration, showing, in the detail prescribed by Form 4 of the Appendix of
Forms, the party's inability to pay the required filing fees or to give
security for costs, the party's belief that he or she is entitled to redress,
and a statement of the issues that the party intends to present on appeal. A
party who has filed such a motion may file his or her notice of appeal without
being required to prepay the filing fees. If the motion is granted, the party
may proceed with the appeal [without further application to the
appellate courts and] without prepayment of fees or costs [in any court
or agency] or the giving of security therefor. [If
the motion is denied, the court or agency appealed from shall state in writing
the reasons for the denial. The court or agency appealed from shall promptly
provide the appellate clerk with a filed copy of its order granting or denying
the motion.]
* * *
(c) [Motion for leave to proceed in forma pauperis before the appellate court. If a motion
for leave to proceed on appeal in forma pauperis is
denied by the court or agency, or if the court or agency certifies that the
appeal is not taken in good faith or
finds that the party is
otherwise not entitled to proceed in forma pauperis,
the clerk of the court shall forthwith serve notice of such action. A motion
for leave so to proceed may be filed in the appellate court within 10 days
after service of the notice of the action of the court or agency. The
motion shall be accompanied by a copy of the affidavit or declaration filed in
the court or agency, or by the affidavit or declaration prescribed in the first
paragraph of this subsection if no affidavit or declaration has been filed in
the court or agency, and by a copy of the statement of reasons given by the
court or agency for its action.
(d)] Effect of denial of motion for
leave to proceed in forma pauperis. If the [court or
agency has] motion to proceed in forma pauperis
is denied [a party the authority to proceed on appeal in forma pauperis, then] the movant
shall, within 10 days after the denial of such a motion, [filed
in the appellate court or, if no such motion is filed in the appellate court,
within 10 days after the expiration of the time to file such a motion in the
appellate court, the movant shall] pay all unpaid
filing fees and shall give security for costs. Failure of the unsuccessful movant to pay the unpaid filing fees or to give security
for costs shall not affect the validity of the appeal, but is ground for such
action as the appellate court having jurisdiction over the appeal deems
appropriate, [which] and may include dismissal of the appeal.
Rule 25. REGISTRATION, FILING, AND
SERVICE.
(a) Registration and Filing. [Papers]
Unless excused by order of the supreme court or the
intermediate court of appeals, each attorney who represents a party before the
appellate courts shall register as a JEFS User and file all documents through
JEFS. A self-represented party may
register as a JEFS User for the self-represented party’s case. A party who is not a JEFS User shall submit
documents to [with] the appellate clerk or [with] to
an ex officio clerk[, as provided by statute].
[Filing may be accomplished] Physical documents may be submitted
by conventional mail addressed to the appellate clerk, but filing shall
not be considered timely unless the [papers] documents are
received by the clerk within the time fixed for filing, except that briefs and
appendices shall be deemed filed on the day of mailing if mailed by First Class
Mail or other class of mail that is at least as expeditious, postage prepaid.
If a motion requests relief that may be granted by a single judge or justice,
the judge or justice may permit the motion to be filed and shall note thereon
the date of filing and shall thereafter transmit it to the appellate clerk.
(b) Service of all [papers] documents
required. Copies of all [papers] documents filed by any party
shall, at or before the time of filing, be served by a party or person acting
for that party on all other parties to the proceedings. Service on a party
represented by counsel shall be made on counsel.
(c) Manner of service. Service may be
personal, [or] by conventional mail, or by notice of
electronic filing in accordance with the Hawaii
Electronic Filing and Service Rules. Personal service includes delivery of
the copy to a responsible person at the office of counsel. Service by conventional
mail is complete on mailing if mailed in the manner provided in subsection (a)
above. Electronic service is
complete upon issuance of the notice of electronic filing by JEFS or JIMS.
(d) Proof of conventional service. [Papers]
Documents presented to the appellate clerk or an ex officio clerk
for filing shall contain an acknowledgment of service by the person served or
proof of service in the form of a statement of the date, the manner of service,
and of the name of the person served, certified by the person who made service.
Proof of service may appear on or be affixed to the [papers] documents
filed. Where computation of the time for a response to a conventionally
served [the] document [served] begins with the filing date of
that document, a filed[_marked] copy of
the document shall also be conventionally served upon all other parties
promptly after filing.
(e) Acknowledgment of service. The party
served may file, within 5 days after receiving service, an acknowledgment of
service setting forth the date and manner of service where the date of service
differs from the date contained in the proof of service attached to the [papers]
documents conventionally filed.
Rule 26. COMPUTATION AND EXTENSION OF TIME.
* * *
(c) Additional time after service by mail. Whenever
a party is required or permitted to do an act within a prescribed time after
service of a [paper] document, and the [paper] document
is served by mail, 2 extra days shall be added to the prescribed period.
(d) Shortening time. A judge or justice for
good cause shown may shorten the time for serving or filing a notice of
motion or other [paper] document incident to an appeal or an
original proceeding in the reviewing court. A motion to shorten time shall be
made as provided in Rule 27.
* * *
Rule 27. MOTIONS.
(a) Content of motions; response. Unless
another form is elsewhere prescribed by these rules, an application for an
order or other relief shall be made by filing a written motion with proof of
service on all other parties. The motion shall contain or be accompanied by any
matter required by a specific provision of these rules governing such a motion,
shall state with particularity the grounds upon which it is based, and shall
set forth the order or relief sought. If a motion is supported by a memorandum,
affidavit, declaration, or other [papers] documents, they shall
be served and filed with the motion. Any party may file a written response in
opposition to a motion within 5 days after service of the motion, but the
appellate court may extend or shorten the time for responding to any motion as
provided in Rule 26(b) and (d).
* * *
(d) Page limits. A motion, other than a
motion for reconsideration pursuant to Rule 40, shall not exceed [three]
3 pages, including an abbreviated caption and signature. Memoranda in
support or opposition shall not exceed [twenty] 20 pages,
including abbreviated captions and signatures. Only affidavits or declarations
and [papers] documents necessary for the determination of the
motion may be attached.
Rule 28. BRIEFS.
(a) Format, service, and page limitation. All
briefs shall conform with Rule 32 and, if service is by any means other than
a notice of electronic filing, be accompanied by proof of service of [two]
2 copies on each party to the appeal. Except after leave granted, an
opening or answering brief shall not exceed 35 pages, and a reply brief shall
not exceed 10 pages, exclusive of indexes, appendices, and statements of
related cases. If a brief raises ineffective assistance of counsel as a point
of error, the appellant shall serve a copy of the brief on the attorney alleged
to have been ineffective.
* * *
(d) Reply brief. Within 14 days after service
of appellee's answering brief, or receipt as
evidenced by an acknowledgment of service as provided in Rule 25(e),
whichever is later, the appellant may file a reply brief. The reply brief shall
be confined to matters presented in the answering brief. If no reply brief is
to be filed, the appellant shall [notify the appellate clerk and the appellee in writing of that decision] file a
notification with the appellate clerk, with service upon all parties, prior
to the expiration of the time for filing the reply brief.
* * *
(j) Citation of supplemental authorities. Parties
may, by letter to the appellate clerk, bring to the appellate court's
attention pertinent and significant authorities published after a party's brief
has been filed, but before a decision. A copy of the letter, setting forth the
citations, shall be served at or before the time of filing as provided by Rule
25(b). The letter shall provide
references to either the page(s) of the brief or to a point argued orally to
which the citations pertain. The letter shall, without argument, state the
reasons for the supplemental citations. [The parties shall provide 7 copies
of each letter for the supreme court or 5 copies of
each letter for the intermediate court of appeals, depending on the appellate
court before which the appeal is pending.]
Any response shall be made promptly and shall be similarly limited.
* * *
Rule 30. BRIEFS NOT TIMELY FILED OR NOT IN
CONFORMITY WITH RULE.
When the brief for appellant is not
filed within the time required, the appellate clerk shall forthwith give notice
to [counsel for] the parties that the matter will be called to the
attention of the appellate court on a day certain for such action as the
appellate court deems proper and that the appeal may be dismissed. When the
brief of an appellant is otherwise not in conformity with these rules, the
appeal may be dismissed or the brief stricken and monetary or other sanctions
may be levied by the appellate court. When the brief of an appellee
is not filed within the time required, or is not in conformity with these
rules, the brief may be stricken and monetary or other sanctions may be levied
by the appellate court. In addition, the appellate court may accept as true the
statement of facts in the appellant's opening brief. Any party who may be
adversely affected by application of this rule may submit a memorandum,
affidavits, or declarations setting forth the reasons for non_conformance
with these rules.
* * *
Rule
32. FORM OF [PAPERS] DOCUMENTS.
(a) Quality and size of [papers] documents.
All [papers] documents and briefs filed in the appellate
courts shall be [printed, photocopied, typewritten or otherwise]
prepared [in print] to display, print, and copy in a clear
and legible manner[ on unruled,
unglazed, opaque white paper]. The page[s] set-up shall be formatted
for 8_1/2 inch[es]
by 11 inch[es] pages with a portrait
orientation and, except for the flyleaf,
not less than 1 inch margins all around. [Each sheet shall have a
margin at the top and bottom of not less than 1 inch and on the left_hand side of not less than 1 inch.] Such [papers]
documents shall be filed without covers and, if conventionally filed,
without creasing [the same] and, except for[ opinions, orders,
certificates, and other items] documents filed by the court, shall
include a flyleaf upon which shall be noted [in the order named],
beginning at the top, the case number, the title of the appellate court and the
cause abbreviated or in full, the character of the document, and the name or
names, [addresses and the] telephone numbers, physical and electronic
mail addresses of the attorney or attorneys representing the party on whose
behalf the same is filed to be used for service, and the names of all
judges or hearing officers who have participated in the case or matter. The
flyleaf shall have a 3 inch top margin. [Immediately below the title of
the document, a space shall be left for the file mark of the appellate clerk.
No originals of such papers, except printed briefs, shall be perforated or
permanently bound. Copies, except printed briefs, shall be bound or stapled at
the upper left_hand corner. Copies, but not
originals, may be two_sided.] Conventionally
filed documents shall be submitted on unruled,
unglazed, opaque white paper and shall not be bound, stapled, or tabbed.
(b) Quality and style of [print] font.
[If typed, the print] Font size must be the equivalent of
standard 12 point pica [or equivalent] and yield no more than 14
characters to the inch. [If printed, whether in proportional or non_proportional fonts, the print must yield no more than
14 characters to the inch.] Footnotes and quotations shall be [typed or
printed] in the same font and size as the text. Twelve point Times New Roman, Courier New, or
Arial fonts [will be] are deemed to satisfy the requirements of
this rule. No attempt shall be made to reduce or condense the print in a manner
that would increase the content of the document. [All print, including
all copies, shall be clear and legible. and the lines] Lines shall be double spaced or
one and one_half spaced except in headings,
quotations, citations, indexes, footnotes, and appendices.
(c) Signature on conventionally filed
documents. All [original] conventionally filed documents
[filed with the appellate court] must be signed in black ink by the
party or, if the party is represented, by the party's attorney. The name of the
signator shall be typed or printed under the signature. The page on which the signature(s) appear(s)
shall contain at least [two] 2 lines of text and/or a notation at
the bottom of the page with the following information: case number, case name,
and title of document.
(d) Signature on electronically filed documents. Documents filed through JEFS or JIMS shall be
signed as provided by the Hawaii Electronic
Filing and Service Rules.
Rule
32.1. NUMBER OF COPIES
[REQUIRED] TO BE [FILED]SUBMITTED.
[The original of all documents
shall be filed with the appellate clerk and copies shall be submitted as
follows:
(a) Opening, answering, and reply briefs.
Parties shall submit 6 copies of each brief filed for the supreme
court and 5 copies of each brief filed for the intermediate court of
appeals. The clerk may request
additional copies.
(b) Other documents. For a listing of the number of copies
required for specific documents, see Appendix A. All other documents require
six copies if filed in the supreme court and four
copies if filed in the intermediate court of appeals.
(c) Where directed by the appellate clerk. Whether the original
document is filed electronically or conventionally, parties shall mail or
deliver to the appellate clerk stapled or otherwise bound paper copies of the
specified documents in Appendix A within 1 business day after filing. In all cases, the
appellate clerk may direct that a specific number of additional copies be
furnished on or before a specified date.
Rule
35. DISPOSITIONS.
* * *
(d) [Mailing]Copy
or access provided by appellate clerk. The appellate clerk
shall promptly mail, [or] electronically mail, telefax, or provide an electronic notice
of the location of a copy of the opinion or dispositional order to each party.
[all parties a copy of the opinion or
dispositional order.]
Rule
36. ENTRY OF JUDGMENT; PREPARATION, FILING, & SERVICE OF THE
JUDGMENT ON APPEAL; EFFECTIVE DATE OF JUDGMENT ON APPEAL; SIGNATURES.
* * *
(b) Preparation, filing, and service of the
judgment on appeal.
(1)
Preparation by the court.
After a final decision, other than an order of dismissal, has been filed in
an appeal, the court rendering the decision shall prepare and submit to the
appellate clerk for filing the judgment on appeal, signed by a judge or justice
for the court.
(2) Service of supreme court judgment. [Upon the
filing of the judgment, the appellate clerk shall serve a file-marked copy of
the judgment on each party and on the court or agency from which the appeal was
taken. Service may be by personal
delivery mail, or,
upon request, by email, facsimile, or placement in the court jacket of the
party’s counsel. Service on a party
represented by counsel shall be made on counsel.] A judgment of the
supreme court shall be served by the appellate clerk on each party and on the court or agency from
which the appeal was taken at the time of filing.
(3) Service of intermediate appellate court judgment. A judgment of the intermediate appellate
court shall be served by the appellate clerk (a) on each party at the time of
filing and (b) on the court or agency appealed from on the earliest of the
ninety-first day after the judgment was filed or the entry of a supreme court
order dismissing or rejecting an application for a writ of certiorari.
* * *
(d) Judgment after supreme
court review.
* * *
(2)
Upon Acceptance or Rejection of
Application for a Writ of Certiorari.
If an application for a writ of certiorari is rejected, the judgment
entered by the intermediate court of appeals shall stand. If an application for a writ of certiorari is
accepted and the judgment of the intermediate court of appeals is wholly
affirmed, the judgment entered by the intermediate court of appeals shall
stand. If an application for a writ of
certiorari is accepted and the [disposition] judgment of the
intermediate court of appeals is vacated or otherwise modified in whole or in
part, a new judgment on appeal shall be entered by the supreme
court and is effective upon entry.
(e) Signatures. Any order or judgment that is filed
electronically bearing a facsimile signature in lieu of an original signature
of a judge or clerk has the same effect as if the judge or clerk had affixed
the judge’s or clerk’s signature to a paper copy of the order or judgment and
it had been entered on the docket in a conventional manner. For purposes of this rule and any rules of
court, the facsimile signature may be either an image of a handwritten
signature or the software printed name of the judge preceded by /s/.
Rule
40.1. APPLICATION FOR WRIT OF CERTIORARI IN THE SUPREME COURT.
(a)
Application;
When Filed. No later than 90
days after filing of the intermediate court of appeals’ judgment on appeal or
dismissal order, any party may [apply in writing to the supreme court for]
file an application for a writ of certiorari in the supreme court.
* * *
(c) Denomination of the parties. The party
applying for the writ of certiorari shall be denominated the petitioner; the
petitioner's denomination in the appeal and in the trial court or agency shall
also be included. All other parties shall be denominated respondents and each
respondent's denomination in the appeal and in the trial court or agency shall
also be included. Any respondent who supports the position of a petitioner
shall meet the time scheduled for filing responsive [papers] documents.
* * *
Rule 40.2. APPLICATION FOR TRANSFER TO THE SUPREME COURT
(a) Application; when filed. Any party may [apply in writing to the
supreme court] file, in the supreme court, an application for
transfer of a case within the jurisdiction of the intermediate court of appeals
to the supreme court, as allowed by law.
An application
(1)
for a case under Rule 18 must be submitted with
the statement of agreed facts.
(2)
for an appeal may be submitted no earlier than 10 days after the filing
of the record on appeal and no later than 20 days after the last brief is filed
or could have been filed.
* * *
(b) Denomination of the parties. The party seeking transfer shall be
denominated the petitioner. The
petitioner’s denomination in the appeal or the agreed statement and in the
trial court or agency, if from a trial court or agency, shall also be
included. All other parties shall be
denominated respondents and each respondent’s denomination in the appeal and in
the trial court or agency, if from a trial court or agency, shall also be
included. Any respondent who supports
the position of the petitioner shall meet the time schedule for filing
responsive [papers] documents.
* * *
Rule
42. DISMISSAL.
(a) Dismissal before the appeal is docketed. If an
appeal has not been docketed, the appeal shall be dismissed [by the court or
agency from which appeal is taken] upon the filing [in that court or
agency] of a stipulation for dismissal signed by all the parties. Upon
motion and notice by the appellant, the appellate court [or agency
from which appeal is taken] may dismiss the appeal upon terms fixed by the
court [or agency]. [Counsel for the appellant, or the appellant, if
pro se, shall, within 72 hours after the entry of an order dismissing an appeal
made by the court or agency appealed from, file a certified copy of the order
with the appellate clerk.]
* * *
Rule
43. SUBSTITUTION OF PARTIES.
(a) Death of a party. If a party dies after
the notice of appeal is filed, or while the proceeding is otherwise pending in
a Hawaii appellate court, that court may
substitute the personal representative of the deceased party as a party on
motion filed by the representative or by any party[ with the appellate clerk].
The motion [of a party] shall be served upon the representative in accordance
with the provisions of Rule 25. If the deceased party has no representative,
any party may suggest the death on the record, and proceedings shall then be
had as that court shall direct. If [a
party against whom an appeal may be taken] an appellee
dies after entry of the judgment or order in the court or agency appealed from
but before a notice of appeal is filed, an appellant may proceed as if the
death had not occurred. After the notice of appeal is filed, substitution shall
be effected in the Hawaii appellate courts in
accordance with this subsection. If a party entitled to appeal shall die before
filing a notice of appeal, the notice of appeal may be filed by the party's
personal representative, or, if the party has no representative, by the party's
attorney of record within the time prescribed by these rules. After the notice
of appeal is filed substitution shall be effected in
the Hawaii appellate courts in accordance
with this subsection.
* * *
Rule
45. DUTIES OF APPELLATE CLERKS.
* * *
(b) The Docket; calendar; other records required. The appellate clerk shall maintain a docket,
in such form and style as may be prescribed by the Administrative Director of
the Courts and shall enter therein each case. [Cases shall be assigned
consecutive file numbers.] The file number of each case shall be noted on
the docket. All [papers] documents filed with the appellate clerk
and all process, orders, and judgments shall be entered chronologically in the
docket. Entries shall be brief but shall show the nature of each [paper]
document filed or judgment or order entered. The entry of an order or
judgment shall show the date the entry is made. The appellate clerk shall keep
a suitable index of cases contained in the docket.
The appellate clerk, upon receipt of
the initial [paper] document in any appeal or original
proceeding, shall assign to it a number [and shall forthwith give notice
thereof to the parties]. The appellate clerk shall docket the record in
each case when filed in the appellate court and forthwith give notice thereof
to the parties. Cross_appeals
shall be docketed under the same number as the original appeal.
The appellate clerk shall prepare a
calendar of cases awaiting argument. In placing cases on the calendar for
argument, preference shall be given to appeals in criminal cases and to appeals
and other proceedings entitled to preference by law.
The appellate clerk shall keep such
other books and records
as may be required from time to time by the Administrative
Director of the Courts or as may be required by the supreme court.
(c) Notice of non_final
orders. Immediately upon the entry
of a non_final order, the appellate clerk shall serve
notice of entry and shall make note of the service in the docket. Where a separate order is not filed, the movant shall notify all other parties of the court’s ruling
and shall file a copy of the notice.
(d) Custody of records and [papers] documents.
The appellate clerk shall have legal custody of the records and [papers]
documents of the appellate courts.
Conventionally filed documents shall be imaged upon receipt and the
paper disposed in accordance with the applicable Records Control Schedule. The electronic document shall be deemed the official
and original document thereafter. [The appellate clerk shall not permit
any original record or paper to be taken from his or her custody except as
authorized by orders or instructions of a Hawaii
appellate court or any judge or justice thereof.] [Original papers
transmitted as the record on appeal or review shall upon disposition of the
case, be returned to the court or agency from which they were received.]
The appellate clerk shall preserve copies of the briefs and appendices and
other [papers] documents filed by the parties on microfilm or
as electronic documents.
(e) Costs and fees to be collected by the appellate clerk. [The appellate clerk shall collect
costs and fees provided by Chapter 607 of the Hawaii
Revised Statutes except that the appellate clerk shall collect the amounts
specified herein as follows:
1.
For copies of any document in any public record
maintained by the clerk:
a. in the appellate clerk’s
office:
i.
$1.00 for the first page
ii. $.50 for each additional page
b. in an off_site
storage location:
$5.00 plus usual copying
charge
c. on microfilm:
i.
$5.00 when provided by the appellate clerk plus $1.00 per page
ii.
$1.00 per page when obtained via self-service
2.
For faxing of any document in any public record, the applicable charges
plus:
i.
within Hawaii: $2.00 first page, $1.00 each additional page
ii. outside Hawaii,
within the
iii. outside the
3.
For copies of audio or video tapes, electronic
copy of any document: $10.00
4. For
any expedited or rush requests (copy(ies) provided within 4 hours if request received before
noon):
$10.00 plus all other applicable charges
5. Certification of qualification: $5.00
6. Appellate Court filing fee: $100.00
7. Ex
officio filing (in addition to the usual filing fee): $10.00
8.
Certification under seal of a copy of a pleading or other paper
subsequent to the initial filing of the pleading or paper, except the record on
appeal: $2.00
9. Exemplification: $4.00.
10. Parties
to a pending case shall not be charged for the first copy of the appellate
court’s order, opinion, judgment, or any other item entered in the case by the
appellate court, whether provided on paper or electronically.
11.
The appellate clerk shall charge the actual cost of mailing copies of
any item, provided that parties to a pending case shall not be charged for the
mailing of the first paper copy of an order, opinion, judgment, or other item
entered in the case by the appellate court.
12. A
Hawaii appellate court, or any judge or
justice thereof, may waive costs and fees for good cause shown. In lieu of copying and mailing fees, the
Chief Justice may authorize the appellate clerk to provide copies of orders,
opinions, or other items to publishing companies in exchange for published
materials for the benefit of a Hawaii
appellate court or the judiciary.]
Except as exempted by
statute or ordered by the appellate court, the appellate clerk shall collect
costs and fees required by Chapter 607 of the Hawaii
Revised Statutes or other statutes and this rule, as set out in Appendices B
and C of these rules.
(1)
Filing and docketing fees. The appellate clerk or the clerk of the court shall collect
the filing and docketing fees for each case type upon the filing of the
documents listed in Appendix B attached to these rules.
(2)
Cost for copies of case
documents, reports and recordings.
The appellate clerk shall assess and collect fees for copies of case
documents, reports, and recordings as listed in Appendix C attached to these
rules, including costs related to electronic documents and subscription to
Enhanced eCourt Kkua.
(3)
JEFS user registration. An active Hawaii
attorney or a self-represented party may register as a JEFS User without
payment of a fee. A registered JEFS User
may view and download documents from the JEFS user’s open cases without cost.
(4)
Document subscription. Any person may subscribe to access and copy
single documents from public court records.
The subscription shall entitle the subscriber to download one document
at a time from any public court record included in JIMS.
(5)
Requests for other electronic access, downloading, bulk distribution, or
compilations of electronic information and the like shall be directed to the
Administrative Director of the Courts. See
Rule 10.13 of the
(6)
The appellate clerk shall charge the actual cost of mailing copies of
any item, provided that a party who is not a JEFS User or represented by a JEFS
User shall not be charged for the mailing of the first paper copy of an order,
opinion, judgment, or other item entered in the case by the appellate court.
(7)
Parties to a pending case who are not JEFS Users or who are not
represented by a JEFS User, shall not be charged for the first copy of the
appellate court’s order, opinion, judgment, or any other item entered in the
case by the appellate court, whether provided on paper or electronically.
(8)
A Hawaii appellate court, or any judge
or justice thereof, may waive costs and fees for good cause shown. In lieu of copying and mailing fees, the
Chief Justice may authorize the appellate clerk to provide copies of orders,
opinions, or other items to publishing companies in exchange for published
materials or research services for the benefit of a Hawaii
appellate court or the judiciary.
(9)
No person or entity shall be permitted to mine JIMS or eCourt Kkua for data or
documents. The Administrative Director
is hereby authorized to take such actions as are necessary to protect JIMS and
other case management systems from such activity.
(f) Intermediate Court of Appeals Panels.
* * *
[(4) Judges’ Copies of Documents. Upon assignment of a case to a merit panel,
the appellate clerk shall forward the judges’ copies of the record index,
briefs, and other documents to the Chief Judge.]
[(5)](4) Designation
of Lead Judge by Clerk; When Required.
If the Chief Judge does not notify the appellate clerk of the lead
judge’s identity within 30 days after entry of the notice of panel assignment,
the appellate clerk shall randomly designate the lead judge from among the
panel members. The clerk shall not
disclose the identity of the lead judge except as required for internal reports
approved by the Chief Justice.
[(6)](5) Recusal,
Disqualification, or Unavailability.
Upon receipt of a judge’s notice of recusal or disqualification in any
case, or upon receipt of notice from the Chief Judge that a judge assigned to a
merit panel has been, is, or may be unavailable due to illness, absence, or
disability for a period of more than 30 days, the appellate clerk shall
randomly select and assign to the merit panel a judge from the remaining
intermediate court of appeals judges who are not known to be recused, disqualified, or otherwise unavailable. If an intermediate appellate judge is not
available to substitute because of vacancies, recusals, disqualifications, or
illness, absence or disability for a period of more than 30 days, the appellate
clerk shall notify the Chief Justice who shall, in turn, designate a substitute
from those eligible to serve as substitutes.
Rule
50. WITHDRAWAL, DISCHARGE, OR SUBSTITUTION OF APPELLATE COUNSEL.
* * *
(b) Withdrawal with substitution. A
substitution of counsel may be made by filing a notice of withdrawal and
substitution. The notice must provide withdrawing counsel's name and
substituting counsel's name, physical and electronic mail addresses
to be used for service, and telephone number. A notice of withdrawal and
substitution of counsel must be signed by the client consenting thereto.
* * *
Rule 51. SANCTIONS.
Any attorney of record or party in a
case, who fails to comply with any of the provisions of the Hawaii
Rules of Appellate Procedure, the Hawaii
Electronic Filing and Service Rules, or any order of the court shall be
subject to monetary or other sanctions by the appellate court before which such
case is pending, such sanctions to be levied by order of the appellate court or
by order of any judge or justice thereof.
* * *
Rule 54. LIFTING OR TERMINATION OF STAY OF
PROCEEDINGS BY FEDERAL BANKRUPTCY COURT.
(a) Notice of appeal; record on appeal. Whenever a federal bankruptcy court lifts or
terminates a stay of proceedings that has been entered with respect to a civil
case in which an appeal is permitted by law and no notice of appeal has been
filed, the provisions of Rule 4 shall apply as if the date of lifting or
termination of the stay was the date of entry of the judgment appealed from; if
a notice of appeal has been filed but the record not yet docketed, provisions
of Rules 10, 11, and 12 shall apply as if the date of lifting or termination of
the stay was the date of filing the notice of appeal; if the record has been
filed and briefing has not been completed, the provisions of Rules 28, 29,
and 30 shall apply as if the date of lifting or termination of the stay was the
date of the filing of the last appropriate document.
(b) Notice. On the lifting or termination by
the bankruptcy court of a stay of proceedings pending in the Hawaii appellate courts, each party shall file a [written]
notification thereof with the appellate court within 7 days.
* * *
Appendix of Forms
Form
1. Notice of Appeal to
the Intermediate Court of Appeals from a Judgment,
Order or Decree of a
(TITLE OF COURT)
STATE OF
A. B., Plaintiff, )
[(LOWER CASE NO.)]
) TRIAL COURT CASE NO.
v. )
)
[NOTICE OF APPEAL]
C.D.,
Defendant. )
____________________________________ )
NOTICE OF APPEAL
Notice is hereby given that
(appealing party), by and through his or her or its attorney, (name of
attorney), pursuant to section (cite relevant section of chapter 641 or other
relevant statute), Hawaii Revised Statutes,
and Rule 3 of the Hawaii Rules of Appellate
Procedure (and any other relevant rules and cases), appeals to the Intermediate
Court of Appeals of the State of Hawaii from
the (specify whether final or interlocutory and describe judgment/order/decree/decision),
filed herein on __________________, and attached hereto as Exhibit
"A" (if required under Hawaii Rules
of Appellate Procedure Rule 3).
DATED:
Attorney
for Appellant
NOTE: If appeal is interlocutory, specify
statute, rule, or case authorizing it.
Form
2. Notice of Appeal to
the Intermediate Court of Appeals from a Decision and Order of an Agency,
Board, Commission or Officer.
(TITLE OF AGENCY, ETC.)
OF THE
STATE OF
A. B., Plaintiff, ) AGENCY DOCKET
NO._____
)
v. )
[NOTICE OF APPEAL]
)
C.D.,
Defendant. )
____________________________________ )
NOTICE OF APPEAL
Notice is hereby given that
(appealing party), by and through his or her or its attorney, (name of
attorney), pursuant to ([cite] section 91_14 or other relevant
section) of the Hawaii Revised Statutes and
Rule 3 of the Hawaii Rules of Appellate
Procedure (and any other relevant rules and cases), appeals to the Intermediate
Court of Appeals of the State of Hawaii from
the decision and order of the (agency) (specify whether final or interlocutory
and describe order), filed herein on ____________________, and attached hereto
as Exhibit "A" (if required under Hawaii
Rules of Appellate Procedure Rule 3).
DATED:
Attorney
for Appellant
NOTE: If appeal is interlocutory, specify
statute, rule, or case authorizing it.
Form 3. Notice of Appeal to the Circuit Court
from a Decision and Order of an Agency, Board, Commission or Officer.
IN THE CIRCUIT COURT OF
THE ______ CIRCUIT
STATE OF
A. B., Plaintiff, ) AGENCY DOCKET
NO._____
)
v. )
)
[NOTICE OF APPEAL]
C.D.,
Defendant. )
____________________________________ )
NOTICE OF APPEAL
Notice is hereby given that
(appealing party), by and through his attorney, (name of attorney), pursuant to
(cite 91_14 or other relevant section), Hawaii
Revised Statutes, and Rule 72 of the Hawaii
Rules of Civil Procedure (and any other relevant rules and cases), appeals to
the Circuit Court of the First Circuit from the decision and order of the
(agency) (specify whether final or interlocutory and describe order), filed
herein on _______________, and attached hereto as Exhibit "A" .
DATED:
Attorney
for Petitioner
Form
4. Affidavit to
Accompany Motion for Leave to Appeal in Forma Pauperis
[for Filing in the Respective Lower Court/Agency].
[(LOWER COURT/AGENCY)]
IN THE (INTERMEDIATE
COURT OF APPEALS or SUPREME COURT)
STATE OF
A. B., Plaintiff, )
TRIAL COURT OR AGENCY CASE NO.
)
__________
v. )
)
C.D.,
Defendant. )
____________________________________ )
AFFIDAVIT IN SUPPORT OF
MOTION FOR LEAVE
TO PROCEED ON APPEAL IN
FORMA PAUPERIS
STATE OF
)
v. )
SS.
)
COUNTY
OF __________ )
____________________________________ )
I,
____________________________________ being first duly sworn, depose and say
that I am the ______________________________ in the above_entitled
case; that in support of my motion to proceed on appeal without being required
to prepay fees, costs or give security therefor; I
state that because of my poverty I am unable to pay the costs of said
proceeding or to give security therefor; that I
believe I am entitled to redress; and that the issues which I desire to present
on appeal are the following:
(list
issues)
I further state that the
responses which I have made to the questions and instructions below relating to my
ability to pay the cost of prosecuting the appeal are true.
1. ARE YOU PRESENTLY EMPLOYED?
a. If the answer is yes, state the amount
of your salary or wages per month and give the name and address of your
employer.
b. If the answer is no, state the date of
your last employment and the amount of the salary and wages per month which you
received.
2. HAVE YOU RECEIVED WITHIN THE PAST
TWELVE MONTHS ANY INCOME FROM A BUSINESS, PROFESSION OR OTHER FORM OF
SELF_EMPLOYMENT, OR IN THE FORM OF RENT PAYMENTS, INTEREST, DIVIDENDS, OR OTHER
SOURCE?
a. If the answer is yes, describe each
source of income, and state the amount received from each during the past
twelve months.
3. DO YOU OWN ANY CASH OR CHECKING OR
SAVINGS ACCOUNT?
a. If
the answer is yes, state the total value of the items owned.
4. DO YOU OWN ANY REAL ESTATE, STOCKS,
BONDS, NOTES, AUTOMOBILES, OR OTHER VALUABLE PROPERTY (EXCLUDING ORDINARY
HOUSEHOLD FURNISHINGS AND CLOTHING)?
a. If the answer is yes, describe the
property and state its approximate value.
5. LIST THE PERSONS WHO ARE DEPENDENT UPON
YOU FOR SUPPORT AND STATE YOUR RELATIONSHIP TO THOSE PERSONS.
I understand that a false statement
or answer to any questions in this affidavit will subject me to penalties for
perjury.
Subscribed
and sworn to before me
this ____ day of
______, 20____.
Notary
Public, State of
My commission expires:
[ ] Application
granted.
[ ] Application denied for the following
reason:
[
] Appeal is not taken in good faith.
[
] Applicant does not meet financial qualifications.
Judge/Justice
of the above_entitled court
Form 6
IN THE
(Court or Agency From Which Appeal is Taken)
CIVIL
APPEAL DOCKETING STATEMENT
[or Use By The Appellate Conference Program)]
PLEASE
[TYPE OR PRINT,] ATTACH ADDITIONAL PAGES IF NECESSARY.
|
TITLE |
[ Docket Number: |
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Is
this a Cross-Appeal? _____ Yes _____ No |
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Has this matter previously been before the Hawaii Appellate Courts? _____ Yes _____ No If
yes, state when: Case
Name: [ |
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CHECK AS
MANY AS APPLICABLE |
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[ |
[ |
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|
1. STAGE OF PROCEEDINGS |
|
[3]2. RELIEF |
|
|
|
( ) Pre-Trial ( ) During Trial ( ) After Trial |
|
( ) Damages: Amount Sought: $__________ Amount Granted: $__________
( ) Other (Specify) |
[BRIEF] DESCRIPTION OF NATURE OF ACTION
AND RESULT [BELOW] IN THE TRIAL COURT OR AGENCY:
ANTICIPATED ISSUES
PROPOSED TO BE RAISED ON APPEAL:
[MAY THE MEDIATOR
CONTACT THE TRIAL JUDGE TO DISCUSS THE CASE?
_____ Yes _____
No]
Page 2
[BASED ON YOUR
PRESENT KNOWLEDGE:
1. Does this appeal involve a question of first
impression or present a novel legal question?
_____ Yes _____
No
2. Does this appeal involve a question of state
or federal constitutional interpretation?
_____ Yes _____
No
3. Does this case raise a question of law
regarding the validity of a state statute, county ordinance, or agency regulation?
_____ Yes _____
No
4. Does this case involve issues upon which there
is an inconsistency in the decisions of the Intermediate Court of Appeals or
the Supreme Court?
_____ Yes _____
No
5. Will the determination of this appeal turn on
the interpretation or application of particular case or statute?
_____ Yes _____
No If Yes, provide:
Case name/statute:
Citation:
Docket Number, if unreported:]
DOES THIS APPEAL INVOLVE
ANY OF THE FOLLOWING:
_____ Likelihood
of a motion to expedite the appeal.
[ _____ Multiple parties on either side for whom joint briefing is
possible.
_____ Likelihood
of motions to intervene on appeal.
_____ Likelihood of
motions to file amicus briefs.]
_____ Likelihood
of motions to stay appeal pending resolution of a related case. Identify case name, docket number, and court
or agency:
_____ Other procedural complexities. If so, please identify them:
|
COUNSEL FOR APPELLANTS: NAME: ADDRESS: TELEPHONE
( ) EMAIL: |
TRIAL COUNSEL FOR APPELLANT(S) (If
different from appeal counsel) NAME: ADDRESS: TELEPHONE
( ) EMAIL: |
Page
3
CERTIFY
THAT A COPY OF THIS CIVIL APPEAL DOCKETING STATEMENT [WAS SUBMITTED TO THE
CLERK OF THE LOWER COURT/AGENCY AND THAT IT] WAS SERVED ON EACH
PARTY/COUNSEL SHOWN ON THE ATTACHED SERVICE LIST.
Signature Date
REMEMBER
TO ATTACH COPIES OF (1) THE ORDER/JUDGMENT APPEALED FROM, (2) ANY WRITTEN
OPINION OR FINDINGS OF FACT AND CONCLUSIONS OF LAW SUPPORTING THE
ORDER/JUDGMENT, AND (3) PROOF OF SERVICE ON ALL OTHER PARTIES TO THE TRIAL
COURT OR AGENCY PROCEEDINGS [BELOW ](WITH TELEPHONE NUMBERS AND
EMAIL ADDRESSES)
Page 4
Form 7
NO. _________
IN THE (SUPREME COURT or INTERMEDIATE COURT OF
APPEALS)
OF THE STATE OF
IN RE ATTORNEYS' FEES AND ) [CR. ] TRIAL COURT CASE
NO. _________
NECESSARY
EXPENSES FOR )
)
__________________________________, )
)
Defendant-Appellant. )
______________________________________ )
REQUEST AND DECLARATION
OF COUNSEL
In accordance with Hawaii Rules of Appellate Procedure (HRAP) Rule
39(d), I, ___________________________,
Defendant-Appellant’s attorney, request compensation for necessary and
authorized expenses and attorneys’ fees incurred on appeal on Defendant-Appellant's
behalf and, in conjunction herewith aver, as follows:
1.
I was appointed to represent Defendant-Appellant __________________ by
order of the ______________court of the _____________circuit, on
________________, which order is attached as Appendix A.
2.
I request reimbursement for necessary and authorized expenses as
follows:
Expense Amount Authority
__________________________________ $______ ________
__________________________________ $______ ________
__________________________________ $______ ________
__________________________________ $______ ________
TOTAL EXPENSES $______
A true and correct itemized accounting of these necessary
expenses, including relevant invoices and receipts, is attached as Appendix B.
Page 1
3. I have
expended the following hours in attorney work for this appeal and, pursuant to
Hawaii Revised Statutes § , request amounts as follows:
Activity Hours Amount
a. Correspondence, Interviews and _______ @ $_____ $_______
Conferences
b. Obtaining & Reviewing Records _______ @ $_____ $_______
c. Legal Research _______ @ $_____ $_______
d. Drafting _______ @ $_____ $_______
e. Oral Argument (In-court) _______ @ $_____ $_______
f. Other (Specify) ________________ _______ @
$_____ $_______
TOTAL
FEES _______ $_______
Attached hereto as Appendix C are hourly worksheets,
prepared in accordance with HRAP Form 7 and contemporaneously with the work
performed as noted thereon and truthfully reflecting the amount of work
actually performed in the representation of the Defendant-Appellant.
I, ,
declare under penalty of law, as provided by HRAP Rule 52, that the
foregoing is true and correct.
DATED:
Form 7a. BLANK HOURLY WORKSHEET (Indigent
Representation)
Form 7b. COMPLETED HOURLY WORKSHEET (Indigent
Representation)
Form 8
NO. _________
IN THE (SUPREME COURT or
INTERMEDIATE COURT OF APPEALS)
OF THE STATE OF
________________________________, ) ____ NO. _________
)
Plaintiff-__________, )
)
v. )
________________________________, )
)
Defendant-________. )
_____________________________________ )
REQUEST AND DECLARATION
OF COUNSEL
In accordance with Hawaii
Rules of Appellate Procedure (HRAP) Rule 39(d), I, ___________________________, attorney for
__________________, request compensation for costs and attorneys’ fees and, in
conjunction herewith aver, as follows:
1. (Appellant or Appellee) prevailed in this appeal.
2. I request
reimbursement for necessary and authorized costs as follows:
Item Amount Authority
a. $ ____________
b. $ ____________
c. $ ____________
d. $ ____________
TOTAL
COSTS $ ____
A true and correct itemized
accounting of these costs, including relevant invoices and receipts, is
attached as Appendix A.
Page 1
3. I have
expended the following hours in attorney work and, pursuant to Hawaii Revised
Statutes § or , am entitled to
charge the following amounts for this appeal:
Activity
Hours Amount
a. Correspondence, Interviews and
Conferences ______ @ $ _______ $ _______
b. Obtaining & Reviewing Records ______ @ $ _______ $
_______
c. Legal Research ______ @ $ _______ $
_______
d. Drafting ______
@ $ _______ $ _______
e. Oral Argument (In-court) ______ @ $ _______ $
_______
f. Other
(Specify) ______ @ $ _______ $
_______
TOTAL FEES ______ $ _______
Attached hereto as Appendix B are hourly worksheets,
prepared in accordance with HRAP Form 8 and contemporaneously with the work
performed as noted thereon and truthfully reflecting the amount of work
actually performed in the representation of (Appellant or Appellee)
________________. Additional information
[including the language of the contract authorizing attorneys' fees] and authority
[including appropriate case authority] supporting my request for costs and
attorneys' fees is included in the memorandum of law attached hereto.
I, _______________________, declare under penalty of law,
as provided by HRAP Rule 52, that the foregoing is true and correct.
DATED: _______________________
__________________________________
Page 2
Form 8a. BLANK HOURLY WORKSHEET (Non-Indigent
Representation)
Form 8b. COMPLETED HOURLY WORKSHEET (Non-Indigent
Representation)
Form
9
|
STATE OF In the [
INTERMEDIATE COURT OF
APPEALS or SUPREME COURT [ |
REQUEST FOR
TRANSCRIPT(S) OF
PROCEEDINGS G
Check here if request is for Record on Appeal |
Trial Court/Agency Case
Number: |
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Appellate Case Number: |
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vs. |
Requestor's Name: Firm
(if applicable): Address: Phone
No.: Fax
No.: Email
address: Attorney
for: G
Plaintiff/Petitioner G
Defendant/Respond G
Other (specify): |
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PROCEEDINGS RECORDED BY: G Court Reporter G Check here if proceedings are G
Electronic Recorder
confidential. (See below) |
Name of Court Reporter (if applicable): (Please complete a separate request for each
court reporter) |
|||||
|
Date(s)
of proceeding(s) |
Type
of proceeding (e.g. trial, motion, sentencing, etc.) |
Portion
of proceeding for which transcript is being requested |
Name
of Judge/Hearing Officer/Agency |
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Date
notice of appeal filed: |
Is a Court Reporter's Certificate of
Prepayment or Waiver of Payment attached, or is a deposit of fees being made? G Yes
G No If a deposit of fees is made, I direct the
clerk of the court to use the deposit to pay the court reporter's fees upon
completion of the transcript. |
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Date
transcript(s) needed: |
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Requestor's
signature: Date: |
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[
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