Hawaii Bar Journal - December 2022

EDITOR IN CHIEF Carol K Muranaka

BOARD OF EDITORS

Christine Daleiden Joseph Dane Susan Gochros Ryan Hamaguchi Cynthia Johiro Edward Kemper Laurel Loo Melvin M M Masuda Eaton O'Neill Lennes Omuro Brett Tobin

HSBA OFFICERS

President Shannon Sheldon President Elect Rhonda Griswold Vice President Jesse Souki Secretary Lanson Kupau Treasurer Alika Piper

YLD OFFICERS President Jasmine Wong Vice President/President Elect Lisa Yang Secretary Nelisa Asato Treasurer Kelcie Nagata

EXECUTIVE DIRECTOR Patricia Mau Shimizu

GRASS SHACK PRODUCTIONS

Publisher Brett Pruitt Art Direction Debra Castro Production Beryl Bloom

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A R T I C L E S

Celebration of Good Works

Volunteer Legal Services Hawaii by Rachel Figueroa

Eviction Mediation and Lessons Lear ned by Tracey S. Wiltgen True Costs by En Young, Lisa Mar uyama, and Nanci Kreidman

Continuing to Meet Challenges to Access to Justice: 2022 Hawaii Access to Justice Conference

Advertising

Grass Shack Productions (808)521 1929 FAX: (808)521 6931 brett@g rassshack net

On the cover: Palama by John DeMello DeMello is a Honolulu based photog rapher who travels extensively throughout Polynesia, the Pacific Rim and Asia on assignments for publications and advertising agencies DeMello’s work is available in g alleries across the world or direct at www johndemello com

Notices and articles should be sent to Edward C Kemper at edracers@aol com, Cynthia M Johiro at cynthia m johiro@hawaii gov, or Carol K Muranaka at carol k muranaka@gmail com All submitted articles should be of significance to and of interest or concern to members of the Hawaii legal community The Hawaii Bar Jour nal reserves the right to edit or not publish submitted material Statements or expressions of opinion appearing herein are those of the authors and not necessarily the views of the publisher, editorial staff, or officials of the Hawaii State Bar Association Publication of advertising herein does not imply endorsement of any product, service, or opinion advertised The HSBA and the publisher disclaim any liability arising from reliance upon infor mation contained herein This publication is designed to provide general infor mation only, with regard to the subject matter covered It is not a substitute for legal, accounting, or other professional services or advice This publication is intended for educational and infor mational purposes only Nothing contained in this publication is to be considered as the rendering of legal advice

Celebration Good Works of

VOLUNTEER LEGAL SERVICES HAWAII

By Rachel Figueroa

Volunteer Legal Services Hawaii (“Volunteer Legal”) has served the people of Hawaii for the past 41 years Volun teer Legal extensively assists members of the community with low to moderate income This “ gap group ” consists of those who may not qualify for other legal aid services and have in comes between 125% to 250% of the federal poverty guidelines.

Hawaii Attorneys Help Fight During the COVID Pandemic

At the height of the COVID pandemic in 2021, Hawaii li censed volunteer attor neys donated over 2,900 hours of tele phonic and virtual legal services to Volunteer Legal’s clients This assistance helped vulnerable Hawaii residents comply with the many substantive and procedural changes of law created to end the COVID pandemic. Volunteers donated services valued at $725,000, which included virtual Neighborhood Legal Advice and Counsel clinics, virtual brief services, virtual document drafting, and remote court appearances Most of the clients’ cases involved family law, driver’s license reinstatement, and landlord tenant matters.

Renovation of Of fice

Volunteer Legal’s offices are currently undergoing a renova tion to repair flood related damage. Amid the ongoing pan demic, Volunteer Legal staff provided services remotely and volunteer attor neys conducted advice and counsel by telephone With the completion of the renovation, Volunteer Legal antici pates opening the office to in person intakes and face to face legal clinics by January 2023.

Pop Up Clinics

P r i o r t o t h e p a n d e m i c , Vo l u n t e e r L e g a l c o n d u c t e d “ Po p U p ” a d v i c e a n d c o u n s e l l e g a l c l i n i c s t h ro u g h o u t O a h u a n d o n t h e n e i g h b o r i s l a n d s T h e s e c l i n i c s we re fo c u s e d o n p ro v i d i n g s e r v i c e s t o r u r a l a re a s, s u ch a s Wa i p a h u , Wa i a n a e, a n d H o n o k a a .

On October 1, 2022, Vo l u n t e e r L e g a l held its first “Pop Up” legal clinic since the pandemic. Vo l u n t e e r L e g a l ’ s gener ous volunteer attor neys assisted a total of 30 clients in a four hour time period As Vo l u n t e e r L e g a l moves forward with its “ new nor mal,” it hopes to be able to revisit those areas in the State of Hawaii where the need is the strongest

How You Can Get Involved:

Volunteer Legal is continuously looking for volunteer attor neys who have legal knowledge and experience in high impact areas such as family law, estate law, bankruptcy, and landlord ten ant matters Volunteer Legal has also been fortunate to receive donations through Bar renewals, which have helped provide the means for Volunteer Legal to continue to offer its legal services across Hawaii Please help by checking the “OPT IN” donation box on your annual bar renewal this month. Your donation helps to ensure equal access to justice for those who are most in need

Rachel Figueroa is Volunteer Le gal Ser vices Hawaii’s Executive Direc tor. She manages Volunteer Le gal’s operations, prog rams, and financials of the organization For more infor mation on volunteering, please see https://www vlsh org/getinvolved or e mail volunteer@vlsh org Please help support Volunteer Le gal’s mission by donating today; please see https://www vlsh org/ donations All donations are 100% tax deductible

EVICTION MEDIATION AND LESSONS LEARNED

by Tracey S Wiltgen

Over the years, mediation has steadily grown and become a favored dis pute resolution process for efficiently and cost effectively settling cases in the judicial system As a result, there are more pri vate mediators offering their services to resolve complex matters of all types The growth of mediation as a preferred process has also required the five commu nity mediation centers located on each is land throughout the State1 to evolve and grow They offer the only affordable me diation option for individuals with limited financial means and are important part ners in efforts to increase access to justice

The community mediation centers are also the primary resource for creating and running mediation programs that man age high volumes of cases addressing pressing community needs Such was the case with the pre filing eviction mediation program that was successfully imple mented over the past year to prevent dis trict courts throughout the State from being flooded with eviction cases when the moratorium ended.

When the Coronavirus pandemic (COVID) hit the islands and Gover nor David Ige ordered everyone to shelter in place, and issued a moratorium on evic tions in early 2020, business owners, com munity leaders, and community members alike were in a state of shock. There were many frustrated responses and unanswered questions How would busi nesses survive? Why should landlords be expected to support tenants who could not pay their rent?

While there were no easy answers, many people were able to “pivot” and transition to a new way of living, working, and surviving in the short ter m, while some completely shut down. Still others

proactively focused on identifying reme dies for dealing with the long ter m im pacts of COVID including what would happen when the moratorium ended. Thanks to the leadership of Representa tives Nadine Nakamura and Troy Hashimoto, who assembled a broad group of stakeholders to address the po tential flood of evictions at the end of the moratorium, an innovative plan was spearheaded that took shape as Act 57 (the Act) The Act increased the eviction notice requirement from five to fifteen days and required landlords to offer ten ants the opportunity to mediate before an eviction process was filed.

The concept of a pre filing eviction mediation program was a practical ap proach to a very big problem. At the time of its creation, according to UHERO (the University of Hawai‘i Eco nomic Research Office) statistics, more than 10,000 Hawaii tenants were behind on their rent, with 6,000 of those tenants residing on Oahu Equally significant, because it was estimated that many ten ants were more than four months behind in their rent, mediation would need to be provided expeditiously to prevent further accumulation of debt by the tenants and financial loss to landlords Accordingly, Act 57 required tenants to schedule a me diation session within fifteen days from the date of the notice provided by their landlord, and if not, the landlord could move forward with the eviction

Early Mediation Under Act 57

The short timeline for scheduling and conducting a mediation under Act 57, combined with the potentially high volume of cases, necessitated the quick designing and assembling of a new pro gram by the community mediation cen ters Every mediation center was already working hard to address a variety of is sues created by COVID including fewer mediators to mediate, a large volume of cases to manage in other areas such as Small Claims and Domestic mediations, l i m i t e d s t a f f , a n d t h e n e e d t o o f f e r

mediation via videoconference and in person to ensure it was accessible for all Despite these challenges, every mediation center was committed to building a new program to meet the requirements of Act 57 and enable landlords and tenants to negotiate payment plans and keep them out of court Through hard work and close partnerships with other organiza tions such as Legal Aid, homeless preven tion programs, and the rental assistance programs on the respective islands, by August 6, 2021, when the moratorium on evictions ended, every mediation center was ready to offer pre filing eviction me diation services.

Thanks to their resourcefulness, dur ing the one year period that Act 57 was in effect, between August 2021 and August 2022, the five community mediation cen ters together managed nearly 3,500 cases and conducted more than 1,600 media tions, with approximately 87% resulting in resolution. These outcomes were achieved while simultaneously managing a high volume of cases in other areas 2 The success of the eviction mediation program (EMP) was attributed to several factors including: hiring dedicated staff; integrating technology into the schedul ing and mediation processes; recruiting and working with independent contract mediators, in addition to the volunteer mediator pool; and partnering closely with the rental assistance providers and other providers

Streamlined Scheduling

With the anticipated large volume of cases, and the need to schedule every case expeditiously, each mediation center hired between one and four staff members to dedicate to the EMP The added staff managed all requests for mediations, qualified the tenants for eligibility to par ticipate in the program, scheduled the mediations, prepared the parties for par ticipating in mediation, and made refer rals as needed to various resources such as Legal Aid, the rental assistance programs, h o u s i n g a s s i s t a n c e , a n d f i n a n c i a l

counseling services.

Traditionally, the mediation schedul ing process involves one party contacting a case manager at a mediation center to open a case, and then the case manager reaching out to the other party for their availability The entire process may take several days or even weeks, depending on how responsive each person is, and how flexible their schedule is to agree to a day and time to mediate. Confir mation emails, confidentiality agreements for electronic signature, and Zoom links, if it is being conducted via videoconference, must be sent to each mediation partici pant prior to the mediation session.

To expedite the scheduling process, a secure portal was created on the website of each mediation center. Rather than call or email a mediation center, landlords simply uploaded basic infor mation into the portal with the notice they provided to the tenant The infor mation was then e l e c t r o n i c a l l y t r a n s f e r r e d t o a c a s e

management prog ram, enabling the case manager to promptly contact the tenant a n d s c h e d u l e a m e d i a t i o n s e s s i o n i f

desired.

Due to the extremely high volume of cases on Oahu, The Mediation Cen ter of the Pacific (MCP) went one step further Because dedicated independent contractor mediators were primarily used to conduct the mediations, their days, and times of availability to mediate were incor porated into an electronic scheduling system, YouCanBookMe

With this system, once a mediation date and time was set with the tenant, the landlord and tenant contact infor mation were input into the scheduling system, which automatically assigned an avail able mediator and sent electronic notices to the participants and the mediator The system successfully expedited the scheduling process, while saving on human resources

Mediating via Videoconference

While all mediation centers offered the option of mediating in person, most of the mediations were conducted via Zoom In those instances where a land lord or tenant lacked the necessary equip ment or was uncomfortable managing the technology on their own, they were pro vided access to a private mediation room with equipment and support from staff at the mediation center in their community.

Mediating via videoconference pro vided multiple benefits First, it saved time because the participants didn’t need to drive or find transportation to a media tion location, and in many instances, they participated in the comfort of their own home, office, or community In a recent report published by Hawai’i Appleseed Center for Law and Economic Justice (Hawai’i Appleseed) regarding an evalua tion they conducted of the EMP, it was noted that tenants reported they were more comfortable participating via video

DEPUTY PROSECUTING ATTORNEY AND LAW CLERK VACANCIES

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conference because they did not have to be in the same location as their landlord and could therefore, speak freely 3

Mediator Recruitment

Conducting mediations via video conference also provided the mediation centers with the opportunity to expand their pool of mediators from outside the State Because recruiting, training, and mentoring new volunteer mediators would require considerable time and human resources, funding was secured to hire experienced independent contractor mediators 4 When MCP published no tices to recruit independent contractor mediators for the EMP, over 78 mediators from across the country responded Thirty mediators were interviewed, and fifteen mediators from twelve different states were hired. The mediators were se lected based on their experience mediat ing landlord tenant cases; approach to working with different cultures in media tion; ability to work with inter preters; tools for managing power imbalances; skills for managing mediations via video conference; and their availability to medi ate four to five cases a day, Monday through Friday The independent con tractor mediators were also required to maintain their own Zoom and electronic signature program licenses and be re sponsible for the signing of confidentiality agreements prior to the mediation ses sion, as well as agreements, if any, at the end of the sessions

With the added pool of contract me diators, MCP could schedule ten to twelve mediations daily, ensuring that the large volume of cases was conducted in a timely manner The mediators achieved settlement rates ranging between 85% 95%. Equally significant, on a scale of 1 5, with 5 being excellent, 93% of the mediation participants rated their media tors as excellent,

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Partnering With Rental Assistance Prog rams

The final key element that helped make the EMP successful was the avail ability of rental assistance The partner ships for med by the mediation centers with the rental assistance programs on their respective islands were important in directing tenants to apply for and receive rental assistance While the rental assis tance programs were designed to cover the rent owed to the landlords and enable the tenants to remain in their residence, many tenants either did not apply through the program or gave up on the application process altogether before being approved for the assistance

Through the initial intake process or dur ing a mediation session, tenants were ad vised about the rental assistance program and directed to apply if they had not done so already For tenants who applied and did not know the status of their ap plication, staff or mediators reached out to the respective program to find out When they lear ned that their tenant had applied for rental assistance and/or would receive the assistance, many land lords were motivated to reach settlements with the tenant

Lessons Lear ned/Recommendations for the Future

Together, the multiple factors of hav ing dedicated staff, integrated technology, an increased cadre of experienced media tors, and of course, available rental assis tance, enabled the community mediation centers to keep approximately 1,392 land lords and tenants out of court, while si multaneously managing hundreds of other cases 5 Now that the EMP has ended, it is important to reflect not only on the success of the program, but on the lessons lear ned that can be applied to similar programs, and mediation in gen eral These lessons include approaches to decreasing eviction filings and keeping tenants housed; integrating technology to make all mediation more readily available

for pending court cases; designing media tion programs to effectively address large scale community needs; and building the community mediation centers’ cadre of mediators to provide quality services in a timely manner, and at a reasonable cost.

Based on their evaluation of the EMP, in its final report, Hawai’i Apple seed concluded that pre filing eviction mediation was beneficial because tenants were more comfortable participating, the overall rate of agreement was signifi cantly higher than the mediations con ducted at court (on Oahu) prior to COVID, and a high percentage of the EMP agreements resulted in the tenants remaining in their residence 6 The evic tion statistics prior to COVID support this conclusion because more than 2,400 summary possession cases were filed in the district courts statewide in 2019,7 with an approximate 48% resulting in agree ment for onsite court mediations, in con trast to the 87% rate of agreement that was achieved with EMP, prior to going to court

And while early mediation should al ways be encouraged, most mediations continue to occur after a lawsuit is filed. Therefore, the quick and timely schedul ing of mediations is critical Having dedi cated staffing as well as using web based portals and electronic scheduling systems for EMP clearly demonstrated that mov ing beyond the traditional telephonic con versations and scheduling of mediations is more efficient and practical Equally important, keeping videoconference me diation as an option, while continuing to offer in person mediation, as well as pro viding support for those without the equipment or technological skills, but pre fer videoconferencing, is a must

F lexibility and accessibility are key for all mediations, especially when work ing with unrepresented litigants who are often overwhelmed and even intimidated by the legal system A 2018 study con ducted by the Legal Aid Society of Hawaii showed that 48% of the tenants

defaulted when required to appear at court for an eviction 8 By failing to even show up at court, the tenants never par ticipated in mediation with their landlord. By contrast, with the EMP, only 28% of the tenants declined to participate in the early mediation opportunity or failed to respond to the offer to mediate Provid ing easy access to participating in media tion prior to filing, as well as offering guides or navigators to support the partic ipation of the tenants through the process, appeared to encourage more ten ants to engage in negotiations with their landlords through mediation Thus, con tinued partnerships and navigators should be part of future programs to promote the use of mediation in general and to increase the likelihood of a successful outcome

Using mediators with the appropri ate background, training, and approach for the issues and people involved is also important. The use of independent con tractor mediators allowed the community mediation centers to ramp up quickly and provide services for a large volume of cases in a short period of time While pro bono mediators have been the heart and soul of community mediation since the beginning, adding independent contrac tors for high volume programs, as well as more complex matters, allows community mediation centers to better meet growing caseloads and urgent community needs Equally important, it provides more me diation options for people with a broad range of issues as the need for mediation grows.

Finally, clearly defining desired out comes and building programs around those desired outcomes, or “fitting the forum to the fuss,” is important for the success of all mediation, especially pro grams that address specific community needs The diverse group of stakeholders responsible for the creation of Act 57 specifically identified keeping tenants in their homes, while recouping the rent o w e d t o t h e l a n d l o r d s , a s t h e k e y

o u t comes of the mediations. The selec tion of the EMP mediators and the initial education of those mediators were based on achieving those outcomes. As we ad just to our new nor mal, including inte g rating videoconference with in person hearings and mediations, engaging di verse stakeholder g roups to assess and ag ree on prog ram outcomes and the best approach and process for achieving those outcomes, would be beneficial for the builders and the beneficiaries of the prog rams

Conclusion

Over the past two years during COVID, the need for and use of media tion increased dramatically It is impor tant to take advantage of the successes, and adaptations made to accommodate this growth, and the lessons lear ned from creating and managing EMP By doing so, we can make mediation even more ac cessible for everyone, increase access to justice, improve efficiency in scheduling, and build more early pre filing programs to reduce delays and court backlogs

1 Kauai Economic Opportunity, Ku ikahi and West Hawaii Mediation Centers on the island of Hawaii, Maui Mediation Services, and The Me diation Center of the Pacific on Oahu

2 In fiscal year 2021 2022, the community medi ation centers together managed a total of 7,638 cases, representing an increase of 2,899 cases overall from the prior fiscal year (FY2021) includ ing: opening 7,154 new cases, an increase of 2,734 new cases from FY2021; conducting 3,361 mediations, an increase of 1,897 mediations from FY2021; and conciliating 81 cases, an in crease of 56 cases from FY2021

3 Kong Ray, Stor moGipson, Kenna, Seitz, Abbey, Thor nton, Gavin, Eviction Prevention T hrough Hawaii’s Tenant Landlord Mediation Prog ram, Hawaii Appleseed Center for Law and Eco nomic Justice (October 2022)

4 The primary funding for the EMP was federal funding secured through contracts between each mediation center and its respective county. Be cause not all expenses were covered by these con tracts, additional grant funding from private foundations such as Hawai’i Justice Foundation and the Hawai’i State Bar Foundation, helped

the mediations centers to serve all tenants and landlords

5 In Fiscal Year 2021 2022, the five community mediation centers opened 7,154 new cases of which 1,316 were domestic (divorce and pater nity); 4,719 were landlord tenant cases (an in crease of 2,582 cases from FY2021); 368 were consumer merchant cases (an increase of 113 cases from FY2021); 143 were temporary re straining order (TRO) cases (an increase of 4 cases from FY2021); 39 were auto accident cases (an increase of 12 cases from FY2021); 67 were neighbor neighbor cases; 93 were family cases (an increase of 16 cases from FY2021); 27 were civil rights cases; 42 were condominium or homeowner association cases; 25 were friend cases (an increase of 12 cases from FY2021); 70 were business cases (an increase of 15 cases from FY2021); 51 were job related cases (an increase of 21 cases from FY2021); and 43 were real es tate cases (an increase of 13 cases from FY2021)

6 Kong Ray, Stor moGipson, Kenna, Seitz, Abbey, Thor nton, Gavin, Eviction Prevention T hrough Hawaii’s Tenant Landlord Mediation Prog ram, Hawaii Appleseed Center for Law and Eco nomic Justice (October 2022)

7 The Judiciary State of Hawaii, Annual Report, Statistical Supplement (2019)

8 Legal Aid Society of Hawaii, Landlord Tenant Committee Project Report (July 1, 2017 June 31, 2018)

Tracey S Wiltgen is the executive director of T he Mediation Center of the Pacific, a nonprofit corporation that assists over 10,000 people annu ally with the prevention and resolution of conflict She received her law de g ree from the William S. Richardson School of Law and her master’s de g ree from the University of Hawai‘i.

TRUE COSTS

by En Young, Lisa Maruyama, and Nanci Kreidman

There are multiple challenges facing community based organizations working to keep families safe, protecting the ‘aina, safeguarding legal rights, perpetuating cul ture, and securing a future for our keiki Historically, State of Hawaii policy makers understood they would not be able to provide adequate program serv ices, and so they developed a collabora tive approach with community

organizations to meet community needs. The collaboration provided for contract funds to conceive and implement pro gram services to promote the interests of people, places and art The for mula for meeting budget needs is not reviewed or updated to match the cost of doing busi ness, despite the increasing complexity and challenging economic environment.

Needs are mounting and funding is not keeping pace with costs, so a coalition of organizations has for med to examine these challenges and plot a way forward

The True Costs Coalition for med in April of 2022 and continues to debate and ruminate about the best direction to pursue

Hunger, houselessness, safety, access to justice, sea level rise, substance use, mental and physical health as well as har m to our natural resources are evident everywhere in the state Organizations whose mission is to bring hope, stability, opportunity, and access are having diffi culty meeting the mandate, with gover n ment investment stagnant

The lack of synchronicity between funding programs and the cost of living or inflation makes it difficult to recruit, re tain, and fairly compensate needed staff, as well as the increasing costs of deliver ing programs In fact, program services are compromised when investments are insufficient, with organizations forced to cut supplies or services to make ends meet

Each year, agencies must bridge budget gaps through events, private grants, operational loans, private contri butions, and more The many requests you receive from social service, mental health, environmental and legal services agencies are intended to bridge the large and growing gap. Philanthropy is asked every year by everyone, to help off set the looming crisis; yet, $5,000 or $25,000 grants do not substitute for quar ter million or million dollar contracts needed to meet the many community needs Costs increase year after year and

contracts do not. Agencies do not want to lower quality of services As a com munity, we cannot afford to look away Gover nment contracts often do not adequately fund overhead costs which must be covered too Overhead is capacity It is the building where business is conducted, it is the software used to track outcomes and expenditures, it is the truck and the gas used to de liver food, and, most impor tantly, it is the people who coordinate all the support functions that make the outcome possible.

A new, collaborative model of con tracting and g rant making is needed,

where resources are directed toward the fiscal, practical, and operational solu tions that ensure real success, high qual ity services and community well being. Be on the lookout for prog ress in advocat ing for solid mean ingful strategies to help support or ganizations Hawaii cannot live without and meet commu nity needs that show no signs of abating.

En Young is the Executive Director of Pacific Gate way Center

Lisa Mar uyama is the President and CEO of the Hawai‘i Alliance of Nonprofit Organi zations Nanci Kreidman is the Executive Di rector of Domestic Violence Action Center.

CONTINUING TO MEET CHALLENGES TO ACCESS TO JUSTICE: 2022 HAWAII ACCESS TO JUSTICE CONFERENCE

The thirteenth annual Hawai‘i Ac cess to Justice Conference, sponsored by the Hawai‘i Access to the Justice Com mission, brought together more than 240 interested individuals on a sunny Friday, June 17, 2022 at the William S Richard son School of Law, University of Hawai‘i.1 The theme of the conference, “Continuing to Meet Challenges to Ac cess to Justice” generated exciting discus sions on diverse topics

Th e C a d e s Fo u n d a t i o n w a s

DPR’s First Healthcare Neutral

Introducing Daniel Platt who has over 35 years of experience representing:

• Healthcare providers

• Carriers

• Pharmacy benefit managers and third party administrators, in healthcare provider disputes

• ERISA issues

• Unfair competition

• HIPAA issues

• Trade secret litigation

• Medical devices

• Consumer claims

• Workers compensation

• Qui tam actions.

Dan is a seasoned trial lawyer who knows how and when to keep parties out of court. With more than 35 years of trying and settling complex commercial cases, he has learned that the touchstone of an effective neutral is attention to detail. Thatthat requires listening

objectively and addressing the concerns of both litigants and their counsel. His mediation strategy focuses on moving parties to inventive settlement structures, shifting between facilitative and evaluative approaches as needed, and often provides creative settlements not contemplated by the parties or their counsel.

Dan’s cv can be found on www.dprhawaii.com and www.plattadr.com

1003 Bishop St., Pauahi Tower, Suite 1155, Honolulu, HI 96813

Phone: (808) 523-1234

• Fax: (808) 599-9100 www.dprhawaii.com

• Email: kellibryant@dprhawaii.com

acknowledged for its financial support in assisting with the conference expenses It has generously supported the conferences for a number of years.

Second Circuit for mer Chief Judge Joseph Cardoza, who is Chair of the Hawai‘i Access to Justice Commission (“Commission”) welcomed the attendees by commenting on the numerous chal lenges facing and testing the nation in cluding wars, ongoing and threatened, economic challenges, the approaching end of the pandemic assistance, and the continued hardships faced by Native Hawaiians and Pacific Islanders Fortu nately, the three branches of gover nment in Hawai‘i are focused on serving the common good and finding innovative so lutions to new challenges.

Hawai‘i Supreme Court Chief Jus tice Mark Recktenwald described the Ju diciary as an organization committed to serving the community In 2008, the Hawai‘i Supreme Court envisioned an

organization that would provide consis tent focus on identifying access to justice issues and facilitate how Hawai‘i could narrow the gap between the need for legal services and the ability to afford these services.2

Chief Justice Recktenwald noted that one of the examples of the Commission’s work is the establishment of the self help centers In Califor nia, the self help cen ters are staffed by court employees, but here, Hawaii’s self help centers are staffed by volunteers who have assisted 30,000 in dividuals and have continued to provide services remotely during the pandemic

Chief Justice Recktenwald men tioned that the online pro bono program and online dispute resolution thrived dur ing the pandemic. In Small Claims Court, litigants have access to a system that assists in the completion of for ms. The Judiciary has lear ned during the pan demic that remote proceedings have de livered justice while keeping people safe.

For certain kinds of cases, it does not seem necessary for someone to arrange childcare, to be excused from work, to drive a long distance to the courthouse to respond to a traffic citation In con trast, it is helpful for litigants to appear in person for family court matters The Ju diciary worked with the legislators and legal services providers to assist tenants through mediation and receipt of rental relief funds. Together the community kept evictions from becoming a crisis

Dean Camille Nelson of William S Richardson School of Law captivated the audience with her keynote address about inclusive justice through the lens of legal education 3 She framed her talk on cur rent societal upheaval, jurisprudential alienation, technological innovation, transdisciplinary thinking, and the need f o r w e l l b e i n g f o r t h o s e i n t h e l e g a l p ro f e s s i o n

Societal upheaval provides an oppor tunity to revisit the under pinnings of the

legal profession and law schools. The in creasingly diverse law schools provide an opportunity to reinvent the legal profes sion in an inclusive way. Unfortunately, the legal profession was not originally in tended to be inclusive. Current societal pressures, including an increased aware ness of issues facing marginalized g roups in society, should push law schools and the legal profession generally to better ref lect the people and needs of moder n society

Jurisprudential alienation acknowl edges that many have lost faith in the sys tem Lawyers and law schools must think critically about why this is so. Lawyers must embrace a better, more inclusive vi sion of the future so the worst of the past is not replicated.

The proliferation of techno logical innovation invites consider ation of the role of technology in law school education and the legal profession. Right now is a revolu tionary time and, in the words of Dr Martin Luther King, Jr , “there is nothing more tragic than to sleep through a revolution ” Law schools should do what they can to broaden access to justice through technology and become centers of innovation

The importance of transdis ciplinary thinking merits reconsid eration of the rigid boundaries built between disciplines It is a push to think about what people would do if they could start over and build our systems from scratch. For law schools, this means building a curriculum where multifaceted, creative thinking is encouraged

Dean Nelson discussed the impor tance of wellness in the legal profession. Existing concer ns about the mental health of lawyers have been exacerbated by the pandemic It is critical that those engaged in this work maintain work life balance and mental health. When attor neys are well, the community benefits

In closing, Dean Nelson reempha sized the importance of law schools in the access to justice movement and called on the community to partner with law schools to pursue a more just and inclu sive society.

Mor ning Plenary

The mor ning plenary workshop enti tled “Access to Justice in the Current Cli mate” explored the perspectives of the state’s executive, judicial, and legislative branches of gover nment in meeting the access to justice concer ns. For mer Dean Aviam Soifer moderated the following panel: Gover nor David Ige, Chief Justice Mark Recktenwald, Representative Della Au Belatti, and Dean Camille Nelson

public defenders, and medical and social workers to collaboratively assist people with intensive supervision and treatment for about two years. In Veterans Treat ment Court, other veterans serve as re sources and mentors and help people with accessing resources available through Veterans Affairs The Judiciary is also working to better serve juveniles with ad diction issues, particularly girls in the ju venile justice system, by pairing them with peers who serve as role models Chief Justice Recktenwald cited the gover nment’s unified approach to dealing with eviction crisis as a notable example of how the branches of gover nment can work together and with the private sector to minimize suffering Together, the com munity was able to connect tenants with resources and with access to neutrals who could help the level playing field The important question now is which programs and innovations should be kept in place after the pan demic

Opening Remarks

Chief Justice Recktenwald opened by expressing his appreciation for having a gover nor as aware of and involved in access to justice concer ns as Gover nor Ige Chief Justice Recktenwald com mented on several initiatives to improve the justice system including the Women in Prison Project, which works to provide resources and residential treatment op tions to women so they may remain with their children. Another example is Drug Court, which allows judges, prosecutors,

The Judiciary has focused also on diversity, equity, and inclusion Efforts include ensuring equality and inclusion for persons who identify as lesbian, gay, bisexual, transgender, queer, questioning, or other, and per sons from Micronesia; addressing im plicit bias; and providing Hawaiian language resources. Through these and other efforts, the Judiciary is be coming a more inclusive institution that better reflects the community. Gover nor Ige highlighted several state initiatives and accomplishments. In addition to reviewing and signing bills proposed by the Hawai‘i Women’s Leg islative Caucus, the Gover nor has sup ported initiatives aimed at ensuring inclusion of persons who identify as les bian, gay, bisexual, transgender, queer, questioning, or other Gover nor Ige re ported that, for the first time, there were no girls in the Hawai‘i Youth Correc tional Facility. He cited the accomplish ment as a testament to hard work of

Mor ning panel Representative Della Au Belatti, Chief Justice Mark Recktenwald, Gover nor Ige, Dean Nelson, Avi Soifer

many people. Gover nor Ige is expand ing the Office of Language Access and ensuring that state agencies embrace the need to help speakers of various lan guages understand the labyrinth of for ms that are required to access certain serv ices One pressing issue has been issuing identification cards, which are required for access to State services. The State has been working through the Departments of Human Services and Public Safety to assist clients (particularly those of limited English proficiency) with gaining access to documents and identification cards. In the area of language access, the State has been reviewing the use of technology to provide access to native speakers and in ter preters over telephone and video

The State has endeavored to address access challenges that impact students The State implemented a significant pay differential for teachers in categories such as Hawaiian language immersion; loca tions such as Lanai and Molokai; and spe cial needs The State received a tremendous response from teachers and has been able to retain teachers in these shortage categories at a much higher rate than in past.

Gover nor Ige provided an update on the continued challenges of homelessness. He has been working in partnership with the legislature in rethinking how the State is able to provide more services, encour age acceptance of services, and place more individuals into per manent support ive housing The legislature embraced Ohana Zones, which provides shelter and focuses on the end game of placement in per manent supportive housing The State has reduced homelessness by 18% in all categories and has made progress in reducing homelessness among families and veterans. Chronic homelessness and unsheltered homelessness have also de creased In the last four years, services have been provided to 5,500 individuals with the goal of placement in per manent supportive housing.

Representative Belatti focused her

opening remarks on four points: public health, economic consequences of the shutdown, funding, and looking to the horizon. Representative Belatti echoed Gover nor ’ s Ige’s comments regarding the COVID 19 response in Hawai‘i. When the effects of COVID 19 in Hawai‘i were compared to those in other states, Hawai‘i had the fewest excess deaths from February 2020 to April 2022 and was well below the national average for deaths per nursing home resident Queen’s Medical Center had zero days with criti cal staffing shortages because the State was able to bring in traveling nurses to as sist at the hospitals.

Looking to the horizon, Representa tive Belatti discussed the importance of technology. Efforts to increase access to broadband include weekly meetings of a digital hui, and funding to support a Digi tal Equity Office During the pandemic, public libraries allowed users to borrow iPads and participate in the legislative process The legislature continues to con sider ways in which it can increase access for the community Other efforts on the horizon include a pilot program for do mestic violence that would offer treat ment for the per petrator and family

Representative Belatti concluded by noting that issues such as homelessness, diversity, and addiction are difficult to ad dress and will require coordination and collaboration She encouraged partici pants to consider how efforts to refor m the criminal justice system are connected with efforts to increase access to civil legal services and to reduce homelessness.

Dean Nelson focused her opening re marks on the climate, noting that “cli mate” was an important part of the session’s title She described a current cli mate in which there were numerous chal lenges including an ongoing and increasingly apparent climate crisis, an ongoing pandemic, an inter national racial reckoning (involving concer ns such as police brutality, a rise in anti Semitism, and Asian American and Pacific Islander

hate), domestic terrorism, gun violence, insurrection, impeachment, the January 6 hearings, the future of Roe v Wade, war in U k r a i n e , i n t e r n a t i o n a l c o n c e r n s a b o u t f a m i n e , a n d a n i n c r e a s e i n t h e w e a l t h g a p .

Dean Nelson encouraged partici pants to ask how the rule of law enters conversations regarding these challenges. For younger generations, these challenges are particularly urgent. Millennials and Generation Z are among the most diverse and most embracing of diversity, the most interested in globalization, the most mo bile, the most technologically savvy, and the most environmentally conscious of all citizens Dean Nelson asked participants to consider how we can continue lear ning from younger generations. Lawyers are not the entire solution, but there is an op portunity to bring people together. Hawai‘i is a special place for addressing problems in holistic, inclusive ways

Workshop Summaries

What follows are a few summaries of the various after noon concurrent work shops at the conference

Chang, principal of Ku‘iwalu, for mer Hawai‘i Supreme Court Associate Justice James Duffy, Melissa May, senior planner and deputy manager of Strategic Services at SSFM Inter national, and moderated by Tracey Wiltgen, executive director of the Mediation Center of the Pacific Mediation and other dispute resolu tion processes help people from all backgrounds to engage in dif ficult conversations and negotia tions to address a broad array of issues from domestic disputes, landlord tenant matters, family conflicts, and more With the appropriately designed processes, community disputes involving individuals, families, gover nment, small and big busi nesses, contractors, developers, and more, can also be ad dressed By engaging in creative strategies, including proactive community engagement and dispute resolution processes, community members are given a voice, and trust can be built between various stakeholders to address critical community issues

The prevention and resolution of community conflicts is an ac cess to justice issue because without the appropriate processes and neutrals design ing and leading those processes, disenfranchised members of the community are left without a voice or even a basic under standing of proposed changes, developments, and projects that are undertaken in their com munities Gover nment agen cies maintain control over the conversation

how contention can be avoided, and civil ity restored

Each panel member described spe cific community projects they have ac tively worked on including issues involving Waimanalo and other commu nities The panelists emphasized the im portance of early planning and

Preventing and Resolving Community Conflicts

This workshop was presented by Peter S. Adler, principal in The Ac cord3 0 Network, Dawn Naomi S

The panel highlighted the benefits and challenges of preventing and resolving community con flicts, when mediation and dispute resolu tion is appropriate, the importance of designing dialogue for mats and structures for the organization or community, and

engagement noting that a successful process can leave communities stronger and better able to represent their inter ests Principles for engaging communities in dialogue include respecting place and culture; communicating early and often; identifying community champions; in volving keiki and kupuna; partnering with schools and community organizations; creating inclusive and creative platfor ms for visioning and participation; making clear how input was incor porated; and building in tools for implementation and sustained effort

It was emphasized that to be success ful, the right process needs to be designed and managed for each situation and group, by an independent, impartial facil itator If any steps in the process are left out, or the interaction is not lead by an impartial person, then all voices in the community are generally not heard and trust is broken, leaving communities deeply entrenched in continuous conflict

The presenters reminded the partici pants that they need to be the ambassadors

Peter Adler, Tracey Wiltgen, Justice James Duffy, Dawn Chang, Melissa May

Rona Fukumoto, Daintry Bartoldus

for getting the word out to members of the community who would truly benefit from these processes The marginalized members of communities will not be aware of such opportunities or resources, without the help of others to make the connection

ABLE (Achieving a Better Life Experience) and Access to Justice

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Daintry Bartoldus, Executive Admin istrator of the Hawaii State Council on Developmental Disabilities, and Rona Yagi Fukumoto, President and CEO of Lanakila Pacific, shared infor mation about the history of advocacy and suc cessful creation of the Hawaii ABLE Sav ings Program Since Congress passed the Achieving a Better Life Experience (ABLE) Act in 2014, advocates in Hawaii have worked with local legislators to cre ate a local program

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Hawaii’s plan, the ABLE for All Sav ings Plan, is a financial tool that allows an individual with a disability, who receives SSI, SSDI, Medicaid, SNAP, HUD assis tance, Medicare, FAFSA, or other state and federal benefits, to save up to $100,000 before they lose their benefits. To qualify, an individual must meet the disability requirements of SSI or SSDI, with a disability that developed before age 26, that will last at least a year More im portantly, the ABLE plan provides the in dividual and their family the resources, support, and holistic services to reach their financial goals ABLE was designed for self empower ment and built with a presumption of competence. Individuals with disabilities are encouraged to man age their own accounts and are both the beneficiary as well as the account owner

Social Justice Lawyering for Public Health

Deja Ostrowski, staff attor ney for Medical Legal Partnership for Children in Hawai‘i moderated a panel with Fer nando Cosio, staff attor ney for Medical Legal Partnership for Children in

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Hawai‘i, Sharde Freitas, data and policy analyst with the Center for Indigenous Innovation and Health Equity, and Wayne Tanaka, executive director of the Sierra Club The panelists emphasized the importance of social justice lawyering work that centers community stories, cul tural and indigenous practices, and build ing power with traditionally excluded people

With the backdrop of lessons lear ned and underscored as a result of the COVID 19 pandemic, panelists provided specific examples of their work especially in light of the historical inequities exposed by the pandemic Fer nando Cosio provided an overview of the Med ical Legal Partnership model of integrat ing legal services into a community health setting He shared why it is needed, why it works, and an overview of the social de ter minants of health (SDH). Sharde Fre itas opened with an oli (“E Iho Ana”) and built on the SDH framework to introduce Mauli Ola, a more encompassing Native Hawaiian framework for wellness Wayne Tanaka provided a rethinking of the ways in which colonialism has impacted our is lands and communities, and the roles that lawyers can play in using Hawai’i’s laws to seek justice, and heal the ongoing har ms of past injustices.

Panelists also identified how themes from Dean Nelson’s keynote speech on inclusive justice are implemented in their own law and policy initiatives, including

Wayne Tanaka, Deja Ostrowski, Sharde Freitas, Fer nando Cosio

being responsive to “societal upheaval,” challenging the status quo to benefit all and engaging in “trans disciplinary teams” and engaging “where justice lives ” The panelists concluded with practical tips and takeaway lessons about their foundational tenets of social justice lawyering: collaborating across disciplines and roles; building trust by listening, showing empathy, and meeting people where they are at; and “not sleeping through the revolution” by remembering Hawaii’s colonial past and working to upend the status quo. The panelists’ col lective work illustrates how social justice lawyering does not just benefit one client or one community social justice lawyer ing often results in benefits for all Exam ples range from successful landlord tenant mediations that resulted in better out comes for all parties to ‘aina work engag ing a Mauli Ola approach that uplifts all people in the community

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Working Together to Provide Immig ration Legal Services to the Low-Income Clients

Moderators John Egan, director of the Refugee and Immigration Law Clinic at the William S Richardson School of Law, and Esther Yoo, Senior Staff Attor ney at The Legal Clinic, led the discus sion with Ethan Higa, Fellow at the Refugee and Immigration Law Clinic, Makoto Messersmith, staff attor ney at Hawai‘i Immigrant Justice Center, and

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H S B A H A P P E N I N G S

2023 License Registration and Renewal

The license renewal portal will open on December 1, 2022 The renewal an nouncement will be posted on www hsba org 2023 License Renewals (online and mail in) must be received by December 31, 2022, for timely process ing Postmarked renewals received by the HSBA after December 31, 2022, will be considered late

Renewal and other important an nouncements will be transmitted to your preferred communication address on file via email.

Change of Status

Change of license status requests ef fective for the 2022 license year must be received by December 16 to ensure ap propriate processing of dues and pay ment amounts. Note that 2022 CLE requirements must be completed prior to renewing your license for 2023 For 2022 status changes, contact the HSBA at (808) 537 1868 or via email at ars@hsba.org. Change of status requests using the 2023 online rene wal for m will be ef fective Januar y 1, 2023

CLE Reminder

The HSBA recommends that you complete your annual CLE requirement before renewing your license for accu rate certification of infor mation pro vided and to avoid an automatic compliance audit (Rules of the Supreme Court of the State of Hawaii, Rule 22) Contact the CLE Department at cle@hsba.org for seminar/webinar infor mation

HSBA Board Action

The HSBA Board took the follow ing actions at its meeting in September: • A pproved the recommendation of the

Subcommittee on Bar Admittees to reit erate the HSBA’s position to the Hawaii Supreme Court of keeping the mini mum passage rate at 133 and continu ing to work with the William S Richardson School of Law on ideas to better prepare Hawaii law students to pass the Hawaii Bar Exam and to enter the local workforce;

• A pproved the recommendation of the joint HSBA Executive Finance Com mittee to send a letter to the Hawaii Supreme Court indicating the HSBA’s support of the proposed 2023 budgets of the Disciplinary Board, the Lawyers’ Fund for Client Protection, and the At tor neys and Judges Assistance Prog ram;

• Adopted the recommendation of the joint HSBA Executive Finance Com mittee to approve the proposed 2023 budgets of the HSBA Sections that have submitted their requests for dues assess ments and proposed 2023 expenditure plan;

• Adopted the recommendation of the joint HSBA Executive Finance Com mittee to approve proposed amend ments to the Board Policy Manual that would allow f lexibility in deter mining the out of state per diem allowance for non HSBA meeting expenses by setting per diem amounts annually;

• Adopted the recommendation of the joint HSBA Executive Finance Com mittee to approve the name change of the Ad Hoc Working Group to be known as the Strategic Planning Com mittee and bring the Committee into compliance with policy regarding its composition; and

• Adopted the recommendation of the HSBA Nominating Committee to reap point the following individuals to the Hawaii State Board of CLE (aka M C L E B o a r d ) t o a t h r e e ye a r t e r m

beginning October 2, 2022: Carol Egan, Jane Kwan, and Mahealani Krafft

Member Benefits Spotlight

Kapolei Inline Hocke y Arenas

Kapolei Inline Hockey Arenas of fers walk in skating (during public skat ing hours only). Walk through the door and get ready to skate in KIHA’s public skating rink.

As an HSBA member, you will re ceive $5 00 off walk in public skating sessions. Each session lasts a maximum of two hours at the allotted session times and includes a pair of rental skates. HSBA members will need to present their HSBA Bar Card upon arrival to redeem the discount. This offer will be valid for one family per bar card

For more infor mation on public skating sessions, please visit KIHA’s website at https://www.kihapublicskate.com/ or con tact them at kihapublicskating@gmail com or via phone at (808) 682 5441.

Kumu Kahua T heatre

Kumu Kahua Theatre produces world class theatre written by and about the people of Hawai‘i, perfor med in downtown Honolulu They are pleased to offer HSBA members a 25% discount on staged production tickets. Please call the theatre’s office at (808) 536 4441 to redeem your discount or use the code “HSBA” when ordering online

For more infor mation about us, please visit Kumu Kahua Theatre’s website at https://www kumukahua org/

Consolidated Movie Tickets

Stop by the HSBA office to pur chase your Consolidated movie tickets today for $8 25 per ticket There is no limit to the number you can purchase Tickets are accepted at the following

Consolidated Theatre locations:

• Ward (Open daily)

• Pearlridge (Open Friday through Sun day)

• Mililani (Open Friday through Sunday)

• Olino (Open Friday through Sunday)

• Kaahumanu Mall on Maui (Open Fri day through Sunday)

Consolidated Theatres is committed to meeting or exceeding all CDC, state, and local regulations as well as #Cine maSafe expert backed suggestions. Please refer to www consolidatedtheatres com for more infor mation

To take advantage of this g reat member benefit, stop by the HSBA of fice and have your JD number ready for verification of HSBA membership Only payment by check or cash will be ac cepted Call at (808) 537 1868 if you have any questions. Note that there are limitations to special screenings and pre miering movies, so you are advised to read the ter ms and conditions behind the ticket

Re gal Movie Tickets

Stop by the HSBA office to pur chase your Regal movie tickets today for $9 25 per ticket There is no limit to the number you can purchase.

Tickets are accepted at the following opened Regal Theatre locations:

• Dole Cannery

• Kapolei Commons

• Pearl Highlands Center

• Wind ward Mall

• Maui Mall

• Regal Prince Kuhio in Hilo

Regal is committed to the safety of their patrons and employees and is tak ing steps to keep you cinema safe. Please refer to their website at www re gmovies com for more infor mation

To take advantage of this g reat member benefit, stop by the HSBA of fice and have your JD number ready for

verification of HSBA membership. Only payment by check or cash will be ac cepted Call at (808) 537 1868 if you have any questions. Note that there are limitations to special screenings and pre miering movies, so you are advised to read the ter ms and conditions behind the ticket

Cosmo Sweets

Cosmo Sweets’ tasty, beautiful, and unique assortment of baked goods will help you celebrate any occasion Cus tomize your order of cakes, cupcakes, macaroons, and sugar cookies Business logos and special messages may be incor porated in baked good decorations Cosmo Sweets is perfect for holiday gifts to clients, family, and special friends. All HSBA members will receive a discount of 10% off with a minimum order of $50 Discount is not included in delivery fees To redeem the discount, members must state that they are an HSBA Mem ber in the ‘Other Notes’ category when submitting an order for m. For more in for mation, visit them on Instag ram @cosmosweets or visit cosmosweetshawaii com for more infor mation.

Oahu Fresh

Oahu Fresh is a subscription based service that delivers fresh local produce from local far mers and specialty prod ucts from local artisans directly to HSBA members home or office. Their network includes a variety of far ms and dozens of producers that deliver thousands of bags a month to homes and businesses across the island

HSBA members can use the coupon code “oahufresh” when subscribing which will waive the membership fee Visit their website at https://shop oahufresh com/ to sign up or for more infor mation

Speakeasy Productions

This Hawaiian owned business pro vides a unique range of alcohol services

Owned by a Certified Sommelier, they can assist you with all of your alcohol and non alcoholic needs They can help set up, staff, supply, and break down your special event bar in any location; provide private sommelier services; con duct wine education seminars; and cre ate the most memorably beautiful wine gift baskets on the island. HSBA mem bers receive 10% off on their stunning gift baskets when they show their HSBA membership card Contact them from t h e i r w e b s i t e w w w s p e a k e a s y p r o d u c t i o n s h a w a i i . c o m o r c a l l L i a n e a t ( 8 0 8 ) 7 2 1 1 6 8 8

NOTICE OF PUBLIC REPRIMAND ON MYLES S. BREINER

On September 29, 2022, the Disciplinary Board of the Hawai ‘i Supreme Court imposed a Public Rep rimand upon Honolulu attor ney Myles S. Breiner for representing clients with concurrent conf licts of interest without obtaining a meaningful and infor med consent after full and frank discussion and a written waiver of such concur rent conf lict that met the stringent re quirements of Rules 1 0 and 1 7 of the Hawaii Rules of Professional Conduct

This discipline arose, in part, out of the January 25, 2017 findings and order of federal district court judge Derrick K Watson in Franson et al , v City and County of Honolulu, et al , 16 cv 00096, dkt. #69 (D. Haw.).

This Public Reprimand does not prevent Breiner from continuing to practice law, however, it may result in m o r e s e r i o u s s a n c t i o n s f o r f u t u r e v i o l a t i o n s o f t h e r u l e s o f p ro f e s s i o n a l c o n d u c t

Breiner was admitted to the Hawai‘i bar in 1987, and is a g raduate of the University of San Francisco, School of Law.

[Case infor mation: In re Myles S Breiner, DB No. 22 9001].

C O U R T B R I E F S

Judiciary Convenes Hawaii’s First Statewide Adult Drug Court Conference

Specialty court staff and partners from across the islands found it to be a valu able opportunity to engage with national experts discussing the latest research on treatment court best practices

Thanks to funding from a federal Bureau of Justice Assistance (BJA) g rant awarded to the First Circuit Drug Court prog ram in 2020, a team of Judiciary staff was able to bring speakers from the National Association of Drug Court Professionals (NADCP) 2022 Annual Conference, “RISE22,” to present their findings and recommendations. The g rant also provided the means for 33 treatment court personnel from Kauai, Maui, Molokai, and Hawaii island to at tend as part of their continuing profes sional education and training.

The State Department of Health’s Alcohol and Drug Abuse Division served as event co sponsor, allocating funds for conference facilities at the Ala Moana Hotel and meals for the attendees.

“The conference would not have been possible without the team of peo ple who contributed to the months of planning and coordination,” said Kathi Fujii, Prog ram Specialist with the First Circuit’s Adult Client Services Branch

communities safer through reduced re cidivism (i e , the tendency of a con victed criminal to reoffend)

“The work of our treatment courts is important because the assistance that prog ram participants receive directly benefits their family members, neigh bors, communities, and especially their children Hawaii’s next generation,” said Fujii

The event began with keynote ad dresses by Hawaii Supreme Court Chief Justice Mark E Recktenwald and First Circuit Chief Judge R. Mark Browning. Guest speakers Shannon M Carey, PhD; Vanessa Price; Steve Hanson M.S.Ed.; Helen Harberts, M A , J D ; Carol Ven ditto M P A ; Niki Wright, PsyD, CSAC made presentations on:

• Drug Court Best Practices Volumes 1 and 2

• Trauma Infor med Care

• Drug Testing: Best Practices

• Drug Testing: Myth Busters

• Secondary Trauma and its impact on the team

• Incentives and Sanctions

• Impacts of Substance Use on the Brain and Behavior

The Judiciary convened Hawaii’s first ever Statewide Adult Drug Court Conference, August 31 to September 1

“Some of Hawaii’s criminal justice and treatment court professionals are not able to attend the national conferences each year. The BJA g rant enabled us to bring a significant component of the 2022 conference to Oahu Eighty Judici ary staff members and judges from the drug courts, veterans courts, and mental health courts, had a rare opportunity to collaborate with prosecutors, public de fenders, Veterans Administration staff, volunteer mentors, and independent treatment providers at this conference We lear ned strategies and best practices to work more effectively with clients, en sure g reater consistency in the specialty c o u r t p r o g r a m s , a n d m a k e o u r

• Risk Need, and Responsivity for Sub stance Use Disorder Clients

The prog ram also featured essential instruction on self care for staff and an infor mative presentation on Native Hawaiian Cultural Practices/Alter na tives for Clients with Opioid Addiction by Niki Wright and Makani Tabura of the Waianae Coast Comprehensive Health Center (Ho’okuola Hale Program)

First Circuit Dr ug Court Team

Second Circuit Dr ug Court Team

T hird Circuit Dr ug Court Team

Fifth Circuit Dr ug Court Team

C A S E N O T E S

Supreme Court

Civil Procedure

Yamashita v LG Chem, Ltd , SCCQ 22 0000538, October 20, 2022, (Eddins, J.).

The Ninth Circuit panel certified the fol lowing questions to the Hawaii Supreme Court: 1. May a Hawaii court assert per sonal jurisdiction over an out of state cor porate defendant if the plaintiff ’ s injury “relates to,” but does not “arise from,” the defendant’s in state acts enumerated in Hawaii’s general long ar m statute?

Compare Ford Motor Co. v. Montana Eighth Judicial District Court, 141 S Ct 1017 (2021), with Hawaii Revised Statutes § 634 35. 2. In light of Ford Motor Co. v. Montana Eighth Judicial District Court, does Hawaii’s general long ar m statute, Haw Rev. Stat. § 634 35, per mit a Hawaii court to assert personal jurisdiction to the full extent per mitted by the Due Process Clause of the Fourteenth Amendment?

The Hawaii Supreme Court accepted these questions under Hawaii Rules of A ppellate Procedure Rule 13 and an swered “Yes” to both

Criminal

State v Garcia, No SCWC 21 0000328, October 7, 2022, (Eddins, J ) Does an infor mation that tracks the lan guage of Haw Rev Stat § 708 852 (2014), forgery in the second deg ree, and contains each element of that offense also need to define forgery’s key element, “intent to defraud”? It does Otherwise the infor mation omits the offense’s dual states of mind The State argued the first word of “intent to defraud” infor ms a defendant of forgery’s state of mind. For gery though has another state of mind “‘Intent to defraud’ means: (1) An intent to use deception to injure another’s inter est which has value; or (2) Knowledge by the defendant that the defendant is facili tating an injury to another’s interest which has value.” Haw. Rev. Stat. § 708 800 (2014) (emphasis added) An infor mation that is missing a crime’s proper states of mind fails to state an offense and violates due process Because forgery has

Appeal Pointer

A statement of jurisdiction may be stricken unless a copy of the judg ment or order appealed from is at tached to it HRAP 12 1(d)

two states of mind intentionally and knowingly an infor mation that alleges forgery must define intent to defraud Here, because the infor mation omits for gery in the second deg ree ’ s states of mind, the Hawaii Supreme Court held it failed to state an offense as to counts 4 7 and violated the defendant’s right to due process

In the Interest of GH, No SCWC 19 0000583, October 10, 2022, (McKenna, J.). This case arose from an adjudication of GH (Minor), a teenager at the time, as a law violator by the family court, for sexually assaulting the complaining wit ness (CW), who was nine years old at the time of the assault On certiorari, Minor alleged the ICA erred by (1) af fir ming the family court’s exclusion, based on Hawaii Rules of Evidence Rule 412 (2016) of Minor’s proffered extrinsic evidence of CW’s past false sexual as sault allegations; (2) concluding the fam ily court had not erred by failing to make a preliminary deter mination as to the truth or falsity of CW’s past sexual as sault allegations, as required by State v West, 95 Hawaii 452, 24 P.3d 648 (2001); and (3) concluding there was sufficient evidence to deem Minor a law violator

The Hawaii Supreme Court preliminar ily addressed the untimeliness of Minor’s certiorari application, which was filed more than eight months after the ICA’s October 30, 2020 judgment on appeal

In State v Uchima, 147 Hawaii 64, 464 P.3d 852 (2020), the Hawaii Supreme Court held that a defendant in a crimi nal case has the right to effective assis tance of counsel during all stages of an appeal, which includes procedural com pliance with the statutory requirements for filing an application for writ of cer tiorari 147 Hawaii at 79, 464 P 3d at 867 The Hawaii Supreme Court has

also held that “[b]ecause effective assis tance of counsel is fundamental to a fair trial, it should be guaranteed in juvenile law violator proceedings as have other fundamental criminal case guarantees ” In re Doe, 107 Hawaii 12, 16, 108 P.3d 966, 970 (2005) Hence, Uchima’ s hold ing applies to juvenile law violation cases. Addressing the merits, the Hawaii Supreme Court held that (1) under the circumstances of this case, it was an abuse of discretion for the family court to exclude the proffered evidence based on the procedural notice requirements of Haw. R. Evid. Rule 412; (2) as further discussed below, if a defendant seeks to admit a complaining witness’s false alle gations of sexual assault, then admissi bility of such evidence is not subject to Haw R Evid Rule 412 or West, 95 Hawaii 452, 24 P.3d 648; and (3) Minor’s insufficiency of evidence argument lacked merit

Intermediate Court of Appeals Contract

Adkins v. Nickens, No. CAAP 18 0000409, October 20, 2022, (Wadsworth, J ) This appeal stemmed from a dispute involving the sale of real property in Hanalei, Hawaii (the Prop erty). In their Complaint, Plaintiffs A p pellants Richard K Adkins (Adkins) and Brown Eyed Girl, LLC (BEG) (collec tively, Plaintiffs) alleged that Defen dants/Third Party Plaintiffs A ppellees Gary R Fischer and Samantha K Fis cher (the Fischers) and Defendant/Third Party Plaintiff A p pellee Anini Aloha Properties, Inc (Anini Aloha) (collectively, Defendants) failed to disclose material facts about the Property when they sold it to Adkins Adkins then conveyed the Property to BEG, a limited liability company (LLC) whose sole member was Adkins. After Plaintiffs filed their Complaint, Defen dants filed a Third Party Complaint for indemnification and contribution against

Third Party Defendants A ppellees

Steven Nickens (Nickens), CBIP, Inc , dba Cold well Banker Island Properties (CBIP), Amy J. Marvin (Marvin), and Hanalei North Shore Properties, Ltd (HNSP) (collectively, Third Party Defen dants) Defendants moved to dismiss Plaintiffs’ Complaint on the g rounds that: (1) BEG lacked capacity to com mence and maintain the lawsuit, because BEG did not have a certificate of author ity to transact business in Hawaii pur suant to Haw. Rev. Stat. § 428 1008 (2004); and (2) Adkins was not a real party in interest, because after conveying the Property to BEG, Adkins had no in terest in the Property CBIP, Nickens, and HNSP joined the motion. The cir cuit court ag reed with Defendants’ argu ments and g ranted the motion to dismiss with prejudice as to Defendants and as to CBIP, Nickens, and HNSP Plaintiffs ap pealed from the May 8, 2018 “Final Judgment” (Judgment), which dismissed Plaintiffs’ Complaint with prejudice as to all Defendants and Third Party Defen dants, entered by the circuit court pur suant to Hawaii Rules of Civil Procedure Rule 54(b) Plaintiffs also challenged the circuit court’s June 19, 2017 “Order Granting (1) Defendants[‘] Motion to Dismiss Under HRCP Rule 17, Filed on September 29, 2016 [(Motion to Dis miss)]; (2) CBIP[ and] Nickens’ Sub stantive Joinder in . . . Motion to Dismiss Filed on October 18, 2016; and (3) [HNSP’s] Joinder and Memorandum in Support of Motion to Dismiss Filed on October 21, 2016” (Dismissal Order) On appeal, Plaintiffs contended that the circuit court erred in: (1) g rant ing the Motion to Dismiss in violation of Haw R Civ P Rule 17(a); (2) g ranting the Motion to Dismiss pursuant to Haw. Rev Stat § 428 1008, where BEG ob tained a certificate of authority before the Complaint was dismissed; and (3) finding that Adkins was not a real party in interest. The ICA held that the circuit court did not violate Haw R Civ P Rule 17(a) in dismissing BEG’s claims against Defendants Haw R Civ P Rule 17(a) allows a real party in interest to ratify the commencement of an action that has not

been brought in the name of the party who has the right sought to be enforced Here, BEG’s claims were not dismissed on the basis that it was not a real party in interest; rather, its claims were dismissed because it did not have a certificate of authority when the Complaint was filed, and thus lacked capacity to sue Defen dants In these circumstances, Plaintiffs could not use ratification under Haw R Civ. P. Rule 17(a) to remedy BEG’s lack of capacity to sue Additionally, the ICA held that the circuit court did not err in dismissing BEG’s claims pursuant to Haw Rev Stat § 428 1008(a) The ICA construed that statute to mean that a for eign LLC transacting business in Hawaii may not commence or continue an ac tion or proceeding in the state except when the LLC has a certificate of au thority Further, Haw Rev Stat § 428 1008(a) does not provide an exception when a non compliant foreign LLC ob tains a certificate of authority prior to final judgment. Here, it was undisputed that BEG had no certificate of authority

when it commenced this lawsuit, Defen dants first raised this deficiency in their answer to the Complaint (Answer) and BEG continued the suit for over three years without obtaining a certificate of authority. Under these circumstances, BEG could not cure its failure to comply with Haw. Rev. Stat. § 428 1008(a) by ob taining a certificate of authority prior to the hearing on the Motion to Dismiss

The ICA further held, however, that the circuit court erred in concluding that Ad kins was not a real party in interest and in dismissing his claims on that basis

Viewed in the light most favorable to Plaintiffs, the facts alleged in the Com plaint and the inferences drawn from those facts support a claim that Adkins was fraudulently induced to pay more for the Property than its fair market value and thus suffered damages in an amount to be proved at trial Adkins therefore as serted a sufficient interest in the action in his own right to make him a real party in interest.

Kara Teng, staff attor ney at The Legal Clinic.

This panel focused on the impor tance of building human infrastructure in order to provide immigration legal services specifically, and access to justice more broadly, for low income immigrants in Hawai‘i. Despite the fact that nearly a quarter of Hawaii’s population is foreign bor n, Professor Egan pointed out that there are only a handful of immigration practitioners doing the type of immi gration work that indigent immigrants typically need.

Esther Yoo shared a recent Tweet by Ian Millhiser, a legal correspondent: “One of the law’s cruelest twists is that the areas of the law which involve the most vulnerable people immigration, habeas, civil rights are monstrously complicated and often require top notch lawyers that immigrants, in mates, and civil rights plaintiffs can rarely afford ” She explained the typi cal challenges that indigent immigrants face in court. Unlike criminal defen dants, indigent immigrants do not have a right to counsel that is paid by the gov er nment, despite the severity of the con sequence of deportation Those who cannot afford a lawyer must represent themselves in court and must contend not only with understanding a highly techni cal, complicated body of law but also navigating a legal process not in their pri mary language As a result, the lack of counsel almost certainly dooms the immi grant to failure.

Building this infrastructure means, in part, creating a pipeline starting in law school for emerging immigration practi tioners to lear n immigration law and practice The panel featured a conversa tion with three emerging immigration practitioners, all of whom were for mer students of Professor Egan and represent the diversity of practices, pathways, and potentials in immigration.

Thinking Forward for Access to Justice

Judge Joseph Cardoza (ret ), Chair of the Hawai‘i Access to Justice Commis sion, Heather Lusk, executive director of Hawai‘i Health and Har m Reduction Center (“HHHRC”), Nalani Fujimori

Kaina, executive director of the Legal Aid Society of Hawai‘i (“Legal Aid”), Tracey Wiltgen, executive director of the Mediation Center of the Pacific (“Media tion Center”), and State Senator Karl Rhoads (District 13) began with a discus sion on lessons lear ned during the pan demic about access to justice They agreed that innovations in technology al lowed access to the courts and increased mediation This resulted in more people participating in their court proceedings and more people coming to resolutions

now exists between Legal Aid and HHHRC, also work well to increase ac cess to justice

The panel then discussed how the in crease in use of technology also created some barriers to access to justice Innova tions in technology highlighted the need for “tech equity ” There should be no as sumptions by the gover nment or service providers that individuals can easily access or even understand how to use technology

The panel discussed how “justice de layed is justice denied” and how arbitra tion and mediation are helping to reduce court delays. If court dates are scheduled at a later date, alter native dispute resolution offers individuals op portunities to resolve their problems on their own schedules Mediation con ducted prior to filing a legal action can also help to reduce court backlogs. Act 57 is a strong example of the effective ness of pre filing mediation where 87% of the landlord tenant disputes that proceeded to pre filing mediation were successfully resolved through mediated agreements.

without court intervention. Individuals who may not have participated in the court process before now faced reduced barriers as a result of technology, which made it easier for them to participate in their cases Access to remote testimony in the legislature also increased as a result of the pandemic

Remote access to court proceedings via Zoom increased the parties’ participa tion in the process Prior to the pan demic, only about 50% of tenants appeared at eviction hearings. During the pandemic with Zoom online hearings, 64% of tenants made appearances

In looking back at what succeeded during the pandemic, the panel empha sized the importance of partnering with community stakeholders and having navi gators available within all facets of the community If an individual is working with a community partner or navigator, that increases an individual’s participation in their court proceedings, including me diation Community partners, if aware of a party’s court required obligations, can work with the party on an individual basis to help ensure access to justice Medical legal partnerships, such as the one that

The panel discussed initiatives that may help to increase access to justice in Hawai‘i. There is a national conversation on the concept of a “Regulatory Sand box ” An example of this is “The Sand box” which is overseen by the Office of Legal Services Innovation in Utah The Sandbox allows entities to use new busi ness structures and service models to pro vide legal services in Utah after going through a review and approval process

The Utah Supreme Court recently ex tended the ter m of The Sandbox from two years to seven years Entities that have been approved so far in the first two years of the program include services for family law, end of life planning, and small business needs. Nonlawyer human or software providers are being used to pro vide legal advice and assistance

Likewise, on a national level, the ABA is supporting researchers across the country whose goal is to transfor m access to the legal system There are not enough lawyers to serve low income indi viduals who cannot afford lawyers There are also areas of law where representation is virtually non existent because lawyers are not able to help individuals if their business model does not allow them to a s s i s t . I n t h e s t a t e o f A r i z o n a , t h e

Tracey Wiltgen, Heather Lusk, Nalani Fujimori Kaina, Senator Karl Rhoads, Judge Joseph Cardoza

Arizona Supreme Court eliminated its ethics rule barring nonlawyers from hav ing an economic interest in a law fir m or participating in fee sharing The court also approved a new category of non lawyer licensee called Legal Paraprofes

On a local level, Forensic Peer Spe cialists (“FPRs”) are another innovation that are helping to increase access to jus tice FPRs work with those involved in the criminal justice system by sharing their own history of criminal justice in volvement and mental health recovery The state legislature recently appropri ated $800,000 00 for additional funding for this program

Members of the panel agreed that to increase access to justice in Hawai‘i com munity stakeholders will need to continue to work together as they did during the pandemic The community must also not be afraid to think of unconventional an swers to longstanding problems.

Access to Justice for the Elder Population Af fected by Diminishing Capacity

Scott Suzuki, sole practitioner, and Gary Powell, executive director of The Caregiver Foundation, highlighted the primary concer ns of the caregiving care giver dynamic, which they identified as capacity, care, and cost In dealing with

elderly clients, they stressed the impor tance of hearing, recognizing, and includ ing elderly clients in the decisions impacting their lives As one in two peo ple over 85 has a neurocognitive condi tion, everyone is likely to either be a

Scott Suzuki, Gary Powell

caregiver or be cared for at some point in their lifetimes The need for caretakers will only increase over time, as the num ber of Americans over 65 will exceed the number of Americans under 18 by 2034 for the first time in history.

Because the changing care dynamic can be challenging, it is important to en gage in supported decision making, where individuals are empowered to par ticipate to the extent possible in decisions concer ning their lives. As the average cost for care continues to rise, it is impor tant to note the limitations of our current systems, such as Social Security Disability and Medicaid and consider other long ter m planning and solutions to help make transitions throughout the caregiving process smooth and dignified It is ab solutely critical that compassion remains at the forefront for those providing care and legal assistance to persons affected by diminishing capacity

Other afternoon workshops included “Domestic Abuse and Protective Orders: Access to Justice for All Parties” with Dis trict Family Court Judge Rebecca A. Copeland as moderator, District Family Court Judge Courtney Naso, Nanci Kreidman, executive director of Do mestic Violence Action Center, and Alen Kaneshiro, private attor ney;4 “Language Access Is Language Justice” with Melody MacKenzie, Professor of Law Emerita and founding director of Ka Huli Ao Center for Excellence in Na tive Hawaiian Law at the law school, who

Language Access; and Ayano Nishimura, inter preter; and “Legal I s s u e s Re l a t e d t o t h e P r o v i s i o n o f Education Services in ‘Olelo Hawai‘i” with David Kauila Kopper, director of Litigation at Native Hawaiian Legal Cor poration (NHLC) as moderator, and panelists: Daylin Rose Heather, staff attor ney with NHLC, and Ka‘ano‘i Walk, senior policy analyst in the Hi‘ialo Group at Kamehameha Schools.

The plenary closing session with Professor Calvin G C Pang and Dean Nelson shared reflections of the day’s conference

was the moderator; First Circuit District Court Judge William M Domingo; Aphirak Bamrungruan, executive direc t o r o f t h e H a w a i ‘ i S t a t e O f f i c e o f

This article is a compilation of the summaries prepared by Teri Ann Nagata, Michelle Moorhead, Tracey Wiltgen, Rona Fukumoto, Esther Yoo, Deja Ostrowski, Scott Shishido, and Nicholas Severson Photos cour tesy of Spencer Kimura, Faculty Specialist, Director of LLM and Summer Programs, William S Richardson School of Law, University of Hawai‘i.

1 The major difference from other Access to Justice Conferences was the mandatory face mask requirement Safety protocols related to COVID 19 were in place at the Univer sity of Hawai‘i

2 The Hawai‘i Supreme Court implemented Supreme Court Rule 21 that created the Hawai‘i Access to Justice Commission in 2008 with a pur pose to “substantially increase access to justice in

civil legal matters for low and moderate income residents of Hawai‘i ” The Commission is com prised of 22 members with a current or retired Hawai‘i Supreme Court Associate Jus tice and four judges ap pointed by the Chief Justice; four members appointed by the Hawaii State Bar Associa tion; six members (four repre sentatives of Hawai‘i nonprofit civil legal services providers and two non attor ney public representatives) ap pointed by the Hawai‘i Consortium of Legal Services Providers; one member ap pointed by the Hawaii Justice Foundation; one member ap pointed by the Dean of the William S Richardson School of Law; one member ap pointed by the Hawaii Paralegal Association; ap pointments or service by the Gover nor, the Attor ney General, President of the Hawai‘i Sen ate, and the Speaker of the Hawai‘i House of Representatives. More infor mation about the Commission can be found at www hawaiijustice org

3 Dean Camille Nelson based her keynote ad dress on her article, “Redux: Towards An Em powering Model of Legal Education,” 8 Canadian Jour nal of Comparative and Contemporar y Law 192 (2022)

4 An outline of this workshop can be found at www.hawaiijustice.org under the tab for the Commission Other workshop summaries are also posted at these subpages

Ayano Nishimura, Melody MacKenzie, Judge Domingo, A phirak Baumrung ruan

Judge Courtney Naso, Alen Kaneshiro, Nanci Kreidman, Judge Rebecca Copeland

David Kauila Kopper, Daylin Rose Heather, Ka ano i Walk

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