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BAR JOURNAL A N O FFICIAL P UBLICATION
OF THE
H AWAII S TATE BAR A SSOCIATION D ECEMBER , 2016 $5.00
TA B L E O F C O N T E N T S VO L U M E 2 0 , N U M B E R 1 2
EDITOR IN CHIEF Carol K. Muranaka BOARD OF EDITORS Christine Daleiden David Farmer Susan Gochros Ryan Hamaguchi Cynthia Johiro Edward Kemper Laurel Loo Melvin M.M. Masuda Melissa Miyashiro Eaton O'Neill Lennes Omuro Brett Tobin Jodi Kimura Yi
ARTICLES 44
Attorneys Making a Difference
10 19
2016 Legislation by Ed Kemper
15 24
2016 Access to Justice Conference: Pursuit of Meaningful Justice for All by Carol K. Muranaka
19
Loher v. Thomas: A Criminal Defendant’s Right To “Wait-And-See” What Other Defense Witnesses Say Before Taking The Witness Stand
HSBA OFFICERS
by Kenji M. Price
President Jodi Kimura Yi President-Elect Nadine Ando Vice President Howard Luke Secretary Russ Awakuni Treasurer Mark M. Murakami YLD OFFICERS President Ryan Hew Vice President/President-Elect Trejur Bordenave Secretary Catherine Taschner Treasurer Ryan Loeffers EXECUTIVE DIRECTOR Patricia Mau-Shimizu GRASS SHACK PRODUCTIONS Publisher Brett Pruitt Art Direction Debra Castro Production Beryl Bloom
Hawaii Bar Journal is published monthly with an additional issue in the fourth quarter of each year for the Hawaii State Bar Association by Grass Shack Productions, 1111 Nuuanu Ave., Suite 212, Honolulu, Hawaii 96817. Annual subscription rate is $50. Periodical postage paid at Honolulu, Hawaii and additional mailing offices. POSTMASTER: Send address changes to the Hawaii Bar Journal (ISSN 1063-1585), 1100 Alakea St., Ste. 1000, Honolulu, Hawaii 96813.
Advertising inquiries should be directed to: Grass Shack Productions (808)521-1929 FAX: (808)521-6931 brett@grassshack.net
22
Homeless Holistic Civil Legal Services by Maya Scimeca and Janet Kelly
20 28
Volunteer Legal Services Hawaii Launches Hawaii Online Pro Bono – A Technological Tool to Increase Access to Justice
22
by Michelle Acosta
28 32 30
Technology as a Sustainable Solution to Expanding Meaningful Access to Justice by Kara Doles
31
OF NOTE 20
HSBA Happenings
24
Court Briefs
27
Notices of Discipline
30
Case Notes
36
Uniform Law Update
38
Off the Record
38
Hawaii Access to Justice Conference
39
Classifieds On the cover:To Santa by Peggy Chun (1946-2008). Chun is known in Hawaii for her beautiful and
often whimsical artwork. Her work can be found in both private and corporate collections across the Chun captured the "spirit of aloha" in her paintings and enjoyed sharing her love of the islands with the world. To Santa was originally featured on the cover in 2009.
\globe.
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 Journal 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 information contained herein. This publication is designed to provide general information 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 informational purposes only. Nothing contained in this publication is to be considered as the rendering of legal advice.
Attorneys
Making a Difference
Attorneys who volunteer at the Kapolei Access to Justice Room: Top row (left to right): Jessi Hall, Erin Kobayashi, Jill Hasegawa, Noah Gibson, Tom Tanimoto, Seth Harris, Amanda Jenssen Bottom row (left to right): Ellen Politano, Carol Tribbey, Elizabeth Paek-Harris, Shelby Ferrer, Michelle Moorhead, Lynnae Lee, Dyan Mitsuyama
by Carol K. Muranaka Many in the legal community share their talents and skills with others in need. The self help centers named the Access to Justice Rooms on Oahu are two venues for sharing such legal expertise. At the Access to Justice Room at the Honolulu District Court, volunteer attorneys provide limited legal assistance to self-represented litigants on civil mat-
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ters related to landlord-tenant, collection, and temporary restraining order (which involve non-family members) cases. At the Kapolei Access to Justice Room, volunteer attorneys provide limited legal advice to unrepresented litigants in a civil case in the Family Court. At Kapolei, Judge R. Mark Browning’s staff assists with the Kapolei Access to Justice Room, and the Hookele Help Center coordinates the scheduling
of the unrepresented litigants. Attorneys who have volunteered over the years include: Ann Isobe, Barrie Michelsen, Carol Tribbey, Courtney Naso, Curtis Kam, Dean Soma, Dick Diehl, Dyan Mitsuyama, Elizabeth Paek-Harris, Ellen Politano, Elsa McGehee, Erin Kobayashi, Evans Smith, Gary Singh, Gemma-Rose Poland Soon, Jackie Thurston, Jessi Hall, Jill Hasegawa, John Bryant, Jr.,
John Hughes, John Nuha, Juan Montalbano, Kevin Adaniya, Louis Markee, Jr., Lynnae Lee, Mae Chang, Mari Kishimoto, Marianita Lopez, Mei Nakamoto, Michelle Moorhead, Noah Gibson, P. Gregory Frey, Robert Young, Sandy Young, Seth Harris, Stephen Hioki, Steve Hartley, Steve Kim, and Tom Tanimoto. The following firms, offices, and individuals committed to staffing the Honolulu Access to Justice Room in 2016: January: .........Ayabe Chong Nishimoto Sia Nakamura February: .............Individual volunteers March: ..Office of the Public Defender (Honolulu)/and Chun Kerr April: ..............................Carlsmith Ball May: ...............................Cades Schutte June:.............Goodsill Anderson Quinn & Stifel July: ................Hawaii Filipino Lawyers Association /and Bronster Fujichaku Robbins August: .......................Schlack Ito/ and Starn O’Toole Marcus & Fisher September:..............Alston Hunt Floyd & Ing October:..............Consortium of banks and friends1 November:..............Damon Key Leong Kupchak Hastert December: .............Marr Jones Wang / and Yamamoto Caliboso Some of these same firms have already committed to volunteering again in 2017: January:..............Chong Nishimoto Sia Nakamura & Goya February: .......Hawaii Women Lawyers March: ..................McCorriston Millier Mukai MacKinnon April:..............................Carlsmith Ball May:...............................Cades Schutte December 2016
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Starn O’Toole Marcus & Fisher
Starn O’Toole Marcus & Fisher: (from left) Duane R. Fisher, Lindsay E. Orman, Norman HY Cheng, Judith A. Pavey
June:.............Goodsill Anderson Quinn & Stifel July: ................Hawaii Filipino Lawyers Association / and Bronster Fujichaku Robbins August: .......................Schlack Ito/ and Starn O’Toole Marcus & Fisher September: ...Alston Hunt Floyd & Ing October:..................Ashford & Wriston November: .............Damon Key Leong Kupchak Hastert December: .............Marr Jones Wang / and Yamamoto Caliboso
The individual attorneys who volunteered at the Honolulu Access to Justice Room independent of any association with a law firm or group were: Justin Bracket, Miriah Holden, Mateo Caballero, Jefferson Willard, Bruce Paige, Connie Liu, Arlette Harada, Stacey Djou, Tread Eyerly, Catherine Gutierrez, Kurt Kagawa, Sharon Lim, Cheryl Nakamura, Shannon Wack, Sam Yee, Dan O’Meara, Chrystn Eads, and Alana Peacott-Ricardos. Elton Johnson, a paralegal, also provided support services to the Access to Justice Room. Here are some of the attorneys’ experiences: Ivan Lui-Kwan: “Starn O’Toole is proud of our commitment to equal access to justice
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through demonstrated action of our law firm’s professionals. This commitment was initially inspired through a personal request by Justice Simeon Acoba, the Commission’s inaugural chair, of Peter Starn for the firm’s support of the Commission’s mission.” Duane R Fisher: “It’s a genuine pleasure to work the Access to Justice desk. So many in our community have needs and problems that lawyers can help solve. It’s wonderful to be able to give a little time back and hopefully make a difference to someone in need.”
Judith Ann Pavey: “For our judicial system to have credibility it has to be accessible to everyone, not just those who can afford a lawyer. It is our responsibility as lawyers to offer our services pro bono when we can. The program volunteers are great!” Mateo Caballero: “Volunteering at the Access to Justice Room has not only been easy, with a limited and manageable time commitment, and rewarding, as litigants are very appreciative of the much needed legal advice, but it has also become an important and meaningful part of my pro bono work. Whenever I volunteer, I leave the Access to Justice Room feeling like I have made an immediate and tangible difference in someone’s life. Given the ease, need, and impact of the work, volunteering at the Access to Justice room is a no brainer.”
Schlack Ito
Schlack Ito: (From left) Rick Elkind, Carl Schlack, Natalie Hiu, Doug Codiga, Scott Morita and Derek Kobayashi
Schlack Ito Derek Kobayashi: “We all find volunteering at the Access to Justice Room to be rewarding and appreciate the opportunity to contribute a few hours of limited scope legal representation during each of our shifts.”
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Cades Schutte
Cades Schutte Kristin S. Shigemura: “These are people in our community who although they cannot afford an attorney have real legal problems, and it’s been an incredibly rewarding experience for our firm to have the opportunity to help them. Especially for our associates, even in such a limited scope of engagement, to sit down with a client and make an impact on their lives, it’s important, and it makes a difference.” Christopher T. Goodin: “Truthfully, what I enjoy more than anything about working with Access to Justice is the opportunity to sit down with someone who truly needs help and try to set them in the right direction. I know I’m not going to be able to solve their legal issue in just 20 minutes, but I can help them understand where they are and what comes next.”
Cades Schutte: (From left) Christopher T. Goodin, Andrea K. Ushijima, Kirk M. Neste, Teri-Ann E.S. Nagata, Elijah Yip, W. Keoni Shultz, John P. Duchemin, and Kristin S. Shigemura. Not pictured: Trisha H.S.T. Akagi, Scott D. Boone, Kelly G. LaPorte, Allison Mizuo Lee, Marc E. Rousseau, and Keith Y. Yamada.
Damon Key Leong Kupchak Hastert
Damon Key Leong Kupchak Hastert Tred R. Eyerly: “We are fortunate to be lawyers and in a position to serve. Access to Justice provides us with a meaningful opportunity to assist lay persons who face the complications of the judicial system, but have no lawyer.” Clare M. Hanusz: “The people who come looking for assistance are just so grateful to have a ‘professional ear’ to listen to their issues and help sort through possible solutions. Assisting with the Access to Justice Room is always a very rewarding experience.”
Damon Key Leong Kupchak Hastert: (First row from left) Kelly Y. Uwaine, Clare M. Hanusz, Anna H. Oshiro, Tred R. Eyerly, Megumi Honami, Mark M. Murakami, Madeleine M.V. Young; (Top row from left) Matthew T. Evans, E. Kumau Pineda-Akiona, Douglas C. Smith, Michael A. Yoshida, Ikaika B. Rawlins, V.R. Ikaika Jobe, Loren A. Seehase, Christopher J.I. Leong
8 December 2016
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Ikaika B. Rawlins: “The people who come to the Access to Justice room at Honolulu District Court are often coming into contact with the legal system for the first time and it can be an extremely stressful and confusing experience. It is extremely rewarding for me to be able to use my legal skills to help them navigate through this process.”
V.R. Ikaika Jobe: “The experience is usually quite interesting and it’s also fulfilling to provide guidance to our community members.�
Yamamoto Caliboso
Yamamoto Caliboso: (from left) Terri Ann Motosue, Jodi Yamamoto, Wil Yamamoto, and Carlito Caliboso
OBJECTIVE OBJECTIVE SETTLEMENT ADVISORS
Yamamoto Caliboso Jodi Yamamoto: “I love volunteering at the Access to Justice Room because I am able to help people with important issues impacting their lives. I enjoy working with people to solve problems or at the very least pointing them in the right direction. Sometimes people just need someone to listen and empathize in a constructive way, and when they need that, I try to do that as well. Volunteering with the Access to Justice Room is extremely rewarding, and I would recommend it to anyone.�
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Dona L. Hanaike, J. D. 1188 Bishop Str Street eet Suite 2106 Honolulu, HI 96813 DLHanaike@ringlerassociates.com (808) 521-7666
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Bobby Chong (Chong Nishimoto Sia Nakamura & Goya): “This firm believes that equal access to justice in our community should not be a mere illusion. We remain committed to assisting the underserved with an avenue that allows them accessibility at no cost. That law firms can volunteer their services for a month and more annually and help others is a source of pride for our firm.� (Continued on page 25)
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2016 Legislation by Ed Kemper For 2016, the Hawaii Legislature passed, and the Governor signed, 263 acts. Many of the new enactments relate to appropriations, bond approvals, the innerworkings of state agencies or commissions, and what could be best described as technical amendments, corrections, minor changes, and additions. Those types of laws will not be summarized below. These brief summaries will highlight and focus on the new laws that may have an impact on the everyday practice of law and your clients. Obviously, there may be omissions of laws that may affect your clients, which are not covered by this article. The descriptions of the enactments were taken from the Governor’s website (http://governor.hawaii.gov/bills/) and for more details, please visit the website. ADMINISTRATIVE LAW RELATING TO JUDICIAL PROCEEDINGS. Requires decisions in contested case hearings of the commission on water resource management, land use commission, public utilities commission, Hawaii community development authority, and those involving conservation districts to be appealed directly to the supreme court, with certain exceptions. Requires the judiciary to submit a report to the legislature. Effective August 1, 2016. Repeals on July 1, 2019. Act 48, HB1581 HD2 SD2 CD1. BUSINESS REGULATION RELATING TO CONSUMER PROTECTION. Clarifies that the statute of limitations governing it does not apply to the State and its agencies with respect to chapter 480, Hawaii Revised Statutes. Repeals subsection (b) of section 480-24, Hawaii Revised Statutes. Technical amendments. ACT 7, HB2329. RELATING TO MORTGAGE INDUSTRY REGULATION. Amends laws pertaining to mortgage loan originators and mortgage loan servicers by clarifying the applicable scope of each chapter, making terminology more consistent across both chapters, and updating references to and provisions imple10 December 2016
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menting controlling federal law. ACT 122, SB2850 SD2 HD1 CD1.
and semi-trailers. ACT 100, HB1011 HD1 SD2 CD1.
RELATING TO MORTGAGE RESCUE FRAUD. Makes numerous amendments to Hawaii’s mortgage rescue fraud prevention act, chapter 480E, Hawaii Revised Statutes, for consistency with the federal Mortgage Assistance Relief Services Rule. ACT 142, HB 2326 HD1 SD1.
RELATING TO FIREARMS. Specifies that harassment by stalking and sexual assault are among the offenses that disqualify a person from owning, possessing, or controlling any firearm or ammunition. ACT 109, HB625 HD1 SD1.
RELATING TO CHARITABLE SOLICITATION. Amends Hawaii’s charitable registration and solicitation law to require affirmative disclosures to donors by professional solicitors; clarify exemptions from registration; authorize the Department of the Attorney General to issue cease and desist orders and impose administrative fines; and make other technical amendments. ACT 163, SB2812 SD2 HD2 CD1. RELATING TO HEALTH CARE. Establishes a durable medical equipment supplier license program for suppliers of durable medical equipment, prosthetics, orthotics, and related supplies through the office of health care assurance. Allows license fees to be deposited into the office of health care assurance special fund. Amends the cap on amounts of the office of health care assurance special fund that may be used per fiscal year. Amends the balance of the office of health care assurance special fund above which moneys are deposited into the general fund. Takes effect on January 1, 2017. ACT 137, SB2076 SD2 HD1 CD1. CRIMINAL AND TRAFFIC CODE RELATING TO THE PENAL CODE. Expands the definition of the term “sexual conduct” as that term is used in the offenses of promoting child abuse to include specific types of conduct. Amends the definition of “sexual conduct” as that term is used in the offenses of promoting child abuse and obscenity to repeal references to homosexuality and lesbianism. ACT 16, SB2312 SD1 HD1. RELATING TO THE TRAFFIC CODE. Defines dangerous wheels and prohibits their use on vehicles, trailers,
RELATING TO SEXUAL ASSAULT. Amends the offense of sexual assault in the second degree to include a person who knowingly subjects to sexual penetration with a minor at least sixteen years of age and the person is contemporaneously acting in a professional capacity to instruct, advise, or supervise the minor, with certain exceptions. Amends the offense of sexual assault in the fourth degree to include a person who engages in or causes sexual contact with a minor at least sixteen years of age and the person is contemporaneously acting in a professional capacity to instruct, advise, or supervise the minor, with certain exceptions. ACT 153, HB1044 HD1 SD1. RELATING TO WRONGFUL IMPRISONMENT. Provides compensation and expungement of conviction to persons who can demonstrate they were wrongfully convicted and imprisoned when actually innocent. ACT 156, HB1046 HD2 SD2 CD1. RELATING TO SENTENCING. Provides that the commission of certain offenses of assault, sexual assault, and abuse of a family or household member in the presence of a minor is an aggravating factor to be considered in the sentencing of the defendant convicted of the offense. ACT 157, HB1517 HD1 SD1 CD1. RELATING TO LAW ENFORCEMENT. Establishes exceptions to the offense of obstructing government operations and the offense of violation of privacy in the second degree for a person making a video or audio recording or photograph of a law enforcement officer while the officer is in the performance of duties in a public place or under circumstances in which the officer has no rea-
sonable expectation of privacy; provided that the officer may take reasonable action to maintain safety and control, secure crime scenes and accident sites, protect the integrity and confidentiality of investigations, and protect the public safety and order. ACT 164, SB2439 SD1 HD1 CD1. RELATING TO ANIMALS. Establishes penalties for the offense of pet animal or equine animal desertion. Imposes a fine not exceeding $1,000 for each desertion of each pet animal and equine animal and a fine not exceeding $2,000 for each recklessly caused death of or substantial bodily injury to each pet animal and equine animal, in addition to any other penalties. ACT 165. RELATING TO THEFT. Establishes the offense of theft of urn as a class C felony. Requires scrap dealers to follow the same requirements regarding a written statement for the purchase of an urn as they do for the purchase of copper or a beer keg. ACT 199, HB1578 HD2 SD1 CD1. RELATING TO SEX TRAFFICKING. Replaces the offense of Promoting Prostitution in the First Degree with Sex Trafficking to be classified as a violent crime and a class A felony. Requires proof of negligence as to the age of the victim when a person commits the offense of sex trafficking and the victim is a minor. Provides that the offense of prostitution by a person younger than eighteen years of age is a violation and subject to the jurisdiction of the family court. Establishes a class C felony for the act of paying for sex in reckless disregard of the fact that the other person is a victim of sex trafficking. Expands the Department of the Attorney General’s Statewide Witness Program to include sex trafficking; provides victims with access to criminal injury compensation; and amends laws relating to civil liability for cases of coercion into prostitution. Makes amendments to strengthen enforcement of laws and increase penalties against the sex trafficker. ACT 206, HB1902 HD2 SD1 CD1.
M e d i a t i o n
&
A r b i t r a t i o n
““Knowledge speaks, but wisdom listens.” -Jimi Hendrix
Dan Bent
Mediator & Arbitrator Former civil litigator & U.S. Attorney B.S. Mechanical Engineering & Georgetown Law 548-0080 | www.FairMediation.com
Dispute Prevention and Resolution, Inc. 1003 Bishop St., Suite 1155 | Honolulu, HI 96813
The Legal Aid Society of Hawai´i extends its gratitude to the law firm of Alston Hunt Floyd & Ing for being a member of Legal Aid's Leadership Circle and for its enduring commitment to our vision of "Building a Just Society." We thank the firm for volunteering during the month of September to staff the Honolulu District Court Access to Justice Room. For pro bono opportunities or to make a donation in lieu of pro bono under HRPC Rule 6.1, please contact Sergio Alcubilla at 527-8063 or at sergio.alcubilla@legalaidhawaii.org
RELATING TO MURDER. Establishes that first degree murder December 2016
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includes the circumstance in which a defendant intentionally or knowingly causes the death of a person whom the defendant restrained for use as a shield or held as a hostage or for ransom or reward. ACT 214, HB1726 SD1 CD1. COURTS RELATING TO THE USE OF A DOG IN JUDICIAL PROCEEDINGS. Authorizes any state court to permit the use of a trained and credentialed facility dog in a judicial proceeding to facilitate the testimony of a vulnerable witness. ACT 178, HB1668 SD1 CD1. ESTATES RELATING TO THE UNIFORM FIDUCIARY ACCESS TO DIGITAL ASSETS ACT. Adopts the Revised Uniform Fiduciary Access to Digital Assets Act, which provides authority to plan for the management and disposition of digital assets. ACT 162, SB2298 SD1 HD1 CD1. FAMILY AND FAMILY LAW RELATING TO PARENTAL
RIGHTS. Provides that parental rights may be terminated if the court determines, by clear and convincing evidence, that the child was conceived as a result of a sexual assault. Creates a presumption that termination of parental rights is in the best interest of the child if the child was conceived as a result of the sexual assault. ACT 213, SB2811 SD2 HD1. HEALTH AND ENVIRONMENT Relating to Opioid Antagonists. Takes steps to reduce opioid-related drug overdoses by encouraging the use of opioid antagonists to assist individuals experiencing or at risk of experiencing an opioid-related drug overdose. ACT 68, SB 2392. RELATING TO LATEX. Prohibits the use of latex gloves by personnel working in food establishments or by personnel providing ambulance services or emergency medical services beginning on January 1, 2017. Prohibits the use of latex gloves, with limited exceptions, by personnel working in dental health facilities or health care facilities beginning on
January 1, 2017. ACT 180, SB911 SD2 HD2 CD1. RELATING TO THE UNIFORM CONTROLLED SUBSTANCES ACT. Updates the Uniform Controlled Substances Act to make it consistent with amendments in federal controlled substances law. Clarifies existing definitions to be consistent with federal controlled substance law; and adds new definitions to allow the use of “delegates” by practitioners and pharmacists to access the electronic prescription accountability system. Clarifies that individuals that conduct reverse distribution with controlled substances must register with the Department of Public Safety and follow appropriate controlled substance statutes and rules. Allows for the posting of updates to Hawaii’s drug schedules on the department’s website. Requires that all practitioners, except veterinarians, and pharmacies register to utilize the electronic prescription accountability system when they obtain a controlled substance registration. Authorizes the Department of Public
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Safety Narcotics Enforcement Division Administrator to allow access to state, county, or federal regulatory agencies to the database when conducting joint regulatory investigations. Deletes the requirement for a pseudoephedrine permit for transporting over 3 packages of pseudoephedrine. ACT 218, SB2915 SD2 HD1 CD1. RELATING TO MEDICAL MARIJUANA. Requires the department of health and licensed medical marijuana dispensaries to provide aggregated deidentified data to the department of business, economic development, and tourism upon request. Amends various definitions and provisions relating to medical marijuana dispensary background checks, operations, paraphernalia, transport, and testing. Provides that advanced practice registered nurses may certify patients for medical marijuana use. Excludes dispensaries from enterprise zone tax exemptions. Specifies the application and non-application of the Internal Revenue Code to expenses related to the production and sale of
medical marijuana and manufactured marijuana products for state income tax purposes. Clarifies that amounts received for the sale of marijuana or manufactured marijuana products are not exempt from the state general excise tax. Establishes definition of marijuana “plant.” Amends definition of “enclosed indoor facility.” Clarifies which medical marijuana dispensary licensees and applicants are subject to background checks. Allows the University of Hawaii to establish medical marijuana testing and research programs that qualify as commercial enterprises to provide testing services for medical marijuana dispensaries. Establishes a legislative oversight working group. ACT 230, HB2707 HD1 SD2 CD1. RELATING TO TELEHEALTH. Requires the State’s medicaid managed care and fee-for-service programs to cover services provided through telehealth. Specifies that any telehealth services provided shall be consistent with all federal and state privacy, security, and confidentiality laws. Specifies medical
professional liability insurance policy requirements with regard to telehealth coverage. Clarifies that reimbursement for services provided through telehealth shall be equivalent to reimbursement for the same services provided via face-toface contact between a health care provider and a patient. Requires written disclosure of coverages and benefits associated with telehealth services. Requires that telehealth encompasses store and forward technologies, remote monitoring, live consultation, and mobile health. Ensures telehealth is covered when originating in a patient’s home and other non-medical environments. Clarifies requirements for physicians and out-of-state physicians to establish a physician-patient relationship via telehealth. Requires that reimbursement requirements for telehealth services apply to all health benefits plans under chapter 87A, Hawaii Revised Statutes. Takes effect on January 1, 2017. ACT 226, SB2395 SD1 HD2 CD1. RELATING TO MEDICINES. Allows
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for and regulates the dispensing of interchangeable biological products. Requires pharmacists to inform consumers of interchangeable biological products from the Hawaii list when filling a prescription order and to communicate the product name and manufacturer to the practitioner after dispensing the product. Repeals the Drug Product Selection Board. ACT 242, HB254 HD2 SD1. CD1.
motor vehicle insurance policy rates in the State and submit an annual report to the Legislature. Sunsets September 1, 2021. ACT 236, HB260 HD1 SD1 CD1.
INSURANCE
REAL PROPERTY RELATING TO NUISANCE ABATEMENT. Amends nuisance abatement laws to authorize civil suits to abate violations of trespass and other offenses that involve the unlawful occupation of real property. ACT 154, HB1561 SD1 CD1.
RELATING TO MOTOR VEHICLE INSURANCE. Allows electronic insurance cards, in addition to paper insurance cards, to be used as proof of insurance for motor vehicles, motorcycles, and motor scooters. ACT 82, HB1705 SD1. RELATING TO INSURANCE. Prohibits all insurers in the State, including health insurers, mutual benefit societies, health maintenance organizations, and health benefits plans under chapter 87A, Hawaii Revised Statutes, from discriminating with respect to participation and coverage under a policy, contract, plan, or agreement against any person on the basis of a person’s actual gender identity or perceived gender identity. ACT 135, HB2084 HD2 SD1. RELATING TO INSURANCE. Makes various amendments in the Insurance Code relating to property insurance, market conduct, insurance premium taxes, insurance contracts, accident and health or sickness insurance, claim filing, captive insurance companies, duty to respond, mental health and alcohol and drug abuse treatment insurance benefits, Hawaii hurricane relief fund, covered services, mutual benefit societies, and health maintenance organizations. ACT 141, SB2854 SD2 HD1 CD1. RELATING TO INSURANCE. Establishes motor vehicle insurance requirements for transportation network companies and transportation network company drivers taking effect on September 1, 2016. Requires the Insurance Commissioner to examine the effects of this measure on personal 14 December 2016
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MOTOR VEHICLES RELATING TO MOPEDS. Requires registration, inspections, and number plates for mopeds. ACT 200, HB1753 HD3 SD2 CD1.
RELATING TO TRANSPORTATION. Establishes the roads commission to make recommendations on the ownership of private roads. Adds roads, alleys, streets, ways, lanes, bikeways, and bridges to the list of public highways or public trails that can be dedicated or condemned. Exempts the State and counties from maintaining or improving condemned roads. Appropriates funds for the repair and maintenance of specific roads. Appropriates funds for the roads commission. ACT 194, HB2049 HSD2 SD2 CD1. RELATING TO LAND COURT. Streamlines the operations of the Office of the Assistant Registrar of the Land Court by removing the requirement that the Assistant Registrar certify uncertified certificates of title for fee time share interests. ACT 215, HB2090 HD2 SD2 CD1. RELATING TO PARTITION OF HEIRS PROPERTY. Adopts Uniform Partition of Heirs Property Act. Establishes procedures and remedies for use in actions for partition of real property involving heirs property, real property held in tenancy in common that meets certain requirements. Effective January 1, 2017. ACT 260, SB2408 SD1 HD2 CD1. RELATING TO PLANNED COMMUNITY ASSOCIATIONS. Amends various proxy statement requirements
for planned community associations to promote communication from prospective board of directors candidates to all owners when proxies are used for elections of directors; standardize the proxy form; and prohibit managing agents, resident managers, and employees thereof from soliciting or casting proxy votes at meetings for the same association that employs their services unless it is for the purpose of establishing quorum. Applies to proxy statements for meetings of an association occurring on or after October 1, 2016. ACT 238, HB1541 HD1 SD1. RELATING TO ESCROW DEPOSITORIES. Clarifies the escrow depositories law by: adding definitions; authorizing the commissioner of financial institutions to use NMLS for its escrow depositories program; adding criminal history record check and disclosure requirements to licensure and change in control applications; updating the escrow depository license renewal date for consistency with NMLS; clarifying sale or transfer of license or change in control requirements; and updating certain fees. ACT 224, SB2849 SD1 HD1 CD1. TAXATION RELATING TO THE LOW-INCOME HOUSING TAX CREDIT. Increases funding for affordable rental housing development by making the State LowIncome Housing Tax Credit more valuable. Reduces State Tax Credit period from ten to five years. Repeals December 31, 2021. ACT 129, SB2833 SD2 HD2 CD1. RELATING TO TAXATION. Establishes a 5-year renewable fuels production tax credit applicable to taxable years beginning after December 31, 2016. Repeals the ethanol facility tax credit. ACT 202, SB2652 SD2 HD2 CD1. RELATING TO TAXATION. Establishes an organic foods production tax credit applicable to taxable years beginning after December 31, 2016. Sunsets December 31, 2021. ACT 258, HB1689 HD2 SD2 CD1.
“One of the most important benefits of this annual conference is that it gives us the chance to hear and learn from other groups and stakeholders that care deeply about our community.” — Hon. Mark E. Recktenwald, Chief Justice, Hawaii Supreme Court The 2016 Access to Justice Conference, sponsored by the Hawaii Access to Justice Commission, attracted over 250 attendees at the William S. Richardson School of Law on Friday, June 24, 2016. The theme of the eighth annual Access to Justice Conference was “Pursuit of Meaningful Justice for All.” Funding for the conference was generously provided by The Cades Foundation. Recognizing that there are varied experiences and views of the attendees, Hawaii Supreme Court Chief Justice Mark Recktenwald said: We are united by a common goal: the pursuit of meaningful justice for all of Hawaii’s people. I am proud of the work we have done, I am excited for the challenges that lie ahead, and I am optimistic for a future in which “justice for all” is not just an ideal, but a reality. In his remarks, Chief Justice Recktenwald asked “Where do we go from here? How do we continue the momentum that has been developed through the work of our Access to Justice Commissions?” He stated:
2016
Access to Justice Conference: Pursuit of Meaningful Justice for All by Carol K. Muranaka
Last year, the Conference of State Chief Justices adopted Resolution 5, which encouraged each state ATJ Commission to develop a strategic plan with realistic and measurable outcomes, and set an ambitious overall goal of 100% access to justice provided through a continuum of meaningful and appropriate services. To be sure, this is a lofty goal. But it is a goal that Hawaii can achieve, if we plan carefully, build upon our successes, use technology and innovate, and bring new partners into the effort. ... In addition to innovation, we must continue to build relationships and partnerships with institutions out-
Nalani Fujimori Kaina, David Chee, Jan Harada, Tracey Wiltgen, Judge Michael Tanigawa
side of the legal field. Obviously, a huge part of our mission involves making sure that all people have meaningful access when they are in court. But just as doctors know that illness does not start in a hospital, we know that many of the barriers that prevent full access to justice arise long before litigation starts. Our work cannot begin and end in the courthouse alone. By identifying and engaging with new partners, we can bring together a myriad of resources and experiences to help meet Hawaii’s access to justice needs. In his welcoming remarks, Commission Chair Justice Simeon Acoba (ret.) mentioned four recent significant activities of the Commission: the launching of the pro bono appellate program; the preservation of the Indigent Legal Assistance Fund; the launching of the Hawaii pro bono online project; and Hawaii’s ranking as third in the nation in providing services for the underserved and underrepresented. “The purpose of the Commission is to initiate, support, and evaluate efforts to attain equality of access and opportunity. While we often focus on the legal service providers whose primary function is to achieve this end, the Commission’s reach extends beyond that,” Justice Acoba said. “The premise of the Commission as reflected in the composition of its members is that equal access is an objective that can be truly
Robert LeClair, Chief Justice Mark Recktenwald, Chief Judge Jonathan Lippman, Amy Lippman, Justice Simeon Acoba, Prof. Charles Lawrence, Dean Aviam Soifer December 2016
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realized only if our state community, including the three branches of government, share in common commitment to achieve it.” In his keynote address, former New York Courts Chief Judge Jonathan Lippman expressed his thoughts on how to shift the landscape on access to justice:
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In speaking to you this morning about access to justice, I would start by making clear that I have been very much an advocate of judicial leaders playing a strong proactive role on access issues and reform of the justice system. A few years ago, the New York Times credited me with the national quote of the day, when I said that state courts are the emergency room for society’s ailments. All of the societal issues of the day ultimately find their way into the courts and, as an institution, the Judiciary must be engaged in removing the barriers that confront those who seek access to our courts to resolve their most pressing problems. For too long, access was limited to those with the financial resources to afford quality legal representation, while those without money in their pockets were left to fend for themselves. From the perspective not of an activist judge—you know, that has certain connotations—but as a judge who is, I hope and believe, proactive in the pursuit of justice, it has been my focus to shift the landscape on access to justice to better serve the disadvantaged, the vulnerable, and those who just need a helping hand. Shifting that landscape is about ensuring that the scales of lady justice are exquisitely balanced regardless of one’s wealth or station in life. The pursuit of justice for all should and must be our mission, and we are the essential players in this endeavor. To me, the greatest threat to the pursuit of justice today—and to the very legitimacy of the justice system—is the desperate need for legal services by the poor and people of modest means. Whether it be the homeless and downtrodden in Honolulu, or those evicted or foreclosed on in their homes in New
Scott Fuji, Gavin Thornton
Gregory Lui-Kwan, Kristin Shigemura, Judge Randal Valenciano, Judge Ronald Ibarra
York, people who are fighting for the necessities of life—the roof over their heads, their physical safety, their livelihoods, and the well-being of their families—literally are falling off the proverbial cliff because they cannot get, they cannot afford, legal representation.
The person on the street has known for many years, since Gideon, that if your liberty is at stake, you get a lawyer. They watch television, they know about Miranda rights. They know that everyone gets a lawyer, if you may go to jail.
There is a huge justice gap that exists between the desperate need for legal services by the poor and people of modest means, and the finite legal resources that are available. We have made great strides over the last years, and how proud you should be that Hawaii now ranks 3rd in the country in the new Access To Justice Index. Yet the justice gap still manifests itself in so many different ways . . . .
But what about if you asked, a few years ago, what would happen if your home was being foreclosed on, or you were being evicted—should you get a lawyer? Until recently, a very tiny percentage would have said yes. Go out in the street today, after the foreclosure crisis and the economic crisis in the country, and all of our efforts on access to justice in civil matters, and ask people if they think someone who is getting the roof over their heads taken away from them should get a lawyer. Today you are going to have 80 to 90 percent say, absolutely! All the things that you are doing in Hawaii is making that happen, and the same goes for the rest of the country.
Chief Judge Lippman (ret.) believes that the Judiciary has an important role in the efforts to affect change. In recounting the lessons that were learned in New York in access to justice, he said, “that the Judiciary should be at the center of this effort, because that is our Constitutional mission—to foster equal justice. That’s what the Judiciary does, above everything else. Everybody gets equal justice, everybody gets their day in court.” He said: I really believe that we are changing the priorities, that people are starting to understand that civil legal services for the poor are as important as schools, hospitals, and housing, and all the things that we hold dear in our society. We’re at the tipping point. I believe there’s a revolution today in access to justice. The public is getting it.
So the dialogue is changing. We really are getting to the point where we can have a right to counsel. We are building the foundation. We are shifting the landscape. Can we really close the justice gap? We can and we will. It requires innovation, it requires leadership, it requires partnerships, and it requires being proactive in the pursuit of justice. The Judiciary, again, is uniquely suited to make this happen, as the gatekeeper for bar admission, as the legal regulator, as the rule-maker. It’s our Constitutional role. It is what we’re supposed to do.
The profession? We are not a parochial profession, we can’t be. We have to always remember the nobility, the values, and look at the example of the legal service providers, our heroes. Whatever we do, we must support them with pro bono work to help people. Together, if we continue to think out of the box, if we are proactive in pursuing justice, if we truly are leaders in the Judiciary and the profession, if law schools teach new lawyers about values, and if you and other Access to Justice Commissions continue your ground breaking work, we can and we will, one day in the not-so-distant future, make the ideal of equal justice a reality here in Hawaii, in New York, and around this great country. Chief Justice Recktenwald moderated the “Engaging the Community in Access to Justice” workshop with Chief Judge Lippman; Representative Della Au Belatti; Morgan Evans, Director of New Organizing at UNITE HERE! Local 5; and John Komeiji, Chief Administrative Officer and General Counsel at Hawaiian Telcom. It was acknowledged that reaching out to the community is important, and collaboration with business champions will be key. Judge Michael Tanigawa moderated the other morning workshop, “Landlord-Tenant Mediation: Working Together to Prevent Homelessness.” The panelists were David Chee, solo practitioner; Jan Harada, President and CEO of Helping Hands Hawaii; Nalani Fujimori Kaina, Executive Director, Legal Aid Society of Hawaii; and Tracey December 2016
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Wiltgen, Executive Director, The Mediation Center of the Pacific. The presentation provided different perspectives of those involved in evictions and discussed the process of creating a diverse group to address the issue and prevent homelessness. There were five concurrent workshops for the first afternoon session: 1. “Self-Help Center Attorney Training and Attorney Opportunities, Part 1” with Judge Hilary Gangnes, Judge Melanie May, Nalani Fujimori Kaina, Sheila Lippolt, Legal Aid staff attorney, David Chee, and Camille Fleming, AmeriCorps Advocate, Legal Aid. There were approximately 26 attendees in this workshop. 2. “Native Hawaiian Traditional and Customary Practices and Water Rights” with Moses Haia, Executive Director of Native Hawaiian Legal Corporation (“NHLC”), Sharla Manley, NHLC litigation director and staff attorney, and David Kopper, NHLC staff attorney. There were approximately 39 attendees in this workshop. 3. “Introduction and Training for Hawaii Pro Bono Online” with Michelle Acosta, Executive Director, Volunteer Legal Services Hawaii (“VLSH”) and Emily Briski, VLSH staff attorney. There were approximately 16 attendees in this workshop. 4. “Affordable Housing Issues” with Gavin Thornton, Co-Executive Director of Hawaii Appleseed Center for Law
and Economic Justice, and Scott Fuji, Executive Director of PHOCUSED (Protecting Hawaii’s Ohana, Children, Underserved, Elderly, and Disabled). There were approximately 37 attendees in this workshop. 5. “Innovations in Expanding Access to Justice” with Judge Ronald Ibarra, Judge Randal Valenciano, Gregory LuiKwan, and Kristin Shigemura. (Both Lui-Kwan and Shigemura are members of the Commission’s Committee on Initiatives to Enhance Civil Justice chaired by Judge Ibarra.) There were approximately 61 attendees in this workshop. For the second part of the afternoon, there were another five concurrent workshops as follows: 6. “Self-Help Center Attorney Training and Attorney Opportunities, Part 2” with Judge Hilary Gangnes, Judge Melanie May, Nalani Fujimori Kaina, Daniel O’Meara, and Camille Fleming. There were approximately 26 attendees in this workshop. 7. “Hawaii Law Related to Ceded Land and Quiet Title Actions” with Moses Haia, Sharla Manley, and David Kopper. There were approximately 28 attendees in this workshop. 8. “Problem-Solving Homelessness” with Daniel Gluck, former Legal Director for the ACLU of Hawaii, Representative Karl Rhoads, and Julie Ford, Special Assistant, Office of the
Justice Simeon Acoba, Gunner Schull, Dean Aviam Soifer 18 December 2016
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Governor. There were approximately 44 attendees in this workshop. 9. “Implicit Bias and Access to Justice” with Justice Simeon Acoba (ret.), Judge Michael Town (ret.), Professor Charles Lawrence, and Professor Justin Levinson. There were approximately 52 attendees in this workshop. 10. “Divorce: Challenges for Access to Justice” with Judge R. Mark Browning, Judge Kevin Souza, and Jessi Hall. There were approximately 37 attendees in this workshop. The closing panel focused on the theme, “Pursuit for Meaningful Justice for All” with Professor Calvin Pang as moderator, and panelists, Judge Lippman, Michelle Acosta, executive director, Volunteer Legal Services Hawaii, and Victor Geminiani, CoExecutive Director, Hawaii Appleseed Center for Law and Economic Justice. Judge Lippman emphasized that there must be a central role for judges in fostering access to justice. There was discussion on a need for more pro bono volunteers and a need for solid advocates in the Hawaii legislature related to issues of affordable housing, economic justice on rents, and tax relief for the low-income Hawaii residents. More information about the conference and the activities of the Commission can be found at www.hawaiijustice.org.
Rep. Della Au Belatti, John Komeiji, Morgan Evans, Chief Judge Jonathan Lippman, Chief Justice Mark Recktenwald
Loher v. Thomas: A Criminal Defendant’s Right to “Wait-And-See” What Other Defense Witnesses Say Before Taking the Witness Stand by Kenji M. Price Trial courts have broad discretion to make a variety of decisions regarding the overall management of a criminal or civil trial. But can a trial court’s exercise of that discretion trump a defendant’s right to make an informed choice about whether to take the witness stand in a criminal case? That question worked its way from the Circuit Court of the First Circuit, State of Hawaii, to the U.S. Court of Appeals for the Ninth Circuit following the trial of Frank Loher. In August 1999, Loher was charged with first-degree attempted sexual assault and attempted kidnapping. Loher v. Thomas, 23 F. Supp. 3d 1182, 1186-87 (D. Haw. 2014) (“Loher”). His trial began at 9:00 a.m. on November 14, 2000, and the government rested its case approximately five hours later.1 Loher’s attorney asked the court for a continuance to November 16th—the next trial day— because he was unsuccessful in his efforts to get Loher’s witnesses to come to court to testify in Loher’s defense on November 14, 2000. Id. at 1187. Noting that Loher’s attorney had previously informed the court that his client would testify, and apparently taking the view that Loher’s attorney should know what Loher’s witnesses would say on the witness stand, the court denied the request. Id. at 1188. The court also told Loher’s attorney that Loher could testify on November 14th, or not at all. Id. Loher testified and was later convicted of attempted sexual assault. Id. at 1189. After unsuccessfully challenging his conviction in state court, Loher filed a petition for habeas relief in federal court, arguing, among other things, that the Circuit Court violated his right to due process under the Fourteenth Amendment to the U.S. Constitution and his right against self-incrimination under the Fifth Amendment to the U.S. Constitution, as well as Brooks v. Tennessee, 406 U.S. 605 (1972).2 Id. at 1186. The magistrate judge recommended denying Loher’s petition on these grounds.3 Id.
The District Court’s Decision The U.S. District Court disagreed, concluding that the Circuit Court’s actions were “contrary to” and “an unreasonable application of ”4 the U.S. Supreme Court’s holding in Brooks. Id. at 1195. In Brooks, the Supreme Court held that a Tennessee statute that required a criminal defendant to testify before other defense witnesses to prevent him from “being influenced by other testimony,” 406 U.S. at 607, violated the Fifth and Fourteenth Amendments to the U.S. Constitution, id. at 612-13. The District Court ruled that Loher’s case was on all fours with Brooks, and that the Circuit Court’s decision essentially gave Loher the Hobson’s choice of testifying without the benefit of first hearing what his witnesses had to say on the witness stand or waiving his constitutional right to testify. Loher, 23 F. Supp. 3d at 1195. The State appealed, and the Ninth Circuit reversed. Loher v. Thomas, 825 F.3d 1103 (9th Cir. 2016). Emphasizing that habeas relief is not appropriate if “fair-minded jurists could disagree on the correctness of [a] state court’s decision,” the Ninth Circuit opined that fairminded jurists could disagree about Loher’s case because Brooks involved a “blanket” statutory requirement that defendants must testify before defense witnesses, whereas Loher’s case involved a trial court’s on-the-spot decision to deny a continuance, where the defendant was responsible for the absence of his witnesses in the first place. Id. at 1114. The Ninth Circuit emphasized that Brooks itself showed “solicitude for a trial court’s ability to manage trials,” and also noted that fair-minded jurists could take different approaches to balancing a court’s trial management authority and a defendant’s right to take the witness stand after hearing how other defense witnesses testify. Id. at 1115. Judge Milan Smith dissented. In his view, Brooks was on all fours with Loher and required the Ninth Circuit to rule in Loher’s favor. Judge Smith began by deconstructing the majority’s argument that Loher is different than Brooks because the trial court in Brooks did not make an extemporaneous decision about whether to deny or grant a continuance. The timing of the trial court’s actions in Loher’s case, Judge Smith wrote, was beside the point, because the “core of the constitutional disturbance”
described in Brooks was the trial judge’s decision to “compel[] [the] defendant to testify first or not at all”—not whether that decision was made “contemporaneously,” as the majority put it, “or occurred in the middle of the trial.” Id. at 1127. Judge Smith also attacked the majority’s reliance on whether fairminded jurists could disagree about where to “draw the line between the trial court’s authority and the constitutional rights recognized in Brooks.” Id. In his view, wherever the line is drawn, the trial court had clearly crossed it by violating the “general principle” articulated in Brooks, which is that a defendant has a Fifth and Fourteenth Amendment right to testify (or refuse to do so) after hearing his defense witnesses testify. Id. at 112728. Analysis of Loher Loher raises at least two important issues for criminal law practitioners in Hawaii. First, the District Court’s opinion in Loher raises the question of whether one exception to Brooks that has been adopted by the Hawaii Intermediate Court of Appeals (“ICA”) would pass constitutional muster on direct review. In State v. Kido, 102 Hawaii 369 (Ct. App. 2003), the ICA noted that federal and state courts have identified an exception to Brooks, “where the defendant’s decision whether to testify congeal[s]” before a trial court gives a defendant the options that were presented to Loher.5 Id. at 376. In Loher, Judge Kobayashi foresightedly questioned whether this exception is consistent with Brooks, because the “Brooks Court emphasized that a defendant ‘cannot be absolutely certain that his witnesses will testify as expected or that they will be effective on the stand.’” 23 F. Supp. 3d at 1199 (quoting Brooks, 406 U.S. at 610-11). One reading of Brooks is that a defendant in a criminal case, whose intent to testify congeals before trial, can always change his mind after hearing his own witnesses testify. After all, there is a fair argument that a defendant should not be stuck with a decision that he was not really ready to make in the first instance. At least Justice Anthony Kennedy of the U.S. Supreme Court seems to think so, inasmuch as he wrote (Continued on page 21) December 2016
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HSBA HAPPENINGS 2017 HSBA Officers & Directors
The following members will serve on the 2017 HSBA Board: President Nadine Y. Ando President-elect Howard K.K. Luke Vice President Derek R. Kobayashi Treasurer Karin L. Holma Secretary Russ S. Awakuni Directors Cecelia C.Y. Chang, Steven J.T. Chow, Rebecca A. Copeland, Vladimir Devens, Rhonda L. Griswold, Geraldine N. Hasegawa (East HI), Kristin Izumi-Nitao, Carol S. Kitaoka (West HI), Mei-Fei Kuo, Kai Lawrence (Kauai), Lisa W. Munger, Mark K. Murakami, Alika L. Piper, Zale T. Okazaki, Shannon S. Sheldon (Maui), Trejur P. Bordenave (YLD). 2017 HSBA YLD Officers & Directors
The following members will serve on the 2017 HSBA YLD Board: President: Trejur Bordenave Vice President: Jamilla Jarmon Secretary: Summer Kaiawe Treasurer: Marissa Machida Directors: Ryan Caday (East HI), Morgan Early, Noah Gibson, Jeffrey Hu, Clayton Leonard (West HI), Katherine Lukela, Ryan Markham, E. Kumau Pineda-Akiona, David Van Acker, Brandon Segal (Maui), George White (Kauai), Sommerset Wong Annual Renewal License Reminders
The HSBA website registration portal for 2017 license renewals is now open and will remain open through Saturday, December 31, 2016. Consistent with the HSBA’s “go green initiative,” printed forms will not be mailed. Renewal information will be posted on the HSBA website at http://hsba.org/.
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HSBA website access: Test your User ID and Password credentials at “My Account” at https://hsba.org/HSBA/ Sign In.aspx. Confirm your Contact Information: Renewal and other HSBA-related announcements will be sent to your preferred e-mail and mailing addresses. CLE requirement: Pursuant to RSCH 22, CLE courses for the 2016 calendar year must be completed no later than December 31, 2016. Change of Status: If you are planning to change your status for the 2016 calendar year, the 2017 online registration form should not be used. Changes in status to be effective for the 2016 calendar year must be processed before renewing your 2017 license, including completion of the annual CLE requirement, [RSCH 22(i)] by December 31, 2016. If you cannot access your account please email ars@hsba.org, call (808) 792-7339, or visit our office for assistance.
be sure to read the terms and conditions on the reverse side of the tickets, as there may be limitations on the use of these tickets for special screenings and premiering movies. Kumu Kahua Theatre HSBA members will receive the Kumu Kahua Theatre’s group discount price of $16.00 per individual ticket, normally reserved for groups of 10 or more. Please call the box office at (808)536-4441 for this deal. For box office information, visit the theatre website (http://bit.ly/2dH2Gki). Manoa Valley Theater HSBA members receive $5.00 off each ticket. Please visit the theater website (http://bit.ly/2eBvg4d) for information regarding show times. HSBA Polo Shirts Looking for HSBA swag to wear at your next golf outing? Stop by the HSBA office and ask for Ryan Leung to see our selection of HSBA polo shirts (men’s and women’s styles & sizes available), or complete the online order form (http://bit.ly/2efW1QZ) and email Ryan Leung at rleung@hsba.org.
Member Benefits Spotlight
Consolidated and Regal Movie Tickets Stop by the HSBA office to purchase your movie tickets today. At these prices, and with no limit to the number you can purchase, this is a deal for holiday gifts you will not want to miss. • Consolidated - per ticket price: $7.75 • Regal - per ticket price: $8.75 To take advantage of this member benefit, visit the HSBA office and verify your HSBA membership with your JD number. Purchases may only be made by cash or check. Call us at (808)5371868 if you have any questions. Please
Save the Date!
2017 Land Use Conference Date: Thursday, January 19, 2017 – Friday, January 20, 2017 Time: 9:00 a.m. – 4:00 p.m. Location: YWCA Registration will open December 5, 2016 Email CLE@hsba.org for more details. A Recap of the HSBA Senior Counsel Division’s Big Island Legal Clinic Community Service Project
The Senior Counsel Division (“SCD”) of the HSBA enthusiastically conducted free legal information clinics
Loher v. Thomas (Continued from page 19) on September 24, 2016, at Naalehu and Pahala in Kau on the Big Island, followed by a full afternoon and evening of exploring and enjoying the unique natural wonders of the area. Fourteen attorneys, seven of whom flew in from Honolulu at their own expense, served the two sites, while nine attorneys were on standby by telephone. Legal Aid paralegals helped at both sites, along with an HSBA staff member in Naalehu.
From left to right: Greg Lui-Kwan, Geraldine Hasegawa, Steve Geimer, Ian Sandison, Carole Richelieu, Ray Hasegawa, Rosemary Fazio, Jay Kimura, John Wagner, Scott Makuakane, Michelle Alarcon, Gail Kawakami-Schwarber, Dawn Henry, Charlene Iboshi, Brian Simon This community service project provided legal information to Big Island residents. The Kau Rural Health Association assisted with the project along with Kuikahi Mediation Center and Hawaii County Economic Opportunity Council. Molokai was the site for the SCD legal clinics the past two years, and the SCD looks forward to assisting more Hawaii residents with access to legal information, and the opportunity to meet directly with attorneys regarding their many questions, all of which could not happen without the excellent support of the HSBA. A big mahalo to Pat Mau-Shimizu and Brian Simon of the HSBA and the many generous volunteers for a job well done.
the following as a federal court of appeals judge: At the outset of the trial, a defendant in good faith may intend to testify, but it may be quite reasonable for him to change his mind after considering the course taken by the evidence. All of us know a defendant may tell a brave story to his counsel only to succumb to fear once the full weight of the prosecution’s case becomes apparent. In these instances a defendant and his counsel often elect to invoke the selfincrimination privilege despite an earlier plan to testify. Thus, a defendant cannot be bound by any pretrial statement of election; in fact, it would appear to be unconstitutional to do so. See Brooks v. Tennessee, supra. There is absolutely nothing to guarantee the sincerity of such pretrial assurances, and even when statements of election are given in good faith, they may be based on fictional assumptions. United States v. Cook, 608 F.2d 1175, 1189 (9th Cir.1979) (emphasis added) (Kennedy J., dissenting in part and concurring in part). At some point, appellate courts in Hawaii may be called upon to decide on direct review whether Kido can be squared with Brooks. Second, Loher highlights the difficult balance appellate courts must strike between protecting a defendant’s constitutional rights under Brooks and other competing interests, such as a trial court’s discretion to manage the order of witnesses and mode of testimony. In Brooks, the Supreme Court concluded that a defendant’s right to hear other witnesses testify prior to taking the witness stand trumped the State’s competing interest in ensuring that a defendant is not unduly influenced by the testimony of other witnesses. In Loher, the Ninth Circuit’s opinion suggests that a trial court’s authority to manage the order of witnesses can, under certain circumstances, trump a defendant’s right to hear other defense witnesses testify before taking the stand. Conclusion Loher is, of course, a cautionary tale of what can happen when a defense attorney’s plan falls through on the day of trial. However, the case also high-
lights the difficult choices trial courts must make during a trial in protecting the defendant’s constitutional rights and managing a trial, and raises a hairy question of constitutional law that may rear its head in criminal proceedings in Hawaii in the future. __________________ 1 Id. at 1187. Loher’s attorney believed that the prosecution’s case would run the entire first day of trial, and accordingly, planned to present his client’s witnesses the following trial day. Id. at 1187-89. 2 Loher also argued that his appellate counsel was ineffective, in violation of the Sixth and Fourteenth Amendments to the U.S. Constitution and that the trial court violated his right to a jury trial and due process under the Sixth and Fourteenth Amendments to the U.S. Constitution and Apprendi v. New Jersey, 530 U.S. 466 (2000). Id. 3 The magistrate judge also recommended denying the petition on the grounds that Loher’s appellate counsel was ineffective, but granted the petition on the grounds that the Circuit Court violated Loher’s right to a jury trial and to due process, in violation of the Sixth and Fourteenth Amendments of the U.S. Constitution and Apprendi. Id. at 1186. 4 Pursuant to 28 U.S.C. § 2254(d), a district court may grant the writ of habeas corpus when a state court’s adjudication of a claim results in a decision that “was contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States.” 5 Kido, 102 Haw. at 376. Although the Kido court recognized the second exception to Brooks, it nonetheless concluded that the trial court’s on-the-spot decision to require the defendant to testify before all defense witnesses violated Brooks. Id. at 378. The Kido court also seemed to question whether the source of the directive requiring a defendant to testify before defense witnesses (i.e., statute or judicial officer) has any constitutional significance. See id. at 376 (noting that “some . . . courts have noticed the distinction between the statutory directive in Brooks and the trial court directive before them, though none have explained why the distinction makes a constitutional difference.”).
Kenji M. Price is Of Counsel at Carlsmith Ball LLP, where his practice focuses on white collar crime and complex litigation. This article is submitted on behalf of the Federal Bar Association (“FBA”) Hawaii Chapter. For further inquiries about the FBA Hawaii Chapter, please visit http://www.fedbar.org/chapters/ hawaii-chapter.aspx or telephone Kenji Price at 808-523-2531.
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Homeless Holistic Civil Legal Services by Maya Scimeca and Janet Kelly Imagine for a moment that you have found yourself in this tough situation: your performance at work has gradually worsened and your boss has finally let you go. You understand, but what your boss does not see is that you have been suffering from debilitating depression for years now and you are too ashamed to tell anyone. You were already living from paycheck to paycheck, and now that you have lost your main source of income, you can no longer afford rent. Your unfortunate situation, coupled with Hawaii’s incredibly high cost of living, means that in a few short months you will be evicted with no place to go and end up living on the streets. Panicked and in disbelief, you attempt to navigate the unfamiliar web of social services available to houseless persons, but so far you have only been able to get on the many waiting lists for housing. On your first night on the streets, you find a park bench where you decide to sleep. During the night, you are mugged and your backpack is stolen. All of your important belongings are in your backpack because you no longer have a place to store them. Your phone, wallet, bus pass, state identification card, bank card, social security card, and birth certificate are gone. You will not be able to get into a housing program or secure new work until you obtain new documents and identification. What will you do now and where can you go? This situation is a familiar scenario encountered every day by staff members of the Homeless Holistic Civil Legal Services program at the Legal Aid Society of Hawaii. The homeless program consists of four staff members; a supervising attorney, two paralegals, and an AmeriCorps advocate. Over the course of a week, the unit will travel all 22 December 2016
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over Oahu, from Waianae to Waimanalo, providing outreach services to persons experiencing homelessness at emergency shelters, transitional shelters, health centers, drop-in service centers, and shelters for veterans. Members of the unit will also visit beaches, parks, and any overpass or side street to find those who are living unsheltered and in need of its services. The homeless program focuses on helping individuals replace lost or missing vital records, apply for Social Security disability or state assistance benefits, and other issues including divorce, custody, debt collection and bankruptcy. Often the person experiencing homelessness will work with a group of service providers, each with their own specialization. This may include a housing coordinator, a representative payee (if the client is severely disabled), a social worker, a therapist, and a caseworker at a shelter or transitional housing facility who, although working independently, all share a common goal of transitioning the person or family to permanent housing. Clients either seek out assistance from Legal Aid’s homeless unit on their own or are referred to the unit for services by any one of the supportive staff people assisting them. The journey to permanent housing may be a long one depending on an individual’s particular needs and abilities. The seemingly simple act of replacing a birth certificate may take months before a new Social Security card may be obtained to replace a government-issued identification card. Not having a government-issued identification card can be a barrier to housing, benefits, and employment. With an ID card, the person may start to apply for various shelters, lowincome rentals, and supportive housing
Janet Kelly and “Jeff ” programs that provide additional services and case management to help prevent the return to homelessness. “Jeff ” was one client who the program helped off the streets and towards transitional housing by helping him obtain a copy of his birth certificate, replacement identification, and general assistance. Jeff stated that, after he received a copy of his birth certificate, “everything just fell into place.” He wrote: I was homeless and lost. Being a year on the streets, drugs won. I was 180 lbs. and my last day of using, I was 121 lbs. and realized I was out of my mind, hopeless, and lost in pride. Legal Aid helped me get my life back together, helping me believe in myself again and make me realize I am a good person. Now in treatment, I’m 174 days being sober. I just want to say, from my heart, you Legal Aid made me a better and honest person who now thinks before I do anything. I just went home to Kauai to see my mom who never saw me sober and drug free since I was 10 or 13 years old. The reaction I got from her was priceless . . . . There are no two stories alike in the people staff members meet. Every client has a unique life story full of tragedies, twists and turns that have led them to their current situation. The homeless population is a diverse group of people with a complex set of issues who share one thing in common: the need for shel-
ter and support. The issues that clients face on a daily basis are complex, and there are no easy answers. Many clients have gradually lost all of their ties with their community, family, social relationships, jobs, and faith. One set back, such as a major illness or the loss of a job due to corporate downsizing, can create that “perfect storm” into homelessness. When clients no longer have ties to their support network, it becomes difficult to pull themselves out of their situation alone. People rely on a system of support networks to succeed in life. Meeting with staff from Legal Aid’s homeless program sometimes becomes the first link back to rebuilding their connection to society. Often, staff members believe in the possibilities of what the clients’ lives can be more than the clients believe in themselves. For the staff, being able to actively listen and truly empathize with a client makes the work more fulfilling and meaningful. Another of the program’s more memorable clients was a man suffering from debilitating schizophrenia. The man, wearing a bright orange winter coat, nonchalantly informed the staff that he has thirty-six voices in his head who are constantly arguing over what they would like him to do. After multiple meetings with him, a staff member began to piece together the details of his colorful and yet, tragic life story. With the homeless unit’s assistance, he was awarded Social Security disability benefits and began the search for supportive housing with the assistance of a housing coordinator. When asked how Legal Aid has helped him, he said: Legal Aid allowed me to gain independence and make sure that I can survive on my own . . . I receive $125 a week from my representative payee. I’ve never had that before. I can buy food and clothes for myself, which is something I’ve never had, even when I was a kid. Through getting my state ID, I then could get a bus pass, which gives me independence.
These stories help remind the community that there are people behind the homeless issue; people whose stories are as varied as the solutions that may alleviate their plight. Legal Aid’s homeless program is part of the Continuum of Care approach supported by the United States Department of Housing and Urban Development, which promotes a community wide commitment to the goal of ending homelessness. The legal community can play an important role in fulfilling this commitment. Attorneys can contribute their legal experience and training at community outreaches, clinics, and other pro bono opportunities with many of the legal service organizations under the provisions of Rule 6.1 of the Hawaii Rules of Professional Conduct. In lieu of pro bono services, attorneys may also contribute financially towards these organizations and programs such as Legal Aid’s homeless program to help defray the costs of identification and birth certificate applications for clients. Attorneys may also volunteer through the Veterans Legal Assistance program at Volunteer Legal Services Hawaii to help homeless veterans access VA benefits. _________________ Janet Kelly, a 1999 graduate of Seattle University School of Law, joined the Legal Aid Society of Hawaii in 2001. She has provided legal services to those experiencing homelessness through outreach and on-site services at locations around Oahu. She serves as the Vice-Chair for Partners In Care, a coalition of Oahu’s homeless service providers, government representatives, and community stakeholders, working together in partnership to end homelessness. Maya Scimeca is a graduate of the University of Hawaii at Manoa where she received her B.A. in literature. She completed the AmeriCorps program at the Legal Aid Society of Hawaii and was part of the Homeless Holistic Civil Legal Services program. In 2016, she joined the Legal Aid staff as an intake paralegal.
The Legal Aid Society of Hawaii extends its gratitude to Cades Schutte for being a member of the Leadership Circle and for volunteering during the month of May to staff the Honolulu District Court Access to Justice Room. For pro bono opportunities or to make a donation in lieu of pro bono under HRPC Rule 6.1. Please contact Sergio Alcubilla at 527-8063 or at sergio.alcubilla@legalaidhawaii.org
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COURT BRIEFS Seeking Applications for Independent Grand Jury Counsel – First Circuit
The Circuit Court of the First Circuit is seeking applications for Independent Grand Jury Counsel. If you are interested in being considered for a one-year appointment, please submit a resume by January 13, 2017 to Judge Colette Y. Garibaldi, 777 Punchbowl Street, Honolulu, Hawaii 96813. FAX 539-4218. Hawaii State Judiciary Thanks West Hawaii Community and Partners in Kona Courthouse Groundbreaking Ceremony
The Hawaii State Judiciary joined its partners in a traditional Hawaiian groundbreaking ceremony to celebrate the beginning of construction of the Kona Judiciary Complex. About 200 people gathered under a tent at the future site of the courthouse, which is a 10-acre site in Keahuolu, North Kona, above the Kona coastline. The dedication included the traditional pikai (ritual sprinkling of salted waters) with accompanying pule kahea (Hawaiian prayer chants) to sanctify the premises. Kahu Daniel Akaka said a special prayer for the leaders involved in this project as well as the workers who will be involved in the construction of the new courthouse. The Kona Judiciary Complex will meet the critical needs of the West Hawaii community and provide improved access to the civil, criminal, and family court justice system. Currently, proceedings are held in three different locations in Kona, in buildings not designed to serve as courtrooms. The Hawaii State Judiciary thanked the legislature for appropriating the $90 million needed to construct the building, which will enable the Judiciary to provide the West Hawaii community with a secure, efficient, and modern court facil24 December 2016
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ity that will accommodate the area’s projected growth in population and court caseload. Chief Justice Mark Recktenwald thanked members of the bar for supporting this effort, including the West Hawaii Bar Association, the Hawaii County Bar Association, and the Hawaii State Bar Association (“HSBA”), as well as past and present bar presidents and executive directors who have supported this project over the years. Construction is expected to be complete in 2019. To view the design plans and renderings, please visit: http://bit.ly/2eSg2Jq 2016 Jurist of the Year and Judiciary Employees Honored
First Circuit Court Chief Judge Derrick H.M. Chan was presented with the 2016 Jurist of the Year award by Chief Justice Mark E. Recktenwald, at the Hawaii State Judiciary’s 2016 Statewide Incentive Awards Ceremony on October 7. The Jurist of the Year is selected annually by the Chief Justice from nominations submitted by Hawaii attorneys and Judiciary personnel. The Jurist of the Year recognizes a full-time trial judge who exhibits exceptional judicial competence, evidenced by decisional quality; significant extra-judicial contributions to the administration of justice; and active participation in public service to the community at large.
OEAC Program Director Debi TulangDeSilva Receives HSBA’s 2016 Golden Gavel Award
On October 14, Debi S. TulangDeSilva, Program Director of the Hawaii State Judiciary’s Office on Equality and Access to the Courts (“OEAC”), received the HSBA’s prestigious Golden Gavel Award at the 2016 HSBA Bar Convention and Annual Meeting. “The Golden Gavel Award recognizes outstanding service to the Judiciary, including activities relating to new or innovative projects regarding the Judiciary and services that promote the fair and efficient provision of justice. This year’s recipient, Ms. Debi TulangDeSilva, was selected for the significant role she has played in developing a language access program that has greatly improved the quality of court services provided to persons with limited English proficiency,” said HSBA Board member and HSBA Awards Committee CoChair Nadine Ando. Ando explained that “through Debi’s work with the Judiciary’s Office on Equality and Access to the Courts, Hawaii now has resources available to ensure that language barriers do not impinge upon the process of justice.” Associate Judge Daniel Foley Receives HSBA’s 2016 Kie Kie Award
On October 14, Intermediate Court of Appeals Associate Judge Daniel R. Foley received the HSBA’s Kie Kie Award at the 2016 HSBA Bar
Convention and Annual Meeting. The Kie Kie Award recognizes an attorney for outstanding provision of professional legal services at no charge to the recipient. Judge Foley, in an interview in 2013, said, “So, in my 26 years as a lawyer, I did a lot of pro bono, and I don’t regret one hour. Some of my greatest successes and satisfaction came from those pro bono cases. It’s many of those cases I most remember and treasure when I look back at my career as a lawyer.” His ICA colleagues, Chief Judge Craig Nakamura and Judges Alexa Fujise, Katherine Leonard, Lawrence Reifurth, and Lisa Ginoza, supported his nomination and were in enthusiastic attendance at the award ceremony. As recognized by all, Judge Foley has not sought the
limelight during his career, but quietly and studiously contributed to the betterment of the community. He loves the law and exemplifies the highest ideals of the profession.
Mediator, Arbitrator, and Special Master Services, Employment Investigations
Jerry M. Hiatt
(From left): Judge Lisa Ginoza, Judge Alexa Fujise, Chief Judge Craig Nakamura, Judge Daniel Foley, Chief Justice Mark Recktenwald, Judge Katherine Leonard, and Judge Lawrence Reifurth
Attorneys Making a Difference (Continued from page 9)
Alston Hunt Floyd & Ing
• Creative and highly focused mediations in all areas with diligent followup when needed. Successful in mediations for clients of most of Hawaii’s major law firms • 39 years of practice in complex civil litigation. Listed in Best Lawyers in 8 areas, including Mediation and Arbitration. Hawaii Lawyer of the Year for Mediation, 2014 and Employment Law-Individuals, 2017. • Hiatt & Hiatt has also performed detailed neutral employment investigations and fact finding for some of Hawaii’s largest companies. For ADR work, please contact
Dispute Prevention & Resolution (808) 523-1234; dprhawaii.com For employment investigations, please contact jh@hiattlaw.com or meh@hiattlaw.com or at (808) 885-3400. Resume and references at www.hiattlaw.com.
Alston Hunt Floyd & Ing: (from left) Michelle Comeau, Tim Partelow, Anderson Meyer, Morgan Early, Nick Kacprowski, and Maile Osika. Not pictured: Zach Dilonno, Chrystn Eads, Jenny Nakamoto, John Rhee, Jasmine Fisher, Jessica Wong, Tim Irons, Jerry Chang
Alston Hunt Floyd & Ing Michelle Comeau: “AHFI volunteers every year because we fully support the Legal Aid Society and the judiciary as they work to help those in our community who cannot afford attorneys understand the process and what they need to do in order to present their claims or defenses effectively in court.”
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Hawaii Filipino Lawyers Association: (back row, from left) Wayne Scott, Radji Tolentino, Rozelle Agag, Wil Tungol, Ashley Labasan, Jessica Domingo; (front row, from left) Kainani Alvarez, Merlinda Garma, Carlito Caliboso, Kayla Caliboso (guest)
Goodsill Anderson Quinn & Stifel: (Standing) Regan Iwao, Brett Tobin, Terri O’Connell, Johnathan Bolton, Peter Kashiwa (Managing Partner), Scott Shishido; (Seated) Christine Terada, Alana PeacottRicardos, Travis Agustin, Lynda Arakawa Not pictured: Corlis Chang, David Hoftiezer, Shimpei Oki, James Abraham, Lisa Tellio
Bronster Fujichaku Robbins: (From left) Kelly Higa, Rex Fujichaku, Robert Hatch, Tyler Tsukazaki, Catherine Aubuchon, Angela Jacso
Carlsmith Ball: (from left) Toby Yamashiro, Mark Murakami, Daniel Padilla, Avery Matro, Melissa Lambert, Arsima Muller, Onaona Thoene, Rodd Yano, Derek Simon, Erika Amatore, Bob Strand, and Ian Wesley-Smith
__________________________ 1
Chun Kerr: (from left) Leroy Colombe, Imran Naeemullah, Daniel Cheng, Adrienne Yoshihara, Alison Davidson, Kimi Ide-Foster, and Nathaniel Higa. Not pictured: Pamela Macer 26 December 2016
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An article, “Momentum of Volunteerism” was published in the September issue of the Hawaii Bar Journal about the banks’ counsel organizing a training day in order to volunteer at the Access to Justice Room in the Honolulu District Court.
Notices of Discipline Disbarments
STEPHEN CARL WOODRUFF The Hawaii Supreme Court imposed reciprocal discipline against Honolulu attorney Stephen Carl Woodruff by disbarring Woodruff from the practice of law in Hawaii effective November 10, 2016. The Order of Disbarment arose out of disciplinary action taken against Woodruff by the Supreme Court of the Commonwealth of the Northern Marinas Islands (“CNMI”) which affirmed his disbarment as a lawyer in the CNMI in December 2015. Woodruff ’s disbarment in CNMI was based upon Woodruff ’s ethical misconduct in nine separate client matters, including a lack of competence; lack of diligence; failing to communicate with his clients; charging unreasonable legal fees; failing to expedite litigation; lack of candor towards a tribunal; failure to respond to a lawful demand for information from a disciplinary authority; misrepresentation; and conduct prejudicial to the administration of justice. Woodruff, 64, was admitted to the Hawaii bar on November 28, 1994. ANTHONY P. LOCRICCHIO Anthony P. Locricchio was disbarred from the practice of law by the Hawaii Supreme Court in its order issued October 18, 2016. The disbarment is effective November 18, 2016. Locricchio was disbarred for dishonesty, misappropriation, incompetence and other ethical violations. He was found to have had a dishonest or selfish motive when he disbursed $80,000 in disputed funds being held in trust. He disbursed $64,000 of those funds to himself and his wife. He was found to have filed multiple frivolous pleadings in the United States District Court. He also committed numerous aggravating factors, including: bad faith obstruction of the disciplinary proceeding, failing to appear at the disciplinary hearing, failing to acknowledge his wrongful conduct, indifference to
restitution, and a pattern of misconduct. Locricchio is now prohibited from accepting any new matters and must wind up and complete all pending matters. RSCH 2.16(c). Locricchio, 79, was admitted to the Hawaii bar on October 17, 1975. Suspension
JERRY I. WILSON The Hawaii Supreme Court suspended Honolulu attorney Jerry I. Wilson from the practice of law in Hawaii for a period of 120 days effective October 28, 2016. Wilson’s suspension stemmed from numerous violations of the rules governing attorneys’ client trust accounts. The Supreme Court found that between February 1, 2014, and January 31, 2015, Wilson used his client trust account to deposit his monthly Social Security payments and make at least 61 withdrawals by check in favor of himself as well as payments to a variety of Honolulu businesses. Wilson also made 150 electronic transfers from his client trust account to local and national companies to pay personal expenses. There were substantial federal and state tax liens outstanding against him during this period of time. Wilson also made misrepresentations in connection with his 2014 and 2015 registration with the Hawaii State Bar Association, that he was operating his client trust account in compliance with court rules, including the Rules of the Supreme Court of the State of Hawaii, applicable to such accounts, when he was not. The Supreme Court found that Wilson’s conduct caused actual and potential harm to the legal system and the public. Wilson, 70, was admitted to the Hawaii bar on May 2, 1977. Public Reprimand
Supreme Court. Hsieh was disciplined for his failure to appeal an adverse arbitration award, causing his client to lose the right to a trial. Hsieh attended the arbitration and knew the decision was due within seven days. He failed to discover that the decision had been faxed to and received by his office. Thus, he missed the twenty-day deadline to appeal the decision. Hsieh also relied on non-employees to monitor his filing deadlines. His conduct violated his ethical duties of competence and diligence. HRPC 1.1 and 1.3. Hsieh has a history of discipline. He was publicly reprimanded in 2011 for negligent handling of his trust account. Hsieh, age 61, was admitted to the Hawaii bar in 1982.
Ethics Requirement under Supreme Court Rule 22 Every active Hawaii-licensed attorney is required to complete one hour of approved ethics or professional responsibility education every three years. RSCH Rule 22(b). “Ethics or professional responsibility education” means those courses or segments of courses devoted to: the Rules of Professional Conduct; the professional obligations of the attorney to the client, the judicial system, the public, and other lawyers; substance abuse and its effects on lawyers and the practice of law; or client trust administration, bias awareness and prevention, and access to justice. Please refer to Supreme Court Rule 22 for more information on the mandatory continuing legal
PETER C. HSIEH Peter C. Hsieh, an attorney practicing in Honolulu, was publicly reprimanded on September 29, 2016. The reprimand was issued by the Disciplinary Board of the Hawaii
education (“CLE”) requirements. There are only three CLE credits required annually for active Hawaii attorneys. December 2016
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V O L u n T e e r L e g A L S e rV I C e S H AwA I I L A u n C H e S H AwA I I O n L I n e P r O B O n O –
A Technological Tool to Increase Access to Justice by Michelle Acosta In an effort to increase access to justice for those with limited means, the American Bar Association’s (“ABA”) Standing Committee on Pro Bono is making available an online tool - Free Legal Answers for all 50 states. Free Legal Answers is based on the successful Online Tennessee Justice project launched in 2011. Online Tennessee Justice was a collaborative project between the Tennessee Bar Association, the Tennessee Alliance for Legal Services, and Baker Donelson Berkowitz Bearman and Caldwell, the law firm responsible for the design and development of the interactive web-based software. The Tennessee software allowed qualifying users to post civil legal questions by way of the online portal. In response, volunteer attorneys would provide basic Angela Kuo, Pro Bono Coordinator, and Emily Briski, legal information and advice utilizHOP Site Administrator with an anonymous attorney. ing the web-based software. Online Tennessee Justice proved successful in engaging attorneys in pro bono service as well as increasing access to civil legal assistance to the indigent population. Tennessee’s achievements prompted Baker Donelson Berkowitz Bearman and Caldwell to offer the software to other jurisdictions that wanted to launch their own online portals for free. In November 2015, the ABA approved the creation of a national site “It is an important part of the ABA’s efforts that would allow all states to access the to expand access to legal services to lowTennessee software. Under the national income communities. With our partner model, participating states would become states, the program also provides signifia branch of the national site; with each cant pro bono opportunities for lawyers. state having its own customized portal. It’s a real win-win.” Since the ABA’s 50-state initiative began At the recommendation of the last fall, forty states have opted to particiHawaii Access to Justice Commission’s pate in the national project. Initiatives Committee, chaired by the The ABA Free Legal Answers site was Honorable Ronald Ibarra, the formally launched in September 2016. Commission approved Hawaii’s participa“Free Legal Answers is a no-cost, online tion in the ABA’s nationwide project. The version of the walk-in clinic model where Commission also supported Volunteer clients request brief advice and counsel Legal Services Hawaii (Volunteer Legal) as about a specific civil legal issue from a volthe administrator of the Hawaii site. unteer lawyer,” ABA President Linda Volunteer Legal officially unveiled Klein stated in a recent ABA press release. 28 December 2016
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Hawaii’s Free Legal Answers site, Hawaii Online Pro bono (“HOP”) on October 24, 2016. HOP is now accessible via the internet at Hawaii.FreeLegalAnswers.org. HOP is geared at expanding civil legal assistance to low- and moderate-income communities throughout the state. “HOP is important in providing services to rural residents especially those living in areas where public transportation is limited,” said Judge Ibarra who serves as the Third Circuit’s Chief Judge. How the Portal Works Through HOP, users can simply register at Hawaii.FreeLegal Answers. org, and post a specific civil legal question. In order to qualify to use the service, users must meet income and asset qualifications. Specifically, a user cannot have an annual gross household income of over 250% of the federal poverty guidelines, and must have less than $8,000 in liquid assets. Once qualified, the user will be able to post her legal question via an email format, and upload any pictures or documents associated with her legal issue. Once posted, the question will be added to the bank of questions on the site which can only be viewed by registered volunteer attorneys. Volunteer attorneys registered to use the portal may review the list of questions. They will have an opportunity to view the user’s name, the opposing party’s name for conflict checking, and a brief summary of the question. Once cleared of conflict, the volunteer attorney may open the question. The volunteer attorney has up to 3 days to answer. A volunteer attorney may at that point decide to answer or return the question back to the pool. If the volunteer fails to answer the question within 3 days, the question is automatically withdrawn from that volunteer and returned to the pool. Answers provided through the portal are sent to the user anonymously. The volunteer attorney may choose to reveal her name only if she wishes. In addition, the user and volunteer may continue the dia-
logue to allow for follow-up questions and answers. Once the volunteer attorney closes the question and answer queue, the dialogue ends. For users who are not eligible for the service, they are provided with an email containing resources, including the Hawaii State Bar Association’s Lawyer Referral and Information Service. In addition, for those who have had the opportunity to have their question answered, but need additional assistance, volunteers and Volunteer Legal will refer them to the appropriate organizations and/or agencies. For example, if full representation is deemed appropriate and the user is eligible for services at either the Legal Aid Society of Hawaii or Volunteer Legal, the user will be provided with such a referral. How to Volunteer As site administrator, Volunteer Legal is responsible for the recruitment of volunteer attorneys. Registering is quick and easy; simply go to Hawaii.FreeLegal Answers.org and register as a volunteer. Volunteers must be Hawaii licensed attorneys and in good standing. Once registered, Volunteer Legal will provide an orientation and ask that the volunteers adhere to a user agreement. HOP is an opportunity for attorneys to provide limited assistance to those who are in need of legal guidance. The commitment is short term, and there is no expectation for representation beyond the question and answer format. Volunteers are provided professional liability insurance through the American Bar Association for pro bono activities provided through HOP. HOP is intended to be an opportunity to engage more attorneys in providing pro bono service to those in our community who need it the most. The online nature of HOP makes it easy for both users and attorneys to connect with one another whenever and wherever it is most convenient for them. To volunteer, or to find out more about HOP, please contact Volunteer Legal Services Hawaii via e-mail: HOPAdmin@vlsh.org or phone: (808) 369-8572. __________________ Michelle Acosta is the Executive Director of Volunteer Legal Services Hawaii.
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CA S E N OT E S Supreme Court Civil Procedure
Kilakila ‘O Haleakala v. Univ. of HI., SCWC-13-0000182, October 6, 2016, (Pollack, J.). On certiorari, Kilakila argued that the circuit court erred by limiting its judicial review to the administrative record considered by UH. Kilakila also contended that the circuit court’s determination that the environmental assessment for the Management Plan complied with HEPA was flawed as the environmental assessment failed to consider significant impacts of the plan and that consequently, the court further erred in ruling that an environmental impact statement was not required. The Hawaii Supreme Court held that in a declaratory action brought to challenge an agency’s determination, an environmental impact statement was not required and judicial review was not restricted to an administrative record. However, the circuit court did not err because the parties were permitted to submit documents beyond those contained within the agency record, and the court did not foreclose further discovery requests by Kilakila. Additionally, the Hawaii Supreme Court concluded that the environmental assessment for the Management Plan complied with procedures under HEPA and did not fail to properly consider the Telescope Project. Because UH’s conclusion that the Management Plan would not cause significant environmental impacts was not clearly erroneous, an environmental impact statement was not required. Criminal
State v. Tui, No. SCWC-15-0000387, October 10, 2016, (McKenna, J.). This case arose from a dispute regarding whether, under Haw. Rev. Stat. ch. 704, custody of a defendant deemed unfit to proceed due to mental disease or disorder, can be transferred from the Director of Health (“Director”) to the Department of Public Safety (“DPS”) 30 December 2016
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Appeal Pointers
Omissions from the record by error or accident may be corrected by stipulation of the parties filed in the appellate court. HRAP 10(e)(2)(A). Prior to transmission of the record to the appellate court, corrections may be made by stipulation of the parties filed in the trial court or agency. before a judicial determination that the defendant has regained fitness. The Circuit Court answered in the negative, and the Director appealed. The day after the Director’s appeal, the circuit court determined that the Defendant was fit to proceed, and transferred his custody to the DPS. The ICA dismissed the appeal as moot, holding that it lacked appellate jurisdiction because custody of the Defendant had already been transferred from the Director to the DPS. According to the ICA, the “capable of repetition, yet evading review” exception to the mootness doctrine “d[id] not appear to apply” because the “Director ha[d] not shown that review of [the] adverse trial court could not be obtained through other means, such as a petition for writ of mandamus or prohibition.” Thus, this case presented the procedural question of whether the ICA erred in not considering the “capable of repetition, yet evading review” exception to the mootness doctrine on this basis. The Hawaii Supreme Court held that because there is no requirement that “other means, such as a petition for writ of mandamus or prohibition” be pursued before an appellate court can consider whether the “capable of repetition, yet evading review” exception to the mootness doctrine applies, the ICA erred in not considering the exception. The Hawaii Supreme Court then considered whether the exception applied, and held that it did.
Family
Tumaneng v. Tumaneng, No. SCWC14-0000895, October 21, 2016 (McKenna, J.). This case arose out of a custody dispute regarding physical custody of B.C.B.T., born in 2006 (“Son”). Son’s mother, Brelie Gail Balon Tumaneng (“Mother”), moved to modify custody terms contained in an uncontested decree filed in her divorce from Son’s father, Brixon Andres Tumaneng (“Father”). Mother alleged she should have been allowed to present evidence of Father’s pre-decree domestic violence at the trial on her motion. ICA precedent at the time required the family court to find a material change in circumstances before it could reconsider the original custody order. The ICA therefore ruled that the family court properly excluded evidence of alleged pre-decree domestic violence on relevance grounds because such evidence was not related to the material change in circumstances preliminarily found to exist by the family court, which was Father’s relocation to Arizona and Mother’s possible move away from Hawaii with her new husband. The Hawaii Supreme Court held that the family court erred by excluding evidence of alleged pre-decree domestic violence in making its custody determination. Labor
Dannenberg v. State, No. SCAP-150000084, October 21, 2016, (Leonard, Acting C.J.). This class action suit concerned the health benefits the State and Counties provide to class members. The central issue in this case was whether the State and Counties impaired Appellants’ accrued retirement health benefits in violation of article XVI, section 2 of the Hawaii Constitution, which provides: “[m]embership in any employees’ retirement system of the State or any political subdivision thereof shall be a contractual relationship, the accrued benefits of which shall not be diminished or impaired.” The Hawaii
Supreme Court held that: (1) pursuant to article XVI, section 2 of the Hawaii Constitution, benefits arising from membership in the Hawaii employees’ retirement system (“ERS”), including retiree health benefits, accrue upon an employee’s enrollment in the ERS, subject to any conditions precedent in place at the time of enrollment that must be satisfied before receiving the benefits; (2) notwithstanding a repealed statutory provision that required “substantial equality of benefits” to all State and County “Employees” who were entitled to receive them, article XVI, section 2 of the Hawaii Constitution protects accrued retiree health benefits, not parity of health benefits between active employees and retirees; (3) the starting place for a determination of Appellants’ accrued retirement health benefits is the retirement health benefits that were promised to Appellants at the time of their enrollment in the ERS, as these are the benefits that, in the first instance, arise from their membership in the ERS; (4) Appellants’ constitutionally protected retirement health benefits are not an exact package of health benefits, fixed as of a certain date, unchanged and unchangeable over time, and such benefits remain subject to legislative changes, so long as those changes do not result in a diminishment or impairment of the benefits that have been accrued; and (5) there are genuine issues of material fact as to whether Appellants’ accrued retirement health benefits have been diminished or impaired in violation of article XVI, section 2. Land Use
Kilakila ‘O Haleakala v. Board of Land and Natural Resources, No. SCWC-130003065, October 6, 2016 (Recktenwald, C.J. with McKenna, J., concurring separately and Pollack, J., dissenting separately, with Wilson, J., joining in part and Wilson, J., dissenting separately). This case concerned a conservation district use permit for construction of the Advanced Technology Solar Telescope (“ATST”) on Maui in an area at the summit of Haleakala that was set aside for astronomical observato-
ries in 1961. BLNR granted a permit for UH to construct the ATST. Kilakila O Haleakalâ (“Kilakila”) challenged BLNR’s approval of the permit to construct the ATST. Kilakila appealed to the Circuit Court of the First Circuit and the ICA, and both courts affirmed BLNR’s decision. The Hawaii Supreme Court granted certiorari review, concluding that the permit approval process was not procedurally flawed by prejudgment because BLNR’s initial permit was voided. Nor was it flawed by impermissible ex parte communication because BLNR removed the original hearing officer after he communicated with a party, and the BLNR Chairperson’s meeting with non-parties did not address the merits of the permit approval process. The Hawaii Supreme Court further concluded that BLNR validly determined that the ATST met the applicable permit criteria and was consistent with the purposes of the conservation district. Mckenna, J., concurred separately, stating that in approving conservation district use (“CDU”) permits before contested case hearings, the process initially followed by the BLNR for the ATST before the Hawaii Supreme Court’s remand in Kilakila I and for the Thirty Meter Telescope (“TMT”) on Mauna Kea before remand in Mauna Kea Anaina Hou v. Bd. of Land & Nat. Res., was a major departure from BLNR’s prior CDU permitting procedure. BLNR’s new procedure of approving CDU permits before conducting contested case hearings was based on its mistaken interpretation of what was allowed by the 2009 amendments to its administrative rules. Thus, in Kilakila I, the Hawaii Supreme Court held “that a contested case hearing should have been held, as required by law and properly requested by KOH on UH’s application prior to BLNR’s vote on the [CDU permit] application.” 131 Hawaii at 206, 317 P.3d at 40. Then in Mauna Kea, a majority of the Hawaii Supreme Court also held that approval of a CDU permit before a contested case hearing violated the due process rights of parties with standing to assert Native Hawaiian tra-
ditional and customary rights. Mauna Kea, 136 Hawaii 387, 363 P.3d 224. The first permit in this case, issued before a contested case hearing, was effectively invalidated by the ruling in Kilakila I. A second permit was issued in late 2012, after a contested case hearing and report by the second hearing officer, and a new vote by a reconstituted BLNR, which had several new members, including a new Chair. This second permit superseded the first permit improperly issued before a contested case hearing. Thus, although the process was less than ideal, the second permit minimally comported with Mauna Kea’s procedural due process requirement. The dissent focused on the pressure placed on the first hearing officer to hurry up and issue his report due to apparent concerns regarding possible loss of funding for the ATST. The pressure apparently started after about five months had elapsed after the first contested case hearing had finished. There was no suggestion of any attempt at direct contact with the hearing officer by staff from Senator Inouye or the Governor’s offices. Rather, the hearing officer’s administrative supervisors from the state executive branch asked the hearing officer when the report would issue, and later requested daily reports. It is not unusual for adjudicative officers, including judges, to report to administrative supervisors regarding the status of decisions that remain outstanding. Requests for updates as to when a decision will be forthcoming are not improper, as long as the administrative supervisor does not comment at all on the substance of the decision. The first hearing officer was clear that the pressure never included any suggestion that he should reach a particular result. Although the hearing officer was apparently told at some point that these requests for updates had come from persons other than his administrative supervisors, there was no indication that there was any request to convey that information to the hearing officer. In other words, there was no indication that there was an actual attempt to effectuate ex parte commu(Continued on page 34) December 2016
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Technology as a Sustainable Solution to Expanding Meaningful Access to Justice by Kara Doles
by Kara Doles As our world progressively turns to technology for answers, online innovation proves to be a sustainable solution for expanding meaningful access to justice. The Legal Aid Society of Hawaii (“Legal Aid”) has two web-based resources available, the Hawaii Self-Help Interactive Forms and the Self-Help Legal Information Videos, to help the public navigate through civil legal processes. The legal system can be intimidating and confusing for those who must represent themselves; these resources guide court users towards a better understanding of their rights and provide them with concrete steps to take to achieve legal resolve. The Hawaii Self-Help Interactive Forms resource is powered by a specialized Access to Justice (“A2J”) software that walks users through a sequence of questions related to their issue using plain language. Answers to these questions are then automatically inserted into court forms and legal documents that self-represented litigants can download, print, and prepare for filing. The A2J document assembly project introduces an empowering do-ityourself element; educating users on the legal process, providing definitions to confusing legal jargon, and presenting links to relevant resources, all without requiring the assistance of an attorney. In 2015, Legal Aid partnered with the Hawaii State Judiciary and the Hawaii State Public Library System to make this resource available at court self-help centers and public libraries across the state. With the success of the initial A2J court forms, 32 December 2016
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the Judiciary applied for and received additional funding from the State Justice Institute to allow Legal Aid to create more online court forms and interviews. To date, A2J interviews are available for family, consumer, housing, public benefits, individual rights, and district court matters. In striving to meet the high demand for quality self-help legal resources in Hawaii, Legal Aid embarked on a second project creating a series of videos to supplement existing self-help materials. These short videos provide legal information to educate the public on a variety of issues in an easily understandable and accessible format, while concomitantly increasing the use and effectiveness of Legal Aid’s current brochures and A2J interviews. The idea for creating these videos stemmed from discussions within the Hawaii Access to Justice Commission’s Committee on Initiatives to Enhance Civil Justice. Third Circuit Chief Judge Ronald Ibarra, who chairs the committee added, “I’d like to thank the Access to Justice Commission for their continued leadership and support as we work together to make access to justice a reality for all. I’d also like to thank the members of the committee who worked with Legal Aid staff to help determine ways to more effectively provide legal information to the public. I’d also like to thank Legal Aid Society of Hawaii for doing the heavy lifting and making this idea come to fruition.” Legal Aid worked with the Hawaii State Judiciary to identify the key issues that self-represented litigants often face in court. Hawaii Supreme Court Chief Justice Mark Recktenwald adds, “There
are thousands of people in Hawaii who must represent themselves in civil cases in our courts each year because they cannot afford an attorney. Their cases involve fundamental human interests, from housing and health care to child custody. Thanks to Legal Aid, the Access to Justice Commission, and all our partners, we’ve made significant strides in providing selfrepresented litigants with the tools and resources they need to better navigate our court system and effectively tell their side of the story.” Ensuring language access to the legal system remains a priority for both Legal Aid and the Hawaii State Judiciary, and thus four of the legal information videos were translated into Marshallese, Chuukese, and Ilokano. According to the Office on Equality and Access to the Courts, these languages were the most requested languages for interpreters in court. Legal Aid staff and AmeriCorps Advocates worked closely with pro bono attorney Ashlee Drake Berry, William S. Richardson School of Law students Laurie Gardner and Evan Fu, and volunteers Bennett Wong, Kayla Caliboso, and Dana Morita to write the scripts and record the videos. The videos are uploaded to Legal Aid’s YouTube channel and are also embedded into its LawHelp.org/hi website. Videos currently available to the public cover a range of topics including how to use the A2J interactive forms, resources for court users, family law issues, how to selfrepresent in court, landlord tenant basics, debt collection, temporary restraining orders, security deposits, and eviction.
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Legal Aid’s Executive Director, M. Nalani Fujimori Kaina noted, “We hope these legal information videos will be another resource that people, when faced with a civil legal problem and have no choice but to represent themselves, can turn to and that it helps them better understand their rights.” Both technology-based projects received funding from the Technology Initiative Grants (“TIG”) program of the Legal Services Corporation, an independent nonprofit established by Congress in 1974 to support civil legal aid organizations across the country. This competitive grant provides opportunities for awardees to explore and implement innovative technology solutions that effectively meet the legal needs of low income individuals and families. Legal Aid’s latest TIG project began early this year and is scheduled for public launch at the end of March 2017. Similar to the objectives of former technology projects, the ultimate goal of the Hawaii Legal Services Portal (“Portal”) is to expand meaningful access to justice by making the legal world more familiar, personal, and understandable for low income individuals and self-represented litigants. More specifically, the Portal aims to address the absence of a centralized entry point for our state’s self-represented litigants to easily access legal information and identify relevant referrals. It will serve as Hawaii’s most reliable legal referral and information engine for civil issues affecting the most vulnerable in our community. Technology is the future. Legal needs are perennial. Implementing technology as a tool to meet legal needs is a brilliant amalgamation. Legal Aid looks forward to presenting the Portal in March and continuing to serve the public through future technology initiatives. _________________ Kara Doles serves as the Project Coordinator for the Hawaii Legal Services Portal and works to find ways to increase access to justice for Legal Aid’s clients through the use of technology. For more information about these projects or the Hawaii Legal Services Portal, please contact Kara at kara.doles@legalaidhawaii.org
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CASE NOTES (Continued on page 31) nications with the first hearing officer, even if only on procedural matters. Whether or not such pressure should have been placed on the first hearing officer, as noted in the majority opinion, any concern of impropriety in this regard was removed when the first hearing officer was replaced. This was the relief requested by Kilakila, and it was granted. Therefore, these allegations regarding pressure on the first hearing officer are not directly relevant to the legal issues in this case. With respect to the communications with the Chair of BLNR, the Chair is a member of the Governor’s Cabinet, and represents the BLNR and DLNR. The Chair is the obvious person to respond to the Governor and to the community regarding the procedural status of the work of the BLNR, even on adjudicative matters. Hawaii Administrative Rules §13-1-37 (effective 1982) recognizes as much, by allowing ex parte communications on procedural matters. With respect to the assertions or questions whether Senator Inouye’s chief of staff was acting as a representative of UH at the March 2012 meeting, Mckenna, J. noted that the January 2012 e-mail from the Senator’s chief of staff to the UH representative offering to “carry the uh message” was before the first hearing officer issued his preliminary report in February. The urgent need for issuance of that report was the “message” to be conveyed. By the time the meeting took place in March, however, the first hearing officer had already issued his report the month before. Therefore, the reason to “carry the uh message” no longer existed. Although the March meeting should have been avoided due to the questions it raised, it was not improper just because it was undisclosed. As the Chair was not meeting with a party and because the subject matter concerned procedural matters, it did not constitute an ex parte communication prohibited by Haw. Rev. Stat. § 91-9(g) and/or Haw. Admin. R. § 13-1-77. The Attorney General of the State of Hawaii
was present at the meeting. The Attorney General is a member of the Hawaii bar and Senator Inouye’s chief of staff is also a lawyer. Lawyers are well aware of prohibitions on ex parte communications with adjudicators, except on procedural questions. Finally, it is important to note that despite Kilakila’s knowledge of communications and the meeting involving the Chair well before issuance of the second hearing officer’s report and the BLNR’s vote granting the second permit, it did not request that the Chair be disqualified, as it had with the first hearing officer. Despite her analysis, Pollack, J. does not in any way condone meetings and discussions with administrative adjudicators. Haw. Rev. Stat. § 171-4(b) prohibits BLNR members from participating in or voting on any matters in which they have a direct or indirect interest, and BLNR rule Haw. Admin. R. § 13-1-37 prohibits ex parte communications by parties with BLNR members concerning the substance of and during the pendency of potential or actual contested case matters. Due process considerations, however, prohibit administrative adjudicators from discussing the substance of contested case matters during the pendency of potential or actual contested case matters, whether with parties or with others. It is therefore preferable and indeed advisable that procedural questions be raised and responded to in writing, so that questions do not linger whether improper communications took place regarding the substance of contested matters. Thus, although BLNR members differ from judges, as administrative adjudicators, they must not allow ex parte communications on substantive matters during the pendency of potential or actual contested case matters and would be well advised to ensure that any communications regarding procedural matters are disclosed in writing to all parties. In Mauna Kea, in addition to the due process holding, a majority of the Hawaii Supreme Court held that a state agency must perform its functions in a manner that fulfills the State’s affirmative obligations under the Hawaii constitution. 136 Hawaii at 414, 363 P.3d at
262 (Pollack, J., concurring). Applying this second holding, McKenna, J. believed the BLNR performed its functions in a manner that fulfilled the State’s affirmative obligations under the Hawaii constitution. In this case, those duties included considering and applying the State’s obligations under Article XI, section 1 and Article XII, section 7 of the Constitution of the State of Hawaii, to native Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the right of the State to regulate such rights. Although not necessarily couched in the language of these constitutional provisions, the findings and conclusions of the BLNR, as outlined in the majority opinion, illustrate that the BLNR carefully considered and applied the applicable constitutional considerations. Therefore, as to the CDU permit for the ATST at Haleakala, the requirements set out by the majority opinions in Mauna Kea were met. Pollack, J. dissented, with Wilson, J. joining as to Parts IA and II, stating that when an administrative agency acting in a quasi-judicial capacity makes or receives (1) substantive ex parte communications, (2) procedural ex parte communications that have the potential to influence the agency adjudicator, or (3) ex parte contacts with interested persons or parties in the case, due process under the Hawaii Constitution requires disclosure of the communications. Due process also prohibits the insertion of external political pressure into a quasijudicial administrative proceeding. The state of the record prevented the Hawaii Supreme Court from fulfilling its responsibility to independently review whether inappropriate ex parte communications affected the validity of the ATST permit issued by BLNR. Similarly, the record was inadequate for the Hawaii Supreme Court to conclude that external political pressure was not made an ingredient in the BLNR Chair’s decision-making process. In order for the Hawaii Supreme Court to resolve these issues, this case should have been temporarily remanded to BLNR for a detailed dis-
closure of certain ex parte communications that occurred in the case and an adversarial hearing regarding the matters disclosed, instead of relying, as the majority did, on a decidedly incomplete record. Moreover, Pollack, J. stated, the consequences of the majority’s decision should not be understated. It means that during the decisional phase of contested case proceedings, the decision makers can meet in private with interested persons strongly supporting one side or a particular outcome in the case. These interested persons can be representatives of a United States Senator or the Governor, members of advocacy groups, or employees of companies that may gain an economic advantage by the decision. Neither the existence nor the substance of the meeting needs to be disclosed to any other party in the case if the meeting is characterized by the decision makers of the contested hearing as a meeting related to procedural matters. If by some fortuitous circumstance the existence of the meeting is discovered by another party in the case, then the decision makers need only state that the meeting was procedural in nature to obviate the need for further disclosure. Lacking any other information about the meeting, courts will be unable to independently review the “procedural” characterization offered by the agency. Consequently, as the majority has done in this case, the agency’s characterization will be accepted without any objective analysis and despite indications pointing to a contrary conclusion. Because Pollack, J. believed that state law provides a higher degree of procedural fairness in contested case proceedings, he dissented.
Intermediate Court of Appeals Criminal
State v. Dunbar, No. CAAP-150000063, September 30, 2016, (Ginoza, J.). On appeal, the State challenged the circuit court’s dismissal of the ruling that the State could no longer obtain
Appellee’s buccal swab sample in 2014, after he had been discharged from probation for his felony conviction. The ICA held that Appellee was no longer required to provide a buccal swab sample after he had been discharged from probation for his felony offense pursuant to Haw. Rev. Stat. Ch. 844D. State v. Berry, No. CAAP-120001044, October 6, 2016, (Ginoza, J.) In the eight criminal cases that were part of this appeal, a bail bond was executed by a bail agent, the defendant failed to appear in court as required under the bond, and a bail forfeiture judgment was issued pursuant to Haw. Rev. Stat. § 80451. The primary question in the appeal was whether the notice to the “surety” about the bail forfeiture judgment, which is required under Haw. Rev. Stat. § 804-51, was satisfied by notice to the bail agent who signed the bail bond, or whether the insurance company that conferred power-of-attorney on the bail agent to execute the bail bond was the “surety” who should have received the notice. On appeal, International Fidelity Insurance Company (International) contended that the circuit court erred by: (1) concluding that Haw. Rev. Stat. § 804-51 did not require Appellee State of Hawai’i to give International direct notice of the bail forfeiture judgments; (2) concluding that International received the notice required under Haw. Rev. Stat. § 804-51; (3) concluding that there was no violation of International’s due process rights, and further, violating International’s due process rights by upholding the forfeitures; (4) declining to vacate the bail forfeiture judgments pursuant to Haw. R. Civ. P. Rule 60(b) or Haw. Rev. Stat. § 804-51; (5) failing to find good cause to vacate the bail forfeiture judgments; and (6) failing to enter a proper judgment. On the primary question presented, the ICA held in these cases that the bail agent was the “surety” and therefore, under Haw. Rev. Stat. § 804-51, notice of the bail forfeiture judgment to the bail agent was proper. December 2016
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Update From Hawaii’s Uniform Law Commissioners
Bob Toyofuku (524-4155) toyofuku@hiadvocates.com
Hawaii’s representatives to the Uniform Law Commission (“ULC”), also known as the National Conference of Commissioners on Uniform State Laws, are:
In this first legislative session of the biennium, the commissioners expect that two uniform acts will be introduced. One is the Uniform Family Law Arbitration Act (“UFLAA”). UFLAA establishes a framework for the arbitration of family law matters. Although arbitration has been used for decades to resolve commercial disputes, arbitration of family law issues, such as property, support, and child-related disputes, has recently gained traction. UFLAA is based in part on the widely enacted Uniform Arbitration Act and Revised Uniform Arbitration Act. Elizabeth Kent will be the commissioner assigned to follow UFLAA. The other act that is likely to be introduced is the Revised Uniform Athlete Agents Act (2015). This act is an update of the Uniform Athlete Agents Act of 2000, enacted in Hawaii and 41 other states. The 2000 Act governs relations
Lani Ewart (547-5600) lewart@goodsill.com Peter Hamasaki (529-7300) hamasaki@m4law.com Elizabeth Kent (352-2776) meetingexpectationshawaii@gmail.com Kevin Sumida (366-2600) ksumida@hawaiilaw411.com Ken Takayama (542-3659) ktakayama13@gmail.com
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among student athletes, athlete agents, and educational institutions, protecting the interests of student athletes and academic institutions by regulating the activities of athlete agents. The Revised Act makes changes to the 2000 Act, including expanding the definition of “athlete agent” and “student athlete;” providing for reciprocal registration between states; adding new requirements to the signing of an agency contract; and expanding notification requirements. Ken Takayama and Bob Toyofuku will be the commissioners following the Revised Act. Three other acts are under study for possible introduction: Uniform Powers of Appointment Act. A power of appointment is an estate planning tool that permits the owner of property to name a third party and give that person the power to direct the distribution of that property among some class of permissible beneficiaries. It is an effective and flexible technique used in a wide variety of situations, but there is very little statutory law gov-
erning the creation and use of powers of appointment. This act would codify existing common law, relying heavily on the Restatement (Third) of Property: Wills and other Donative Transfers. Uniform Voidable Transactions Act (“UVTA”), fka the Uniform Fraudulent Transfer Act. UVTA strengthens creditor protections by providing remedies for certain transactions by a debtor that are unfair to the debtor’s creditors. The 2014 amendments to the UVTA are intended to address a small number of narrowly defined issues, and are not a comprehensive revision of the act. Uniform Employee and Student Online Privacy Protection Act. The growing use of social media has implications in both employment and educational contexts. Indeed, employers and educational institutions now sometimes ask current and/or prospective employees and students to grant the employer or school access to social media or other name and password protected accounts. The Uniform Employee and Student Online Privacy Protection Act addresses both employers’ access to employees or prospective employees’ social media and other online accounts accessed via username and password or other credentials of authentication as well as post-secondary educational institutions’ access to students’ or prospective students’ similar online accounts. Finally, the Uniform Trust Code is under study by a subcommittee of the Uniform Probate Code and Code Practices Committee of the Hawaii Judiciary and may be introduced in a future legislative session. The Code, which provides a comprehensive model for codifying various laws relating to trusts, has already been enacted in 32 states and will be introduced in several additional states in 2017. The ULC website at www.uniformlaws.org has more information about these acts, as well as acts that are being studied, acts currently in the drafting process, and those that have been completed. You may also contact any of Hawaii’s commissioners with questions or comments about any uniform acts or the ULC.
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OFF THE RECORD The divorce and family law firm of Coates and Frey has hired an experienced new associate for its litigation department. Scott LaFountaine was formerly a felony trial attorney with the Prosecuting Attorney’s office on Oahu. He will be focusing on domestic abuse, temporary restraining orders, and other “quasi-criminal” areas of family law. He is a second generation Hawaii lawyer. His dad, Ralph LaFountaine, was a partner in the Fujiyama, Duffy & Fujiyama law firm and then later in the Pacific Law Group. Christian P. Gray joined Jackson Lewis P.C., a law corporation, as an associate. Prior to her work in employment law, she was a Deputy District Attorney in Orange County, California, where she gained valuable trial experience prosecuting a variety of criminal offenses. She focuses her practice on representing employers in state and federal court, arbitrations, mediations and before administrative agencies such as the Equal Employment Opportunity Commission, the Hawaii Civil Rights Commission and the Department of Labor and Industrial Relations. She received her law degree from the University of San Diego School of Law. Nichole Shimamoto is senior vice president and deputy chief compliance officer at Bank of Hawaii. She was formerly senior vice president and director of compliance for Central Pacific Bank; vice president, associate counsel and BAS/compliance officer for Finance Factors; and BSA/AML operations analyst at American Savings Bank. She received her law degree from the William S. Richardson School of Law. Joanne J. Lee joined Goodsill Anderson Quinn & Stifel as an associate. She concentrates her practice on mergers and acquisitions, tax aspects of corporate transactions, and general corporate and tax matters. Prior to joining the firm, she practiced at a New York
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City law firm in their tax department. She represented clients across a wide range of industries, including consumer, hospitality, technology, media, financial services, pharmaceutical, and shipping. Rachel Baker joined O’Connor Playdon & Guben as an associate. She served as a judicial law clerk for First Circuit Court judge Jeannette Castagnetti. Baker received her J.D. degree from George Washington University School of Law where she was awarded the Lawrence E. Seibel Memorial Award in labor and employment law. Nicole Kalakau and Sharon Paris joined Leavitt Yamane & Soldner as associates. Kalakau previously served five years as a deputy prosecuting attorney in the Honolulu office where she was Captain of the Domestic Violence Felony Division. She received her J.D. degree from Gonzaga University School of Law. Paris is a 2015 cum laude graduate of the William S. Richardson School of Law. She served as a judicial extern to Hawaii Supreme Court Chief Justice Mark Recktenwald and law clerk to Hawaii Intermediate Court of Appeals Associate Judge Alexa Fujise.
ka@gmail.com; or to any of the volunteer editors on the editorial board. All submitted articles should be of significance to and of interest or concern to members of the Hawaii legal community. A short article is between four and eight pages, double-spaced, approximately 500 to 1,500 words. The longer law-review type articles are published in a special issue. The Cades Foundation has been gracious and generous in funding this special issue. These articles exceed 6,000 words. The Hawaii Bar Journal reserves the right to edit or not publish submitted material. Correction: In a previous issue of the Hawaii Bar Journal, Joseph Dane was incorrectly noted as joining another law firm. He is currently with Chun Kerr LLP. We apologize for this error.
News for “Off the Record”
Please send in information about movement within the bar, about elections to various boards, awards, and other news to any one of the editors on the editorial board, Carol K. Muranaka at <carol.k.muranaka@gmail.com> or Cynthia M. Johiro at <Cynthia.M.Johiro@hawaii.gov>. Articles Wanted
If you are interested in writing either a short or long article of general interest to members of the bar, please send your submissions to Ed Kemper at edracers@aol.com; Cynthia M. Johiro at cynthia.m.johiro@hawaii.gov; or Carol K. Muranaka at carol.k.murana-
Hawaii Access to Justice Conference
Save the date: Friday, June 16, 2017. The Hawaii Access to Justice Conference, sponsored by the Hawaii Access to Justice Commission, will be an all-day event. Please attend to be part of an exciting, provocative discussion about seeking justice for the underserved, including opportunities for audience participation. In the past, six CLE credits have been approved for Hawaii-licensed attorneys attending this event. The Commission will seek approval for these credits again.
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LEGAL CONSULTING ENVIRONMENTAL DUE DILIGENCE for property transactions. Investigation & hazard evaluation. Permitting & Compliance. Inclusion Consulting (808)261-4444 www.inclusionhawaii.com LEGAL NURSE CONSULTING Assistance in managing the medical aspects of your case. Legal Nurse Consulting, Life Care Planning, & Workers’ Compensation Nurse Case Manage-
The Hawaii Bone Marrow Donor Registry partners with the National Marrow Donor Program® to help patients in Hawaii and all over the world find healthy and willing bone marrow or blood stem cell donors. Only 30 percent of patients will find a familial donor match; therefore, others need to find unrelated matches. Bone marrow matches are more easily found between people of the same ethnic background. You can help save a life! Hawaii Bone Marrow Donor Registry is seeking potential donors between the ages of 1844 and in good general health. It only takes 5-10 minutes to fill out a form and do a couple cheek swabs. You can register online for free and have a swab kit delivered to you: https://join.bethematch.org/ALOHA Follow the Hawaii Bone Marrow Donor Registry on Social Media! Facebook: https://www.facebook.com/hawaiibonemarrowdonorregistry Instagram: @hbmdr808
To learn more about the Hawaii Bone Marrow Donor Registry, visit:
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