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BAR JOURNAL A N O FFICIAL P UBLICATION
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H AWAII S TATE BAR A SSOCIATION S EPTEMBER 2021 $5.00
TABLE O F C ON TE NTS VO LUM E 25 , N U M B E R 9
EDITOR IN CHIEF Carol K. Muranaka BOARD OF EDITORS Christine Daleiden Susan Gochros Ryan Hamaguchi Cynthia Johiro Edward Kemper Laurel Loo Melvin M.M. Masuda Eaton O'Neill Lennes Omuro Brett Tobin HSBA OFFICERS President Levi Hookano President-Elect Shannon Sheldon Vice President Rhonda Griswold Secretary Russ Awakuni Treasurer Alika Piper YLD OFFICERS President Christopher St. Sure Vice President/President-Elect Jasmine Wong Secretary Nelisa Asato Treasurer Leo Shimizu
ARTICLES 44
Chief Justice Mark E. Recktenwald’s Response to Reports of the 2020 Civil, Criminal, and Family Law Forums by Chief Justice Mark E. Recktewald
19 12
Child Custody Considerations in a COVID-19 Era and Thoughts for the Future
24
by Tom S. Tanimoto
20
HSBA Board 2021 Candidates
OF NOTE 18
HSBA Happenings
19 20 24 22 26
Discipline Notice
28 30
Off the Record
39 30
Classifieds
Court Briefs Case Notes
31
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On the cover: (detail from) Go Bananas by Tim Nguyen. Vietnamese born Quy “Tim” Nguyen was always interested in art as a child. He began his career as an interior designer yet ever since he can remember, painting has been his favorite form of self expression. After a visit to the Hawaiian Islands, Tim was so inspired he decided to move his family here. Painting is now his full-time passion and the art he creates reflects life in Hawaii through his Eastern eyes. To see more Nguyen work visit Cedar Street Galleries. Located at 817 Cedar Street in Honolulu. 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.
Chief Justice Mark E.
Recktenwald Responds to the Reports of the 2020 Civil, Criminal, and Family Law Forums Chief Judges, and the Administrative Director of the Courts. The reports have also been provided to all of our judges. The Forums always provide a critical opportunity for the Judiciary to receive feedback from the bar, and this year, the Judiciary’s response to the pandemic and long-term post-pandemic plans shaped the conversation. I will begin by speaking to issues related to remote proceedings and the pandemic, and provide an update on the status of in-person proceedings. I will then turn to the topics discussed in the separate practice areas.
INTRODUCTION On behalf of the Hawai‘i State Judiciary, I would like to express my gratitude to the attorneys and judges who participated in the 2020 Civil, Criminal, and Family Law Forums. In addition, I would like to thank the Hawai‘i State Bar Association (“HSBA”) Committee on Judicial Administration, in particular co-chairs Associate Justice Simeon R. Acoba (ret.) and Vladimir Devens, as well as former co-chair Steven J.T. Chow, for organizing the forums and preparing the resulting reports. Over 290 members of the bar, bench, and Judiciary administration attended the forums, which were held remotely through the Zoom meeting platform in Fall 2020. As with the comments and suggestions from previous bench-bar conferences and forums, the reports of the 2020 Civil, Criminal, and Family Law Forums were reviewed and considered by me, our
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COVID-19 RESPONSE The COVID-19 pandemic has undoubtedly changed the way the Judiciary operates, and we strive to balance both the importance of effectively administering justice and the interests of public health and safety. A significant portion of the discussion in all three Forums was dedicated to how the Judiciary is handling the pandemic. While many in the bar have responded positively to the expanded use of technology and remote proceedings, the forum discussions raised legitimate concerns about the integration of remote proceedings into court business. In April 2020, I established the Committee on Operational Solutions (“COS”), which was tasked with increasing the capacity to conduct court business remotely and developing a plan to return to normal operations safely. Under the direction of subcommittee chairs Judge Paul Wong, Judge James Ashford, and Judge Sherri Iha, the Judiciary was able to implement remote hearings quickly in courts across the state, lessen the impact of the digital divide on self-represented litigants, and create a reopening strategy. I would like to thank the committee members, court administrators, and judiciary staff for their ongoing support to effectuate the widespread use of remote hearings. I want to extend special recognition to Judge Paul Wong for his strong leadership throughout this process, and to HSBA President Levi Hookano, former HSBA President Gregory Frey, and HSBA Executive Director
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Pat Mau-Shimizu for ensuring that the voices of the bar are heard. The ability to conduct court business remotely has advanced access to the courts, and since August 2020, the Judiciary has conducted over 200,000 remote hearings. Looking toward the future, the COS will focus on the sustainable integration of remote proceedings into Judiciary operations, and Judge James Ashford has taken over as chair for this second phase of the Committee’s work. Thank you to Judge Ashford for his leadership. The COS will thoughtfully examine both the advantages and challenges associated with the use of remote hearings before making recommendations by the end of this year. The input of the bar will be critical to formulating those recommendations. In April 2021, a questionnaire was sent to active HSBA members to gather feedback on the Judiciary’s video remote court hearings. There were 419 total responses, representing practitioners in all four circuits and the courts of appeal. Of these 419 responses, 387 or 92% had appeared remotely. 88% of respondents who had appeared remotely rated their overall experience with remote proceedings as positive. 95% of the respondents thought remote proceedings should become permanent in some fashion, and 69% of respondents wanted remote proceedings to apply – either presumptively or optionally – in “as many court matters as possible.” We are encouraged by these results, which demonstrate support for the continued use of remote hearings in Hawai‘i courts. At the same time, the comments and concerns shared in the survey were thoughtful and constructive. The COS is carefully reviewing this feedback as they formulate their recommendations. One of the comments that was frequently made both during the Law Forums and in the HSBA survey was the preference for the courts to use a single video communications platform for all remote hearings. I am pleased to share that as of July 2021, Zoom has become the platform used in all circuits. This change has established uniformity across the Judiciary and will allow the COS to recommend standard procedures and consistent instructions for court users. Since the Forums took place last year, the courts have gradually increased the amount of in-person proceedings around the state. We review the Centers for Disease Control and Prevention guidance and consult with Hawai‘i State Department of Health (“DOH”) on a regular basis to ensure appropriate precautions are in place. As we strategically expand in-person proceedings, it is of the utmost importance to me that the Judiciary’s actions continue to protect the health and safety of the public, attorneys, and our employees. In January 2021, the First Circuit Court empaneled six
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grand juries at the Hawai‘i Convention Center. Holding grand jury selection at this new location offered sufficient space for the physical distancing of potential jurors. This was a tremendous undertaking that took months of planning and could not have happened without the efforts of Judge Shirley Kawamura and the Criminal Assignments clerks. As a result, grand jury proceedings have continued uninterrupted this year on an adjusted schedule. Furthermore, jury trials have resumed in all circuits. These have included lengthy trials that spanned multiple weeks, high-profile cases, murder or other felony cases, and some civil trials. The judges, court administrators, and staff have come up with creative solutions that enable us to conduct in-person jury trials safely. As of June 15, 2021, we have conducted 73 jury trials statewide. At Ka‘ahumanu Hale in the First Circuit, one of these innovations was prompted by the need to convene large jury panels and maintain physical distancing. Jurors were provided with tablets and ear pieces that broadcast live audiovisual coverage of jury selection proceedings in the courtroom. This permitted the jurors to participate in the selection process from other locations throughout the courthouse. Another barrier relating to limited space in the courtrooms was overcome by adapting the Jury Pool Room so that it can be used to hold trials for cases with numerous parties or co-counsel. Our courts are utilizing pre-summons questionnaires, which serve the dual purpose of informing jurors of the precautionary measures that the courts have in place and allowing them to alert the court in advance if they are unable to serve. Overall, the response from jurors who have been selected has been positive. Many reported that they felt a heightened sense of responsibility to fulfill their civic duty during these unprecedented times. Family Court regularly uses remote hearings as well. However, certain types of cases involving child welfare, juvenile matters, and other sensitive case types are being held
Mediator, Arbitrator, in-person. All hearing times are staggered to facilitate proper physical distancing. Our neighbor island courts face additional challenges in dealing with the effects of COVID-19. Judges in these circuits preside over both civil and criminal calendars, which complicates scheduling and the ability to resolve backlogs caused by the pandemic. But we are excited to welcome new judges in each of these circuits. In the Second Circuit, Judge Christopher Dunn and Judge James Rouse were sworn in on March 25, 2021, as District Court Judge and District Court Family Judge, respectively. By filling these positions, we have increased the capacity to adjudicate the geographically-dispersed and high-volume of cases in the circuit. On December 17, 2020, Judge Stephanie Char was sworn in as District Family Court Judge of the Fifth Circuit. Creating this new judicial position has transformed the distribution and management of cases on Kaua‘i. The Family Court caseload can now be shared between judges, which in turn has enhanced the ability to manage other court calendars efficiently, in particular the District Court civil docket. Most recently, Judge Jeffrey Ng was sworn in as District Court Family Court Judge in the Third Circuit on May 5, 2021. We are grateful to the Legislature for funding the new Fifth Circuit position and to the HSBA for supporting the Judiciary’s efforts to fill these vacancies. There has been a great deal of change in the past year. I am grateful to all of the judges and Judiciary staff who worked tirelessly and innovated to adjust to the challenges of the pandemic. Thanks to their hard work, we have been able to continue the courts’ vital functions while protecting the safety of all court users. I also want to thank the members of the bar for their ongoing flexibility and cooperation as we navigate through these uncertain times together. Now, more than ever, your
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engagement on these issues will help the Judiciary find the right path forward. CIVIL LAW FORUM The 2020 Civil Law Forum covered various topics involving Judiciary Electronic Filing and Service System (“JEFS”) Implementation, District Court, and Civil Justice Improvements. The initiation of Civil JEFS before the pandemic proved to be an essential asset in the Judiciary’s ability to sustain operations. I would like to acknowledge Judge Gary Chang and the Civil JEFS Committee, as this important accomplishment was a direct result of their diligent efforts. However, we are always looking for ways to improve. Participants in the Civil Law Forum proposed modifications to JEFS and raised questions about the level of technical support available to users. The JEFS Team consistently works to fine tune the JEFS system and has received more than 600 enhancement requests. The JEFS Team collects feedback from stakeholders and prioritizes these suggestions by need and technical difficulty to complete. For case-specific filing assistance, attorneys can contact the JEFS Help Desk in each circuit directly. The contact numbers and e-mails for the different courts can be found on the Judiciary website, along with a link to JEFS training videos available on the efiling page at https://www.courts.state.hi.us/legal_references/efiling. Another point of conversation revolved around the District Courts, which serve a large number of self-represented litigants. In the First Circuit, the Honolulu District Court Civil Working Group was formed to consider the unique needs of these court users and coordinate the civil court calendars for both remote and in-person hearings. This group is comprised of judges, court staff, civil practitioners from different practice areas, and other community
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partners. Recently, they have been discussing case management and eviction diversion strategies in anticipation of an influx of summary possession cases once the Governor lifts the eviction moratorium. Along the same lines, Act 57 was signed into law on June 16, 2021, and sets forth a process that encourages resolving these cases before filing. It extends the period for a notice of termination of a rental agreement from five days to fifteen days, and requires landlords to engage in mediation prior to filing an action for summary possession. To assist with this new case flow, the Working Group has been coordinating with mediation providers, and the District Court of the First Circuit has started attaching a “Free Legal Resources” flysheet to all summary possession and ejectment summonses. Another new development that will help to mitigate the backlog of cases caused by the pandemic at our District Courts is Online Dispute Resolution (“ODR”). ODR was designed with selfrepresented litigants in mind and refers parties to complete mediation online before they appear in court. In Summer 2021, ODR had a soft launch in the First Circuit for small claims cases, with plans for statewide release by 2022. This program offers an alternative way for people to resolve disputes without having to come to court, which is particularly appealing amid a public health crisis. The final section of the Civil Law Forum Report was devoted to an update on the improvements to the civil justice system. Many thanks to all the members of the Task Force on Civil Justice
Improvements, and particularly Chief Judge Craig Nakamura (ret.), for all the work they did to further this initiative. On October 8, 2020, the Hawai‘i Supreme Court promulgated amendments to Rules 3, 4, 12, and 12.1 of the Rules of the Circuit Courts of the State of Hawai‘i (“RCCH”), adopted new RCCH Rules 12.1, 12.2, 12.3, and 15.1, promulgated amendments to Rules 16, 16.1, 26, and 29 of the Hawai‘i Rules of Civil Procedure (“HRCP”), and adopted new HRCP Rule 16.1 as recommended by the Task Force. In December 2020, the Committee on the Implementation of Rules Promulgated for Civil Justice Improvements was established to ensure the smooth implementation of these new rules. The rule amendments were initially scheduled to be effective on January 1, 2020, but this date was ultimately extended to January 1, 2022. The Committee requested additional time to account for the substantial civil trial backlog caused by the pandemic, propose further rule amendments, finalize internal procedures, and draft appropriate forms to facilitate a seamless transition. The Judiciary remains committed to streamlining the civil litigation process, which will reduce costs and increase efficiency. In collaboration with the HSBA, we are planning to host two days of Civil Rules Town Hall webinars in November 2021 to familiarize practitioners with the new process. I deeply appreciate Committee Chair Judge Jeanette Castagnetti and all of the members of the Committee for their dedication and determination to see this project through to its realization.
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CRIMINAL LAW FORUM The Criminal Law Forum featured panel discussions on issues concerning the scheduling of hearings and coordination of ancillary services. In addition, attendees of the Forum engaged in a meaningful dialogue on considerations specific to criminal practice, such as preserving constitutional rights of defendants who are in custody. Participants of the Criminal Law Forum raised concerns about the level of community supervision and other services that the Adult Client Services Branch (“ACSB”) provides. At the beginning of the pandemic, some of these services were temporarily reduced due to the rise in COVID-19 cases and other restrictions. Since then, ACSB in the First Circuit has modified their procedures to better engage with and supervise clients. The ACSB probation officers, court officers, and social workers now use many forms of communication to keep in contact with clients. This includes face-to-face interactions with plexiglass barriers, WebEx video communications, telephonic contact, e-mail, and drop boxes. At present, they are working towards accommodating limited in-person meetings with proper sanitation and protection measures in place. The Adult/Juvenile Community Service Restitution Unit established a Virtual Community Service option for its clients, which has been a helpful additional option. This innovative
program consists of two tracks: virtual learning and virtual volunteer work. The virtual learning track involves a series of modules that are specifically tailored to the offenses charged. Each module concludes with a test that assesses how much was learned. To supplement these educational lessons, this track also encompasses practical skills building, like resume writing. The volunteer track offers online volunteer work transcribing letters and documents with the Smithsonian Institution. The virtual program has helped those sentenced to community service meet their obligations even as in-person programs have been curtailed during the pandemic. Justice-involved individuals who present with mental health disorders are not always served by the traditional model of criminal justice. In 2019, the Judiciary partnered with Governor David Ige and the DOH to host a mental health summit to find better ways to address the needs of this vulnerable population. This collaboration led to the passage of Act 26, which provides an alternative solution for defendants who are charged with a non-violent petty misdemeanor when fitness is in question. Under Hawai‘i Revised Statutes §704-421, these defendants are committed to the custody of the DOH for an expedited examination process that takes approximately 10 days to reach a determination of fitness and disposition of the case. This expedient timeline helps avoid the longer and more costly stays in jail and at the Hawai‘i State Hospital following the normal case flow, which can take up to 90 days. Moreover, as a part of this new process, offenders are referred to treatment or connected with peer support and other resources. Since its inception, Act 26 has been applied to 58 cases so far. My deep appreciation goes out to Judge Kenneth Shimozono and Dr. Amy Curtis, of DOH’s Adult Mental Health Division, for spearheading execution in the First Circuit, along with the Department of the Prosecuting Attorney and the Office of the Public Defender, who have also contributed to this promising diversion program. Act 26 is a prime example of what can be accomplished when community partners work together toward a shared goal. I hope to carry this momentum forward as we look to expand to the Third Circuit, where we are in the initial stages of identifying appropriate treatment facilities for these commitments in Hilo and Kona. Lack of access to inmates in Department of Public Safety (“DPS”)
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custody was reported as a persistent problem. We have worked closely with DPS to make improvements in this area, such as by reinstating custody transports. Although the number of transports per week are limited, when utilized in conjunction with videoconferencing, it has considerably enhanced accessibility to defendants in custody. The Judiciary will continue to coordinate with DPS to facilitate connecting inmates with the courts and counsel. Lastly, in August 2020, the Hawai‘i Supreme Court issued court orders that temporarily suspended requirements or extended time relating to Hawai‘i Rules of Penal Procedure (“HRPP”) Rules 5, 6, and 10. While some of the orders have been extended, the temporary time extension relating to HRPP Rule 5(c)(3) has since expired. These temporary rule amendments are continuously evaluated by the courts based upon the Governor’s Emergency Proclamations, and as such are subject to change. I encourage the members of the criminal bar to be mindful of this and monitor this evolving situation. All court orders and rules can be found on the Judiciary website.
advice to the public. In May 2020, the Kapolei Access to Justice Room transitioned to offer these services over Zoom twice a month. The Ho‘okele Family Court Self-Help Desk is currently accepting appointments for this service through the end of the year. Language translation is also available if the need arises, and thus far we have supported translation in Tagalog, Korean, Japanese, and Swahili. The client satisfaction survey results have been overwhelmingly positive and highlight the importance of these types of initiatives. Finally, the pandemic has only underscored the need to expand efiling to our Family Courts, and I am pleased to report that the JEFS Team has been working diligently in preparation for JEFS to go live for Civil Family cases on April 25, 2022. The Family Court context poses unique challenges to electronic filing, which the JEFS Team have been carefully working through, but I appreciate the patience of the Family Court Bar as we draw closer to reaching this significant achievement. The JEFS Team is developing training sessions and user manuals that will be available to family court users before the launch date.
FAMILY LAW FORUM The 2020 Family Law Forum touched upon a number of subjects pertaining to access to justice and alternative dispute resolution, together with sessions devoted to “hot tips” from the bench and bar. One of the sections of the Family Law Forum report encouraged the use of mediation and arbitration to resolve family court cases, and emphasized the importance of leveraging legal resources for self-represented litigants. During this time when less in-person business is being conducted at our courthouses, availability of legal advice and information has become even more critical. Over the past year, the Judiciary has made it a priority to maintain these services to self-represented litigants with appropriate adjustments. The Hawai‘i Supreme Court Law Library is now open to the public by appointment every day. It has accommodated over 400 in-person appointments since August 2020. We have also instituted a virtual reference desk option and have responded to more than 1,100 inquiries to assist with legal information questions by e-mail and telephone. In addition, we have added a “Live Chat” function that is available daily from 1pm to 3pm. The virtual reference desk is accessible on the Hawai‘i State Library website at https://histatelawlibrary.com/home/virtual-reference-desk/. Another resource that is available to self-represented litigants is the Family Court Kapolei Access to Justice Room, where through a partnership with the HSBA Family Law Section, volunteer attorneys provide free limited legal
CONCLUSION In closing, I thank all the Forum participants for their commitment to improving the administration of justice in Hawai‘i. We truly appreciate this opportunity to listen to the perspectives of the bar and are devoted to using this feedback constructively. While the pandemic created many challenges, it has also presented an opportunity for us to adapt and make positive systemic changes for the future. The Judiciary looks forward to further collaboration with the bar on these and other important topics in the coming years.
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s n d o i t l a r i e d i s Ch Custody Con
in a a r E 9 1 D I V O C s t h g u o h T d n a by Tom S. Tanimoto I. Introduction Since early 2020, the medical and scientific community has, and will continue to be focused on preventing, treating and ultimately eradicating COVID-19 which is caused by a very contagious1 virus termed SARS-CoV-22. Meanwhile, mankind has undergone worldwide imposed mandates such as mask wearing and social distancing, amidst varying and prophylactically enacted country, state and municipal lockdowns which have undoubtedly, adversely affected businesses, and thereby the economy. Across our country, on a more localized familial level, the concerns and fears of COVID-19 transmission and infection have likely engendered friction between separated, divorced or divorcing parents as to the matter of child-rearing. Eventually, such unresolved tension disintegrates into a contested custody case where parents seek court orders either enforcing visitation that has been unilaterally curtailed, or drastically reducing, if not eliminating such visitation. While some cases are appropriately grounded in a protective basis, others find their genesis in pre-textual opportunism. It must be mentioned that there have been several newsworthy cases of parents losing custody for COVID-19 related reasons, such as an emergency room doctor (the order specific to that case having been later quickly stayed) or a mother who eschewed wearing a mask.3 However, based on the discussion below, it would seem that any dramatic
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e r u t u F e h t r fo judicial rulings would arise more as a result of a purposeful (or recklessly ignorant) conduct or omission that contravenes government directives or court orders and needlessly elevates the risk of infection (such as wholly and blatantly failing to wear masks or engaging in mass gatherings), rather than because an individual was simply doing one’s job. Whatever the motive, there are a host of reasons spurring COVID-19 custody litigation, including, but not limited to, claims of high community infection rates, excessively social parental behavior, government restrictions, quarantines, and inadequate safeguards at home. The court in S.C. v. Y.L., 2020 N.Y. Slip Op. 50590, (N.Y. Sup. Ct., May 18, 2020), set forth what is arguably a preamble to COVID-19 family law litigation. In this case, a father was unable to see his children since the COVID-19 pandemic took hold, id. at 1, and the Court proclaimed, “[p]utting COVID19 into the equation has only added a new element of conflict, as it has in innumerable other matrimonial cases where it has impacted the ability of divorced and divorcing parents to see their children.” Id. at 2 (fn. omitted). One cannot imagine a scenario where the common cold would be comparably spoken of. Simply put, COVID-19 is an illness which must be taken seriously. The Centers for Disease Control (“CDC”) has stated that “[w]hile children infected with SARS-CoV-2 are less likely to develop severe illness compared with adults, children are still at risk of developing severe illness and complications from COVID-19 . . . . Similar to adults, children with severe
COVID-19 may develop respiratory failure, myocarditis, shock, acute renal failure, coagulopathy, and multi-organ system failure.”4 Nonetheless, as will be discussed herein, “[t]he COVID-19 pandemic is not generally a reason to deny parenting time.”5 Given the state of current events, a look at COVID-19 in the realm of child custody seems apropos, and although COVID-19 per se is a new disease in the world of medicine and the law, it is (perchance) surprisingly, not a new concept where a communicable and dangerous ailment is a factor in child custody/visitation cases. We will therefore present some salient thoughts pertinent to COVID-19 custody litigation by way of an analysis of relevant case law with analogous circumstances, i.e., where an infectious disease was a dispositive factor or consideration in various situations. In section II, the Hawaii benchmark test for child custody/visitation cases will be set forth, namely, what is in a child’s best interest? Section III covers various potential scenarios underlying custody disputes, namely, the minimization of infection to a child from either the general public, or from an infected parent, as well as the case where a child is infected. It should be noted that although the State of Hawaii, given its isolated location in the middle of the Pacific Ocean, has a lower number of confirmed COVID-19 cases compared to many other states, the analysis would likely not differ, as the cases will reveal. 6 Section IV discusses guidance for custody litigation pertaining to the propriety of administering COVID-19 vaccinations to minor children. Section V touches on litigation arising out of future pandemics, should they occur. Finally, Section VI presents closing thoughts. II. Best Interests of the Child under Hawaii Law Consideration of the best interests of the child is tantamount to a categorical imperative when a child custody/visitation matter is at hand. Haw. Rev. Stat. § 571-46(b) sets forth sixteen (16) factors which the court “shall consider, but not
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be limited to . . . .” Id. 7 The factors pertinent to the analysis herein are subsections (b)(6) and (b)(8), the former pertaining to the physical health needs of the child and the latter, the safety needs of the child. The cases to be discussed, to no surprise, focus on the above points; namely, the child(ren)’s health and safety, while the judicial rulings therein countenance the acquisition of all pertinent information, leading to court-ordered implementation of safeguards when necessary, often in conjunction with government mandates. Furthermore, the decisions thematically caution parents to refrain from emotionalisms. III. Various Scenarios A. Minimizing the Risk of COVID-19 Infection to a Child Most cases will undoubtedly involve the situation where parents understandably seek to minimize the risk of COVID19 infection to their child(ren). In S.C. v. Y.L., a parent was unable to see his children due at least in part to the COVID-19 pandemic, and in determining a remedy, the court issued an interim order to “have social workers from Comprehensive Family Services, an independent family support agency, physically present to supervise the mandated transfers of the children from one parent to the other. [The court further stated that this] will serve to facilitate the transfer process, help allay any concerns that either child may have about going to plaintiff ’s home – especially any COVID-19 related fears that the Defendant may have stoked – and allow the issuance of firsthand objective reports that will assist [the court] in making further determinations.” Id. at 2 (fn. omitted). This is a patient approach and seeks to fact-find while instituting safeguards. A similar analysis and decision is embodied in Jennifer R. v. Lauren B., 2020 N.Y. Slip Opinion 20094 (N.Y. Fam. Ct., April 22, 2020), where one parent claimed that the minor child would best be served by staying in New Jersey and not with the other parent who lived in New York due to a lower risk of infection in the former state, id. at 3, but according to the court, said claimant failed to “cite anything specific [the other party did] to place the child at risk of exposure to Coronavirus or otherwise.” Id. at 4. Their dispute notwithstanding, the parties were able to communicate well and formulated a protocol whereby they transported the child by car and reduced the frequency of visitation exchanges with the objective of lowering the risk of exposure or transmission. Id. The court proceeded to speak approvingly of the parties’ plan and “require[d] that they comply with the government directives in terms of enforcing social distancing, using cloth face coverings and gloves for the Child, avoiding contact with vulnerable populations, and using precautionary sanitizer practices.” Id. at 5. Yet again in Samantha G.S. v. Jonathan G.B., 2020 N.Y. Slip Op. 51530, (N.Y. Fam. Ct., Nov 20, 2020) at bar was a relocation matter where the court considered a teenage child’s concerns about remaining with his mother in the event father’s request to relocate was denied. Such concerns included her
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“purported failure to comply with COVID precautions” id. at 5 (internal citation omitted) as well as her “lack of compliance to conventional medical advice after he allegedly became very ill when she failed to timely take him to a doctor.” Id. Ultimately, the court allowed the child to relocate with his father after considering the former’s concerns, along with other factors. B. Where a Parent is Infected with COVID-19 Should a parent actually be infected with COVID-19, then, the case of Thompson v. Thompson, 298 P.2d 866, 142 Cal. App.2d 741, (Cal. App. 1956) is instructive. The issue at hand in Thompson was an appeal from an order modifying the terms of a divorce decree which initially granted mother “exclusive custody of the minor child without visitation rights upon the part of the respondent father.” Id. at 867, 142 Cal. App.2d at 742. It is pertinent to the analysis that the Decree was entered at a time when “father was suffering from active tuberculosis but the disease is now arrested and non-contagious.” Id. The Decree was ultimately modified “awarding the custody and control of the minor to the parties jointly and giving the [father] physical custody of the minor during July and August, and monthly visitation rights.” Id. The appellate court affirmed the trial court’s decision by stating that although the mother argued that there was no material change in circumstances, id. at 867, 142 Cal. App.2d at 743, “[a]t the time of the original custodial award, [father] was ill and not only unable to care for his child but any contact with her would have been dangerous due to his infectious condition. He has now regained his health and there is no physical risk attendant upon contact between the two.” Id. (emphasis added). The Thompson court evinced no hesitation in emphasizing the importance of distancing the child from her then tubercular father. Compare D.M.B.T. v. M.A.T., 83 So.3d 3 (La. App. 2011) with Stewart v. Stewart, 521 N.E.2d 956 (Ind. App. 1988) and Jane W. v. John W., 137 Misc.2d 24, 519 N.Y.S. 2d 603 (N.Y. Sup. Ct. 1987). In all three cases, the matter at bar concerned the question of whether a parent should be denied visitation rights with a child because that parent was infected with HIV/AIDS. In Stewart and Jane W., the courts approvingly considered visitation so long as precautions were taken such as not sharing utensils, toothbrushes or razors, and cleaning up spilled bodily fluids with bleach. Stewart, 521 N.E.2d at 966 (citing Jane W., 519 N.Y.S.2d at 604). In addition, after considering the evidence and testimony of the infected individual’s physician, the court held that “the possible transmittal of the AIDS virus should play little if any role in determining . . . visitation . . . [] [because] the defendant being a health-care worker is intimately aware of the precautions he must take to protect his family and friends.” Jane W., 519 N.Y.S.2d at 605. “Many parents suffer from varying degrees of handicaps and illnesses. Yet these parents cannot be deprived of all visitation with their children merely because some danger exists. The level of danger must be examined, and appropriate precautions taken.
Only in this way can both the parent’s visitation rights and the child’s health and welfare be fairly and fully protected.” Stewart, 521 N.E.2d at 965 (emphasis added and internal fn. omitted). As a contrast, in D.M.B.T., the Court stated that the “totality of the record reveals an overall disregard on the part of the father for the severity and seriousness of his condition. In light of the magnitude of the end result (possible infection of the children), if this situation is not regarded with the utmost seriousness, we feel constrained to agree with the trial judge that supervised visitation continue at this juncture. Visitation should be supervised at least until the trial judge determines that the children are old enough to be told of the father’s medical condition and are mature enough to extricate themselves from any situation that may pose a risk of exposure to the virus.” D.M.B.T. 83 So.3d at 7. The cases discussed and analyzed hereinabove reveal that so long as there is a palpable risk of contracting an infectious disease that can adversely affect the health and wellbeing of a child, that potentiality is (and probably should be) a dominant factor in custody/visitation determinations in the best interest and general welfare of the child(ren). It follows that the higher the risk of transmissibility, lethality or resultant life-altering long-term damage to one’s health, the greater the precautions necessary, even to the point of suspending visitation. Notably, many years ago in the Territory of Hawaii, leprosy was a serious concern, such that the government imposed tight restrictions on inter-familial contact, and went so far as to statutorily deem a child born to parents, either or both having leprosy, a ward of the Territory such that the board of health could allow a child to “reside with its nonleprous parent, provided such parent is capable of caring for, educating and maintaining such child. . . .” In re Corpus ex rel. Kaelemakule, 32 Haw. 731, 732 (Haw. Terr. 1933) (internal quotation marks omitted). See also, Jacobson v. Mass., 197 U.S.11(1905) (discussing police powers mandating smallpox vaccinations). More recently, the Supreme Court of Kentucky issued an Amended Order In Re: Custody and Parenting Time Orders 2020-65, on September 15, 20208 which recognizes that existing child custody orders remain in full force and effect, except that “reasonable accommodations shall be made to account for extenuating circumstances related to the COVID-19 emergency” to include a mandated temporary modification of such orders resulting in a suspension of parenting time for 14 days should any parent or someone who that parent lives with: (1) test positive for COVID-19, (2) was possibly exposed COVID19 (3) or if said parent has travelled to a state or country with a positivity rate of greater than or equal to 15 percent. Id. With respect to COVID-19, the CDC’s guidance as of October 30, 2020 is in accord with the rulings discussed above as it recommends that children be safeguarded from infection by avoiding physical contact with infected caregivers. 9 In the case of older children, “[f]or the child to safely have no interaction with the parent or caregiver, the child should be old enough to legally be home alone and mature enough to care
for themselves.” Id. However, in the case of younger children, “[i]f the parent or sole caregiver will be caring for the child while sick, they should contact the child’s healthcare provider for advice on how to best protect the child from infection.” Id. Additional guidance is provided, including, but not limited to wearing masks as appropriate, washing hands, maintaining social distancing, increasing ventilation in the household, disinfecting items provided to the child, and monitoring symptoms of both the child and parent. Id. It cannot be emphasized enough that maintaining contact with both the parent and child’s respective physicians in terms of guidance as to safeguards is paramount. Id. However, even if such caregiving is meticulously proscribed, parties must consider whether it will violate public policy or even be illegal, in the face of governmental mandates that invariably require COVID-19 positive individuals to maintain a strict quarantine. Given the state of technology today, alternatives to actual in-person visitation such as contact via phone, email, text, or video is readily and easily available and should be granted liberally.10 C. If a Child is Actually Infected with COVID-19 and Related CDC Guidance Thus far, the analyses presented, focus on the underlying custody and/or visitation determinations where children were supposedly at risk of infection, either from the general public or parent(s). However, we must briefly discuss the undesirable yet very plausible scenario where a child is infected with COVID19, and the parents disagree as to who will provide care. It seems reasonable to assume in such a case, that there would be few, if any deviations from the standard best interest of the child analysis for the very fact that children will from time to time require parental care after falling ill due to a host of conditions ranging from the common cold to fatal cancers. The threshold question would be which parent (if not both) is better able to care for such a child, and according to the CDC, caring for someone infected with COVID-19 requires that particular attention be paid, given its contagious nature.11 It should be noted that if one parent or someone in that parent’s household is severely immune-compromised or has an underlying health condition, that person may be a candidate for reduced or even proscribed contact with an infected child given the studies that indicate increased risks for such individuals.12 It is recommended by the CDC pursuant to its guidance updated December 2, 2020 that amongst a host of varying protocols, the child be monitored for symptoms and any exacerbation of same, wear masks if, and as appropriate, maintain hydration, and the like. The parent should be cognizant of his/her exposure to an infected person (i.e., the child) and follow all CDC protocol as well, to include isolation. Id. If there is more than one child in such a situation, prudency would dictate that any uninfected child(ren) who cannot appropriately follow safeguards be temporarily separated from any affected child(ren). Nonetheless, the advice of the child’s pediatrician as to caregiving should again, be given top priority and consideration.
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IV. Legal Custody Disputes Concerning the Administration of Covid-19 Vaccines and Treatments COVID-19 vaccines have been announced13 and one has been approved for emergency use in individuals age 12 and older, and many more, may soon receive full approval by the Food and Drug Administration (“FDA”).14 As a result, there may soon be litigation brought by concerned parents whether to vaccinate one’s child, which would in the State of Hawaii, qualify as a legal custody decision according to the Hawaii State Bar Association, 2015 HAWAII DIVORCE MANUAL, § 3 at 5 (William A. Darrah, Esq., ed., 9th ed.).15 There may even be litigation on the type of treatment to be administered to a child afflicted with COVID-19, however, the analysis would likely not differ, and therefore, the focus will be on the matter of vaccination. Although the above-cited vaccine’s narrow age-appropriate indication for use in children currently limit the field of potential legal custody disputes, we hope that eventually, everyone will be able to benefit. In any event, in addressing vaccination disputes, it is vital that both parents have and share necessary information and remain flexible, while concurrently weighing risks with a calm, cool head and not quickly jump to uninformed conclusions. This is not a simple task in times of financial and medical instability and uncertainty, but parents must try to do so in good faith in the best interest of their child(ren). In SM. L v. WJ. G, Case No. 19-04147 (Del. Fam. Ct. Sep. 19, 2019), the lower court ordered that in the case of medical decisions, in the face of a dispute regarding vaccinations, amongst other disagreements in the broad area of medical care (Mother preferring naturopathic treatment), the parties were to discuss the matter and then rely on the recommendation of a jointly selected pediatrician. Id. at 24-5. The court further noted that “. . . Father must understand Mother’s preference for naturopathic treatment. Western medicine is not the only effective treatment for ailments and the parties should discuss these issues openly. Mother should broaden her research and not be as inflexible on treatment.” Id. In Lillig v. Lillig, 2018 Il. App (5th) No. 5-18-0018 (Ill. App., Sep. 5, 2018), the trial court found that a mother’s handling of the children’s medical care was haphazard and uniformed, and as a consequence, awarded decision making authority solely to Father. Id. at 35-6. “The court observed that instead of following the advice of the girls’ pediatricians, [mother] had sought out alternative remedies without first considering their relative value or proven effectiveness.” Id. at 35. Father on the other hand was deemed to defer too much to the standard of care but nonetheless, that would be more likely to result in the children having good medical care without going overboard. Id. at 35-6. Further, in Grzyb v. Grzyb, CL 2008-4659, (Va. Cir. June 12, 2009), the court considered medical evidence from an expert witness (i.e., a pediatrician from Johns Hopkins University trained in epidemiology, preventive medicine and infectious
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diseases) when analyzing the issue of which parent was best suited to be awarded decision making authority in the face of their ongoing dispute whether to vaccinate their child. Id. at 6. The expert’s testimony was centered on the notion that the risks related to vaccinations outweighed the risks posed by the diseases they were designed to protect against, and therefore, the court determined that “the child would benefit if she received routine vaccinations.” Id. The court also found that the child’s mother was more involved in terms of the child’s medical circumstances via communication with a pediatrician and she was the one who “has thoughtfully and fully explored each medical issue that has arisen in the child’s life.” Id. at 7. Ultimately, “[w]hat the child most needs on the critical issue of medical and health matters is consistent, conscientious and thoughtful decision-making.” Id. at 8. In light of the foregoing, it is not unreasonable to expect that court decisions governing legal custody and vaccinations would necessarily be supported by the reports of pertinent government agencies such as the CDC and FDA, as well as the medical and scientific communities, but as is the case of balancing the risk of a COVID-19 infection while allowing maximum parental contact with a child, it would seem advisable, if not mandatory, to look to the child’s very own pediatrician and other relevant medical care providers for comments and recommendations, as they are no doubt, most familiar with the child(ren)’s medical history. V. The Future and the Next Pandemic Whether it be another pandemic or an isolated incidence of a communicable and potentially dangerous disease, the cases discussed herein each provide some guidance and thoughts to best navigate what are already, emotional and sometimes very complex, custody issues. They also prompt a look at parental behavior that is consistent with a desire to safeguard their own health as well as the health of their child(ren), alongside a review of pertinent expert information and recommendations regarding the circumstances and relevant factors at hand. Whether it is a parent or child who risks infection or is infected, the cornerstone of all custody/visitation matters goes to the best interests of the child(ren) with the ultimate goal of optimizing both parent’s involvement. Moreover, the continuing advances in science and medicine, alongside lessons from the COVID-19 pandemic will likely generate sufficient information to assist parents and the courts when the next pandemic driven litigation arises. VI. Concluding Thoughts COVID-19 has indeed changed the landscape of society and fostered a new normalcy. Many businesses have closed, economies have been damaged, remote employment and education (or more colloquially known as “work at home” and “distance learning”, respectively) have become commonplace and cabin fever is rampant. On a more fundamental level, handshakes and hugs are virtually taboo. In general, life is
hard. The last thing people need in their lives is COVID-19 based litigation. Whether in or out of court, parents engaged in such disputes should maintain an air of amicability and optimism by keeping in mind, seven points set forth by a host of professionals affiliated with the Association of Family and Conciliation Courts or the American Academy of Matrimonial Lawyers.16 1. Be Healthy. Id. 2. Be Mindful. Id. 3. Be Compliant. Id. 4. Be Creative. Id. 5. Be Transparent. Id. 6. Be Generous. Id. 7. Be Understanding. Id. In closing, this author would ask all readers to stay safe from COVID-19. _________________ 1
How COVID-19 Spreads (Oct. 28, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html (stating that “[t]he virus that causes COVID-19 appears to spread more efficiently than influenza, but not as efficiently as measles, which is amongst the most contagious viruses known to affect people”). 2 Scientific Brief: SARS-Cov-2 and Potential Airborne Transmission (Oct. 5, 2020), https://www.cdc.gov/coronavirus/2019-ncov/more/scientific-brief-sarscov-2.html. 3 Rafael Olmeda, South Florida Sun Sentinel (Oct. 1, 2020, 9:01 a.m.), No mask, no child custody. COVID-19 is a new factor in family law, https://www.sun-sentinel.com/local/broward/fl-ne-covid-family-courtorder-20201001-dt65cwe3nrex5ltjwnjkh3ggqu-story.html; Fred Grimm, South Florida Sun Sentinel, (Apr. 17, 2020, 11:12 a.m.), Pandemic stress and fear have warped Florida values. Call it ‘plague ‘logic’, https://www.sun-sentinel.com/opinion/commentary/fl-op-com-grimmethical-tests-covid-19-pandemic-20200417-tjjofpdfrbaifhgsa5jqxl2limstory.html. 4 Information for Pediatric Healthcare Providers (Dec. 18, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/pediatric-hcp.html. 5 The Judicial Branch of Arizona, Maricopa County, Family Court Guidelines for Parenting Time of Children During the COVID-19 Pandemic, at 3, available at https://superiorcourt.maricopa.gov/media/6082/covid-19-and-parenting-plans-maricopa-county-revised-version-4-3-20.pdf. 6 Since COVID-19 is relatively new, case law is sparse and no cases on point from Hawaii appellate courts were discovered. 7 While we set forth the best interests of the child factors under Hawaii State law, the concept is arguably uniform in all the United States. The status of COVID-19 cases between two (2) parents who reside in different states while seeking custody of their child(ren) likely warrants a similar analysis. Based on the cases presented, it is not enough to assert that the state with lower COVID-19 cases should get the nod in a custody battle, albeit it is plausibly, one factor to consider. 8 Amended Order In Re: Custody and Parenting Time Orders (Sep. 15, 2020), available at https://kycourts.gov/courts/supreme/Rules_Procedures/202065.pdf. 9 Sick Parents and Caregivers (Oct. 30, 2020), https://www.cdc.gov/coronavirus/2019-ncov/if-you-are-sick/parents-caregivers.html. 10 See supra, note 6 at 2.
11
Caring for Someone Sick at Home (Dec. 2, 2020), https://www.cdc.gov/coronavirus/2019-ncov/if-you-are-sick/care-forsomeone.html. 12 People With Certain Medical Conditions (Dec. 29, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/people-with-medical-conditions.html. 13 Dr. Eileen Hilton, Covid Vaccines, (Hawaii State Bar Association, Senior Counsel Division Webinar, Dec. 3, 2020). 14 The Pfizer-BioNTech COVID-19 vaccine received emergency use authorization (“EUA”) on December 11, 2020 from the FDA for individuals 16 and older and such authorization was further expanded on May 10, 2021 to individuals age 12 and older. See U.S. Food & Drug Administration, Pfizer-BioNTech Covid-19 Vaccine, https://www.fda.gov/emergencypreparedness-and-response/coronavirus-disease-2019-covid-19/pfizer-bio ntech-covid-19-vaccine (article current as of May 11, 2021). A COVID-19 vaccine developed by Moderna Pharmaceuticals also received similar authorization on December 18, 2020 for use in adults (article current as of Dec. 29, 2020). See U.S. Food & Drug Administration, Moderna Covid-19 Vaccine, https://www.fda.gov/emergency-preparedness-and-response/coronavirus-disease2019-covid-19/moderna-covid-19-vaccine. There is also a single-dose COVID-19 vaccine available from Johnson & Johnson which received EUA on February 27, 2021, as amended on April 23, 2021 to include information about rare instances of blood clotting that were reported in a few vaccine recipients. See U.S. Food & Drug Administration, Jansen Covid-19 Vaccine, https://www.fda.gov/emergencypreparedness-and-response/coronavirus-disease-2019-covid-19/janssen-covid-19-vaccine (article current as of May 14, 2021) and FDA and CDC Lift Recommended Pause on Johnson & Johnson (Janssen) COVID-19 Vaccine Use Following Thorough Safety Review, https://www.fda.gov/news-events/press-announcements/fda-and-cdc-lift-recommended-pause-johnson-johnson-janssen-covid-19-vaccineuse-following-thorough (article current as of April 23, 2021). 15 As a side note, it should be mentioned that a case where only one parent is vaccinated should undergo an analysis similar to those set forth hereinabove, with a focus on preventative safeguards. The fact that a parent’s household was vaccinated (so long as all others living therein are also vaccinated) should however, be deemed one additional factor in such an analysis. 16 Susan Myres, et. al., Seven Guidelines for Parents Who are Divorced/Separated and Sharing Custody of Children During the COVID19 Pandemic, available at https://www.afccnet.org/Portals/0/ COVID19Guidelinesfordivorcedparents.FINAL.pdf ?ver=2020-03-17%20202849-133.
Tom S. Tanimoto practices almost exclusively in the field of family law as a partner with Coates Frey Tanimoto & Gibson, AAL LLLC, where he currently serves as its litigation supervisor while also being a member of the Board of Bar Examiners. After completing his legal education, he was law clerk to the presiding probate judge, the Honorable Colleen K. Hirai (Ret.). In 2018, he was chair of the HSBA’s Family Law Section and a fellow in the Leadership Institute. The author thanks his law partner, P. Gregory Frey and associates Robert S. N. Young and Shannon K. Hackett for offering their invaluable thoughts and comments throughout the drafting process.
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H SBA HAP PE NIN GS Board Actions The HSBA Board took the following actions at its meeting in June: • Adopted the Executive Committee’s recommendation to approve the request by the HSBA Diversity, Equality, and Access to the Law Committee to co-sponsor, in name only, the July 15 event of “A Conversation of Race in Hawaii,” a discussion by leaders from various sectors of the community; and • Adopted the Nominating Committee’s recommendation to appoint the current HSBA President to serve as the HSBA representative to the Joint Committee on Judicial Selection in response to House Concurrent Resolution No. 5, SD1, which calls for a report and recommendations by the Joint Committee on improvements to Hawaii’s judicial selection process.
2022 SCD Board Nominees In accordance with Article VI, Section 1 of HSBA Senior Counsel Division Bylaws, the SCD Nominating Committee publishes the following list of nominees for 2022 HSBA SCD Officer and Director positions. Ballots will be distributed in early October, and the election results will be announced at the HSBA Bar Convention in October 2021. President-Elect Gilbert C. Doles Vice President Chuck Crumpton Secretary: Scott Makuakane Treasurer: Michael Lilly
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Directors: Oahu (3) Ian L. Sandison Kenneth K.P. Wong Linda McKenzie Campbell Michael J.Y. Wong Scott Spallina Director: Big Island Charlene Iboshi Director: Kauai Johnathan Chun Director: Maui David Raatz The following Board Members will continue to serve throughout 2022: Gregory Lui-Kwan, Michelle Alarcon and Rosemary T. Fazio.
Member Benefits Spotlight Financial Services ABA Retirement Funds Program The ABA Retirement Funds Program (“the Program”) offers an employer-sponsored retirement plan. For over 55 years, the Program has been committed to providing the tools necessary to help all legal professionals achieve retirement security. The Program’s structure allows your firm to focus on the success of the practice while it provides the highest level of fiduciary oversight allowable through ERISA, reducing your fiduciary risk. The Program’s innovation provides an investment platform with options to allow for optimal choice and flexibility for your participants and a fully bundled service model, custom designed to meet the unique needs of your firm. Through the unique culture created between the Program and its partners, they aspire to help every law firm, lawyer and legal professional secure their financial
futures. Call them at (800) 826-8901 for a free consultation or go to https://www.abaretirement.com/welcome/ha waii for more information. Hawaii State Federal Credit Union HSBA members are eligible for membership with Hawaii State Federal Credit Union. Hawaii State FCU offers low rates on business loans and lines of credit, mortgages, home equity lines of credit, auto loans, and personal loans. Additional services include Free EChecking accounts, surcharge free access to over 400 ATMs statewide, free online and mobile banking, and much more. Call (808) 587-2700 or (888) 5861056 (toll free). Westpac Wealth Partners Westpac Wealth Partners is pleased to offer members of the HSBA an advising resource and council in areas of business continuity planning and exit strategies. Knowing how and when to buy, sell, or exit a law practice requires a team of dedicated professionals that can help you build a road map that puts you in the driver’s seat. Westpac Wealth Partners understands that the most valuable financial asset members of the HSBA have is their ability to earn income. They are pleased to offer a 10% discount on individual long-term disability insurance through Guardian. For more information, please contact Aaron Domingo to schedule your appointment at (808) 6952159 or via email at aaron.domingo@westpacwealth.com. IOLTA Bank of Hawaii Bank of Hawaii offers the Interest on Lawyers’ Trust Account (IOLTA)
Program, sponsored by the Hawaii Justice Foundation (HJF). This account enables attorneys to deposit their clients’ funds to an interest-bearing business checking account. At the end of each month, interest earned on these accounts are transferred automatically to the HJF, which uses the funds to sponsor charitable law-related projects in the State of Hawaii. Bank of Hawaii offers special account packages that can assist with your business needs. For inquiries, please contact Lono Kealoha at (808) 694-4152 or email BR001@boh.com. Central Pacific Bank The benefits of an IOLTA Checking account at CPB include: No minimum balance requirement; no minimum opening deposit; no monthly maintenance service fees; unlimited check writing; free business online; additional banking services, including transferring funds between accounts, mobile check deposit and viewing account statements and activity. To ensure your account opening goes smoothly, review our convenient checklist for the basic requirements needed for business entities. For more information, contact Lori Honda, Vice President and Senior Business Banking Officer, at Lori.Honda@cpb.bank or (808) 544-5414, or Glenn Ching, Chief Legal Officer, at Glenn.Ching@cpb.bank or (808) 544-3531. Office Support Access Information Management Access Information Management offers a complete suite of records and information management services, including records storage management, shredding
and destruction services, data protection services and digital access solutions. Call (808) 673-3200 or visit https://www.accesscorp.com for more information. Clio Clio’s industry-leading, cloud-based legal practice management, client intake plus legal CRM software streamlines law firm operations, improves productivity, and enables legal professionals to increase their revenues from one central location. With powerful tools for client intake, case management, document management, time tracking, invoicing, and online payments, Clio simplifies firm management so you can spend more time doing what you do best— practicing law. Approved by more than 66 bar associations and legal societies, Clio provides industry-leading security, 24/5 customer support, and over 125 integrations with legal professionals’ favorite apps and platforms, including Fastcase, Dropbox, Quickbooks, and Google Apps. Hawaii State Bar Association members are eligible to receive a 10% discount on Clio products. Sign up today online and use promo code: HIBAR eLaw Powered by ePayment America Use eLaw’s trust account compliant processing service to accept credit and debit card payments from your clients. Call (888) 221-2203 ext. 5904 for more information. LawPay Vetted and approved by all 50 state and more than 70 local and specialty bars, LawPay is proud to be the preferred payment partner of more than 35,000 law firms. LawPay provides attorneys with a simple, secure way to
accept online payments in their practice. LawPay understands the unique compliance and financial requirements placed on attorneys. Their solution was developed specifically to correctly separate earned and unearned fees, giving you peace of mind that your credit card and eCheck transactions are always handled correctly. For more than a decade, LawPay has made it as easy as possible for attorneys to receive payment for their services, and HSBA members receive a three-month free trial. To learn more, call (866) 376-0950 or visit https://lawpay.com/member-programs/hawaii-state-bar. Visit https://hsba.org/memberbenefits to obtain more information on the more than 70 member benefits available.
Discipline Notice NOTICE OF TRANSFER TO INACTIVE STATUS On July 13, 2021, the Hawai‘i Supreme Court transferred attorney Paul Herran to indefinite inactive status, effective immediately, due to incapacity pursuant to the Rules of the Supreme Court of Hawai‘i, Rule 2.19(b) and (c). Herran is no longer able to act as an attorney for any of his clients, and those clients must seek legal advice elsewhere. Herran, age 50, was admitted to the Hawai‘i bar in 2004 and is a graduate of the University of Hawaii, William S. Richardson, School of Law. In re Paul Herran, SCAD-210000394 (July 13, 2021).
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HSBA BOARD
2021 CANDIDATES
Biographies of the candidates in the election for the 2022 HSBA Board follow. Ballots will be distributed in early-mid September, and election results will be announced at the Annual Meeting at the virtual Bar Convention on October 15, 2021.
VICE PRESIDENT CANDIDATE Jesse Souki Dear Members of the Hawaii State Bar Association: “The Mission of the Hawaii State Bar Association is to unite and inspire Hawaii’s lawyers to promote justice, serve the public and improve the legal profession.” I am honored to be the Hawaii State Bar Association (“HSBA”) Nominating Committee’s pick for vice-president, and with your vote, allowed the honor to help advance HSBA’s mission. A strong candidate has a working knowledge of HSBA operations and governance. I have been active in HSBA for 17 years. I served in various leadership positions, including the Natural Resources Section (now the “Environment, Energy, and Resources Section”) as its program chair, treasurer, and then chair; the Continuing Legal Education Committee as a cochair; and the Nominating Committee. I have also enjoyed participating in various HSBA activities that reach out to the community, such as legal clinics and legal outreach to underrepresented communities. Leadership with experience leading an organization is an asset to HSBA. Having served as a director of agencies and programs, I have hands-on experience running an organization, from collaborating on vision and direction to strategic planning, budgeting, and deploying resources to accomplish goals and objectives. My work involved collaborating with private sector and nonprofit decision-makers, government leaders, and the community. Private and public sector experience counts.
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Effective leadership in any organization operating in Hawaii must navigate both the public and private sectors. I have had the opportunity to see both sides of the practice. I advised government leaders and decision-makers of county and state governments, and I advised clients in private practice. Strengthening the communities we serve leads to an equitable and efficient judicial system. HSBA’s work with the community can have lasting impacts on building community capacity and increasing civic engagement. I still have the handwritten thank you notes from Kauluwela Elementary School students after volunteering for the Junior Judges program. HSBA’s Junior Judges program, facilitated by the Young Lawyers Division, helps students make ethical decisions in response to challenges they face. Their notes are thoughtful and well-received—it gives one hope for the future. Like when young attorneys visited my classroom at Iao Intermediate School on Maui, these interactions broaden the horizon for young minds so that they too can someday help their families and serve their communities. I look forward to working with the leadership team you elect, HSBA’s office, and you, to advance HSBA’s mission. As a Hawaii public school and University of Hawaii graduate, and a first-generation lawyer, I particularly look forward to advancing HSBA’s goals related to increasing the availability of quality legal services to all who need them; recognizing and addressing the needs and problems of lawyers on each island; and educating the public about its legal rights and responsibilities, the legal process, and the role and responsibility of lawyers.
With your support, I will bring my desire to serve, experience, and dedication to the position. Take care and be well. TREASURER CANDIDATES Michael Cashman As a third-generation lawyer, my family has a proud tradition of community service. My father and grandfather were state court judges, and I attended West Point and served in the military for a decade before law school. Prior bar and community service includes: two-term delegate; chair, international law committee; general counsel, consumer law section; a combined 15 years on ethics, professional responsibility and practice and procedures committees; chair of three non-profits, and officer of two alumni organizations, presently serving the WPS-HI and HIANG. I practice business law and estate planning and will work to expand HSBA active membership and networking opportunities. Alika Piper I am a founding member and partner of Klevansky Piper, LLP, with a practice focusing on bankruptcy and business litigation. I graduated from the University of Hawaii with a BBA in Accounting (1994) and a Juris Doctor from the William S. Richardson School of Law (1997). I am listed in Chambers and Partners as a leading lawyer in Bankruptcy/Restructuring in Hawaii. I am the current Treasurer and
Chair of the Finance Committee, and a past Director of the HSBA. I would be honored to serve again as Treasurer and would work diligently for Hawaii’s legal community in these challenging times. SECRETARY CANDIDATE Lanson Kupau Admitted to HSBA 1992. Served as Family and District Court judge and witnessed first-hand the dedication and compassion that the Judiciary staff and judges place in each matter before them. Previously worked with the most talented attorneys and staff at the Public Defender’s Office, Reinwald O’Connor & Playdon, Kobayashi Sugita & Goda, Rush Moore. Currently, board of director of Hale Kipa and Damien Memorial School; continue to volunteer at non-profit organizations. Presently, a partner of Bronster Fujichaku Robbins. If elected, I will do my very best to uphold the standards of the HSBA and the honored members who have served before me. DIRECTOR CANDIDATE: WEST HAWAII
Robert B.
FRIJA
Carol Kitaoka I am the HSBA Director for West Hawaii (2006present); West Hawaii Bar Association Member (1995-present; President 2003-2005); HSBA Civic Education Committee member (2011-present); Hawaii State Bar Foundation Director (2017-present). Currently the issue for the many solo practitioners in West Hawaii is succession planning for your practice. There are plans for CLE classes, an eviction crisis and housing stability project, and community outreach with Civic Education programs highlighting the fiftieth anniversary of Title IX. I will continue
For Early Case Evaluation, Arbitration and Mediation Areas of Expertise: General Civil, Injury Torts, Insurance/Personal, Product Liability, Premises Liability With a reputation for detailed analysis, professionalism and early case resolution based on fair case evaluation
DISPUTE PREVENTION AND RESOLUTION 808.523.1234 or 542-5422 • dprhawaii.com
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to bring these CLE classes and ethics trainings to West Hawaii attorneys, and to promote civic education. Thank you for your continued support. DIRECTOR CANDIDATE: KAUAI To be determined. DIRECTOR CANDIDATES: OAHU Tristan Andres I am a partner at Deeley King Pang & Van Etten, where my practice focuses on insurance recovery and bad faith litigation. I am the Chair of the HSBA Insurance Coverage Litigation Section and a fellow at the 2021 HSBA Leadership Institute. Currently, I am serving on the HSBA Board after being selected to fill a vacancy earlier this year. If given the opportunity to serve you and the HSBA again, I aim to be a positive and creative contributor to the HSBA’s mission, particularly in addressing the issues of access to justice, professionalism, and community outreach programs. Jocelyn Chong I have been a government attorney since my 2010 admission to the bar, currently working for U.S. District Judge Jill Otake and teaching legal writing at Richardson. Since 2017, I have served on the Appellate Section board, which provides CLE programming, suggests legislative testimony, and assists with Bar Convention planning; I hope to further contribute on the HSBA Board. Previously, I was a Deputy Attorney General and clerked for Associate Justice Sabrina McKenna in addition to federal judges in Missouri and Florida. Before the law, I taught at O ahu public and private schools and worked at a statewide educational not-for-profit.
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Jessica Domingo I am a Deputy Public Defender with the Office of the Public Defender. I currently serve as an Oahu Director on the HSBA Board and Immediate Past President of Hawaii Filipino Lawyers Association. My time on the HSBA Board has strengthened my commitment to give back to the legal profession and provide access to legal services for the community during these difficult and unprecedented times. I hope to serve another term as an Oahu Director so that I may continue to bring a government attorney’s perspective to help the HSBA and the attorneys and community it serves. Kristin Izumi-Nitao I am the Executive Director of the Campaign Spending Commission. Previously, I worked at the Attorney General’s Office in the Administration Division advising the Employees’ Retirement System, and the Criminal Justice Division as the administrator for the Internet Crimes Against Children Task Force. I was also a deputy prosecutor and a law clerk for the Supreme Court Chief Justice and a circuit court judge. I am a graduate of Punahou School, Wellesley College, and Santa Clara University School of Law. I am active in the community and would like the opportunity to serve another term on the HSBA Board. Simeona Mariano I am a Deputy Attorney General in the Family Law Division, with prior experience in Criminal Justice. I first got involved with HSBA when I was a Deputy Prosecuting Attorney on Kauai and became the Kauai YLD representative. I serve on the
HSBA Judicial Administration Committee, and since my bar admission in 2004, I have volunteered with Courts in the Community, Family Court’s Teen Day, and mentorship programs. I know I can help further HSBA’s commitment to improving the legal profession, fulfilling members’ needs and encouraging involvement with community projects and events. I humbly ask for your vote for Oahu Director! Casey Miyashiro Aloha. I look forward to serving as your O ahu Board member, listening to your needs and advocating on your behalf. If elected, I will come in with an open mind, keeping what works while brainstorming innovative solutions to fix things that could be improved. I will work tirelessly with our colleagues to deal with the issues that our profession must tackle, from old ones, such as whether today’s law students are prepared for practice, to novel ones, such as whether members are prepared to deal with cyberattacks and ransomware. I am presently an associate at Damon Key Leong Kupchak Hastert. Mark K. Murakami I am Mark K. Murakami, admitted to HSBA in 1987. I practice real estate at Carlsmith Ball LLP. I was elected to the Board in 2015 and am serving in my third term. The HSBA is at an important crossroads, as many of our members are retiring. I continue to work to strengthen the HSBA, and in the areas of member recruitment and retention. I would like to see these efforts through, by seeking election to a fourth term as an Oahu Director of the HSBA. Please vote in this important election, and when you do, I hope you vote for me.
Mark Valencia I have been licensed in Hawaii since 1996 and worked with Case Lombardi & Pettit for the last sixteen years; the last fourteen as a director. I have been ranked by Chambers & Partners as one of Hawaii’s top litigators since from 2014. I served six years as a Commissioner of the HCRC, two decades as a volunteer reader primarily in Waianae elementary schools, and I currently serve as a Major in the U.S. Army Reserve. I was part of the inaugural HSBA Leadership Institute class, served as Vice-President of the Litigation Section, and currently serve on the Nominating Committee. HSBA/ABA DELEGATE CANDIDATE: Leslie Hayashi I started with the ABA in the 1980s, beginning with the ABA-YLD, then Judicial Division and now the Standing Committee on Public Education and Law Library of Congress Advisory Commission. I also serve on the National Judicial College’s Executive Committee and Treasurer. Through my involvement, I have met many ABA officers, Board of Governors and leaders of sections and divisions. Having been a judge, hearing officer, non-profit organization executive director, in-house counsel, and partner in a large law firm, I understand and will work hard to meet Hawai`i practitioners’ needs.
DEPUTY PROSECUTING ATTORNEY
The County of Maui, Department of the Prosecuting Attorney, seeks to fill position(s) at the entry to high experience level(s) as a Deputy Prosecuting Attorney. Applicants must have an active Hawaii State Bar license and be in good standing before the Hawaii Supreme Court, have strong oral and written communication skills, and legal research abilities. Applicants should possess excellent analytical ability, good judgment, and the ability to work in a supportive and professional manner with other attorneys, support staff, outside agencies and community. Competitive salary commensurate with years of experience ranging from $66,000 to $130,000. Excellent benefit package and work environment. Please send letter of interest, resume, application form (website listed below), waiver form, writing sample, and three references to: Andrew H. Martin, Prosecuting Attorney Department of the Prosecuting Attorney County of Maui 150 South High Street Wailuku, Maui, Hawaii 96793 E-mail: Prosecuting.Attorney@co.maui.hi.us Website: https://www.mauicounty.gov/123/Prosecuting-Attorney The County of Maui is an Equal Opportunity Employer
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C O URT BR IEF S Hilo Attorneys Honored for Providing Free Legal Consultations During the Pandemic
The Hawaii County Bar Association recognized 31 attorneys during its virtual Hilo Self-Help Center Recognition Awards on July 6. These attorneys provided more than 470
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free legal consultations to people who sought assistance in 2020. The volunteer attorneys were recognized by Hawai‘i Supreme Court Chief Justice Mark E. Recktenwald, Third Circuit Chief Judge Robert D.S. Kim, Hawaii State Bar Association (HSBA) President Levi K. Hookano, HSBA Executive Director Pat Mau-Shimizu, and Hawaii County Bar Association President Michelle Oishi. The Hilo Self-Help Center was established in July 2012 as part of the Hawaii State Judiciary’s commitment to increasing access to justice in the courts. Since opening, volunteer attorneys have provided more than 7,100 legal consultations on a variety of civil matters, including divorce, child custody, restraining orders, and landlord/tenant issues. To date, this center has served more people than any other courthouse selfhelp center in the state. These services have been provided at almost no cost to taxpayers. The attorneys honored for their service in 2020 are: Kimberly Angay, Belinda Castillo-Hughes, Paul Hamano, Jill Hasegawa, Raymond Hasegawa, William Heflin, Charles Hite, Ha’aheo Kaho’ohalahala, Jo Kim, Nelson Kinoshita, Laura Knudsen, Al Konishi, Demetri
Lametti, Shaunda Liu, Craig Masuda, Kai McGuire, Jacky Mena, Jeffrey Ng, Michelle Oishi, Melody Parker, Jill Raznov, Joy San Buenaventura, Scott Shishido, Evans Smith, Andrew Son, Roland Talon, Jessica “Jaycee” Uchida, Sylvia Wan, Jennifer Wharton, J Yoshimoto, and Jennifer Zelko-Schlueter. In 2020, the Hilo Self-Help Center was managed by volunteer attorney Bill Heflin with the assistance of Christy Peace, an AmeriCorps Advocate through the Legal Aid Society of Hawaii. Attorneys who are interested in volunteering at the Hilo Self-Help Center may contact Jacky Mena at jacky@oliveroslawlllc.com. Visit the Hawaii State Judiciary website for more information on the Self-Help Centers.
Online Dispute Resolution Launched The Hawaii State Judiciary launched the first phase of its Online Dispute Resolution Pilot Project (ODR) on Oahu. As of July 1, some parties to small claims cases are required to use TurboCourt, an online application, to file, resolve, and negotiate their small claims cases. Parties who may not have the resources to participate online must fill out a form to request an exemption from the pilot program by a judge. While currently available only in the First Circuit on Oahu, ODR will be offered to other circuits in the near future. The Hawai‘i Supreme Court established the project pursuant to its order filed on June 23, 2021. More detailed information about ODR can be found on the Judiciary website under the Self-Help tab – Small
Claims, or you may call the First Circuit District Court Service Center at 808538-5629.
Per Diem Judge Announcements Joanna E. Sokolow was recently appointed per diem judge of the District Court of the Third Circuit, and designated to act as District Family Judge. Her term will be July 1, 2021 to June 30, 2022. Timothy E. Ho was recently appointed per diem judge of the District Court of the First Circuit. His term will be July 19, 2021 to July 18, 2022. Edwin C. Nacino was recently appointed per diem judge of the District Court of the First Circuit. His term will be July19, 2021 to July 18, 2022.
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CAS E NOTES Supreme Court Criminal State v. Feliciano, No. SCWC-170000581, June 29, 2021, (McKenna, J.). Michael G. Feliciano (“Feliciano”) appealed his jury conviction in the family court for abuse of family or household member. Feliciano allegedly struck his wife in the face in the early morning hours of January 14, 2017. Before trial, the State of Hawaii (“the State”) filed a notice of intent to use evidence of Feliciano’s “prior bad acts,” seeking to introduce a 2016 incident in which Feliciano allegedly pushed his wife out of a chair (“chair incident”). The State asserted the chair incident was relevant because: (1) it contributed to his wife’s medical use of marijuana; (2) Feliciano indicated his intent to raise his wife’s marijuana use the night of January 13, 2017; (3) it explained the wife’s medical marijuana use; and (4) it would rebut Feliciano’s expected defenses. The family court ruled the State could introduce the chair incident “[i]f the door is opened” by Feliciano through evidence of his wife’s marijuana use. During direct examination, the CW testified she used medical marijuana to treat her chronic back pain. On cross-examination, defense counsel asked about her marijuana use and the couple’s prior six-month separation but did not ask why the couple had separated. The family court gave limiting instructions to the jury that the chair incident could only be considered as to the relationship between Feliciano and his wife as well as to Feliciano’s motive. On appeal to the ICA, Feliciano argued the family court abused its discretion in admitting the chair incident evidence and that the family court’s limiting instructions did not mitigate the prejudicial effect of the evidence. The Hawaii Supreme Court held the ICA erred by ruling the
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Appeal Pointer An opening brief may be stricken and the appeal may be dismissed or sanctions may be levied against an appellant if the opening brief does not contain a statement of points of error in the form required by HRAP 28(b)(4). HRAP 30. Hawaii Supreme Court had not adopted the “opening the door” doctrine and, in any event, Feliciano did not first introduce inadmissible evidence or evidence that was false or misleading in isolation. The Hawaii Supreme Court also held the ICA erred by ruling the chair incident evidence admissible under Haw. R. Evid. Rule 404(b). Moreover, even if the chair incident evidence had otherwise been admissible, it should have been excluded by Haw. R. Evid. Rule 403. The Hawaii Supreme Court further held the family court’s limiting instructions failed to mitigate the prejudicial impact of the chair incident evidence. Finally, the Hawaii Supreme Court held that the improper admission of the chair incident evidence was not harmless beyond a reasonable doubt. State v. Williams, No. SCWC-160000630, June 30, 2021, (Wilson, J.). Petitioner/Defendant-Appellant Matthew Williams (“Williams”) was convicted of four counts of sexual assault following a jury trial. At trial, the prosecutor introduced to the jury incriminating statements, allegedly made by Williams, without previously disclosing them to the defense during discovery as required by Hawaii Rules of Penal Procedure Rule 16(b)(1). The prosecutor also introduced statements, incriminating to the defendant, allegedly made by the complaining witness despite the court’s motion in limine ruling barring their introduction. Finally, the prosecutor engaged in improper, unnecessarily lurid questioning of defense
witnesses to inflame the passions of the jury. The cumulative impact of the prosecutor’s misconduct deprived Williams of a fair trial and was, therefore, not harmless beyond a reasonable doubt.
Public Utilities In the Matter of the Application of Hawaiian Electric Co., Inc., No. SCOT-200000309, June 29, 2021, (McKenna, J.). In this case, the Hawaii Supreme Court decided whether the Public Utilities Commission (“PUC”) abused its discretion in deciding not to re-open a December 2014 order (“Order No. 32600”) upon allegations brought five years later that changed circumstances warranted relief from the order. Order No. 32600 approved a Purchase Power Agreement (“PPA”) in which Hawaiian Electric Company (“HECO”) agreed to purchase wind energy generated by Na Pua Makani (“NPM”) on a wind farm to be constructed in Kahuku, on the island of Oahu. The PPA priced wind energy at 14.998 cents per kilowatt hour (“kWh”), which the PUC found to be reasonable. The PUC also exempted the project from its Competitive Bidding Framework. Five years later, in 2019, Life of the Land (“LOL”) sought to re-open Order No. 32600, alleging that (1) NPM’s incidental take license (“ITL”) over the Hawaiian hoary bat was untimely obtained in May 2018, in violation of the PPA; (2) that the 14.998 cents per kWh was unreasonable in light of a Scientific American blog article noting that wind energy prices nationwide had fallen by 2017; and (3) that the PUC’s order did not analyze the greenhouse gas emissions (“GHG emissions”) impact of the project, in violation of Haw. Rev. Stat. § 269-6(b). Having never appealed Order No. 32600 or timely moved for reconsideration or rehearing of that order under the PUC’s rules, LOL instead sought to re-open the order with reference to Hawaii Rules of Civil Procedure Rule 60(b) (2006),
specifically under subsections (4), (5), and (6) of that rule. HECO and the Consumer Advocate opposed LOL’s motion for relief, arguing that resort to Haw. R. Civ. P. Rule 60(b) for guidance was not necessary, because LOL should have timely sought relief under an existing PUC administrative rule, Hawaii Administrative Rule § 16-601-137, which sets forth the procedure for moving for rehearing or reconsideration of a PUC order. They also argued that LOL failed to timely appeal Order No. 32600 to the ICA. The PUC agreed. After a hearing, the PUC denied LOL’s motion for relief in Order No. 37074. The Hawaii Supreme Court held that the PUC did not abuse its discretion in declining to turn to Haw. R. Civ. P. Rule 60(b) to re-open Order No. 32600. First, as to the GHG emissions issue, the absence of a GHG emissions analysis was readily apparent in Order No. 32600 when it was filed in December 2014. LOL could have timely moved for rehearing or reconsideration of the order under Haw. Admin. R. § 16601-137. LOL could have also timely appealed the order under Haw. Rev. Stat. § 269-15.5. A Haw. R. Civ. P. Rule 60(b) motion is not a substitute for a timely appeal. Therefore, the PUC properly declined to re-open Order No. 32600 to address GHG emissions. Second, as to the reasonableness of wind energy prices, the Scientific American blog article does not provide the “extraordinary circumstances” necessary to invoke relief under Haw. R. Civ. P. Rule 60(b). Third, any alleged failure of HECO or NPM to timely obtain an ITL does not void the PPA and Order No. 32600. Such an argument, assuming LOL has standing to raise it, finds no basis in the plain language of the PPA or Order No. 32600. Therefore, the PUC did not abuse its discretion by declining to re-open Order No. 32600 using HRCP Rule 60(b) for guidance in analyzing this claim. Because LOL provided no justification for obtaining relief from Order No. 32600, the Court affirmed PUC’s Order No. 37074.
Deputy Solicitor General Vacancy The appellate division of the Hawaii Department of the Attorney General seeks to fill a vacancy for a Deputy Solicitor General. The position provides a unique opportunity to specialize in civil and criminal appeals, many involving constitutional issues. Applicants must be licensed in Hawaii and possess strong analytical, research, and writing skills. Please send resume, writing sample, and completed Application for Deputy Attorney General (download from ag.hawaii.gov/employment/), postmarked by October 30, 2021:
Department of the Attorney General Appellate Division 425 Queen Street Honolulu, Hawaii 96813 Tel: (808) 586-1360
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Intermediate Court of Appeals Criminal State v. Kaeo, No. CAAP-16-0000515, June 29, 2021, (Ginoza, C.J. with Nakasone, J., dissenting). On July 31, 2015, the State charged Kaeo with disorderly conduct in violation of Haw. Rev. Stat. § 7111101(1)(d) as well as other counts, and ultimately proceeded only on count 3. On June 29, 2016, after a bench trial for count 3, the District Court convicted Kaeo of disorderly conduct and sentenced Kaeo to pay a fine of $200 and a fee of $30. The ICA concluded that Kaeo’s conduct in this case was not constitutionally protected conduct, and that the district court did not err in its findings of fact and conclusions of law that Kaeo challenged on appeal. Nakasone, J., dissented because she believed there was insufficient evidence of Kaeo’s intent that his conduct was the specific result of physical inconvenience to a member or members of the public, or with reckless disregard that his conduct might produce such a result and she also disagreed with the majority’s conclusion that the “approximately 20 individuals involved with the transport convoy were ‘members of the public’ within the meaning of Haw. Rev. Stat. § 711-1101[.]” State v. Man, No. CAAP-19-0000857, July 19, 2021, (Wadsworth, J.). On June 2, 2018, Defendant-Appellee Robert Man, (“Man”), was issued a citation for the offenses of Accidents Involving Damage to Vehicle or Property, in violation of Haw. Rev. Stat. § 291C-13, and No Motor Vehicle Insurance, in violation of Haw. Rev. Stat. § 431:10C-104. Several days later, Plaintiff- Appellant State of Hawaii (“State”) filed the Citation in the district court initiating a citation proceeding (“Citation”). Over the next twelve weeks, both charges identified in the Citation were dismissed on the State’s motion, prior to any in-court oral recitation of the charges. The charge of Accidents Involving
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Damage to Vehicle or Property was dismissed without prejudice. On May 6, 2019, Man was charged by complaint with Operating a Vehicle Under the Influence of an Intoxicant (“OVUII”), in violation of Haw. Rev. Stat. § 291E-61(a)(1), and Accidents Involving Damage to Vehicle or Property, in connection with the same incident that had led to the Citation. Trial was set for September 26, 2019. The ICA held that the filing of the Citation in the district court constituted “the filing of the charge” for purposes of starting the Haw. R. Penal P. Rule 48 clock. Because trial did not commence within 180-days of the filing of the Citation, as properly computed under Haw. R. Penal P. Rule 48, the district court did not err in granting the Motion to Dismiss. The ICA also concluded that the district court did not abuse its discretion in dismissing the two pending charges – OVUII and Accidents Involving Damage to Vehicle or Property – with prejudice.
Family MJ v. CR, No. CAAP-17-0000696, June 30, 2021, (Ginoza, C.J.). On appeal, Father contended the Family Court erred in its Temporary Order and its Decision because: (1) it lacked subject matter jurisdiction with respect to the “Petition for Paternity” (“Petition”) filed by Mother in this matter; and (2) it lacked personal jurisdiction over Father for purposes of determining parentage or ordering child support and monetary obligations with respect to Father and Mother’s minor child (“Child”). Father asserted the Family Court violated his rights to due process by not allowing him to argue the issue of personal jurisdiction at trial. Father also challenged many of the Family Court’s conclusions of law and findings of fact. The ICA concluded the Family Court had jurisdiction to decide custody in this case but lacked personal jurisdiction over Father to decide Father’s paternity and Father’s obligations for child support and other monetary expenses related to Child.
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OFF THE RECORD Catherine Taschner joined the Blangiardi administration as the Deputy Director of the Department of Land Management for the City & County of Honolulu. Island Insurance named Toby Tonaki as Vice President, Claims. In his new position, he will continue to oversee the Claims Division’s Casualty Unit. He joined Island Insurance in 2013. His previous positions include law clerk at the Intermediate Court of Appeals, Deputy Attorney General, and Deputy Public Defender for the State of Hawaii. He was also a partner at the Watanabe, Ing, Kawashima & Komeiji law firm before establishing a solo practice. There is a recent article that covers the class action litigation against former Philippine President Ferdinand Marcos for human rights abuses during Martial Law that Sherry P. Broder has been involved in for decades. The article states that Marcos’ graft is estimated between five to ten billion dollars. The article can be found at Bloomberg’s website: https://www.bloomberg.com/news/f eatures/2021-06-28/finding-the-hidden-10billion-fortune-of-philippines-president-ferdinand-marcos?srnd=businessweek-v2. Amanda Leonard and Kaleilani Grant of the Hawai’i Attorney General’s Missing Child Center–Hawai’i were honored by the U.S. Department of Justice with the prestigious National Child Protection Award as part of its 38th annual commemoration of National Missing Children’s Day on May 25. U.S. Attorney General Merrick Garland selected them for the award from approximately two dozen nominations from around the country for their role assisting law enforcement with 180 recoveries of missing children between November 2019 and November 2020. Rosemary T. Fazio is still working full-time at Ashford & Wriston, and
during the past almost four years, also served every Friday as the volunteer lawyer at the Legal Services Office at the Kaneohe Marine Corps Base. She handled whatever civil law problems that active-duty military (all service branches), retirees, and dependents might have. In recognition of her volunteer work, she received the U.S. Presidential Silver Medal Volunteer Service Award. Hawaii Women Lawyers announced its Annual Awards honorees for 2021: Outstanding Woman Lawyer of the Year: Susan L. Arnett; Outstanding Judicial Achievement Award: Honorable Darien W.L. Ching Nagata; Lifetime Achievement Award: Professor Carole J. Petersen; Distinguished Service Award: Nalani Fujimori Kaina; President’s Award: The Domestic Violence Action Center and Nanci Kreidman.
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 significance to and of interest or concern 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.muranaka@gmail.com. The Hawaii Bar Journal reserves the right to edit or not publish submitted material. (A short article is approximately 500 to 1,500 words.)
ATTORNEY WANTED ASSOCIATE ATTORNEY (Civil Litigation) Established downtown law firm seeks a litigation associate attorney with 3-6 years of civil litigation experience. Admission to Hawaii Bar required. Excellent benefits; Salary commensurate with experience. Remote and in-person hybrid position. Please submit resume and writing samples in confidence to: Shawn Nakoa/Rush Moore LLP A Limited Liability Partnership 75-167 Kalani Street, Suite 105, Kailua-Kona, Hawaii 97640. ATTORNEY (Downtown Honolulu) Established mid-sized firm is seeking an experienced Associate Attorney, licensed in Hawaii, to join our team. We are looking for someone with 3+ years of litigation experience, and is looking to gain more experience in a wide variety of areas of law. We hope to find someone with excellent writing skills, strong research skills, written and verbal communication skills, and who is able to multi-task. We need to add another team player to our already outstanding team. We offer a very competitive salary and benefits package. Please email your resume and writing sample for immediate consideration or mail to: BRONSTER FUJICHAKU ROBBINS, Attention: Administrator, 1003 Bishop Street Suite 2300, Honolulu, Hawaii 96813. pbraun@bfrhawaii.com ALL INQUIRIES ARE HELD IN STRICT CONFIDENCE! CARLSMITH BALL seeks an associate with 2 5 years of experience in transactional work, including real estate, corporate and finance. Must be licensed to practice law in Hawaii. Interested candidates should submit their cover letter, resume, transcript, and writing sample to recruiting@carlsmith.com. DEPARTMENT OF THE CORPORATION COUNSEL is currently seeking applications from Hawai‘i licensed attorneys with an interest in civil rights litigation, tort litigation, transportation issues, employment law, or land use and city planning for its Litigation Division and Counseling and Drafting Division. The Department offers a unique and fulfilling career as a public sector attorney working for the good of our community. We encourage a balanced life and flexible work arrangements are possible. Civil litigation and administrative law experience, experience with governmental entities, and familiarity with open government and open records laws are a plus. A strong work ethic, positive attitude, and a desire to serve are bigger pluses. Commitment to Honolulu is
a must. If you would like more information about specific positions or if you are ready to submit a letter of interest, resume, and references, please email us at cor@honolulu.gov. MULTI-SERVICE LAW FIRM seeking experienced estate planning attorney to complement and support existing practice. Must be licensed to practice law in Hawaii. Salary commensurate with experience; competitive benefits. Interested candidates should email their resume and cover letter to recruiting@carlsmith.com. RARE OPPORTUNITY to become a neutral expert on UIPA and Sunshine Law issues for an equal opportunity employer. No prior experience needed for a quick learner with excellent writing, analytical & communication skills, who can fairly and impartially resolve disputes and assist parties on opposing sides. Work/life balance; generous benefits, incl. State pension; $60,000+/year. Email oip@hawaii.gov with resume, 3 references & writing sample. SETTLE MEYER LAW is in search of a transactional associate attorney with at least 2-4 years’ business and/or real estate legal experience, and a commercial litigation/intellectual property associate with 2-4 years’ experience. This is an exciting opportunity to work at a firm tackling a number of pressing issues facing Hawaii, including affordable housing and high-tech/IP business development. Qualified candidates must have distinguished academic credentials, strong research, writing and analytical skills, and be self-starters with a commitment to excellence. Please submit resume, writing sample and salary requirement to info@settlemeyerlaw.com. UNIVERSITY OF HAWAII, Office of General Counsel, seeks Associate General Counsel for litigation position (pos. #89335). Applicants must have at least 8 years of experience. For more information, see www.governmentjobs.com/careers/hawaiiedu and search by position number. The University is an EEO/AA employer.
EXPERT WITNESS CONSTRUCTION, 30 yrs; P.E., MS/BS Civil Eng’g, CCM, CEP; excellent written/oral comm; utilities, road, bridge, treatment plant, pump station, transit, multi-story; claims, scheduling, estimating; sj@sjcivil.com, 808-271-5150.
COLLISION RECONSTRUCTION EXPERT, serving all the Islands: 40 years experience, qualified as expert in state and federal courts. John H. Meserve, CRS. (808) 450-5555 jhmeserve@gmail.com CONSTRUCTION DEFECTS, contractor issues, premises liability, real estate disclosure. AOAO, Landlord/Tenant and mold disputes National Building Expert. Best Selling Author. www.expertwitness.now.site 808-422-2132 PPREMISES SECURITY EXPERT Case Evaluation • Expert Witness • 45 Expert Retentions • Court-Qualified in Hawaii 1st, 2nd & 5th Circuits • Consulting (surveys, documents, procedures, design) Albert B. “Spike” Denis, CPP, CFE. Pacific Security Group LLC. 1050 Bishop Street, Suite 303, Hono, HI 96813. Spike@psghawaii.rr.com Tel:808.224.4559 REAL ESTATE: Over 45-years as a Developer, Broker, Builder and Realty Advisor. HI Broker’s License, MBA/USC, extensive development and brokerage background. Seasoned real estate veteran with substantial “Real-World” experience and proven Trial testimony. Web: www.castlelyonshawaii.net. Watch 1-minute video. Call Michael K. Ryan, President, CastleLyons Corp. -- 808.282.4059. REAL ESTATE/PROPERTY MGMT/AOAO expert. See www.jurispro.com. Search for “Griswold”. Robert S. Griswold, CRE, CPM, CCIM, PCAM, CCAM, GRI, ARM. www.griswoldremgmt.com (858) 597-6100
LEGAL CONSULTING LEGAL NURSE CONSULTING Assistance in managing the medical aspects of your case. Legal Nurse Consulting, Life Care Planning, & Workers’ Compensation Nurse Case Management. Cynthia L. Fricke, RN, BSN, CCM, CLCP. (808) 253-0232. www.islandlegalnurse.com frickec001@hawaii.rr.com
OFFICE SPACE AVAILABLE -Immediately. Located in Waterfront Plaza, Executive Suite. Two window offices (1 or both). 2 secretary carrels, storage closet available too. Includes use of conference room, kitchen, reception area. Shared law/CPA office. Ample parking. Call Scott @ 295-9577. OFFICE SPACE in the Historic Hawaii Times Bldg 928 Nu’uanu Ave. 290 sq ft furnished, Available now. Call or email 808-534-1040 jslawsky@1stallied.com September 2021
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