Hawaii Bar Journal - February 2019

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BAR JOURNAL A N O FFICIAL P UBLICATION

OF THE

H AWAII S TATE BAR A SSOCIATION F EBRUARY, 2019 $5.00

TABLE O F C ON TE NTS VO LUM E 23 , N U M B E R 2

EDITOR IN CHIEF Carol K. Muranaka BOARD OF EDITORS Christine Daleiden David Farmer Susan Gochros Ryan Hamaguchi Cynthia Johiro Edward Kemper Laurel Loo Melvin M.M. Masuda Melissa Miyashiro Eaton O'Neill Lennes Omuro Brett Tobin

ARTICLES 44

19

by Brett R. Tobin

16 24

The Hawaii State Judiciary Language Access Services

President-Elect P. Gregory Frey Vice President Karin Holma Secretary Russ Awakuni

by Debi Tulang-De Silva

OF NOTE

HSBA OFFICERS President Derek R. Kobayashi

Raw Emotions and Fishy Judgment: Aloha Poke Company and the Cost Benefit Analysis of Cease and Desist Letters in the Social Media Age

15

HSBA Happenings

19

Case Notes

26

Court Briefs

30 20

Off the Record

Treasurer Paul Naso

31 22

Classifieds

YLD OFFICERS

28

President Summer Kaiawe

30

Vice President/President-Elect Addison Dale Bonner Secretary Kyleigh Nakasone Treasurer Katherine Lukela

31

EXECUTIVE DIRECTOR Patricia Mau-Shimizu GRASS SHACK PRODUCTIONS Publisher Brett Pruitt Art Direction Debra Castro Production Beryl Bloom

Hawaii Bar Journal is published monthly with an additional issue in the fourth quarter of each year for the Hawaii State Bar Association by Grass Shack Productions, 1111 Nuuanu Ave., Suite 212, Honolulu, Hawaii 96817. Annual subscription rate is $50.

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Advertising inquiries should be directed to: Grass Shack Productions (808)521-1929 FAX: (808)521-6931 brett@grassshack.net

On the Cover: by Sadako Tengan. Photography has opened up new adventures in her senior years. People, places, and objects all serve as venues for wonderful opportunities to preserve and appreciate our environment. To see more of her work please visit the Louis Pohl Gallery at 1142 Bethel St. in Honolulu’s art district.

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.

Raw Emotions and Fishy Judgment:

By Brett R. Tobin Imagine for a moment that you own a company that has spent the past two years getting off the ground and building up its brand. You even went through the cost and hassle of applying for and obtaining federal trademark registrations to protect your brand name and logo.

Your company operates in a relatively small geographic area, but you have big plans for expansion. You find out that another company is using your brand name or a name similar to it. The other company is not located anywhere near you or even in an area where you have any current plans to expand. But your instincts tell you that you need to protect that brand that you have worked so hard to build; that you need to enforce the rights you paid for and get the other guy to back down. So you call up an attorney and ask her to fire off a cease and desist letter.

Is that the right move? Is it possible that even though your legal argument might be completely sound, your judgment is not? What if, in trying to protect your brand, you end up harming it instead?

owned by Tasha Kahele, a Native Hawaiian, posted on its Facebook page that it was reluctantly changing its name from “Aloha Poke Stop” to “Lei’s Poke Stop” in response to a cease and desist letter it had received from attorneys representing Aloha Poke Company. The next day, Native Hawaiian activist Kalamaokaaina Niheu picked up the story and in a video posted on Facebook recounted that Aloha Poke Company was sending out cease and desist letters to businesses owned by Native Hawaiians, contending that the use of the word “Aloha” in connection with food products and service constituted infringement of Aloha Poke Company’s federally-registered trademarks. The posts quickly went viral.

Many of those responding to the news accused Aloha Poke Company of attempting to “own” the word Aloha and of engaging in cultural appropriation.

Hashtags such as #NoAlohaPokeCo and #AlohaNotForSale sprang up. Petitions demanding that Aloha Poke Company take Aloha out of its name followed, along with protests staged at Aloha Poke Company locations in Chicago and other mainland locales. Calls for a boycott went out as well.

Aloha Poke Company’s social media accounts were inundated with negative comments attacking the company for its actions. Prior to the Facebook videos by Kahele and Niheu, a typical post on Aloha Poke Company’s Instagram account garnered roughly 10 com-

Aloha Poke Company and the Cost Benefit Analysis of Cease and Desist Letters in the Social Media Age

BACKGROUND Back in July of 2018, Aloha Poke Company—a Chicago-based restaurant chain—inadvertently found itself at the center of a social media firestorm. On July 27, 2018, a poke establishment in Anchorage, Alaska,

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ments or fewer. Its post on July 24—the one closest in time to the video—has collected 1,538 comments and counting, the vast majority of which are overwhelmingly negative. Even perusing Aloha Poke Company’s posts from long before the video one will see posts with negative comments, almost all of which were added after July 27, 2018. The negative posts generally attack either the restaurant’s effort to “own” Aloha or the authenticity of the poke on offer there—or both. Aloha Poke Company’s Facebook account shows much the same thing, with its post from July 27, 2018 being bombarded with over 1,500 mostly negative comments.

In response to the outrage, Aloha Poke Company founder and former CEO Zach Friedlander took to Facebook to note that he was “deeply saddened by the reaction” to the situation, which he then equated to a “witch hunt” and “false news.” This went over about as well as you might expect. On July 30, 2018, Aloha Poke Company issued a public statement posted to its Facebook account. In it, the company stated “how deeply sorry we are that this issue has been so triggering.” The statement then attempted to characterize the issue as a misunderstanding, stating that there was “zero truth to the assertion that we have attempted to tell Hawaiian-owned businesses and Hawaiian natives that they cannot use the word Aloha or the word Poke.

This simply has not happened, nor will it happen.” It also made clear that its trademark “does not prevent another person or entity from using the word Aloha alone or the word Poke alone in any instance.” The company concluded by saying “[w]e are truly sorry for all of the confusion that this has caused.”

However, it quickly came to light that the assertions in the company’s public statement ran counter to the language of the very cease and desist letters that set off the controversy in the first place. Jeff Samson, coowner of Aloha Poke Shop in Honolulu, posted a copy of the letter he had received from Aloha Poke Company to illustrate that point. The letter, dated January 17, 2018, demands that “your use of ‘Aloha’ and ‘Aloha Poke’ must cease immediately.” It then requests “that you immediately stop all use of ‘Aloha’ and ‘Aloha Poke’ in association with selling your food”. Obviously, it is difficult to square the statement that there is “zero truth” to the accusation that the company told people they could not use “Aloha” with the statement “your use of ‘Aloha’ . . . must cease immediately.”

The mis-characterization of the company’s own

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position, combined with the defensive “non-apology” nature of the response—in other words, apologizing for people’s reaction to the company’s actions rather than the actions themselves—led to even further backlash.

The July 30 post generated over 8,000 mostly critical comments. It also received, for what such things are worth, 3,700 “angry face” emojis compared with only 267 “likes.” All of this provided a vivid real-world illustration of Rule No. 1 in the public relations game: when you find yourself in a hole, it is best to put down the shovel and stop digging.

Aloha Poke Company did just that as its Instagram and Facebook accounts then went silent with no posts of any kind for over three months, finally re-surfacing on November 6, 2018 without any further mention of the controversy. The company’s Instagram account now prevents any comments from being entered in response to its posts. While its Facebook page has roughly 3,000 followers, the newly-formed “Say NO to Aloha Poke Co.” page already has over 2,000.

Additionally, while it is impossible to identify the cause for certain, it is noteworthy that Aloha Poke Company’s first San Diego location closed abruptly in late August 2018 after just two months in business. See https://www.sandiegoville.com/2018/09/amidst-controversychicago-based.html. In September 2018, a location in Los Angeles also closed its doors. See https://chowyumla.wordpress.com/2018/09/10/aloha-aloha-poke-tipsy-cow/. As noted, there is no real basis for assuming the closings are related to the controversy, but the timing is interesting. Because Aloha Poke Company is not a publiclytraded corporation, any effect the controversy had on its overall sales is unknown. Similarly, there is no good way to quantify the damage to the brand going forward. What is certain, however, is that it is definitely not “zero.”

All of which likely leaves Aloha Poke Company wondering how it ended up in this position. Surely, when it set out to protect its intellectual property, it did not intend to shoot itself in the foot instead.

LEGAL FRAMEWORK In its defense, from a legal standpoint, Aloha Poke Company is not entirely in the wrong. It is the owner of two valid U.S. Trademarks—Registration No. 5,031,423 to the words “Aloha Poke” in any font and Registration No. 5,123,102 to its logo which is a circle with a stylized “Aloha” and the words “Poke Co.” un-

INVITATION FOR PUBLIC COMMENT FEDERAL PUBLIC DEFENDER

derneath it. Both registrations are in Class 43 for catering services, restaurant services, and take-out restaurant services. Each registration claims a first-use date of February 2, 2016.

So, while many of the protesters have called into question why such trademarks could be allowed in the first place, the fact of the matter is that they were—both marks received registrations following the review process of the U.S. Patent and Trademark Office (“USPTO”). Further, despite the outcry over the threshold notion that anyone could ever possibly trademark the word “Aloha” there are currently well over 1,000 federally-registered trademarks including that term.

Thus, Aloha Poke Company unquestionably has defensible trademark rights that extend throughout the United States. Beyond that, given the way trademark law is structured, as the owner of a registered trademark, it has a duty to enforce those rights. While the USPTO may block subsequent applications for similar marks on related goods or services, there is no government agency charged with policing instances of trademark infringement.

Instead, it is up to the owners themselves to protect their own intellectual property. And, indeed, a failure to do so can lead to harsh consequences, including a finding of waiver or abandonment for marks that are not maintained.

The doctrines of acquiescence, laches, and waiver can all be raised as defenses in an infringement action.

Acquiescence results from a trademark owner exhibiting some level of agreement or even implied consent to a potentially infringing use of a substantially similar mark. See, e.g., Profitness Phys. Ther. Center v. Pro-Fit Orthopedic and Sports Phys. Ther. P.C., 314 F.3d 62, 67 (2d Cir. 2002). This can

District of Hawaii - Mr. Peter C. Wolff

The United States Court of Appeals for the Ninth Circuit is conducting an evaluation of the performance of the Federal Public Defender (FPD) for the District of Hawaii, Mr. Peter C. Wolff. The Court conducts these evaluations in order to determine if the incumbent FPD should be appointed to an additional four year term without a competitive recruitment. Any persons having knowledge of the performance of Mr. Wolff and/or his respective staff are invited to submit comments. Anonymous responses will not be accepted. However, the identity of all respondents will be kept confidential except to those with a need to know.

All comments must be received no later than Friday, April 12, 2019, in order to be considered. Comments may be submitted on line at https://www.surveymonkey.com/r/hi-wolff2018 or by mail or fax to: Office of the Circuit Executive Evaluation — FPD, Hawaii U.S. Courts for the Ninth Circuit P.O. Box 193939 San Francisco, CA 94119-3939 Fax: (415) 355-8821

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Mediator, Arbitrator, Receiver and Special Master Services, Employment Investigations

Jerry M. Hiatt • Creative and highly focused mediations in all areas with diligent followup when needed. Successful in mediations for clients of most of Hawaii’s major law firms • 41 years of practice in complex civil litigation. Listed in Best Lawyers in 8 areas, including Mediation and Arbitration. Hawaii Lawyer of the Year for Mediation, 2014, Employment Law-Individuals, 2017, and Arbitration, 2018.

• Mr. Hiatt has also done neutral employment investigations and fact finding for some of Hawaii’s largest companies.

• Mr. Hiatt has also served as a court appointed Receiver For ADR work, please contact

Dispute Prevention & Resolution (808) 523-1234; dprhawaii.com For employment investigations, please contact jh@hiattlaw.com or at (808) 885-3400. Resume and references at www.hiattlaw.com.

even arise from a simple failure to object. Similarly, laches can arise without any showing of intent to consent but rather from an unreasonable lack of diligence. See, e.g., Bunn-o-Matic Corp. v. Bunn Coffee Service, Inc., 88 F. Supp. 2d 914, 925 (C.D. Ill. 2000). The bar for a finding of waiver is higher in that it requires an intentional relinquishment of one’s rights.

See, e.g., U.S. v. King Features Entm’t, 843 F.2d 394, 399 (9th Cir. 1988). So the risks in allowing infringement to go unchecked are real.

Going through the time, effort, and expense in obtaining a registration can sometimes make a party myopic.

There’s an old cliché that when all you have is a hammer, every problem starts to look like a nail. Sometimes having a trademark registration can have a similar effect. When coupled with the pressure to enforce that is created by the potential use-it-or-lose-it doctrines discussed above, it can cause a party to lose sight of the goals that led it to seek trademark protection in the first place.

Yes, you have legal rights you can enforce. But should you? And, if so, how?

WEIGHING OPTIONS The only reason to obtain a trademark registration in the first place is because you think your brand has value that you want and need to protect.

That value is often amorphous and intangible, but it is tied up in general no-

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tions of reputation that are frequently labeled as “goodwill.”

In practically every trademark infringement complaint that has ever been written, one will find an allegation relating to the “valuable goodwill” the company has built up over time and how that goodwill is threatened by someone else’s actions. Indeed, the phrase can be found prominently in Aloha Poke Company’s own cease and desist letter referenced above.

“While we do not seek to interfere with your business or your practice of selling poke cuisine, Aloha Poke cannot let these uses continue without harming its valuable trademark rights in and goodwill associated with its Registered Mark.”

Too often, parties grow overly concerned with protecting their “rights” instead of focusing on protecting their “goodwill.” The rights are just a means to an end. What matters is the value of the brand and its reputation in the marketplace. In getting caught up in the moment, companies can lose sight of the fact that everything they do affects their reputation. These effects can be small or large, but it is important to remember that your method of protecting your brand is also part of your brand, so you need to act accordingly. As will be demonstrated below, enforcement of trademark rights can become its own method of marketing.

Your brand is out in the public the minute a cease and desist letter is sent.

How will that brand be perceived?

Aloha Poke Company’s mistake

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was not in seeking to protect its brand.

The mistake was in dramatically miscalculating how to do so and the negative impact such efforts could have.

There are a number of factors that a company should consider when deciding whether and how to take enforcement action, and Aloha Poke Company appears to have ignored or misjudged nearly all of them.

First, Aloha Poke Company misjudged its audience. In the social media age, every cease and desist letter is just a few clicks away from being published to a much broader audience than merely its addressees. If the recipient is a small business, there is no guarantee that the person reading the letter is well-versed in the nuances of trademark law. Indeed, it would be safer to assume the opposite. And if the letter gets out to the general public, that assumption is even stronger.

Aloha Poke Company was actually correct when it pointed out in its July 30 public statement that there was a great deal of confusion in response to its letters. News accounts of the controversy are replete with people remarking on how no one should be able to “own” the word “Aloha” (or patent or copyright it, neither of which was ever at issue). People also seemed to be unaware that the trademarking of a brand name containing the word “Aloha” was not a new development when they argued that such activity should be banned despite the existence of over 1,000 such marks. Some people expressed a desire for a rule that “Aloha” could only be used in a trademark sought by Native Hawaiianowned businesses or businesses with ties to the state. None of those are legitimate legal arguments, obviously.

But the court of public opinion does

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When sending a cease and desist letter in the age of social media, imagine it as a viral post on Reddit or Facebook first. not concern itself with statutes and case law. And when the only thing of value in a dispute is a brand’s goodwill and reputation in the public eye, legal arguments quickly fall by the wayside.

From a public relations standpoint, it does not matter if what the people are shouting about you is legally accurate.

It matters that they are shouting in the first place.

So, while there is no doubt that there was confusion and misinformation in the response to Aloha Poke Company’s actions, there is also no doubt that such confusion and misinformation were utterly foreseeable and should have been anticipated. In instances such as these, a company and its attorneys need to realize that their audience when writing a letter like this is not just other lawyers or judges, but the public at large. As lawyers, we often advise our clients to do things such as imagine reading an email aloud in a deposition before sending it. The rules are not all that different for attorneys. When sending a cease and desist letter in the age of social media, imagine it as viral post on Reddit or Face-

book first. If you see “angry face” emojis as a likely response, perhaps it is time to consider a different approach.

Second, Aloha Poke Company badly misjudged the context and circumstances. Here was a mainland company using an extremely powerful and symbolic Hawaiian word in its name, selling a uniquely Hawaiian product, and demanding that businesses based in Hawaii or, in some cases, owned by Native Hawaiians, stop using that same word. That such actions might lead to controversy could have been seen a mile away by anyone with any connection to Hawaii or its culture. This situation called for an extremely delicate and respectful touch, not a letter out of the blue from a lawyer in Chicago.

Third, Aloha Poke Company similarly misjudged the tone it needed to take. Its letters demanded that the recipients immediately cease all use of the word “Aloha” and further that they “destroy all packaging, marketing materials, advertising, photographs, Internet usage, and all other materials and things that bear the designation of ‘Aloha’ or ‘Aloha Poke.’ This demand includes removal of ‘Aloha’ and ‘Aloha Poke’ from any company name, domain name, Facebook page or other social media site, or other source identifier.” This demand was needlessly heavy-handed and almost certain to garner a negative response.

Fourth, and perhaps most importantly, Aloha Poke Company misjudged the necessity or importance of taking this particular action. Some of the questions it should have asked itself were: (1) whether the companies it was targeting had any designs on expanding into Aloha Poke Company’s existing or planned markets and (2) whether Aloha Poke Company had any plans to

expand into the markets occupied by these businesses. For example, it seems unlikely that a Chicago-based poke company had any current intention of opening a franchise in Hawaii or Alaska. Similarly, the small businesses in Hawaii and Alaska likely had no desire to expand into the Midwest.

Granted, an argument could be made that by allowing these purportedly infringing operations to continue business anywhere in the United States, Aloha Poke Company risked being accused of acquiescence. But this merely leads to another point that a different remedy could have been sought. Companies with similar names and trademarks frequently resolve potential disputes through consent or coexistence agreements. These are simply contractual arrangements under which the parties lay out the parameters of who is allowed to use what names, on what products, and in what areas, among other things. It is true that by executing such agreements, the party with the potentially stronger claim would be giving up a slice of its intellectual property rights just as an owner of real property surrenders certain rights when granting an easement. But it gains peace of mind in return while avoiding the possibility of damaging reputational blowback from a protracted dispute. Another option would have been to provide a limited license to the allegedly infringing parties on terms agreeable to both sides.

Additionally, a trademark owner needs to carefully consider whether an infringement action would be too risky before sending off a letter carrying an implicit or explicit threat that it will take such action. An infringement action could and commonly does lead to a counterclaim seeking invalidation or cancellation of the plaintiff ’s mark. If the mark is not particularly strong in

the first place—because it is merely descriptive, for example—it may not be worth the risk of forcing that issue. Of course, this potential risk is a good reason to avoid choosing a weak mark in the first instance, both because it might not survive an attack and because an unoriginal mark will be copied more frequently, thus requiring more costly defensive actions to police it. But the point is that there is little sense in sending a cease and desist letter that you do not intend to back up with further action. Indeed, a letter that gets ignored or unenforced can put the owner in a worse position than having sent no letter at all in terms of the defenses of acquiescence and laches. So, if the threat will be an empty one, there is little to no value in making it.

Compromise solutions like consent and coexistence agreements or licensing arrangements can often be pursued more informally, and less confrontationally, before resorting to a cease and desist letter. Initial contacts can be made between the business owners themselves rather than through outside attorneys. In certain situations, this can help prevent things from getting off on the wrong foot. In the case of Aloha Poke Company, given the sensitive cultural posture, this type of respectful non-confrontational outreach was far more likely to be successful while avoiding the sort of hurt feelings that lead to angry responses.

In short, while Aloha Poke Company sought to protect its brand, it ended up suffering extremely serious

In Fond Memory of

Harvey Henderson,

Harvey E. Henderson, Jr. passed away on Friday December 21, 2018, at the Straub Medical Center surrounded by family and dear friends.

His passing leaves a void which will be hard to fill. He will always be remembered as a good guy. Harvey practiced law in Hawaii for

over 45 years and, in semi-retirement, he served as the Board Chair

of Easter Seals Hawaii. Harvey will be missed by all who knew and

loved him. A memorial service will be held on Sunday, February 17,

at 2:00 p.m. at the Pacific Club, 1451 Queen Emma Street, Honolulu.

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self-inflicted wounds instead. The lesson to be learned from all of this is that companies and their attorneys must always keep in mind that the ultimate goal is protection and enhancement of the brand and its reputation and goodwill. If the action being considered risks causing more harm than the threat being confronted, it is time to reconsider tactics. However one runs the calculations, it is safe to say that allowing the Aloha Poke Stop in Anchorage, Alaska to continue doing business under that name would have resulted in far less harm to Aloha Poke Company’s bottom line than was caused by the public relations nightmare it unwittingly unleashed upon itself by forcing the issue. Indeed, in a somewhat ironic twist, the Anchorage establishment is now perhaps better off having changed its name so as to avoid any association with the now-tainted Aloha Poke Company brand. While the whole controversy started with Aloha Poke Company being worried that its brand could be harmed by others using similar names, it now could sorely use some of the goodwill those businesses bring to the table.

Having pointed out a powerful example of what not to do, we now move to a discussion of some companies who managed to finesse some tricky intellectual property problems into win-win situations with a little creativity and good humor.

A BETTER PATH In recent years, several companies have demonstrated a keen awareness of how to manage the viral social media age and use it to their advantage. In these instances, the companies were not only able to obtain the outcome they wanted with respect to protection of their intellectual property but they also managed to score positive publicity

that further enhanced the value of their brands.

In 2017, a Chicago business sought to capitalize on the success of the Netflix television series “Stranger Things” by creating a pop-up bar devoted to the show. This action inevitably got the attention of Netflix, but instead of firing off a strongly-worded threatening letter, the company showed that its creativity extends beyond its contentdevelopers. Netflix sent a tongue-incheek letter in-keeping with the 1980s middle school aesthetic of the show. In it, the company’s in-house counsel included phrases like “I don’t want you to think I’m a total wastoid” and signed off by saying “please don’t make us call your mom.” Importantly, the letter also avoided making heavy-handed demands, asking only that the bar not extend beyond its scheduled six-week run and that it seek permission in the future before doing anything similar.

Perhaps most clever of all, Netflix acknowledged the fandom that led to the copying in the first place and squeezed in a plug for the show’s then-forthcoming second season. Somewhat predictably, the letter went viral and drew positive media coverage for Netflix while also serving to provide free advertising for season two which was released shortly afterwards.

In December 2017, Anheuser Busch, the brewer of Budweiser and Bud Light among other brands of beer, got in on the act as well. At the time, Bud Light had begun running a series of advertisements centered around a fictional medieval kingdom with a penchant for Bud Light. The ads featured the king and his subjects toasting each other with the phrase “Dilly Dilly” while anachronistically quaffing Bud Light—the sort of thing you might expect to see multiple times while watching a televised football game.

Enter Modist Brewing Company, a Minneapolis craft brewery, that decided to create and market a beer called the Dilly Dilly Mosaic Double IPA, using a font and color scheme similar to the one used by Bud Light. It is important to bear in mind the context here. With one of the largest breweries in the world squaring off against a small local operation— coupled with the ongoing macrobrew vs. microbrew dynamic that is prevalent in the industry at the moment— the stage was set for Bud Light to come across as the big corporate bully trying to squeeze the little guy. Had Bud Light come in with a standard threatening cease and desist letter, the risk was high that it could suffer social media blowback. What it did instead was inspired. On the day of the release event for the Dilly Dilly Mosaic Double IPA, Bud Light sent an actor dressed in medieval garb to Modist’s brewery tasting room. The actor proceeded to read a cease and desist “letter” from a scroll of parchment complete with the “hear ye hear ye” language of a renaissance faire town crier.

While noting that Bud Light was “flattered by the tribute,” the scroll stated that “‘Dilly Dilly’ is the motto of our realm, so we humbly ask you keep this to a limited edition, one time only run. This is by order of the king. Disobedience will be met with additional scrolls, then a final warning, then a private tour of the Pit of Misery.” The scroll concluded by offering Modist two tickets to the Super Bowl taking place in Minneapolis two months later. The whole presentation was captured on video and posted to Modist’s Facebook page where it has since been viewed over 600,000 times. See https://www.facebook. com/modistbrewing/videos/1769474706456277/

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Modist complied with the request, ultimately changing the name of the beer to “Coat Tails” in reference to the incident. They then took a signed copy of the scroll and had it posted on the wall of their tasting room. Bud Light got what it wanted—protection of its intellectual property—and a great deal more in terms of goodwill and free marketing by coming across as a good sport that does not take itself too seriously. And Modist came out ahead too with a good amount of publicity for itself (plus Super Bowl tickets). This sort of scenario in which everybody wins should be the goal.

In another beer-related example, San Franciscobased Seven Stills Brewery created a barrel-aged beer called “In-N-Out Stout.” The company doubled-down on the obvious homage to the California burger chain of the same name by adding a label that mimicked InN-Out’s cups and posting a picture of it to its social media pages. Unsurprisingly, this garnered a response from In-N-Out. As with Bud Light, though, rather than come in with guns blazing, the company opted to take a softer approach by sending a letter replete with beer-related puns (“we felt obligated to hop into action in order to prevent further issues from brewing”) and a polite request to change the name and labels. Seven Stills agreed to re-label the beer ahead of its release and then it purchased a hundred In-N-Out burgers to serve at its kickoff event. As a result of the media coverage surrounding the pun-laden letter, Seven Stills expected the release to be its most popular to date.

This case raises an interesting side issue regarding whether efforts by bigger companies to play along might be exploited to the point where they prove counterproductive. After all, Seven Stills admitted that it expected to receive a cease and desist letter and had already made plans for alternative packaging. Their trademark transgressions, and the publicity that followed, then led to their biggest sales. Smaller companies who witnessed this event and the one involving Bud Light might justifiably be tempted to intentionally come close to or even cross the line in the hopes of gaining some free publicity (and possibly even Super Bowl tickets) when a big company takes the bait. This could create a kind of perverse cycle in which the bigger company’s reaction actually draws more of the activity it is trying to stem.

But this just goes back to the earlier discussion of the purpose for seeking trademark protection in the first place—to enhance and secure the value of the company’s brand. While it may be true that certain compa-

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nies could try to take advantage of another company to gain publicity for themselves, if the end result of the exchange is a net increase in the bigger company’s public reputation there is little to complain about. The risk of these sorts of incidents becoming an overwhelming trend is minimal, and any such risk is still outweighed by the potential upside of demonstrating that your company has a sense of humor or at least can handle a situation smoothly and without unnecessary conflict.

Importantly, while the above examples may be amusing, a company can still take a less aggressive stance without self-consciously seeking social media attention or having a viral video opportunity at the ready.

As an example of an understated approach, Jack Daniels whiskey received attention for simply sending a polite and cordial letter. When Patrick Wensink’s satirical novel “Broken Piano for President” went to press in 2012, it featured cover art that looked remarkably similar to the famous Jack Daniels whiskey bottle label. Attorneys for Jack Daniels responded with a cease and desist letter that hit all the relevant legal points, but did so in a way that did not come across as unnecessarily aggressive. It politely asked that future printings of the book be revised, and it offered to help pay for the cost of changing the design if the publisher decided to do so even sooner. The letter even appealed to the author’s status as an artist to point out their shared interest in protecting creative ideas.

Unlike these other examples, this letter did not seem explicitly aimed at garnering media attention, but it did so just the same. In so doing, it helped enhance Jack Daniels’ reputation for southern gentility, while giving Wensink’s book a sales boost to boot. Another crisis averted and another win-win scenario for all involved.

Obviously, not every case will lend itself to these sorts of tactics. There may not have been an especially clever or artful way for a mainland poke company to ask a Hawaiian company to drop its use of the word “Aloha.” But, at the very least, reaching out more informally and with an atmosphere of respect and aloha could have helped to head off the sort of sentiments that fed the backlash. ______________________ Brett R. Tobin is a litigation attorney at Sullivan Meheula Lee, LLLP in Honolulu. He is also a member of the Intellectual Property Section of the Hawaii State Bar and a member of the HSBA Publications Committee.

H SBA HAP PE NIN GS Board Action The HSBA Board took the following actions at its meeting in December: • Approved the Executive Committee’s recommendation to request the Hawaii Supreme Court for a 90-day extension on the comment period for the proposed amendment to Rule 1.5 of the Hawaii Rules of Professional Conduct, which would require all fee agreements be in writing; • To allow further discussion, voted to defer, until the January board meeting, action on the insurance coverage for the MoveMeHawaii fundraiser, and the Hawaii State Bar Foundation’s request for co-sponsorship of such event; • Approved the Executive Committee’s recommendation to designate the current Executive Director, Director of Operations, and the 2019 Treasurer as authorized signers on the First Hawaiian Bank Business Cash Manager Account; • Approved the Nominating Committee’s recommendation to appoint the following individuals to the HSBF Board for a three-year term beginning January 1, 2019: Rai Saint Chu (reappointment), Louise Ing (reappointment), Diane Ono (reappointment), Bobby Senaha (new appointment), Craig Wagnild (reappointment), and Ilana Waxman (new appointment).

2019 HSBA Officers and Directors The following members will serve on the 2019 HSBA Board: President Derek R. Kobayashi, President-elect P. Gregory Frey, Vice President Karin L. Holma, Treasurer Paul W. Naso, and Secretary Russ S. Awakuni.

Directors Steven J.T. Chow, Rebecca A. Copeland, Vladimir Devens, William A. Harrison, Geraldine N. Hasegawa (East Hawaii), Kristin E. Izumi-Nitao, Carol S. Kitaoka (West

Hawaii), Erin M. Kobayashi, Corianne W. Lau, Kai K.A. Lawrence (Kauai), Jacob L. Lowenthal (Maui), Lisa W. Munger, Mark K. Murakami, Zale T. Okazaki, John M. Tonaki, Summer Kaiawe (YLD).

2019 HSBA YLD Officers and Directors The following members will serve on the 2019 HSBA YLD Board: President Summer Kaiawe, Vice President Addison Bonner, Secretary Katherine Lukela, and Treasurer Kyleigh Nakasone. The Directors are: Marissa Agena (Kauai), Bryan Chee, Michelle Ching, Elaine Chow, Laura Cushman (West Hawaii), Christilei Hessler, Cameron Holm, Michi Momose, Jamil Newirth (Maui), Daniel Padilla, Christopher St. Sure, Kelden Waltjen (East Hawaii).

2019 HSBA SCD Officers & Directors The following members will serve on the 2019 HSBA SCD Board: President Ian Lorne Sandison, Vice President/President-elect Gregory Lui-Kwan, Secretary Carole Richelieu, and Treasurer Charles W. Crumpton.

The Directors are: Jamie A. Chuck, Jonathan J. Chun (Kauai), Gilbert C. Doles, Rosemary T. Fazio, Charlene Y. Iboshi (Big Island), Judith Neustadter Naone (Maui), Kenneth K.P. Wong, and Michael J.Y. Wong.

Member Benefits Spotlight BookingCommunity Exclusive access to rates of over 800,000 participating hotels and resorts that are up to 70% less than any other online travel booking site.

Visit www.bookingcommunity.com/hsba to learn more.

Hawaiian Airlines HSBA members are eligible for a 5% off discount on all transpacific web fares (round trip only). For reservation instructions, sign in to your HSBA member account. Once you are signed in to your account, click on “My Account” > “Benefit-Hawaiian Airlines.”

Effective for tickets purchased on or after January 21, 2010. Baggage fees will apply to Preferred Affiliate Bookings.

Marriott SPG Resorts in Waikiki Special “kama’aina” rates on Starwood properties in Waikiki for HSBA members. Call the 24-hour reservation line at 1-800-782-9488 and ask for rate code: SETHIHOK. You may also book your special rates online using “SET/Corporate Account #” in th e “Rate Preferences/Promotion Codes” drop-down menu. Enter code: 375635.

Proof of Hawaii residence ID required upon check-in. Visit http://www.resorts. starwoodoffers.com/Special-Partner-Offer for more information.

Last Chance to Renew 2019 License February is the last month to renew your HSBA license for 2019 before Administrative Suspension. If you have not renewed your license yet, please do so before February 28, 2019. You can complete your registration online at hsba.org. Do not hesitate to contact the HSBA office, Monday-Friday, 8:00 a.m.4:00 p.m. at 1-808-537-1868 if you have questions. You may also email the HSBA Membership Department at ars@hsba.org.

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The Hawaii State Judiciary Language Access Services

by Debi Tulang-De Silva According to United States Census data, one in four Hawaii residents speaks a language other than English at home, and one in eight is considered limited English proficient (LEP). LEP individuals are individuals who do not read, write, speak, or understand English very well. The Judiciary has long recognized that LEP individuals who come before the courts, or who receive Judiciary services require language assistance in order to meaningfully participate due to their limited English proficiency. For this reason, the Judiciary has dedicated significant resources to enhance language access services, free of charge, for LEP court customers, which include: • Court interpreters are provided for LEP parties including plaintiffs and defendants, witnesses, and persons with a substantial interest in all civil and criminal cases.

• Language services are also provided for LEP court customers communicating with the Judiciary, including over-the-counter and over-the-telephone.

• Sign language interpreters or computer assisted real-time transcription are provided for persons who are deaf or who have a speech or hearing impairment, in accordance with the Americans with Disabilities Act and the ADA Amendments Act of 2008.

The Office on Equality and Access to the Courts has improved and increased the services available to Hawaii’s growing LEP population by: • Providing interpreting services for LEP clients in more than 50 different languages.

• Translating documents for LEP

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court users that provide important information on how to access court services into the 14 languages most frequently encountered in Hawaii state courts.

• Creating language specific webpages that compile all documents translated into the 14 languages most frequently encountered in Hawaii state courts so that LEP persons can easily access information in their language. The Hawaii State Judiciary website was voted the number one court website in the country in the National Association for Court Management’s 2016 Top 10 Court Technology Solutions Awards.

• Conducting statewide mandatory staff training on language access services so that the Judiciary can uphold the highest standards of service.

In 2016, Hawaii was ranked first in the nation among all state courts for providing support for LEP persons by the Justice Index 2016 Findings, National Center for Access to Justice. The Judiciary has also been recognized by the U.S. Department of Justice for its efforts in enhancing language services for its LEP court customers.

Language Interpreting in the Courts There are over 400 interpreters in the Judiciary’s Court Interpreter Certification Program. The Court Interpreter Certification Program promotes and ensures equal access for LEP, deaf, and hard-of-hearing persons by providing the most qualified interpreters available.

The program also aims to expand and improve the Judiciary’s pool of qualified interpreters by establishing a minimum standard for state court interpreters.

Court Interpreters Wanted The Hawaii State Judiciary is currently seeking individuals who speak English and another language, as well as

In the fiscal year 2015, the Judiciary provided interpreting services in as many as 45 languages, assisting limited English proficient court customers in 10,592 court proceedings.

The fifteen major languages were: Chuukese Ilokano Marshallese Korean Spanish Vietnamese Tagalog Japanese Tongan Samoan Cantonese Mandarin Pohnpeian American Sign Language Kosraean certified sign language interpreters to become state court interpreters. Court interpreters are independent contractors, and not Judiciary employees. Free-lance court interpreters start at $25 an hour and can earn up to $55 per hour with a two-hour base minimum, depending on their performance on written and oral exams.

Interested interpreters do not need any prior legal knowledge or legal experience, but all interpreters must attend the Judiciary’s Basic Orientation Workshop for Court Interpreters. Registration is currently open for the 2019 workshops statewide.

The two-day workshops will be held: • Hawaii (Kona): Feb. 5-6 at the Kona Driver Education Office in the Kealakekua Business Plaza • Maui: Feb. 13-14 at the Maui Driver Education Office in the Main Street Promenade Building

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• Oahu: Feb. 23-24 at the Supreme Court Building in downtown Honolulu • Kauai: March 5-6 at the Kauai Courthouse in Lihue • Hawaii (Hilo): March 14-15 at the Hilo Courthouse • Oahu: March 23-24 at the Supreme Court Building in downtown Honolulu The workshop registration fee is only $50 through support from the State Office of Language Access. (The workshop would otherwise cost $150.)

Seating is limited. Registrations will be accepted until workshops are filled. Registration forms are available on the Judiciary’s website at www.courts.state.hi.us/ courtinterpreting and from the Office on

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Equality and Access to the Courts at 808-539-4860.

Contact the Office on Equality and Access to the Courts The Judiciary’s Office on Equality and Access to the Courts develops, implements, and administers statewide programs and policies relating to access to the courts for court customers who are LEP or need accommodations under the Americans with Disabilities Act and the ADA Amendments Act of 2008.

For more information, contact: Office on Equality and Access to the Courts Hawaii State Judiciary 426 Queen Street, Room B17 Honolulu, Hawaii 96813-2914

Phone: (808) 539-4860 Facsimile: (808) 539-4203 E-mail: OEAC@courts.hawaii.gov —————————————— Debi Tulang-De Silva has been the Program Director of the Office on Equality and Access to the Courts at the Hawaii State Judiciary since February 2005. Prior to that, she served as a Deputy Corporation Counsel for the City and County of Honolulu, staff attorney for the Regulated Industries Complaints Office with the State of Hawaii Department of Commerce and Consumer Affairs, and Deputy Public Defender for the State of Hawaii.

CAS E NOTES Supreme Court

or TMT project) was previously subjected to a substantial adverse impact, the In the Matter of Contested Case Hearing A statement of jurisdiction may BLNR found that the proposed TMT Re Conservation District Use Application be stricken unless a copy of the judgproject could not have a substantial adment or order appealed from is at(CDUA) HA-3568 for the Thirty Meter Televerse impact on the existing natural retached to it. HRAP 12.1(d). scope at the Mauna Kea Science Reserve, Kaohe sources. Under this analysis, the Mauka, Hamakua, HI, TMK (3) cumulative negative impacts from devel404015:009, SCOT-1-0000777, SCOT-17-0000811, and opment of prior telescopes caused a substantial adverse imSCOT-17-0000812, November 30, 2018. pact; therefore, TMT could not be the cause of a substantial adverse impact. As stated by the BLNR, TMT could not Amended Opinion “create a tipping point where impacts became significant.”

In the Matter of Contested Case Hearing Re Conservation District Thus, addition of another telescope—TMT—could not be Use Application (CDUA) HA-3568 for the Thirty Meter Telescope at the cause of a substantial adverse impact on the existing rethe Mauna Kea Science Reserve, Kaohe Mauka, Hamakua, HI, TMK sources because the tipping point of a substantial adverse im(3) 404015:009, SCOT-1-0000777, SCOT-17-0000811, and pact had previously been reached. Appellants objected to the SCOT-17-0000812, November 30, 2018, (McKenna, J. in principle advanced by the BLNR that “without the TMT which Pollack, J., joins except as to Part V.C.1). These appeals Project, the cumulative effect of astronomical development were filed from a September 27, 2017 decision of the Board and other uses in the summit area of Mauna Kea have previof Land and Natural Resources (“BLNR”) authorizing isously resulted in impacts that are substantial, significant and suance of a Conservation District Use Permit for the Thirty adverse” and, therefore, “[t]he level of impacts on natural reMeter Telescope (“TMT”) near the summit of Mauna Kea. sources within the Astronomy Precinct of the [Mauna Kea Appellant Native Hawaiian1 cultural practitioners believe that Science Reserve (MKSR)] would be substantially the same Mauna Kea, as a sacred manifestation of their ancestry, even in the absence of the TMT Project[.]” In other words, should be honored in its natural state and is desecrated by deBLNR concluded that the degradation to the summit area has velopment of astronomy facilities near its summit. In conbeen so substantially adverse that the addition of TMT would trast, Appellees submitted that telescope use is an allowed and have no substantial adverse effect. Thus, while conceding that appropriate use of the summit area, that various measures are Mauna Kea receives constitutional and statutory protection being taken to reduce the impact of the TMT, and that commensurate with its unchallenged position as the citadel of Mauna Kea can also be honored through the advancement of the Hawaiian cultural pantheon, the BLNR applied what can scientific knowledge that TMT would provide. In this opinbe described as a degradation principle to cast off cultural or ion, the Hawaii Supreme Court addressed whether the BLNR environmental protection by establishing that prior degradaproperly applied the law in analyzing whether a permit should tion of the resource—to a level of damage causing a substanbe issued for the TMT and affirmed the BLNR’s decision autial adverse impact—extinguishes the legal protection afforded thorizing the issuance of a Conditional District Use Permit. to natural resources in the conservation district. The degradation principle ignores the unequivocal mandate contained in Amended Dissenting Opinion Hawaii Administrative Rules § 13-5-30(c)(4) prohibiting a In the Matter of Contested Case Hearing Re Conservation District Conservation District Use Permit (“CDUP”) for a land use Use Application (CDUA) HA-3568 for the Thirty Meter Telescope at that would cause a substantial adverse impact to existing natuthe Mauna Kea Science Reserve, Kaohe Mauka, Hamakua, HI, TMK ral resources. The BLNR substituted a new standard for eval(3) 404015:009, SCOT-1-0000777, SCOT-17-0000811, and uating the impacts of proposed land uses, a standard that SCOT-17-0000812, November 30, 2018, (Wilson, J.). removes the protection to conservation land afforded by Haw. The degradation principle. The Board of Land and NatAdmin.

R. § 13-5-30(c)(4). Using the fact that the resource ural Resources (BLNR) grounds its analysis on the proposition has already suffered a substantial adverse impact, the BLNR that cultural and natural resources protected by the Constituconcluded that further land uses could not be the cause of tion of the State of Hawaii and its enabling laws lose legal substantial adverse impact. Under this new principle of natuprotection where degradation of the resource is of sufficient ral resource law, one of the most sacred resources of the severity as to constitute a substantial adverse impact. Because Hawaiian culture loses its protection because it has previously the area affected by the Thirty Meter Telescope Project (TMT

Appeal Pointer

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19

disputes

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undergone substantial adverse impact from prior development of telescopes.

The degradation principle portends environmental and cultural damage to cherished natural and cultural resources.

It dilutes or reverses the foundational dual objectives of environmental law — namely, to conserve what exists (or is left) and to repair environmental damage; it perpetuates the concept that the passage of time and the degradation of natural resources can justify unacceptable environmental and cultural damage. It is noteworthy that the party responsible for the substantial adverse impact to this protected resource is the State of Hawaii. It is uncontested that the State authorized previous construction within the Astronomy Precinct of the MKSR that created a substantial adverse impact. Thus, the party that caused the substantial adverse impact is empowered by the degradation principle to increase the damage. Now the most extensive construction project yet proposed for the Astronomy Precinct,—a 180-foot building 600 feet below the summit ridge of Mauna Kea—is deemed to have no substantial adverse impact due to extensive degradation from prior development of telescopes in the summit area. The degradation principle renders inconsequential the failure of the State to meet its constitutional duty to protect natural and cultural resources for future generations. It renders illusory the public trust duty enshrined in the Constitution of the State of Hawaii and heretofore in the decisions of this court to protect such resources. And its policy of condoning continued destruction of natural resources once the resource value has been substantially adversely impacted is contrary to accepted norms of the environmental rule of law.

Criminal State v. Hernadez, No. SCWC-150000067, December 21, 2018, (Pollack, J., with Nakayama, J., dissenting, with

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whom Recktenwald, C.J., joins). In this appeal, Appellant challenged the validity of his no contest plea and the sentence imposed, both of which occurred after the trial court found that Appellant had waived his presence at the court proceeding by the filing of a document signed by Appellant and a declaration by his counsel. The Hawaii Supreme Court first concluded that Appellant’s challenge to his sentence was not precluded by his plea of no contest. The Hawaii Supreme Court also held that Appellant’s right of allocution, which is protected by statute and the Hawaii Constitution, was violated when the district court did not afford him the opportunity to be heard prior to being sentenced. Lastly, the Hawaii Supreme Court concluded that the district court’s acceptance of Appellant’s no contest plea without an on-the-record colloquy was plain error.

Nakayama, J., with whom Recktenwald, C.J., joined, concurred in part and dissented in part. Nakayama, J. agreed with the Majority’s holding that Appellant’s no contest plea did not preclude his challenge to his sentence. However, Nakayama, J. wrote separately because she could not join the Majority’s holdings (1) that the district court’s acceptance of Appellant’s Hawaii Rules of Penal Procedure Rule 43 plea without conducting an on-the-record colloquy justifies plain error review; and (2) that the district court erred in denying Appellant the right of allocution. Nakayama, J. continued to believe “this court’s power to deal with plain error is one to be exercised sparingly and with caution.” State v. Miller, 122 Hawaii 92, 146, 223 P.3d 157, 211 (2010) (Nakayama, J., dissenting). In her view, the facts of this case did not justify plain error review.

Moreover, Appellant waived his right to engage personally with the court, including the right to engage in a colloquy and the right of pre-sentence allocution, when he initiated a proceeding by which

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he chose to plead remotely and remain absent from that point forward.

State v. Wakamoto, No. SCWC-160000873, December 13, 2018, (McKenna, J.). This appeal arose from Defendant Tyler Wakamoto’s conviction for the offense of “Operating a Vehicle under the Influence of an Intoxicant” (“OVUII”) in violation of Haw. Rev. Stat. § 291E-61(a)(1). The issue on certiorari concerned the foundational requirements for the admission of testimony under Hawaii Rules of Evidence Rule 612, when a witness testifies after reviewing a “Writing used to refresh memory.” After Honolulu Police Department (“HPD”) Officer Manueli Kotobalavu (“Officer Kotobalavu” or “the Officer”) reviewed his report for the second time while testifying over defense objection, the district court allowed the Officer to testify regarding Wakamoto’s field sobriety test without a foundation having been laid that his memory had been refreshed by reviewing the report.

In its October 20, 2017 Summary Disposition Order (“SDO”), the ICA affirmed Wakamoto’s conviction, stating that no legal authority required the laying of such a foundation. See State v.

Wakamoto, No. CAAP-16-0000873, at 4 (App. Oct. 20, 2017) (SDO). In his certiorari application (“Application”), Wakamoto reasserted a question he had posed to the ICA: Whether the ICA gravely erred in holding that the district court did not err in denying Wakamoto’s objection to an officer’s testimony in an OVUII case as refreshed memory when the officer had already reviewed his report once to answer the prosecutor’s questions about the standardized field sobriety test? Legal authority requires that before testimony is admitted pursuant to Haw. R. Evid. Rule 612 after a witness reviews writing while testifying for the purpose of refreshing memory, an evidentiary foundation must be laid

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establishing that the witness’s memory has actually been refreshed. Therefore, the ICA erred by indicating that no legal authority exists requiring that such a foundation be laid, and the district court erred by admitting Officer Kotobalavu’s testimony regarding Wakamoto’s field sobriety test over defense objection without requiring the proper evidentiary foundation. Despite evidentiary error, an appellate court may affirm a judgment of a lower court on any ground in the record that supports affirmance. See State v. Fukagawa, 100 Hawaii 498, 506, 60 P.3d 899, 907 (2002) (citations omitted). After the defense objected to Officer Kotobalavu again reviewing his report and questioned whether he had an independent recollection, the deputy prosecuting attorney raised the possibility that the officer’s testimony would be admissible under Haw. R. Evid. Rule 802.1(4) governing “Past recollection recorded” if it was not otherwise admissible under Haw. R. Evid. Rule 612.

The State, however, did not alternatively argue Haw. R. Evid. Rule 802.1(4) to the ICA or to this court, and it is unclear whether the testimony at issue would have been admissible on this basis. In addition, the erroneous admission of evidence is not harmless beyond a reasonable doubt if there is a reasonable possibility that the error might have contributed to the conviction. See State v.

Subia, 139 Hawaii 62, 69, 383 P.3d 1200, 1207 (2016). In this case, the district court specifically stated it relied in part on Officer Kotobalavu’s improperly admitted testimony as a basis for convicting Wakamoto — thus, the improperly admitted testimony contributed to the conviction. Therefore, the evidentiary error cannot be deemed harmless beyond a reasonable doubt.

Public Disclosure Peer News LLC v. City and County of Honolulu, No. SCAP-16-0000114, De-

cember 21, 2018, (Pollack, J., with Nakayama, J. dissenting, with whom Recktenwald, C.J., joins). Hawaii law has long stated that “[o]pening up the government processes to public scrutiny and participation is the only viable and reasonable method of protecting the public’s interest.” Haw. Rev. Stat. § 92F2 (2012). Therefore, in establishing the legal framework governing public access to government records, the Hawaii legislature declared “that it is the policy of this State that the formation and conduct of public policy—the discussions, deliberations, decisions, and action of government agencies—shall be conducted as openly as possible.” Id. This case concerned the propriety of State and local agencies withholding certain inter- and intra-office communications when disclosure is formally requested by a member of the public. In a series of eight opinion letters issued between 1989 and 2007, the State of Hawaii Office of Information Practices (“OIP”) took the position that, based on a statutory exception provided in Hawaii’s public record law that permits the nondisclosure of records that would frustrate a legitimate government function if revealed, a “deliberative process privilege” exists that protects all pre-decisional, deliberative agency records without regard for the relative harm that would result from any specific disclosure.

Relying on these opinion letters, the Office of Budget and Financial Services for the City and County of Honolulu denied a public records request for certain internal documents generated during the setting of the City and County’s annual operating budget. The Hawaii Supreme Court held that, because the deliberative process privilege attempts to uniformly shield records from disclosure without an individualized determination that disclosure would frustrate a legitimate government function, it is clearly irreconcilable

with the plain language and legislative history of Hawaii’s public record laws.

The OIP therefore palpably erred in interpreting the statutory exception to create this sweeping privilege.

Nakayama, J., with whom Recktenwald, C.J., joined, dissented. Nakayama, J. stated that although she disagreed with the Majority that OIP’s recognition of a deliberative process privilege is not supported by the language or legislative history of the Uniform Information Practices Act (UIPA), she believed OIP’s current test that to determine whether a government record falls within the privilege was palpably erroneous. On appeal, the Hawaii Supreme Court must resolve two issues: (1) whether OIP’s recognition of the deliberative process privilege is palpably erroneous; and (2) whether OIP’s current two-part test that determines whether a document is protected by the privilege is palpably erroneous. In other words, this court must decide whether OIP’s interpretation of the UIPA, which generally receives deference, Haw. Rev. Stat. § 92F-15(b), is so inconsistent with the legislative intent of the statute that it is palpably erroneous.

See Kanahele v. Maui Cty. Council, 130 Hawaii 228, 245-46, 307 P.3d 1174, 1191-92 (2013). Unlike the Majority, Nakayama, J. did not believe that OIP’s recognition of the deliberative process privilege is palpably erroneous. The plain language of Haw. Rev. Stat. § 92F2, the legislative history underlying the UIPA, and the Legislature’s actions prior and subsequent to the enactment of the UIPA did not suggest to Nakayama, J. that the Legislature clearly intended to reject the deliberative process privilege as an exception to the general rule requiring public access to government records. Accordingly, Nakayama, J. would hold that the circuit court did not err in granting Defendants’ motion for summary judgment on Count I. How-

ever, Nakayama, J. believed that OIP’s two-part test that currently determines whether a document is protected by the deliberative process privilege is palpably erroneous. OIP’s test creates a broad exception that favors non-disclosure over public access, and thus conflicts with the Legislature’s intent that the UIPA be construed to promote the public interest in disclosure through a general policy of access to government records. Therefore, Nakayama, J. would hold that the circuit court erred in granting Defendants’ motion for summary judgment with respect to Count II, insofar as the circuit court applied OIP’s current test to conclude that the requested operating budget requests fell within the deliberative process privilege. In contrast with the extreme positions adopted by the Majority, which would reject any deliberative process privilege altogether, and OIP, which adopted an unduly expansive interpretation of the privilege, Nakayama, J. would adopt a middle ground approach that would require more detailed justification by the agency asserting the privilege and require a court to balance the government’s interest in confidentiality with the public’s interest in disclosure. See City of Colorado Springs v. White, 961 P.2d 1042 (Colo.

1998) (en banc). Such an approach would protect the public’s right of access to documents without unduly impeding the ability of government officials to reach sound decisions through the free and candid exchange of ideas.

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Public Utilities In the Matter of the Contested Case Hearing on the Water Use Permit Application Originally Filed by Kukui (Molokai), Inc., Now Refiled as a New Ground Use by Molokai Public Utilities, LLC, No. SCOT-17-0000184, December 10, 2018, (Pollack, J.). When the Hawaii Supreme Court first considered this case over a decade ago, it va-

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cated the issuance of two water use permits and remanded the matter to the State of Hawaii Commission on Water Resource Management (Commission) for further proceedings. On remand, parties indicating that they were the applicant’s successors in interest submitted a letter to the Commission stating that they lacked the financial resources to continue to pursue the case. When these same parties filed a new water use application years later, the Commission initially treated it as a continuation of the remanded case before concluding that the letter had constituted a waiver of the applicants’ right to continue the original proceedings. The applicants challenged this conclusion, arguing that the letter was at best ambiguous as to their intention to relinquish the rights at issue. The Hawaii Supreme Court held that the Commission did not err in finding that the letter was a clear and unambiguous waiver of the right to proceed on the contested case.

Intermediate Court of Appeals

structing, specifically the asserted attendant circumstance that Appellant’s conduct had “render[ed] [the road] impassable without unreasonable inconvenience or hazard”; (2) the circuit court erred in failing to instruct the jury on the mitigating defense under Haw. Rev. Stat. § 711-1105(5), which reduces Obstructing from a petty misdemeanor to a violation; (3) his conviction could not stand because the evidence was insufficient to sustain the offense of Obstructing; and (4) the circuit court erred by sustaining the prosecution’s objection during closing argument under the “golden rule” because the jury was entitled to consider Appellant’s choice-of-evils defense by “walking in his shoes.” The ICA disagreed with Appellant on his first, third, and fourth point of errors. However, given the evidence in this case, the ICA agreed with Appellant’s second point of error that the jury should have been instructed regarding the mitigating defense under Haw. Rev. Stat. § 711-1105(5), which could reduce Obstructing from a petty misdemeanor to a violation.

Probate Criminal State v. Kauhane, No. CAAP-160000668, November 29, 2018, (Ginoza, C.J.). Appellant was charged via a Second Amended Complaint with: Failure to Disperse, in violation of Haw. Rev. Stat. § 711-1102; Obstructing, in violation of Haw. Rev. Stat. § 711-1105(1)(a); and Disorderly Conduct, in violation of Haw. Rev. Stat. § 711-1101(1)(d). Following a jury trial, Appellant was found guilty of Obstructing. At sentencing, Appellant was sentenced for a petty misdemeanor under Haw. Rev. Stat. § 7111105(5). On appeal, Appellant asserted the following points of error: (1) the Second Amended Complaint was defective for failing to allege an element of Ob-

Lumford v. Ota, No. CAAP-160000414, November 30, 2018, (Leonard, J.). Appellant filed a complaint alleging that her aunt owned a single-family residence that her aunt wanted to leave to Appellant but the aunt believed Appellant was not yet mature enough to manage it by herself. The complaint also alleged that the aunt decided to convey the property to her aunt’s friend in fee simple absolute, retaining a life estate for herself, in reliance on the friend’s promise to hold the property for the use and benefit of aunt during her lifetime and thereafter for the use and benefit of Appellant’s parents during their lifetimes and thereafter for the use and benefit of Appellant until such time as Appellant

attained the maturity to manage the property herself whereupon the friend would convey the property to Appellant.

Aunt passed away and her friend conveyed the property to himself and his wife. The friend later mortgaged the property. The friend’s wife later died and the friend conveyed the property to a third-party. The complaint also alleged that the friend received rental and other income from the property for which he did not account and for which the friend retained for the friend’s own use and benefit.

The circuit court concluded, as a matter of law, that no claim for unjust enrichment could be sustained by Appellant against the friend because Appellant did not allege that she (rather than a third party) bestowed a benefit upon the friend that he wrongfully retained. The ICA held that the circuit court erred and that, in limited circumstances, a claim for unjust enrichment may be stated by allegations that a third-party has conferred a benefit upon a defendant to which the plaintiff claims he or she has a superior legal or equitable right. The requirements for such a claim may be satisfied by proof of a clear legal entitlement. Other equitable circumstances might suffice, but in all cases, the plaintiff must identify a right in the disputed assets that is both recognized and accorded priority over the interest of the defendant. It is insufficient to allege that the defendant has received a windfall, that the claimant has been ill-treated, and that the third party’s payment or other transfer to the defendant (or the defendant’s retention of payment or transferred assets as against the claimant) violates rules of good faith, basic fairness, or common decency.

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C O URT BR IEF S Hiraoka and Kupau-Odo Sworn In Judge Keith K. Hiraoka was sworn in as associate judge of the Intermediate Court of Appeals, and Summer M.M. Kupau-Odo was sworn in as judge of the District Court of the First Circuit in November.

Judge Hiraoka will serve a ten-year term and Judge Kupau-Odo will serve a six-year term.

Kauai Attorneys Recognized for Volunteer Service to Community

Kona Attorneys Honored for Helping Hundreds in West Hawaii

[Photo attached.] Front row, left: Gina Okuda-Stauring, Sonia Song, Adam Roversi, Chief Justice Mark E. Recktenwald, and Katherine Caswell. Second row, left: Jay Mason, Kai Lawrence, and Matthew Bracken. Third row, left: Judge Kathleen Watanabe, Chief Judge Randal Valenciano, and Judge Edmund Acoba.

[Photo attached] Front, left: Joanna Sokolow, Kimberly Taniyama, Chief Justice Mark E. Recktenwald, and Donna Payesko. Standing, left: Anmar Alnagem, Claudia Shockley, Judge Margaret Masunaga, Sarah Kelly, Jennifer Heimgartner, John Olson, Matthew Silva, Laura Cushman, Mark Van Pernis, Ann Datta, Frederick Macapinlac, Daniel Mistak, Stephen Frye, Jason Braswell, Peter Olson, Judge Melvin Fujino, Charles McCreary, Frederick Giannini, Lauren Kennedy, and Dawn Henry.

Thirty attorneys were recognized in October for voluntarily providing free legal information to nearly 600 Hawaii Island residents who sought help at the Kona Courthouse Self-Help Center in the last year.

Honored were: Brit Barker, James Biven, Jason Braswell, Laura Cushman, Katherine DeLeon, Porter DeVries, Stephen Frye, Jerry Garcia, Fred Giannini, Jennifer Heimgartner, R. Hermann Heimgartner, Dawn Henry, Joan Jackson, Kauanoe Jackson, Andrew Kennedy, Susan Kim, Carol Kitaoka, Frederick Macapinlac, Charles McCreary, Charles Murray, Shawn Nakoa, Bob Olson, John Olson, Peter Olson, Donna Payesko, Daniel Peters, Joanna Sokolow, Kimberly Taniyama, Mark Van Pernis, and Georgette Yaindl.

Also acknowledged were Sarah Kelly and Bayley Nagy, the AmeriCorps Advocates who, through the Legal Aid Society of Hawaii, run the Self-Help Center.

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Fifteen attorneys and an AmeriCorps Advocate were recognized in December for their volunteer service in providing free legal information to more than 500 Kauai residents who went to the Puuhonua Kaulike Courthouse Self-Help Center for assistance in 2018.

Honored were: Mark L. Bradbury, Matt Bracken, Nancy Budd, Katherine Caswell, Nicholas Courson, Sinclair Salas Ferguson, Jodi Higuchi, Kai Lawerence, Jay Mason (Legal Aid), Emiko Meyers, Allison Lee, Sherman Shiraishi, Adam Roversi, Teresa Tumbaga, and Linda Vass (Legal Aid).

Special acknowledgment was given to AmeriCorps Advocate Sonia Song who, through the Legal Aid Society of Hawaii, has run the Kauai Courthouse Self-Help Center for four years. Thanks to her efforts, the center was open five days a week in 2018.

First Military Spouse-Attorney Sworn In Under Amended Rules Melissa Rueschhoff made history as the first attorney sworn in under the amended rules allowing limited admission to the Hawaii Bar for military spouses who meet the legal, educational and personal qualifications. She was sworn in by Associate Justice Paula A. Nakayama on November 27, 2018, in the Supreme Court Courtroom.

“I am humbled and honored to be the first military spouse to become licensed to practice law in the state of Hawaii under Rule 1.17 (c). . . I am proud to be the “guinea pig” as I’ve been told and hope to pave the way for

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many more to come,” she said.

“This is an important day; both for the military spouses and attorneys who worked to establish this reciprocity, as well as for military spouses everywhere who wish to maintain a career while their active duty partners continue to serve our country,” added Rueschhoff, who graduated from the South Texas College of Law, in Houston, Texas, and has been practicing law for 20 years.

Rueschhoff knows first-hand the challenges military spouses face while trying to build a law career amid frequent moves. Courtesy of the military, she has lived in 11 different locations. In the past, when her husband, U. S. Air Force Colonel Jason Rueschhoff, transferred, she was required to take the bar examination in the new state. She described the process as a grueling amount of paperwork and expense. As a result, she is licensed to practice law in Texas, Arizona, Alabama, and in five federal courts. In states where she did not practice law, she furthered her career by teaching university law courses.

Although she did not have to take the Hawaii Bar exam, she was required to pass an extensive background check.

Hawaii is the first state she has lived where she has been allowed to practice law based on reciprocity and she is very grateful for this accommodation.

In July 2017, when the Hawaii Supreme Court released a draft proposed rule on this subject for consideration and public comment, only 25 states had enacted rules that allowed bar admission to attorney military spouses without having to take a written bar exam. Hawaii’s amended rules went into effect on July 1, 2018. To date, 32 states and the U.S. Virgin Islands now provide licensing accommodations to attorney military spouses.

“Military spouses must make significant sacrifices when they are required to relocate due to their spouses’ military service. The sacrifice is particularly significant for those who are attorneys, and who therefore must be licensed in each jurisdiction where they practice. To ame(Continued on page 30)

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O FF THE R EC ORD Brett R. Tobin and Ernie Y. Martin have both joined the law firm of Sullivan Meheula Lee. Tobin brings over 13 years of complex civil litigation experience both in Hawaii and on the mainland. He will continue to focus his practice in the areas of commercial litigation, real estate disputes, intellectual property litigation, and construction defects. Martin resumes private practice after an extensive career with the City and County of Honolulu, including civil service and cabinet-level positions and, most recently, as the longest serving Chairperson in the history of the City Council. He will focus on real property law and community engagement.

Former Hawaii Attorney General and Lt. Governor Doug Chin joined Starn O’Toole Marcus & Fisher focusing on commercial litigation and government relations. He also served as the Honolulu City Managing Director under Mayor Peter Carlisle and was at the Carlsmith Ball law firm where he focused on renewable energy and clean technology projects, land use and development and commercial litigation.

Chin received his undergraduate degree from Stanford University and his law degree from University of Hawaii, William S. Richardson School of Law. The family law office of Coates & Frey added Tom Tanimoto and Noah Gibson as two new partners. The firm will now be known as Coates Frey Tanimoto & Gibson.

Goodsill Anderson Quinn & Stifel welcomed a new litigator to the firm, Christopher K. Hikida. He is an associate and is experienced in litigation and disputes as well as class action matters. A graduate of the University of California Davis School of Law, he previously practiced at a firm in San Francisco representing plaintiffs in class

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action and other complex litigation matters.

Cissy Farm, Thom Benedict, and Dawn Sugihara have formed Farm Benedict Sugihara, where the trio continue to focus their practice on complex litigation. Also joining the firm as a partner is Donna Kalama, who worked for the Department of the Attorney General for the last ten years handling both litigation and advice and counsel work.

Matthew H. Murakami joined Clay Chapman Iwamura & Pulice as an associate attorney. His focus is on business formation, corporate governance, and real estate. His background in business includes an M.B.A. degree and a B.A. from Willamette University, Salem Oregon.

Elijah Yip started a new law firm, Luminate Law, with Dean Wang.

Michelle O. Yip is of counsel with the firm. Luminate Law practices in the areas of business and corporate law, information technology and privacy law, healthcare law, environmental and natural resources law, energy and public utilities law, as well as litigation, arbitration, and mediation.

Kayla M. Fajota, Travis T. Moon, and Laurel E. Pepe joined Damon Key Leong Kupchak Hastert as associates. Fajota is in the firm’s Family Law practice group. She earned her law degree from the University of Hawaii, William S. Richardson School of Law and her undergraduate degree in Psychology from Creighton University. Moon is in the firm’s Real Estate and Business and Commercial practice groups. He also received his law degree from the University of Hawaii, William S. Richardson School of Law. He has his B.A. degree in Political Science from the University of Washington. Pepe is

in the firm’s Trusts and Estates practice group. She earned her law degree, summa cum laude, from the University of Hawaii, William S. Richardson School of Law, where she served as staff writer and technical editor for the University of Hawaii Law Review.

Jeffrey S. Grad recently completed a two-year term as President of the Board of Directors of Seagull Schools, a non -profit corporation that provides early education for about 1000 preschoolers on five campuses on Oahu.

He continues to serve as a member of the Board.

Charlene Iboshi, retired Prosecuting Attorney for the County of Hawai‘i, was honored by the Ku‘ikahi Mediation Center at its thirteenth annual recognition dinner and auction in November 2018.

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>.

COURT BRIEFS (Continued from page 29) liorate that burden, the Supreme Court decided to offer them limited admission to the Hawaii Bar without having to take an examination,” said Hawaii Chief Justice Mark E. Recktenwald.

Comeau Reappointed as Per Diem Judge Congratulations to Michelle Noelani Comeau, who has been reappointed as per diem judge of the District Court of the First Circuit. Her term will run from October 23, 2018 to October 22, 2020.

ATTORNEY WANTED IF YOU ARE INTERESTED in exploring opportunities for attorneys and paralegals at Central Pacific Bank, please contact glenn.ching@centralpacificbank.com.

SETTLE MEYER LAW is in search of a transactional associate attorney with at least 1-3 years’ business and/or real estate legal experience, and a commercial litigation associate with 1-3 years’ experience. This is an exciting and challenging opportunity to work at a law firm on the front lines of a number of pressing issues facing Hawaii, including affordable housing, mixed-use development and hightech/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.

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