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BAR JOURNAL A N O FFICIAL P UBLICATION
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H AWAII S TATE BAR A SSOCIATION F EBRUARY, 2020 $5.00
TABLE O F C ON TE NTS VO LUM E 24 , 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 HSBA OFFICERS
ARTICLES 44
The New EIS Rules: Changes to the Hawai‘i Environmental Review Process by Lisa A. Bail and Alana T. Song
19 14
2019 Pro Bono Celebration by Tracey S. Wiltgen
24
OF NOTE 18
HSBA Happenings
19
2020 Hawaii Access to Justice Conference
20
Case Notes
27 20 29
Court Briefs
Treasurer Paul Naso
22 30
Notice of Reinstatement
YLD OFFICERS
28 31
Classifieds
President P. Gregory Frey President-Elect Karin Holma Vice President Levi Hookano Secretary Russ Awakuni
President Addison Dale Bonner Vice President/President-Elect Christopher St. Sure Secretary Kyleigh Nakasone Treasurer Tiffany Kaeo
Notice of Discipline
30 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. Periodical postage paid at Honolulu, Hawaii and additional mailing offices. POSTMASTER: Send address changes to the Hawaii Bar Journal (ISSN 1063-1585), 1100 Alakea St., Ste. 1000, Honolulu, Hawaii 96813.
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On the cover: Amateur Gardener Amateur Gardener by Kelsey NaPier. NaPier grew up surfing on the south shore of Oahu, feeling grounded by the constant blue horizon and majestic Hawaii mountains. She graduated as a Daughter of Iolani School and continued her studies in film and painting at the U.S.C.’s School of Cinematic Arts and Roski School of Art and Design. Working out of her studio in Santa Monica, CA, Kelsey hopes to spread the aloha spirit and her love of nature through her original and commissioned paintings. Her painting Erin Surfs is on display at the Honolulu law firm of Cox Fricke LLP and Taroko Gorge hangs on the wall at Chun Kerr LLP. Other works by Kelsey are held in private collections in Hawaii, California and elsewhere. You can see more of her work, inquire about commissioned pieces, or purchase Amateur Gardener at www.kelseynapier.com, and email her at kelseymnapier@gmail.com.
Notices and articles should be sent to Edward C. Kemper at edracers@aol.com, Cynthia M. Johiro at cynthia.m.johiro@hawaii.gov, or Carol K. Muranaka at carol.k.muranaka@gmail.com. All submitted articles should be of significance to and of interest or concern to members of the Hawaii legal community. The Hawaii Bar 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.
The New EIS Rules:
Changes to the
Hawai‘i
Environmental Review Process by Lisa A. Bail and Alana T. Song
Changes to the Hawai‘i Environmental Impact Statement Rules took effect as of August 9, 2019. The previous Hawai‘i Administrative Rules Title 11 chapter 200 was repealed (the “1996 Rules”) and Hawai‘i Administrative Rules Title 11 chapter 200.1 was adopted in its place (the “Final Rules”). The language and intent of the Hawai‘i Environmental Policy Act (“HEPA”),1 however, remain unchanged: “to establish a system of environmental review which will ensure that environmental concerns are given appropriate consideration in decision making along with economic and technical considerations.”2 This article reviews the phasing in of the Final Rules, and highlights certain changes to the rules.3 The Final Rules describe a new category of de minimis actions exempt from environmental review, impose new requirements on agencies proposing exemption lists, and enact new requirements for content related to climate change. The Final Rules also set forth several new procedural requirements,
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including a new method to determine whether a proposed action is covered under a previous environmental review document or exemption, and a new process allowing a proposed action to skip the interim Environmental Assessment (“EA”) and instead prepare an Environmental Impact Statement (“EIS”). Moreover, the Final Rules impose new EIS scoping requirements, and allow responses to similar public comments to be grouped, following an analogous federal process under the National Environmental Policy Act (“NEPA”). Finally, the new rules
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allow the public comment period for environmental review documents to be voluntarily extended.
must include a rationale and specify the documents to be withdrawn. 10
Five-Year Grandfathering of Ongoing Review Although the Final Rules took effect several months ago, the Final Rules also provide that the 1996 Rules continue to apply to environmental reviews that began prior to adoption of the Final Rules.4 This means that proposed actions that began prior to the adoption of the Final Rules are required to continue following the 1996 Rules. After five years, unless an environmental review has reached its conclusion, ongoing actions must follow the Final Rules. Draft EAs that were published prior to the adoption of the Final Rules must follow the 1996 Rules until they receive a determination. If the determination is not received within five years from the implementation of the Final Rules, then the proposed action must comply with the Final Rules.5 Similarly, if an EIS Preparation Notice (“EISPN”) was published by the Office of Environmental Quality Control (“OEQC”) prior to the implementation of the Final Rules, the EIS process continues under the 1996 Rules, but if the final EIS has not been accepted within five years of the implementation of the Final Rules, the proposed action must comply with the Final Rules.6 The OEQC also intends that if an EIS was accepted before the enactment of the Final Rules, it will remain under the 1996 Rules “for purposes of supplemental EISs.”7 Furthermore, agencies’ existing exemption lists may be used for seven years after the adoption of the Final Rules. After that time, the agencies must revise their lists and present them to the Environmental Council for concurrence.8
Reorganization The 1996 Rules were reorganized in the Final Rules to consolidate similar rules and to reflect the sequence of the environmental review process: consultation prior to preparing a draft EIS, content requirements for a draft EIS, public review of a draft EIS, comment responses for a draft EIS, content requirements for a final EIS, and the acceptability of a final EIS.11 This reorganization of the rules necessitated an entirely new chapter, rather than a revision of the 1996 Rules.
Across-the-Board Changes Clarity and Consultation Under the Final Rules, exemption notices, EAs and EISs must succinctly convey information in an easily understood and self-contained format. The substance of the information conveyed is given priority over the particular form or length of the document. Additionally, consultation must be “mutual, open and direct, two-way communication, in good faith” involving the meaningful participation of agencies and the public.9 Filing Requirements The Final Rules contain new and detailed filing requirements for publication and withdrawal of environmental review documents. The OEQC may not accept untimely submittals or revisions after the publication deadline. Anything filed with the OEQC may be withdrawn by submitting a written letter regarding the withdrawal. Notices of the withdrawal of an anticipated FONSI or EISPN
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Clarifications One of the changes of note is the clarification between “approving agency” and “accepting authority.” The Final Rules have removed any reference to an “approving agency” and the term is instead replaced with “accepting authority” or removed when the two terms are referenced together. This change was made to reduce the confusion between the two terms that was created by HEPA’s use of both terms without a clear distinction.12 The Final Rules also clarify that the OEQC will never serve as the accepting authority.13 Other clarification changes include changing vague words with consistent abbreviations (e.g., “assessment” is changed to “EA” and “statement” is changed to “EIS”) and clarifying whether the EA or EIS being discussed is a “draft” or “final.”14 Additionally, definitions for “program” and “project” were added to distinguish between program-level review and project-based review that is site and time specific.15 A “program” is a series of projects that may include multiple locations and is undertaken for a broad goal or
purpose.16 In contrast, a “project” is a discrete undertaking at a specific location and time that has a specific goal or purpose.17 The Final Rules allow programmatic review for analysis of the interactions of a number of planned projects or phases in a program. As further discussed below, if a “program EA” or a “program EIS” is prepared, the Final Rules allow an agency to determine that further review is not required if the proposed action was analyzed in a program EIS. This process is similar to the “tiering” to programmatic EISs allowed under NEPA.18 Emergency Actions During a governor-declared state of emergency, agencies proposing an action must document that the emergency action was undertaken pursuant to a specific emergency proclamation. Emergency actions that have not substantially commenced within sixty days of the
emergency proclamation are subject to HEPA. Agencies must similarly document emergency actions taken when no emergency declaration is made, and also include those emergency actions on the list of exemption notices published by the agency in The Environmental Notice.19 Digital Transition The Final Rules have digitized most mailing and print-copy requirements. For example, agencies and applicants must submit their materials electronically to the OEQC for publication in The Environmental Notice. Likewise, the OEQC is required to distribute The Environmental Notice electronically. The Final Rules only require paper copies in limited circumstances. One paper copy of the draft EA, final EA, EISPN or Draft EIS must be given to the “nearest state library in each county in which the proposed action is to occur,” and one paper copy of the draft
EA, final EA, EISPN or Draft EIS must be provided to the Hawai‘i Documents Center.20 Topical Changes Use of Prior Review Documents Section 11-200.1-11 was introduced to provide agencies with guidance on whether a proposed action is covered under a prior existing exemption, EA, or EIS. If the below criteria apply, the proposed action could be covered under the existing HEPA process. If the below criteria do not apply, the agency must determine if an exemption, EA, or EIS is appropriate by conducting a separate HEPA analysis.21 According to this section, the agency may determine that an additional environmental review is not required because: 1. The proposed action was a component of, or is substantially similar
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to, an action that received an exemption, FONSI, or an accepted EIS (for example, a project that was analyzed in a program EIS); 2. The proposed action is anticipated to have direct, indirect, and cumulative effects similar to those analyzed in a prior exemption, final EA, or accepted EIS; and 3. In the case of a final EA or an accepted EIS, the proposed action was analyzed within the range of alternatives.22 This section of the Final Rules was added to address situations where a program EIS analyzes a component of the program, and later in time that component is ready to be implemented.23 Under Rule 11-200.1-11, an agency may determine that additional environmental review is not required if the proposed action is a component of an accepted EIS, it has similar direct, indirect, and cumulative effects as those analyzed in the program EIS, and the proposed action was analyzed as an alternative in the program EIS. The OEQC’s rationale is that the proposed activity cannot be considered similar if there have been significant changes to the environmental conditions and information from what was analyzed in the accepted EIS.24 If an agency makes the determination that a prior exemption, final EA, or accepted EIS does not satisfy the environmental review for a proposed action, the proposing agency must comply with the determination of significance requirements in subchapter 7 of the Final Rules to define the necessary level of environmental review for the proposed action.25 If an agency determines that the proposed action is covered by a prior exemption, FONSI or accepted EIS, the agency will publish a brief written rationale, and the proposed action may proceed.26 The Final Rules accentuate the level of attention needed for this section’s analysis by replacing the term “considerable” with “careful.”27 Once exemption
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requirements are met, the proposing agency or applicant may proceed to permitting requirements beyond Chapter 343. As explained in the OEQC’s rationale, this section “creates a consistent process and provides agencies with direction on what to consider when determining if a proposed action is covered under a prior exemption, final EA, or accepted EIS.”28 Exemptions The Final Rules address exemptions in three categories: the general types of actions for which an exemption may be declared, direction for agencies on creating an exemption list, and guidelines for agencies on how to prepare an exemption notice.29 The Final Rules add de minimis actions to the exemption list, allowing agencies to alert staff to situations “where an activity might be in the gray area” of a project or program under HEPA but does not rise to the level of requiring an environmental review.30 De minimis actions are clarified as “routine activities and ordinary functions within the jurisdiction or expertise of the agency that by their nature do not have the potential to individually or cumulatively adversely affect the environment more than negligibly and that the agency considers to not rise to the level of requiring chapter 343, HRS, environmental review.”31 The Final Rules also provide examples of these types of routine activities and ordinary functions: • routine repair • routine maintenance • purchase of supplies • continuing administrative activities involving personnel only • nondestructive data collection • installation of routine signs and markers • financial transactions
• personnel-related matters • construction or placement of minor structures accessory to existing facilities, and • interior alterations involving things such as partitions, plumbing, and electrical conveyances. 32 Under the Final Rules, agencies will develop exemption lists consistent with the Final Rules and HEPA. These new exemption lists will be in two parts. The first part of the exemption list will identify de minimis activities that are exempt from environmental review. The second part will identify general types of actions exempt from review such as maintenance of existing structures, replacement of structures and certain demolition activities. 33 Construction of new affordable housing is a newly added category of exempt action.34 For actions considered exempt under part two of an agency’s exemption list, the agency must comply with new exemption notice requirements.35 The agency must determine whether the action merits exemption, and whether significant cumulative impacts or particularly sensitive environments render the exemption inapplicable. This determination must be documented in writing, and must involve advice of agencies or individuals having “jurisdiction or expertise on the propriety of the exemption.”36 The exemption lists will be published in The Environmental Notice once a month. Exemption notices must be made available by agencies upon request,37 but the Final Rules do not require their publication.38 As discussed above, under Sections 11-200-16(d) and 11-200.1-32(c), agencies have no longer than seven years to reorganize and update their exemption lists to comply with the Final Rules. The Final Rules still require agencies to obtain Environmental Council concurrence for their exemption lists every seven years, file lists of exemption notices with the OEQC every month, and produce exemption notices electronically to the public and other agencies upon request.39 Climate Change Rule revisions regarding climate change affect determinations for exemptions and whether an EIS is warranted. The key changes are found within the Significance Criteria section.40 Subsection (b)(11) now requires proposing and approving agencies to consider whether a proposed action is likely to have a “substantial adverse effect on or be likely to suffer damage by being located in an environmentally sensitive area such as a flood plain, tsunami zone, sea level rise exposure area, beach,
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erosion-prone area, geologically hazardous land, estuary, fresh water, or coastal waters” (new regulatory language emphasized). Examples of this type of damage include exacerbating coastal erosion or increasing exposure to hazards such as inundation.41 The Environmental Council also requires inclusion of sea level rise maps in EAs and EISs, Agencies must also consider whether the proposed action will be impacted by sea level rise. The Final Proposed Rules also clarify that the state sea level rise exposure area maps should be included in EAs and EISs to demonstrate the potential vulnerability of a proposed action. The [Environmental] Council views these revisions as meeting the directive to the Council in Act 17, Session Laws of Hawaii 2018, to promulgate rules for EAs and EISs to examine sea level rise.42 This sea level rise exposure area criterion was added to address concerns “related to climate change adaptation such as impacts from sea level rise, increased hurricane frequency and/or intensity, and endangered species migration.”43 The Environmental Council notes that the list is not a comprehensive one “and other areas may be considered environmentally sensitive, including areas likely to experience wave inundation, increased exposure to hurricanes, or flooding outside of a designated flood plain.”44 Subsection (b)(13) now requires agencies to consider whether a proposed project will “emit substantial greenhouse gasses.” This criterion was added by the Environmental Council to address the “well-established science that greenhouse gas emissions have a cumulative impact and have more sources beyond fossil fuel burning. A proposed action having substantial emissions (relative to the State of Hawaii) may not be the result of energy use, especially as Hawaii progresses toward its 100% renewable energy goal.”45
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The Hawai‘i Sea Level Rise Vulnerability and Adaptation Report (released December 2017) calls upon the OEQC to create guidance on addressing climate change in EAs and EISs. The Report articulates that the “guidance should be modeled after new federal guidance issued by the U.S. Council on Environmental Quality for federal departments and agencies on consideration of GHG emissions and the effects of climate change (State of Hawai‘i OEQC 2016).”46 In preparing the eventual guidance, the OEQC will utilize the Final Emissions and the Effects of Climate Change in NEPA Reviews, issued by the federal Council on Environmental Quality Control on August 5, 2016.47 Direct-to-EIS In 2012, the Legislature amended Hawai‘i Revised Statutes chapter 343 to allow proposing agencies to authorize applicants to prepare an EIS, skipping the interim EA, when there is a clear potential for a significant impact.48 The 1996 Rules, though, did not reflect this statutory change and still called for an EA to be prepared prior to an EIS. Therefore, the Final Rules standardize the EISPN requirements regardless of how a proposing agency or applicant begins an EIS. The 1996 Rules had minimal content requirements for an EISPN because the rules assumed that the EA would be done before an EISPN.49 The Final Rules have amended the definition of EISPN to allow for the preparation of an EIS “based on either an EA or an agency’s judgment and experience that the proposed action may have a significant effect on the environment.”50 This allows for an EIS to begin at the EISPN stage without first preparing an EA. The Final Rules also acknowledge that an EISPN may “result from an agency authorizing the preparation of an EIS without first requiring an EA . . . .”51 A public scoping meeting is required by the Final Rules, as described below, and the public feedback from that meeting
must be included in the draft EIS.52 The intent behind the changes in this section is to increase efficiency in the process by continuing straight to an EIS but still providing adequate opportunity for the public to provide their comments on an action.53 Scoping Meetings The Final Rules require an EIS public scoping meeting on each island most affected by the proposed action. “No fewer than one EIS public scoping meeting addressing the scope of the draft EIS shall be held on the island or islands most affected by the proposed action, within the public review and comment period . . . .�54 This requirement was created to better inform the public about proposed actions and also give proposing agencies and applicants the opportunity to engage the public in a meaningful manner.55 The Final Rules have removed the requirement for proposing agencies and applicants to transcribe oral public scoping comments and provide a written response for each comment. Scoping meetings under the Final Rules must now include a separate portion of the meeting for oral public comments, and that portion of the meeting will be audio recorded.56 Rather than requiring a written response to the comments, a summary of the oral comments must be included in the draft EIS.57 The requirement to provide written responses to written scoping comments still remains.58 P u b l i c Re v i e w a n d Re s p o n s e Re q u i r e m e n t s The digitization of the review process has alleviated the redundant steps that required proposing agencies and applicants to mail individual responses to commentators, in addition to publishing those responses in the Final EA or EIS. Responses are now easily viewed in the EA, EIS, or other environmental review document posted on the OEQC website. The Final Rules therefore eliminate the heavy burden of responding to individual comments.
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The 1996 Rules required proposing agencies and applicants to respond individually to every comment received during the review period. The public review and response requirements under the 1996 Rules are a key example of how EIS procedures can create extraordinary burden without producing useful information for decision-making. The 1996 Rules resulted in concern regarding “comment bombing” where voluminous and repetitive comments could be used to overwhelm the EA and EIS process.59 The Council specifically reasoned that “responding to individual comments can be extremely burdensome for proposing agencies and applicants, particularly with the increasing number of form letters and petitions submitted during the public comment period.”60 The Final Rules have streamlined this process by focusing on the content of the comments and the issues they raise rather than requiring separate responses for each individual comment. This new streamlined process follows similar procedures under NEPA. Form letter or petition comments that contain identical or near-identical language may now be grouped together for purposes of response.61 Extended Comment Periods The Final Rules add a section that allows an agency or applicant to extend their public comment period by republishing a Draft EA or EIS.62 Hawai‘i Revised Statutes Section 343-5(e) does not discuss extending public comment periods but allows for an applicant to request an agency to extend the acceptance period by 15 days. Under the 1996 Rules, agencies offered extended comment periods but these extensions often created confusion in the environmental review process. The confusion under the 1996 Rules was caused when proposing agencies, applicants, and approving agencies wanted to extend comment periods outside the standard time period for public comment or beyond the notification process through the periodic bulletin. This in turn would create inconsistencies in the process and uncertainty in public notification and standing.63 The new section on republication in the Final Rules was added to provide a clear window for additional comment time.64 Any comments received during this republication period are treated as if they were from the initial publication period. The Environmental Council, however, cautions that comments received during the time between the publication periods “do not have legal standing because they are not submitted during a legal window.”65 HEPA and NEPA Congruency The Final Rules have aimed to create more parallelism between the federal and state environmental review process to create more ease for those proposed actions that require
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both reviews.66 This is consistent with Chapter 343, which directs the OEQC and state agencies to cooperate with federal agencies to reduce duplication between HEPA and NEPA requirements and encourages preparation of joint EISs.67 To create this greater level of efficiency, the Final Rules allow a proposing agency or applicant to prepare one document and conduct one comment period that will satisfy the federal and state requirements as long as the document meets HEPA requirements.68 The Final Rules provide that a NEPA EIS prepared by a federal agency may be submitted, so long as HEPA EIS content requirements, including cultural impacts, are met. However, a document found inadequate under NEPA may not be submitted to comply with HEPA.69 Federal determinations under NEPA do not necessarily control HEPA determinations. A federal categorical exclusion does not automatically result in a state exemption under chapter 343.70 Nor does a federal FONSI automatically mean that an EIS is not required under NEPA.71 In both of these cases, state and county agencies must still independently evaluate HEPA requirements to determine whether the proposed action is exempt, requires an EA or may proceed directly to preparing an EIS.72 Once that judgment is made, the agency can determine whether the NEPA document satisfies HEPA’s required level of review. Duplicative consultation or review is eliminated by the provision in the Final Rules stating that a NEPA process requiring earlier or more stringent public review shall also satisfy HEPA.73 Conclusion The Final Rules bring environmental review requirements current with digital technology practices. They also provide a clearer process for reliance on previous environmental review documents and exemptions, and a more efficient process for allowing proposed actions to proceed directly to an EIS where appropriate. Finally, provisions in the Final Rules allowing greater congruity between NEPA and HEPA environmental review processes bring the Hawai‘i EIS rules in line with HEPA’s contemplation of cooperation in joint review conducted under both federal and state law. ___________________ 1
Hawai‘i Revised Statutes chapter 343. The Hawai‘i Environmental Policy Act is variously referred to as “Chapter 343” and “HEPA” throughout this article. 2 Hawai‘i Revised Statutes § 343-1. 3 The authors acknowledge the significant effort of the Environmental Council, the OEQC and its former director, Scott Glenn, that began in 2011 and included the several iterations of the draft rules
that evolved during the public input process. For a comprehensive summary of all changes to the rules, the OEQC has made available its Rules Rationale Appendix 2: Unofficial Ramseyer format showing changes from the existing rules to Final, OEQC (2019), http://oeqc2.doh.hawaii.gov/Laws/v2.0-Proposed-HAR-11-200.1Rules-Rationale-App-2-Ramseyer-Unofficial_96-2.0.pdf. 4 Haw. Admin. R. § 11-200.1-32. 5 Haw. Admin. R. § 11-200.1-32(b)(1). 6 Haw. Admin. R. § 11-200.1-32(b)(2). 7 State of Hawai‘i Environmental Council, Rationale for Final Proposed HAR Chapter 11-200.1, OEQC (2019) at p. 25, http://oeqc2.doh.hawaii.gov/Laws/v2.0-Proposed-HAR-11-200.1Rules-Rationale_Final.pdf [hereinafter Rationale for Final Proposed HAR]. 8 Haw. Admin. R. § 11-200.1-32(c). 9 Haw. Admin. R. § 11-200.1-1(c). 10 Haw. Admin. R. § 11-200.1-5. 11 Rationale for Final Proposed HAR at 12. 12 See generally Haw. Rev. Stat. § 343. 13 Haw. Admin. R. § 11-200.1-7(f). 14 Rationale for Final Proposed HAR at 15. 15 Haw. Admin. R. § 11-200.1-2. 16 Id. 17 Id. 18 Rationale for Final Proposed HAR at 16-17; Haw. Admin. R. § 11200.1-11(a)(1). 19 Haw. Admin. R. § 11-200.1-8. 20 Haw. Admin. R. § 11-200.1-5(e). 21 Rationale for Final Proposed HAR at 17-18. The Hawai‘i Supreme Court discussed the terms “program” and project” in Umberger v. Department of Land and Natural Resources, 140 Hawai‘i 500, 507, 403 P.3d 277, 284 (2017), recognizing that those terms are not defined in HRS Chapter 343. 22 Haw. Admin. R. § 11-200.1-11(a)(3). 23 Rationale for Final Proposed HAR at 38. 24 Id. 25 Haw. Admin. R. § 11-200.1-11(c). 26 Haw. Admin. R. § 11-200.1-11(b). 27 Rationale for Final Proposed HAR at 39; Haw. Admin. R. § 11-200.111(d). 28 Rationale for Final Proposed HAR at 39. 29 Id. at 44; Haw. Admin. R. §§ 11-200.1-15 through 11-200.1-17. 30 Rationale for Final Proposed HAR at 24. 31 Haw. Admin. R. § 11-200.1-2 (definition of “exemption list”). 32 Haw. Admin. R. § 11-200.1-16(a)-(b). 33 Haw. Admin. R. § 11-200.1-16. 34 Haw. Admin. R. § 11-200.1-15(c)(10). 35 Haw. Admin. R. § 11-200.1-16(c). 36 Haw. Admin. R. § 11-200.1-17(b). 37 Haw. Admin. R. § 11-200.1-17(c). 38 Rationale for Final Proposed HAR at 48.
39
Id. Haw. Admin. R. § 11-200.1-13. 41 Rationale for Final Proposed HAR at 20. 42 Id. 43 Id. at 42. 44 Id. 45 Id. at 43. 46 Hawai‘i Climate Change Mitigation and Adaptation Commission, Hawai‘i Sea Level Rise Vulnerability and Adaptation Report (Tetra Tech, Inc. et. al., 2017) at 227. 47 Rationale for Final Proposed HAR at 20. Referencing 81 FR 51866, available at https://www.federalregister.gov/documents/2016/08/05/2016/08/ 05/2016-18620/final-guidance-for-federal-departments-and-agencies-on-consideration-of-greenhouse-gas-emissions-and. 48 Haw. Rev. Stat. § 343-5(e). 49 Rationale for Final Proposed HAR at 21. 50 Haw. Admin. R. § 11-200.1-2. 51 Haw. Admin. R. § 11-200.1-23. 52 Rationale for Final Proposed HAR at 21. 53 Id. 54 Haw. Admin. R. § 11-200.1-23(d). 55 Rationale for Final Proposed HAR at 24. 56 Haw. Admin. R. § 11-200.1-23(d). 57 Rationale for Final Proposed HAR at 24. 58 Haw. Admin. R. § 11-200.1-24. 59 Interview with Lisa Munger, Goodsill Anderson Quinn & Stifel, in Honolulu, Hawai‘i (Dec. 11, 2019). 60 Rationale for Final Proposed HAR at 52. 61 Haw. Admin. R. § 11-200.1-26(c). 62 Haw. Admin. R. § 11-200.1-6. 63 Rationale for Final Proposed HAR at 34. 64 Id. at 21. 65 Id. 66 Haw. Admin. R. § 11-200.1-31(4). 67 Haw. Rev. Stat. § 343-5(h). 68 Rationale for Final Proposed HAR at 24. 69 Haw. Admin. R. § 11-200.1-31(4). 70 Rationale for Final Proposed HAR at 64; Haw. Admin. R. § 11-200.131(1). 71 Haw. Admin. R. § 11-200.1-31(2). 72 Haw. Admin. R. § 11-200.1-31(1); Rationale for Final Proposed HAR at 64. 73 Haw. Admin. R. § 11-200.1-31(6). 40
Lisa A. Bail is a partner at Goodsill Anderson Quinn & Stifel LLP. She served as the former chair of both HSBA’s Litigation Section and its Energy Environment and Resources Section, and currently serves as the Hawaii State Delegate to the American Bar Association. Alana T. Song is an associate at Goodsill Anderson Quinn & Stifel LLP.
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CELEBRATION by Tracey S. Wiltgen The Hawai‘i Access to Justice Commission (“Commission”) hosted the seventh annual Pro Bono Celebration1 on Thursday, October 24, 2019 at the Hawai‘i Supreme Court. The Celebration was supported by the Hawai‘i Justice Foundation (“HJF”), the Hawaii State Bar Association, and the Hawai‘i State Bar Foundation (“HSBF”). The Program’s honorees included five outstanding individuals and a law firm who volunteer their services for legal service providers, fifty-four honorees, including attorneys, law firms, and groups who volunteer for the First Circuit District and Family Court Access to Justice Self Help Centers, as well as the the Appellate Pro Bono Program, and seven student essay contest winners from public and private high schools throughout the State. Hawai‘i Supreme Court Associate Justice Simeon Acoba (ret.), Chair of the Commission, opened the celebration with the following comments: Under the lawyer’s code of professional conduct, ‘a lawyer, as a member of the legal profession… has a special responsibility for the quality of justice’ in our communities. The commission supports lawyers’ pro bono services because such services strengthen democratic principles and democratic institutions that are necessary to maintaining justice throughout our state. In addition,
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we are honoring the students who have participated in our statewide essay contest and have shared their views of the importance of volunteering— for themselves and for our communities. Chief Justice Mark Recktenwald welcomed the honorees and guests stating: Today’s celebration honors those who volunteer their time and talent to better the conditions of others. Whether it be advocating for the rights of undocumented immigrants, to volunteering at a local hospital, or guiding a pro se litigant through the legal process, today’s student and pro bono honorees possess a quality of selflessness that helps to make Hawai‘i a better place for all. Pro Bono Honorees Legal service providers play a key role in increasing access to justice in Hawai‘i. It is only through the dedication of the individuals who provide pro bono services that the Legal Service Providers can assist thousands of people annually. Hawai‘i Supreme Court Associate Justice Michael Wilson recognized the individuals and law firm honored by the legal service providers. Chief Justice Mark Recktenwald presented the honorees with certificates from Governor David Ige’s office. The honorees included:
The Law Firm of Simpson Thacher & Bartlett LLP The ACLU of Hawai‘i honored Simpson Thacher & Bartlett LLP, who are co-counsel in ACLU’s pending Title IX class action lawsuit against the Hawai‘i State Department of Education and the Oahu Interscholastic Association for denying girls equal opportunities, treatment, and benefits in athletics at Campbell High School. The Simpson Thacher team—led by Jayma Meyer, Buzz Frahn, and Wyatt Honse—has been critical in ACLU’s efforts to ensure that female athletes in DOE are treated equally with their male counterparts. Thacher has contributed deep knowledge about Title IX athletics issues, as well as substantial time and resources to the case and has been essential during key stages of the litigation. The ACLU of Hawai‘i is grateful to Simpson Thacher for their immense contributions to the effort to ensure that, nearly a half a century after Title IX’s passage, DOE finally levels the athletic playing field for girls and boys in Hawai‘i. Meredith Miller The Disabilities Rights Center honored Meredith Miller. Several years ago, the Hawaii Disability Rights Center undertook a large-scale class action against the Department of Education and established the right of young adults to receive special education until the age of 22. The law firm of Alston Hunt Floyd and Ing, now Dentons, partnered with the Hawaii Disability Rights Center in that effort. Following the Court’s decision, the matter was remanded to the District Court to fashion relief for class members who were now too old to return to school. For these individuals who were wrongly aged out of school, the challenge was to find and fund relief for them in the form of “compensatory education” to make up for the lost years they experienced. Miller embraced the challenge with diligence, professionalism and an upbeat attitude. There are approximately 500 members in the class. Miller has been responsible for contacting each class member, assessing their needs and developing a program and package of services which can be submitted to the Administrator for approval. Despite the labor-intensive nature of the work, Ms. Miller persisted and as a result of her efforts, the lives of some of the members were positively impacted and substantially improved. Christine Daleiden The Legal Aid Society of Hawaii honored Christine Daleiden for her leadership and pro bono service towards Legal Aid’s vision of “Building a Just Society.” Daleiden chairs the Hawaii State Bar Association’s Committee on the Delivery of Legal Services to the Public (“DLSP”), is a member of the Justice for All (“JFA”) committee, and volunteers at the Honolulu District Court Access to Justice Room (“AJR”). Under her leadership, the DLSP has expanded its initiatives
to improve access to justice while continuing its strong support of court self-help centers statewide. Daleiden recruited volunteer attorneys from the banking sector to help staff the Honolulu AJR and provided additional computer equipment when needed. As a member of the JFA committee, Daleiden helped oversee the implementation of the state’s Justice for All projects that included the Community Navigator statewide training program and the launch of Hawaii’s Legal Inter-Agency Roundtable. Finally, Daleiden has been instrumental in assisting Legal Aid with content development for the Legal Navigator Portal Project, an innovative online legal services portal that will increase access to justice by directing people with legal needs to the most appropriate forms of assistance. Denise C. George The Mediation Center of the Pacific (“MCP”) honored Denise C. George for her commitment to serving as a mediator pro bono and generously dedicating hundreds of hours to mediating and assisting with the mentoring and training of new mediators through MCP. Since becoming a volunteer mediator for MCP in October 2016, George mediated 156 cases and spent approximately 500 hours in mediation. The majority of the cases mediated by George involve family situations, ranging from paternity and divorce to extended families meeting together to try to decide how to best care for their elderly relatives. In the fiscal year ended June 30, 2019, George mediated 74 cases and increased her involvement with MCP by also mediating on-site Paternity cases at Family Court in Kapolei. George also assists with trainings, and at MCP community outreach events including topics as varied as using mediation to resolve landlord tenant issues to elder issues. Barbara Ritchie The University of Hawai‘i Elder Law Program’s (“UHELP”) honored Barbara Ritchie. Ms. Ritchie has been a UHELP board member and volunteer for many years. For the past several years, she has also served as UHELP’s liaison on the North Shore where she lives. When not volunteering for UHELP, she is an active member of the North Shore Chamber of Commerce Historic Preservation Committee. She regularly helps with UHELP’s seminars and conferences at the law school and can be counted on to make elders feel comfortable and at ease. She always has time to listen to elders and other people with legal problems. Gary Singh Volunteer Legal Services of Hawaii (“VLSH”) honored Gary Singh. Singh is one of VLSH’s most active Pro Bono Attorneys volunteering his time on a regular basis at VLSH’s Neighborhood Legal Clinics where he provides advice and
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counsel to family law clients and even taking on clients as full representation cases – all pro bono. Additionally, VLSH can always count on Singh to volunteer at VLSH’s Pop Up Clinics where the clinic goes on the road to rural areas, from Waianae to Waimanalo on an early Saturday morning. Singh also served on the VLSH Board providing additional guidance to the organization and currently finishing his final term this year. Access to Justice Self-Help Volunteers Judge Melanie May recognized the individuals, law firms, and groups who volunteered at the Honolulu District Court Access to Justice Room including: Sergio Alcubilla, Cassie Bagay, William Bagasol, Justin Brackett, Bronster Fujichaku Robbins, Carlsmith Ball, Cades Schutte, Case Lombardi & Pettit, Chun Kerr, Damon Key Leong Kupchak Hastert, Dentons US LLP, Joni Dominuges, Stacey Djou, Goodsill Anderson Quinn & Stifel, Arlette Harada, Hawaii Association for Justice, Hawaii Filipino Lawyers Association, Hawaii Women Lawyers, Walter Hebblethwaite, Marr Jones Wang, Miriah Holden, Nathaniel Higa, Daniel Kim, McCorriston Miller Mukai McKinnon LLC, Jae Park, Schlack Ito, Shannon Wack, Starn O’Toole Marcus & Fisher, Yamamoto Caliboso, Bryant Zane, and Eileen Zorc. Judge Brian Costa recognized the individuals who volunteered at the Family Court Access to Justice Room including: Kevin Adaniya, Leslie Ching Allen, Dick Diehl, Mari Kishimoto Doi, Greg Frey, Noah Gibson, Seth Harris, Elizabeth Paek-Harris, Jill Hasegawa, Steve Hioki, Erin Kobayashi, Lynnae Lee, Elsa McGehee, Dyan Mitsuyama, Juan Montalbano, Mei Nakamoto, Gemma Poland-Soon, Ellen Politano, Tom Tanimoto, Jackie Thurston, Carol Tribbey, and Cheryl Yamaki. Judge Rebecca Copeland recognized attorneys Daniel M. Gluck and David M. Raatz, Jr. for volunteering for the Pro Bono Appellate program. The Family Court Access to Justice Room volunteers and the Pro Bono Appellate program volunteers received certificates from the Commission signed by Chief Justice Recktenwald and the Commission Chair, Justice Simeon Acoba. The Essay Award Recipients The Commission received 153 essays from public and private high school students throughout the State in grades 10 through 12 on the theme: “How We Can Create and Inspire Change With Fifty Hours of Community Service Work.” In addition to the $500 student awards, a $100 award for educational purposes was given to a teacher named by the student awardee.
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This year the contest was expanded to include separate awards for East and West Hawaii students for a total of seven awardees. The 2019 essay award recipients were: Maia Motta (Kamehameha School – Kapalama), Kyler Arruda-Sukehira (Kapaa High School), Tyra Bailey (Konawaena High School), Cameron Wells (Christian Liberty Academy), Michelle Phan (Roosevelt High School), Natalie Dzubian (King Kekaulike High School), and Grace Chinen (Waipahu High School). The preliminary judges for the contest included: Michelle Acosta, Judge Rhonda Loo, Tracy Jones, Roya Deyhim, Judge Darien Nagata, Jennifer Ng, Michelle Oishi, Judge William Domingo, Michael Schlueter, Judge Ann Isobe, Angela Kuo-Min, Judge Hillary Gangnes, Judge Randal Shintani, Max Kopper, Judge James Kawashima, Judge Rebecca Copeland, Micah Smith, Judge Michelle Comeau, Judge Thomas Haia, Daylin Heather, Judge Summer Kupau-Odo, Judge John Montalbano, Judge Kenneth Shimozono, Judge Sherri Iha, Judge Dyan Mitsuyama, Justine Herrera, and Jenny Silbiger. The finalist judges of the essay contest were Chief Justice Recktenwald, Judge Michael Soong, and 2019 HSBA President Derek Kobayashi. They praised the high school students for their inspiring essays and for actively engaging in volunteerism. Each of the students received a cash award of $500, donated by Porter McGuire Kaikona & Chow; Coates Frey Tanimoto & Gibson, AAL, LLLC; Schlueter Kwiat & Kennedy LLLP; Law Office of Jennifer D.K. Ng, LLLC & Law Office of Michelle S.K. Oishi, LLLC; Mitsuyama & Rebman, LLLC; Goodsill Anderson Quinn & Stifel, LLLP; and Ashford & Wriston. The Commission is grateful to everyone who supported and participated in the 2019 Pro Bono Celebration. The event serves to inspire Hawaii’s young people to volunteer, and it represents an important gesture of gratitude to the attorneys and individuals who generously donate their time to assist hundreds of people each year. Equally important, the celebration is a reminder of the importance of pro bono work and helping those in need. It is only through the efforts of the many individuals who dedicate hundreds of hours of pro bono service, that Hawai’i continues to increase access to justice for all. __________________ 1
The Pro Bono Celebration is coordinated by the Pro Bono Initiatives Task Force comprised of Judge Brian Costa, Co-Chair, Tracey S. Wiltgen, Co-Chair, Rex Fujichaku, Jill Hasegawa, Marie Gavigan, Judge Ronald Ibarra (ret.), Regan Iwao, Chase Livingston, Judge Melanie May, Angela Kuo Min, Judge Trish Morikawa, and Associate Justice Michael Wilson.
H SBA HAP PE NIN GS Board Action The HSBA Board took the following actions at its meetings in November and December: • Voted to ratify (1) a prepayment of $113,898 towards the mortgage loan to reduce the amount to be refinanced; (2) the Amendment to Loan Documents and Borrower’s Closing Statement that was reviewed and signed by the Treasurer and Executive Director; and (3) the Certificate of the Secretary which authorized the Treasurer and Executive Director to execute said amendment and closing statement; • Voted to approve a proposed banking resolution to authorize the 2020 HSBA officers, the Executive Director, and the Director of Operations (in the absence of the Executive Director) to make monetary transactions on behalf of the HSBA; • Adopted the recommendation of the HSBA Nominating Committee to appoint the following individuals to the HSBF Board for a 3-year term beginning January 1, 2020: * Collin “Marty” Fritz (reappointment) * Carol Kitaoka (reappointment) * Laura Lucas (new appointment) * Marissa Machida (new appointment) * Rosemarie Sam (reappointment) * Matthew Winter (new appointment) • Approved President Kobayashi’s reappointment of the following attorney members on the joint committee of the Hawaii State Trial Judges Association and Hawaii State Bar Association: Hayley Cheng, Stanton Oshiro, and Maria Penn. The remaining attorney members will be appointed by President-elect P. Gregory Frey.
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Last Chance to Renew License for 2020 If you have not already renewed your HSBA license for 2020, please do so before February 29 to avoid your license being subject to administrative suspension. You can complete your registration online at hsba.org. Do not hesitate to contact us Monday through Friday, between 8:00 a.m. and 4:00 p.m. at (808) 792-7331, if you have questions. You may also email the HSBA Membership Department at ars@hsba.org.
2020 HSBA Officers and Directors The following members will serve on the 2020 HSBA Board: President P. Gregory Frey, Presidentelect Karin L. Holma,Vice President Levi Hookano, Treasurer Paul W. Naso, and Secretary Russ S. Awakuni. The Directors are: Steven J.T. Chow, Craig A. Decosta (Kauai), Vladimir Devens, Jessica R. Domingo, William A. Harrison, Geraldine N. Hasegawa (East Hawaii), Kristin E. Izumi-Nitao, Carol S. Kitaoka (West Hawaii), Jeen H. Kwak, Erin M. Kobayashi, Corianne W. Lau, Jacob L. Lowenthal (Maui), Mark K. Murakami, Zale T. Okazaki, Ralph J. O’Neill, and Addison D. Bonner (YLD).
2020 HSBA Young Lawyers Division Officers and Directors The following members will serve on the 2020 HSBA YLD Board: President Addison Bonner, Vice President Christopher St. Sure, Secretary Tiffany Kaeo, and Treasurer Kyleigh Nakasone. The Directors are: Nelisa Asato,
Marissa Agena (Kauai), Christilei Hessler, Ryan Kanakaole, Cameron Holm, Michi Momose, Kristen Spees Marchello (Maui), Daniel Padilla, Leo Shimizu, Kelden Waltjen (East Hawaii), and Jasmine Wong.
2020 HSBA Senior Counsel Division Officers and Directors The following members will serve on the 2020 HSBA Senior Counsel Division Board: President Gregory Lui-Kwan, Vice President/Presidentelect Carole Richelieu,Secretary Ian Lorne Sandison, and Treasurer Charles W. Crumpton. The Directors are: Jamie A. Chuck, Jonathan J. Chun (Kauai), Gilbert C. Doles, Rosemary T. Fazio, Charlene Y. Iboshi (Hawaii Island), Scott A. Makuakane, David Raatz (Maui), Kenneth K.P. Wong, and Michael J.Y. Wong.
Board Vacancies on LASH Board The Legal Aid Society of Hawaii will have five positions expiring on its Board; 3-year term beginning July 1, 2020. Qualifications: knowledgeable about and supportive of delivery of quality legal services to the poor; willing and able to devote time to perform necessary duties; conscientious, studious, thorough, and diligent in learning methods and problems of the organization. Duties: Governs the Society whose primary purpose is to secure justice for and protect the rights of the needy and promote measures for their assistance. Anyone interested in serving in this capacity should submit by February 28, 2020 to the HSBA Nominating Committee at nominations@hsba.org: a resume,
reason for wanting to serve, and area of law practice concentration. Please note that these positions are uncompensated, and that applicants need to disclose all public disciplinary sanctions. If there have been none, then state that such is the case. The appointments will be made at the HSBA Board meeting in June 2020.
Member Benefits Spotlight Fastcase Members of the HSBA get free access to Fastcase legal research as a benefit of membership. Fastcase is a nationwide legal research system that specializes in smarter legal research tools, including mobile apps for iPhone, iPad, and Android, data visualization tools, integrated citation analysis and more. Find out more here. To log in to Fastcase, sign into your member account at https://bit.ly/2QaIB7K. ABA Retirement 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. Their structure allows your firm to focus on the success of the practice while providing the highest level of fiduciary oversight allowable through ERISA, reducing your fiduciary risk. Through their purposeful innovation they provide 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, to help you and your plan participants learn more, save more and worry less. The Program offers all of this at a competitive price whether you are a solo practitioner or a large corporation. Through the unique culture created between the ABA Retirement Funds and their Program 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 visit https://abaretirement.com/welcome/hawaii/ for more information.
Mercer Life Insurance Mercer Life Insurance Program offers HSBA members group rates on Group Term Life, Group Level Term Life, Personal Accident, and Senior Term Life Insurance. Underwritten by ING/Reliastar Insurance Company and Administered by Mercer. For more information, call (866) 810-9451 or visit https://www.hsbainsurance.com/. Dream Float Hawaii Dream Float Hawaii offers floatation therapy - great for stress, pain, and relaxation. You float on your back in 10 inches of Epsom salt water, in your own private room. The water is heated to your skin temperature. There are optional music and lighting options, but usually the experience is done in silence and darkness. As gravity and other sensory input is reduced, your body and brain start to do interesting things. Floating is regarded as the most relaxing experience in the world. Show your Member Bar Card to enjoy $20 off each float. Visit https://hsba.org/memberbenefits to get more information on more than 70 available member benefits.
2019-2020 Directory Errata
Kenneth Gordon Goodenow William S. Richardson Dept. of the Attorney General 75 Aupuni St. Rm. 202 Hilo, HI 96720 PH:808) 933-8883 Fax: (808) 933-8887 kenneth.g.goodenow@hawaii.gov JD8022/2003 New address for Third Circuit Judges;
74-5451 Kamakaeha Ave. Kailua-Kona, HI 96740 Wendy M. DeWeese Melvin H. Fujino Robert D.S. Kim Margaret Masunaga
2020 HAWAII ACCESS TO JUSTICE CONFERENCE Save the date: Friday, June 19, 2020. The Hawaii Access to Justice Conference, sponsored by the Hawaii Access to Justice Commission, will be an all-day event. Please attend to be part of an exciting, provocative discussion about seeking justice for the underserved, including opportunities for audience participation. The keynote speaker will be Honorable Nancy Gertner (Ret.) who is on the faculty of the Harvard Law School. Opening remarks will be given by Hawaii Supreme Court Chief Justice Mark Recktenwald and Chair of the Commission, former Hawaii Supreme Court Associate Justice Simeon Acoba. Hawaii-licensed attorneys attending this event can receive five continuing legal education (“CLE”) credits and one ethics credit hour, which will satisfy in full the yearly three-credit CLE requirement. At least one credit of ethics is required every three years — to be counted towards the annual CLE requirement. (Three credits may be carried forward to the next year, so attendance meets the current year and next year’s CLE requirements in full.)
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CAS E NOTES Supreme Court Criminal Doe v. Attorney General, No. SCWC16-0000351, December 13, 2019, (McKenna, J.). This is the second appeal arising out of a 2013 request for a declaratory ruling by a pro se litigant, a registered sex offender in the State of Washington, as to whether he was required to register as a sex offender in Hawaii before visiting Hawaii with his family for more than ten days. Hawaii Revised Statutes § 846E-2(a) (2014) provides that “registration under this subsection is required whenever the covered offender, whether or not a resident of this State, remains in this State for more than ten days or for an aggregate period exceeding thirty days in one calendar year.” The Department of the Attorney General (“AG”) issued an October 15, 2015 ruling that Doe was required to register in Hawaii because his out-ofstate conviction of two counts of “Communication with minor for immoral purposes,” Wash. Rev. Code Ann. (“RCW”) § 9.68A.090 (West 2010) (“the Washington offense”), a gross misdemeanor under Washington law, qualified as a sexual offense under Hawaii law. In its May 20, 2019 summary disposition order (“SDO”), the ICA affirmed the Circuit Court of the First Circuit’s (“circuit court[‘s]”) April 7, 2016 final judgment, which was entered pursuant to the April 6, 2016 “Order Dismissing Notice of Appeal to Circuit Court Filed November 10, 2015” of Doe’s appeal from the AG’s ruling. Doe’s application for a writ of certiorari (“Application”) presented the following questions: 1. Was the ICA’s ruling in conflict with this Court’s ruling in State v. Chun, 102 Haw. 383 [sic], 102 Hawaii 383, 76 P.3d 935, going past the elements of the offense in determining that [Doe’s] conviction was
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Appeal Pointer An appeal is in default if the opening brief is not filed within 40 days after the record on appeal is filed or within any extension of the 40-day period. Relief from default must be obtained from the appellate court. Failure to cure the default may result in monetary sanctions or dismissal of the appeal. HRAP 28(b) and 30. a sex offense in Hawaii? 2. Was the ICA’s broad interpretation of “solicitation” and equating it to the element of [Doe’s] foreign conviction of “communicate” (as used in RCW [§] 9.68A.090) in error? 3. Must an out-of-state conviction be an actual offense in the State of Hawaii before triggering a requirement to register in the state of Hawaii? Does legislative intent and a plain reading of Haw. Rev. Stat. [§] 846E-2(b) require the out-of-state conviction to be an actual offense in this state before triggering a requirement to register? 4. Must the review of an out-of-state offense trigger a requirement to register in Hawaii be narrowly interpreted under the rule of lenity, as are all criminal statutes, given that an element of failure to register is that the offender must be convicted of a sexual offense as defined under Haw.Rev. Stat. [§] 846E-l? The Hawaii Supreme Court concluded that the record did not support the AG’s ruling, and the ICA erred in affirming the circuit court’s dismissal of Doe’s agency appeal. State v. Abella, No. SCWC-160000004, December 17, 2019, (Recktenwald, C.J.). This case required the Hawaii Supreme Court to determine whether a defendant may be convicted of homicide if the victim’s death was the immediate result of a choice by the victim’s family to withdraw medical care.
Michael Limjuco Abella was charged with Murder in the Second Degree after severely beating Shelton Higa on July 17, 2014. Higa was comatose for more than a week thereafter; medical professionals estimated that his chances of survival were slim, and if he did survive, his quality of life would likely be poor. He was removed from life support and declared dead on July 29, 2014, twelve days after the altercation. In the circuit court, a jury found Abella guilty of the lesser included offense of Manslaughter. The ICA affirmed the conviction. Abella argued that a defendant in these circumstances cannot be charged and convicted of a homicide due to a provision in the Uniform Health-Care Decisions Act that prohibits designating as a homicide any “[d]eath resulting from the withholding or withdrawal of health care” under the Act. Haw. Rev. Stat. § 327E-13(b) (2010). Abella asserted that the plain language of the statute shielded him from conviction under these circumstances. The Hawaii Supreme Court disagreed. Viewing the Act as a whole and given the historical context that led to its passage, it is clear that the legislature intended to protect medical professionals and family members making difficult choices, not actors like Abella. However, the Hawaii Supreme Court nonetheless vacated the judgment on appeal and remanded this case for a new trial. Abella argued, and the Hawaii Supreme Court agreed, that the jury should have been given instructions on causation pursuant to Haw. Rev. Stat. §§ 702-215 (2014) and 702-216 (2014). Those instructions would have enabled the jury to consider whether the intervening volitional conduct of the family and medical team interrupted the chain of causation between Abella’s actions and Higa’s death such that it would be unfair or unjust to hold him criminally
Resolving your most challenging civil cases culpable for homicide. While the Hawaii Supreme Court recognized without qualification that the decision to remove a loved one from life support is difficult and serious, and the law protects that choice, nevertheless, the issues of causation raised in this case must be decided by a jury. Consequently, the Hawaii Supreme Court held that it was plain error for the circuit court to fail to instruct the jury on causation and culpability pursuant to Haw. Rev. Stat. §§ 702215 and 702-216. State v. Medeiros, No. SCWC-170000829, December 20, 2019, (Recktenwald, C.J. with Nakayama, J., concurrently separately). In 1976, the legislature enacted Haw. Rev. Stat. Chapter 853 to allow for the deferred acceptance of guilty (DAG) pleas. The legislature thereby sought “to establish a means whereby a court in its discretion may defer acceptance of a guilty plea for a certain period on certain conditions with respect to certain defendants[,] . . .result[ing] in the discharge of the defendant and expungement of the matter from [the defendant’s] record.” 1976 Haw. Sess. Laws Act 154, § 1 at 279. The legislature later amended Haw. Rev. Stat. Chapter 853 to allow for deferred acceptance of no contest (DANC) pleas. 1983 Haw. Sess. Laws Act 290, § 1 at 617. As the legislature explained, Haw. Rev. Stat. Chapter 853 serves important policy goals and the availability of its benefits is specifically tailored in furtherance of those goals: [I]n certain criminal cases, particularly those involving first time, accidental, or situational offenders, it is in the best interest of the State and the defendant that the defendant be given the opportunity to keep [the defendant’s] record free of a criminal conviction if [the defendant] can comply with certain terms and conditions during a period designated by court order. Especially where youth is involved, a record free of a felony conviction, which would
For over 35 years Chuck has assisted Hawaii’s attorneys and their clients to achieve fair outcomes in mediation and arbitration. Through constructive dialogue focused not only on the legal issues but also on the underlying human concerns, Chuck supports parties to craft innovative, practical, and sustainable resolutions, so they are free to move forward with their lives and businesses unencumbered by entrenched legal disputes. Free videoconference service for mediations, arbitrations and pre-hearing conferences.
Crumpton Collaborative Solutions 1251 Heulu St. #1001 Honolulu,HI 96822 808.284.9209 crumpton@chjustice.com
Charles Crumpton crumptoncollaborativesolutions.com
DEPUTY PROSECUTING ATTORNEY
The County of Maui, Department of the Prosecuting Attorney, seeks to fill position(s) at the middle 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 more than three years of criminal litigation experience, 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 $90,000 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: Don S. Guzman, 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 February 2020
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foreclose certain educational, professional, and job opportunities may, in a proper case, be more conducive to offender rehabilitation and crime prevention than the deterrent effects of a conviction and sentence. 1976 Haw. Sess. Laws Act 154, § 1 at 279. Haw. Rev. Stat § 853-4 (2014 & Supp. 2018) sets forth the circumstances under which a defendant is ineligible to benefit from Haw. Rev. Stat. Chapter 853. One such circumstance is where the offense charged is nonprobationable. Haw. Rev. Stat. § 853-4(5). In State v. Hamili, this court determined that Prohibited Fishing with Nets was a nonprobationable offense because the use of the word “shall” in the applicable sentencing provision indicated three mandatory sentencing alternatives, none of which allowed for a term of probation. 87 Hawaii 102, 107, 952 P.2d 390, 395 (1998). This case required the Hawaii Supreme Court to revisit Hamili and to consider the bounds of a trial court’s discretion in granting or denying a motion for a DANC plea. The Hawaii Supreme Court believed that the legislature intended for the benefits of Haw. Rev. Stat. Chapter 853 to be broadly available to defendants, except where clearly articulated, deliberate exceptions apply. Applying those principles here, the Hawaii Supreme Court concluded that the underlying offenses at issue in this case were probationable and overruled Hamili. In addition, although the grant or denial of a motion for a DANC plea is a matter within the discretion of the trial court, in the instant case, the court erred in denying Kaohulani Medeiros’s motion for a DANC plea. Nakayama, J. concurred separately. Respondent/Plaintiff-Appellee the State of Hawaii (the State) did not oppose Medeiros’s motion for DANC plea at the sentencing. The State noted that Medeiros was a youthful, first time offender who had support from his family — his parents had accompanied him to
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every court appearance. The State expressed its belief that Medeiros was unlikely to reoffend and that he had learned from the experience. The State requested that the circuit court sentence Medeiros to the minimum fine of $100.00 for each of the two petty misdemeanor counts. The circuit court sentenced Medeiros to a term of probation of six months for each of the petty misdemeanors, to run concurrently, in addition to a $100.00 fine for each count. Medeiros’s counsel pointed out that six months’ probation was the maximum term permitted for petty misdemeanors, while the State remained silent. Next, the circuit court considered the factors set forth in Haw. Rev. Stat. § 853-1(a) in determining whether to grant Medeiros’s motion for DANC plea. The circuit court cited the following as considerations for whether Medeiros was likely to commit a similar offense in the future: at the time of the offense, Medeiros was (1) wearing camouflage; (2) in an area known for night hunting between 8:30 p.m. and 9:00 p.m.; (3) using an artificial light to spotlight wild animals; and (4) in possession of an unloaded weapon and ammunition. In addition, the circuit court expressed concern that, when Medeiros was questioned by Department of Land and Natural Resources (DLNR) officers on the night of the offenses, he told the officers “half truths.” The circuit court found that Medeiros “is likely again to engage in such a criminal course of conduct[]” and denied Medeiros’s motion for DANC plea. Medeiros appealed to the ICA, arguing that the circuit court abused its discretion in denying his motion for DANC plea. In the State’s answering brief, the State argued that Medeiros was ineligible for a DANC plea because the offenses to which he pled no contest were not probationable. Nakayama, J. concurred with the majority’s determination that the circuit court erred in denying Medeiros’s motion for DANC plea and
wrote separately because she believed that the State waived the argument that Medeiros was ineligible for a DANC plea because the offenses to which he pled no contest were not probationable. State v. Pitts, No. SCAP-16-0000830, December 17, 2019, (Pollack, J.). The defendant in this case was convicted of attempted murder in the second degree in connection with the stabbing of his longtime friend. After trial, the defendant made several motions, including a motion for new trial contending that the jury during its deliberations conducted an improper examination of his clothing to search for evidence of blood, and as a result several jurors discovered “stains” that had not been introduced as evidence during trial. The circuit court denied the motions, and the defendant was subsequently sentenced to life imprisonment with the possibility of parole. The defendant appealed to the ICA and the case was transferred to the Hawaii Supreme Court upon request. On review, the Hawaii Supreme Court concluded that the jury’s discovery of the stains constituted an outside influence that may have tainted the jury’s impartiality. State v. Rodrigues, No. SCWC-170000656, December 13, 2019, (Pollack, J.). Hawaii case law has established that a search warrant for a multiple-occupancy building must describe with particularity each unit to be searched so as to preclude the indiscriminate search of one or more subunits. The defendant in this case moved to suppress evidence gathered from a search of his residence asserting that the search warrant did not state with specificity the subunit he resided in. The circuit court determined that the searched building was a multiple-occupancy building and that the affiant officer knew or should have known that the defendant’s subunit was a separate unit. The search warrant did not describe the defendant’s subunit with
particularity, the court concluded, and thus the search violated the defendant’s constitutional rights. The court granted the defendant’s motion to suppress in an order that included detailed findings of facts and conclusions of law. The State appealed the order. The ICA disagreed with the circuit court’s finding that the building was a multiple-occupancy building and held that the court erred in granting the defendant’s motion to suppress. Based upon precedent as to findings of facts unchallenged on appeal and Hawaii law involving multiple-occupancy buildings, the Hawaii Supreme Court concluded that the ICA erred. State v. Udo, No. SCWC-160000793, December 16, 2019, (McKenna, J.). This appeal arose from Kimberly J. Udo’s (“Udo”) manslaughter conviction in violation of Haw. Rev. Stat. § 707-702(1)(a) (2014), for which she was sentenced to twenty years of incarceration with credit for time served, to run concurrently with any other term served. Udo’s appeal was based on the deputy prosecuting attorney’s (“DPA”) cross-examination of the defense’s only witness, pathologist James Navin, M.D. (“Dr. Navin”) and closing argument references to Dr. Navin’s testimony. Udo alleged the DPA’s cross-examination of Dr. Navin regarding his testimony as a defense expert in two of the most well-publicized and notorious murder trials in Hawaii within the last decade involving defendants Kirk Lankford (“Lankford”) and Matthew Higa (“Higa”), and closing arguments about that testimony, amounted to prosecutorial misconduct affecting her substantial rights for which this court should take plain error notice. In its June 29, 2018 Summary Disposition Order (“SDO”), the ICA affirmed Udo’s conviction, ruling that the DPA’s cross-examination of Dr. Navin with respect to his testimony in the Lankford and Higa trials was not improper because it was (1) relevant to establishing
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Dr. Navin’s defense bias; and (2) did not “rise to the level of misconduct in [State v. ]Rogan[, 91 Hawai i 405, 984 P.2d 1231 (1999)].” See State v. Udo, CAAP16-000793, at 5-6, 7 (App. June 30, 2018) (SDO). The ICA also held that the DPA’s references to these cases in his closing argument were within the bounds of reasonable inference that a prosecutor may draw from the testimony. Udo, SDO at 8-9. In Udo’s case, as argued by Udo on appeal, the Hawaii Supreme Court concluded that the DPA improperly referenced Dr. Navin’s testimony in the Lankford and Higa trials, which affected Udo’s substantial right to a fair trial.
Family In the Interest of AB, No. SCWC-180000010, December 13, 2019, (Recktenwald, C.J.). This case required the Hawaii Supreme Court to address the proper consideration and weight of a hanai relationship in the context of a child welfare proceeding. The Hawaii Supreme Court concluded that a hanai relative who is a child’s resource caregiver has an interest in that child’s custody sufficient to allow intervention in such proceedings under Rule 24(a)(2) of the Hawaii Family Court Rules. In addition, the Hawaii Supreme Court concluded that, when conducting a best interest of the child analysis, family courts must consider that child’s hanai relationships. The case involved a 7year-old child, AB, who was now 12. After a short time in foster care, AB reunified with her father and lived in a home with him, his longtime girlfriend, KL, and their child, AB’s younger halfsister. AB’s father moved out a few months later, but AB, as keiki hanai of KL, remained in the same home with her. AB lived there for over a year until the family court changed her placement to her maternal great-aunt and -uncle’s home in New Hampshire. At the hearing changing AB’s placement, KL un-
successfully urged the family court to recognize her interest in the proceeding. KL appealed, and the ICA vacated the family court’s order denying intervention, holding that because KL had filed a petition to adopt AB, she had a sufficient interest in AB’s custody or visitation to intervene as a matter of right. KL filed an application for certiorari seeking this court’s further review. She argued that, in addition to her pending adoption petition, her status as a hanai relative conferred a substantive interest in AB’s placement. The Hawaii Supreme Court accepted certiorari to clarify that the family court should have allowed KL to intervene during AB’s placement hearing based in part on her status as AB’s hanai parent. The family court committed an additional error when it failed to examine AB’s best interests prior to changing her placement to New Hampshire. And, as part of the best interests analysis, the family court should have considered AB’s hanai relationships. In the Interest of R Children, No. SCWC-16-0000441, December 13, 2019, (Nakayama, J.). This case contemplated the interaction between two similar statutory provisions that provide for the termination of parental rights. On December 1, 2016, the Family Court of the family court terminated Petitioner/Appellant Father’s parental rights to his child (KK) pursuant to Haw. Rev. Stat. § 587A-33 (Supp. 2015), a provision of the Child Protective Act (CPA) (the CPA Provision). Father appealed. The ICA observed that the CPA Provision required the family court to find that the “proposed permanent plan was in the best interests of the child” before terminating a parent’s parental rights. Haw. Rev. Stat. § 587A-33(a)(3). The ICA held that the family court’s termination of Father’s parental rights was not permitted by the plain language of the CPA Provision because the family
court found that Respondent/Appellee Department of Human Services’ (DHS) permanent plan for KK was not in KK’s best interests. The ICA nevertheless affirmed the family court’s termination of Father’s parental rights under a provision of the family court statutes, Haw. Rev. Stat. § 571-61(b)(1)(E) (Supp. 2016) (the Family Court Provision). On application for writ of certiorari, Father asked whether the ICA erred in substituting the Family Court Provision for the CPA Provision as the basis for terminating his parental rights. The Hawaii Supreme Court held that the ICA erred in substituting the Family Court Provision for the CPA Provision as the basis for affirming the family court’s termination of Father’s parental rights when the CPA Provision contained a requirement not present in the Family Court Provision.
Land Unite Here! Local 5 v. Department of Planning and Permitting/Zoning Board of Appeals, No. SCAP-17-0000823, December 13, 2019, (Nakayama, J.). This case involved Appellee-Appellee City and County of Honolulu Department of Planning and Permitting’s (DPP) approval of two Waikîkî Special District (WSD) permits for Intervenor-Appellee PACREP 2 and its affiliate PACREP, to develop a condo-hotel at 2121 Kûhiô Avenue and 2139 Kûhiô Avenue. When the Director of the DPP approved PACREP’s application for a WSD permit at 2121 Kûhiô Avenue (2121 Kûhiô Permit) in March 2013, he included several restrictive covenant conditions in the permit to ensure compliance with the Land Use Ordinance (LUO) should any hotel unit be converted to a residential unit. The Director placed these conditions in the 2121 Kûhiô Permit at the behest of Appellant-Appellant Unite Here! Local 5 (Local 5), a union representing hotel and restaurant employees, which had raised several concerns regarding
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the use of the condo-hotel. Neither PACREP nor Local 5 appealed the 2121 Kûhiô Permit. In 2014, PACREP 2 applied for a WSD permit for the second phase of the condo-hotel project at 2139 Kûhiô Avenue. The Director approved the permit (2139 Kûhiô Permit) in July 2014, but did not include the same restrictive covenant conditions that had previously been placed in the 2121 Kûhiô Permit. Local 5 appealed the 2139 Kûhiô Permit to the Zoning Board of Appeals (ZBA), and argued that the Director abused his discretion when he approved the 2139 Kûhiô Permit without these conditions. In response, the DPP stated that on a request from PACREP, the Director removed the restrictive covenant conditions from that permit in September 2013, prior to the approval of the 2139 Kûhiô Permit in
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July 2014. The ZBA concluded that (1) it did not have jurisdiction to address any “modification” of the 2121 Kûhiô Permit in Local 5’s appeal of the 2139 Kûhiô Permit, and (2) the Director’s decision to approve the 2139 Kûhiô Permit was not an abuse of discretion. On appeal, the Circuit Court of the circuit court affirmed the ZBA’s decision. Local 5 filed a secondary appeal to the ICA, and this court granted Local 5’s subsequent application for transfer. When the Director removed certain conditions from the 2121 Kûhiô Permit, conditions that he knew Local 5 had advocated for, Local 5 should have had an opportunity to challenge the removal of those conditions from the permit. However, Local 5 did not receive notice that the Director had removed these conditions. Under these circumstances, the Hawaii
Supreme Court concluded that Local 5’s right to due process was violated, and pursuant to Haw. Rev. Stat. § 91-14(g), the Hawaii Supreme Court remanded the Director’s decision to remove these conditions from the 2121 Kûhiô Permit to the ZBA so that Local 5 may challenge this decision. Finally, because the 2139 Kûhiô project was fully integrated with the 2121 Kûhiô project and the decision to approve the 2139 Kûhiô Permit rested in part on the then-existing 2121 Kûhiô Permit, the Hawaii Supreme Court also vacated the ZBA’s decision to approve the Director’s approval of the 2139 Kûhiô Permit, and remand to the ZBA to decide whether the Director’s decision to approve that permit without the restrictive covenant conditions was an abuse of discretion.
C O URT BR IEF S Civil Family Case Assistance at Supreme Court Law Library
Cynthia T. Tai was reappointed as per diem judge of the District Court of the Third Circuit and is designated to preside as per diem District Family Judge. Her term is from December 24, 2019 to December 23, 2021.
Chief Justice Recktenwald Honored by ThinkTech Hawaii
From left, Ann Isobe, State Law Librarian Jenny Silbiger, and Librarian Marlene Cuenco. Attorneys specializing in family law are now volunteering at the Hawaii Supreme Court Law Library to provide limited legal advice to self-represented litigants with their civil cases in the Family Court. This “Lawyer in the Law Library” program is a satellite of the Kapolei Access to Justice Room, previously available only at the Kapolei Courthouse. Opening day was November 23, 2019, and attorney Ann Isobe volunteered for all four appointments, plus a walk-in. (Typically, this service is by appointment only.) One of the participants noted in her evaluation: “Law library staff very helpful. Downtown location very convenient. Attorney was very knowledgeable, efficient, and helpful.” Beginning January 2020, appointments at the Supreme Court Law Library will be available two Fridays a month. Meanwhile, the Kapolei Courthouse will continue to have appointments available the first and third Thursday of the month. Appointments are for 30 minutes between 11:30 a.m. and 1:30 p.m. at both locations. Attorneys wishing to volunteer with the program may call Dyan Mitsuyama, former Chair of the HSBA Family Law Section for more information. She can be reached at: Dyan@mitsuyamaandrebman.com or (808) 545-7035.
Per Diem Judge Announcements Gloria N. Buckingham was appointed per diem judge of the District Court of the Second Circuit. Her term is from December 16, 2019 to December 15, 2020.
From left, former Governor John Waihee, Chief Justice Recktenwald, and Jay Fidell, ThinkTech Hawaii president. Chief Justice Mark E. Recktenwald was recognized by ThinkTech Hawaii with a Community Service Award for his work on the Hawaii Access to Justice Commission and for raising public confidence in the administration of justice in the state. ThinkTech presented him with this award on December 4, 2019 at its 2019 Annual Holiday Party and Awards Ceremony at the Laniakea YWCA. ThinkTech Hawaii, Inc., is a Hawaii nonprofit digital media corporation founded in 2001 and dedicated to providing a platform for civic engagement for tech, energy, diversification, and global awareness in Hawaii.
Judges Honored with Awards of Excellence Fifth Circuit Court Chief Judge Randal G.B. Valenciano, First Circuit Court Judge Catherine H. Remigio, and First Circuit District Court Judge William M. Domingo were recently honored by the Hawaii Filipino Chronicle for outstanding achievement in Legal Practice. The newspaper, which is celebrating 25 years of serving the Filipino-American community, recognized our judges at its Excellence Awards and Gala Dinner on November 23, 2019. Proceeds from the dinner support students desiring to pursue careers in the media industry.
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Mediator, Arbitrator, ReNotice of Discipline On December 5, 2019, the Hawai‘i Supreme Court suspended attorney Leslie S. Fukumoto from the practice of law in the State of Hawai‘i “until the completion of the trusteeship over his law practice.”1 Previously, in an Order dated September 23, 2019, the Hawai‘i Supreme Court appointed a trustee to protect the interests of Fukumoto’s clients finding that Fukumoto had “abandoned his law practice to the detriment of his clients, in breach of the duties imposed upon him by the Hawai‘i Rules of Professional Conduct … that his conduct represents a substantial threat of harm to his clients, that good cause exists to conclude he is currently unable to protect their interests, and, therefore, that a trusteeship over his practice is necessary to avoid the possibility of further harm to client interests and the irreparable loss of documents, materials, and possibly client funds.” Upon entry of this December 5, 2019 suspension order, Fukumoto shall not accept any new retainer or engage as attorney for another in any new case or legal matter of any nature. Clients or other persons in interest seeking the return or turnover of client property, should contact the court appointed trustee: Walter Hebblethwaite, Attorney at Law, 2051 Young St., #31, Honolulu HI 96826 (email: walter@hebblex.com). Leslie S. Fukumoto (HI bar no. 2708), age 64, was admitted to the Hawai‘i bar in 1980 and is a graduate of the University of Hawai‘i, William S. Richardson School of Law. If there are any questions, contact the Office of Disciplinary Counsel. 1
In re Leslie S. Fukumoto, SCAD-19-
0000586 (Haw.), December 5, 2019.
ceiver, and Special Master Services, Employment Investigations
Jerry M. Hiatt • Creative and highly focused mediations in all areas through persistent follow up with all parties. 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 performed detailed 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.
Notice of Reinstatement – Andrew A. Agard On December 23, 2019, the Hawai‘i Supreme Court entered an Order1 reinstating Andrew A. Agard to the practice of law in the State of Hawai‘i, effective immediately, subject to the completion of re-registration, and payment of dues with the Hawai‘i State Bar Association. In 2012, Agard was charged in federal court with filing a false federal tax return. He subsequently pled guilty and was sentenced to serve twenty-four months in federal prison and to pay restitution to the federal government. Following conviction and incarceration, on February 14, 2014, the Hawai‘i Supreme Court entered an order restraining Agard from the practice of law as a result of that criminal conviction. Formal attorney discipline proceedings were stayed pending finality of that conviction. Agard appealed the criminal conviction, but did not seek a stay of the incarceration order, and began to serve his time. Due to good behavior in prison, Agard was released early; first to a halfway house, then to home confinement. By June 25, 2015, Agard’s prison sentence was deemed fully served. Ultimately, the Ninth Circuit affirmed the conviction, and the Hawai‘i formal attorney discipline proceedings were commenced on November 13, 2015 to determine the appropriate professional discipline. Following formal hearing and review by the Disciplinary Board, the Hawai‘i Supreme Court imposed a fouryear suspension from the practice of law, retroactive to the February 14, 2014 date when Agard was first restrained from the practice of law. On November 5, 2018, Agard petitioned for reinstatement and presented evidence, following a public comment period, of rehabilitation and fitness to
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practice law. The formal hearing officer’s report and subsequent review by the entire disciplinary board, recommended reinstatement, which the Hawai‘i Supreme Court approved and ordered. Agard, age 66, was admitted to the
Hawai‘i bar in 1987 and is a graduate of the University of Hawai‘i, William S. Richardson School of Law. _________________ 1
In re: Application for the Reinstatement of Andrew A. Agard, SCAD-19-00000849, (Haw.), December 23, 2019.
United States Courts for the Ninth Circuit POSITION VACANCY ANNOUNCEMENT
FEDERAL PUBLIC DEFENDER DISTRICT OF HAWAII
The United States Court of Appeals for the Ninth Circuit invites applications from all qualified persons for the position of Federal Public Defender (FPD) for the District of Hawaii. This position will be available on or after July 15, 2020.
The FPD Office is headquartered in Honolulu, HI. The appointee will manage an annual budget of $3.2 million and an office of approximately 15 employees, which includes attorneys, paralegals, investigators, and administrative personnel. The term of appointment is four years, renewable upon demonstration of highly satisfactory performance in office. The current authorized annual salary is $170,800. The Office of the Federal Public Defender provides federal criminal defense services to individuals unable to afford counsel. An applicant must satisfy the following conditions: (1) be admitted to practice before the highest court of at least one state; (2) be a member in good standing of every state Bar of which he/she is a member; (3) have a minimum of 5 years of criminal practice, preferably with significant federal criminal trial experience; (4) possess administrative expertise; (5) have a reputation for integrity; and (6) be committed to the representation of those unable to afford counsel.
A Local Screening Committee will review all applications and conduct interviews of the most qualified candidates. The screening committee will refer the most qualified candidates to the Ninth Circuit’s Standing Committee on Federal Public Defenders, who will refer the best qualified candidate to the Court of Appeals for selection and appointment.
Application forms and more information may be obtained by contacting the address, telephone number, or email listed below. The application may also be downloaded from the website below. Applicants are advised to allow for sufficient time to complete and submit the application.
The completed and signed original application must be sent to the Office of the Circuit Executive, and a scanned version of the completed application uploaded to the Ninth Circuit Federal Public Defender Application System (https://recruit.ce9. uscourts.gov) by 5:00 p.m. PST on Thursday, February 27, 2020. PST
Applications must be in the format required by the Ninth Circuit. To be considered, optional letters of reference must be submitted with the original application and uploaded with the scanned application. Office of the Circuit Executive 95 Seventh Street, Suite 429 San Francisco, CA 94103-1518 Attn: HI-FPD Recruitment
Telephone: (415) 355-8985 Email: cja@ce9.uscourts.gov Website: https://recruit.ce9.uscourts.gov
Submission Deadline: Thursday, February 27, 2020 by 5:00 p.m. PST THE UNITED STATES COURTS ARE EQUAL OPPORTUNITY EMPLOYERS
ATTORNEY WANTED ASSOCIATE ATTORNEY (Civil Litigation) Established downtown law firm is seeking a litigation associate attorney. 3-6 years civil litigation experience preferred; Admission to Hawaii Bar Required. Excellent benefits; Salary commensurate with experience. Please submit resume and writing samples in confidence to: Recruiting Committee/HR Case Lombardi & Pettit, A Law Corporation 737 Bishop Street, Suite 2600 Honolulu, HI 96813 recruitingdirector@caselombardi.com ATTORNEY Real Estate. Established downtown law firm seeks attorney to join its dynamic real estate department. Minimum 2-4 years of experience in real estate transactional law preferred. Admission to the Hawaii Bar Required. Excellent benefits; Salary commensurate with experience. Submit resume, salary expectations and writing samples in confidence to: Recruiting Committee/HR. Case Lombardi & Pettit 737 Bishop Street #2600 Mauka Tower Honolulu HI 96813 Recruitingdirector@caselombardi.com ESTABLISHED MID-SIZED FIRM is seeking an experienced Associate Attorney, licensed in Hawaii, to join our team. We are looking for someone with some 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. All inquiries are held in strict Confidence! IMMEDIATE SUPERVISING AND STAFF ATTORNEY vacancies within the State of Hawaii Division of Consumer Advocacy. Please send resume and contact information to Consumeradvocate@dcca.hawaii.gov KESSNER UMEBAYASHI BAIN & MATSUNAGA is seeking an associate attorney to join its team. Qualified candidates must be licensed to practice law in Hawaii and must also demonstrate effective communication skills and strong research and writing skills. Two years of experience is preferable. Competitive
benefits offered, including 401(k), medical, dental and vision coverage, vacation and sick leave and parking. Salary commensurate with experience and qualifications. Interested applicants should submit a cover letter, resume and writing sample to lawyers@kdubm.com. O’CONNOR PLAYDON GUBEN & INOUYE LLP, is looking for an Associate Attorney in litigation. One year of litigation experience is desired. Must be licensed to practice in Hawaii. Salary commensurate with experience. Benefits include: vacation/sick leave, medical, dental, vision, 401(k), parking, life and LTD insurance. lance@hca-hi.comis REAL ESTATE / BUSINESS ATTORNEY: Schneider Tanaka Radovich Andrew & Tanaka, LLLC seeks an attorney with four or more years of experience in real estate and/or business transactions. Qualified candidates must be licensed to practice law in Hawaii and are expected to have effective communication skills and well-developed research and writing skills. Competitive salary and benefits, including 401(k), medical, dental, vision and drug coverage, vacation, personal leave and parking. Interested applicants should submit a cover letter and resume (in confidence) to Schneider Tanaka Radovich Andrew & Tanaka, LLLC, Attn: David Andrew, 1100 Alakea Street, Suite 2100, Honolulu, HI 96813, or to dandrew@stratlaw.com. Questions may be directed to David Andrew by email or by calling 808-792-4200.
EXPERT WITNESS AQUATIC SAFETY EXPERT 28 years aquatic Experience. Qualified as an expert in state and federal courts. See our ad on page 56 of the HSBA Directory. Aquatics consulting Service 808-960-9348 www.aquaticsconsulting.com CONSTRUCTION DEFECTS, contractor issues, premises liability, real estate disclosure. National Building Expert. Best Selling Author. www.lanceluke.com 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. Spikedenis@hawaii.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 2-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 ENVIRONMENTAL DUE DILIGENCE for property transactions. Investigation & hazard evaluation. Permitting & Compliance. Inclusion Consulting (808)261-4444 www.inclusionhawaii.com LEGAL NURSE CONSULTING Assistance in managing the medical aspects of your case. Legal Nurse Consulting, Life Care Planning, & Workers’ Compensation Nurse Case Management. Cynthia L. Fricke, RN, BSN, CCM, CLCP. (808) 253-0232. www.islandlegalnurse.com frickec001@hawaii.rr.com
LEGAL WRITING /RESEARCH EXPERIENCED ATTORNEY will provide legal writing services. Motions, memos, complaints, appellate briefs, and other writing assignments. Reasonable rates. Writing samples, and references provided on request. Call (808) 7358701 or (808) 227-2141.
OFFICE SPACE AVAILABLE - January 15, 2020. Interior office in a shared class A law office suite downtown. $400 per month. Includes kitchen and referral work opportunities. marc@attorneysforfreedom.com. AVAILABLE - Two window offices (1 or both), in a friendly, shared law office suite, located downtown, with beautiful 28th floor views. Includes conference room, kitchen, room for support staff, if necessary. Available June 1, 2020. If interested, call Bob at 524-7331.
RECRUITING / TEMP STAFFING HiEmployment is Hawaii's best choice for finding top legal talent. Professional recruiting and temp staffing services available. 695-3974. email: info@hi-employment.com February 2020
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