Hawaii Bar Journal - February 2021

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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 2021 $5.00

TABLE O F C ON TE NTS VO LUM E 25 , N U M B E R 2

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

ARTICLES 44

11 19

President-Elect Shannon Sheldon Vice President Rhonda Griswold Secretary Russ Awakuni Treasurer Alika Piper YLD OFFICERS President Christopher St. Sure Vice President/President-Elect Jasmine Wong Secretary Nelisa Asato Treasurer Leo Shimizu

The University of Hawaii Elder Law Program: Celebrating 30 years of Advocating for Older Persons, their Families, and their Care Providers

by James H. Pietsch

24

OF NOTE

HSBA OFFICERS President Levi Hookano

Bankruptcy and Taxes: The Inevitable Collision

by Honorable Judge Robert J. Faris

16

HSBA Happenings

19

Court Briefs

26

Case Notes

31 20

Classifieds

22 28 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.

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

On the cover: flowers in the attic, 48� X 36� oil painting by Madeleine McKay. Madeleine was born in Dublin, Ireland where she first studied painting at the Dunlaoghaire College of Art and Design. She continued her studies in painting at Blake College in London and later studied under Snowden Hodges at the University of Hawaii. She has exhibited in Dublin, London, Los Angeles, and Honolulu in solo exhibitions and at the Honolulu Academy of Arts, Artists of Hawaii exhibitions, and The Japanese Chamber of Commerce annual exhibitions.

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.

Bankruptcy and Taxes:

The Inevitable Collision

by Honorable Judge Robert J. Faris

It is not surprising that many people who have not paid their debts have also failed to pay their taxes and file their tax returns. Consequently, many people who file for bankruptcy protection face tax problems. Multiple provisions of the Bankruptcy Code (11 U.S.C.) address this reality. Most of these provisions favor the taxing authorities, but debtors can use some provisions to their advantage.

This article will discuss some of the tax issues faced by individuals in chapter 7 and 13 bankruptcy cases. It will not be comprehensive or complete. Tax issues in chapter 11 and 12 cases and taxation of corporate debtors are outside the scope of this article (and beyond the reach of the author’s intellect).

The problems and benefits faced by a debtor with tax delinquencies depend partly on the chapter of the Bankruptcy Code under which the debtor seeks relief.

I. Chapter 7 A chapter 7 case is the traditional form of bankruptcy proceeding. In a nutshell, the debtor surrenders all of the debtor’s assets to a trustee, who returns the “exempt” assets to the debtor (a generally modest amount of property specified by statute), liquidates any of the remaining assets in which there is equity, and distributes the proceeds to creditors according to statutory priorities. In the meantime, the debtor usually gets a discharge relieving the debtor of personal liability for most prebankruptcy debts.

One of the basic principles of bankruptcy law is that equality is equity. All creditors should be treated the same unless there is a compelling reason to treat them differently. The drafters of the Code, however, followed the dictum of George Orwell in Animal Farm: “All animals are equal, but some animals are more equal than others.” As a result, tax obligations get special treatment in chapter 7 cases.

A. Requirements to Provide Tax Returns Debtors must confront tax compliance issues at the very beginning of their cases.

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Debtors are required to file detailed financial disclosures, including a schedule of all liabilities. The schedule must provide the name and address of each creditor and the amount of each claim. The debtor must sign these documents under penalty of perjury, so accuracy and completeness are crucial, but scheduling tax debts can be difficult if the debtor has not filed required returns or cannot find copies of returns that were filed.

Shortly after the commencement of the bankruptcy case, the debtor must send the trustee a copy of the federal income tax return (or a transcript) “for the most recent tax year ending immediately before the commencement of the case and for which a Federal income tax return was filed.”1 If the debtor has not filed federal returns for a while, the required return may be old, but the debtor still must provide it. In addition, the debtor must provide a copy of the same return to any creditor who makes a written request.

Failure to provide the required return has a draconian consequence. If the trustee does not receive the return, the court must dismiss the case “unless the debtor demonstrates that the failure to so comply is due to circumstances beyond the control of the debtor.”2 If a creditor requested and did not receive the return, dismissal is also mandatory “unless the debtor demonstrates that the failure to provide a copy of such tax return or such transcript is due to circumstances beyond the control of the debtor.”3 During the case, at the request of the trustee, the United States Trustee, or any party in interest, the debtor must file with the court (a) all tax returns for tax years ending while the bankruptcy case is pending, (b) returns for any tax year ending in the three-year period before the bankruptcy case, and (c) any amendments to any such returns.4 The United States Bankruptcy Court for the District of Hawaii has adopted Local Rule 6070-1 to govern the handling and disclosure of such returns.

Under § 521(j), failure to comply with this requirement can result in dismissal of the case if the taxing authority so requests and the debtor does not comply within 90 days.

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Practitioners must carefully ask their clients about the status of their tax returns and obtain copies of the required returns as soon as possible so the debtor can comply with these obligations.

B. Discharge of Tax Debts in Chapter 7 In the typical chapter 7 case, the debtor’s main goal is to obtain a discharge, which relieves the debtor of personal liability for most debts and gives the debtor an opportunity for a fresh start. Congress has decided, however, that the federal, state, and local governments’ need for tax revenues largely (but not entirely) trumps the fresh start policy.

Therefore, many tax debts are not dischargeable in bankruptcy.

The filing of a tax lien affects the dischargeability of a tax debt. The discharge only protects the debtor from “personal liability” for a discharged debt.5 This means that the discharge does not affect interests in property, such as liens. In bankruptcy parlance, we say that liens “ride through” the bankruptcy unaffected. This means that any filed tax liens under the Internal Revenue Code (“I.R.C.”) § 6321 or a state statute such as Hawaii Revised Statutes (“H.R.S.”) § 231-33 will continue to encumber the debtor’s property after the discharge.

Even if the taxing authority has not filed a notice of tax lien, such that the tax debt is unsecured, the bankruptcy discharge provides only limited relief.

Speaking broadly, four categories of unsecured tax debts are nondischargeable.

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The first category consists of relatively recent income, property, and employment taxes. The time counting rules are complicated and difficult to parse, but they generally capture income taxes for three or four tax years before the bankruptcy case, “employment taxes” for the same period, and prebankruptcy property taxes that were “last payable without penalty after one year before” the petition date.6 The “after-before” formulation appears repeatedly in the tax provisions of the Bankruptcy Code; the author thinks there should be a special place in purgatory for whoever invented it.

The second category consists of withholding taxes. Any tax that the debtor is required to withhold or collect, such as employees’ wage withholdings for income taxes, social security, Medicare, and the like, is nondischargeable, with no time limit.7 The third category consists of taxes where the debtor did not file returns as required. A tax debt is not discharged if a required “return, or equivalent report or notice,” was (a) not filed, (b) filed late and “after two years before” the bankruptcy filing, or (c) fraudulent or represented a willful attempt to evade or defeat the tax.8 The phrase “equivalent report or notice” is undefined and broad; among other things, it includes a report that a taxpayer must provide to a state taxing authority if the taxpayer’s federal taxes are adjusted after an audit.9 The fourth category consists of certain tax penalties. Two provisions come into play. The first is § 523(a)(8)(G),

which says that “a penalty related to a claim of a kind specified in the paragraph and in compensation for actual pecuniary loss” is not dischargeable.

The second is § 523(a)(7), which says that a tax debt is not dischargeable: to the extent such debt is for a fine, penalty, or forfeiture payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss, other than a tax penalty— (A) relating to a tax of a kind not specified in paragraph (1) of this subsection; or (B) imposed with respect to a transaction or event that occurred before three years before the date of the filing of the petition . . . .

Id. The “after-before” formulation found in §§ 523(a)(1) and 521(a)(8) is bad, but the “before-before” phraseology of this section is even worse.

Taken together and translated into something resembling ordinary English, these sections mean that: (a) tax penalties are not dischargeable if they relate to a nondischargeable tax and are “compensation for actual pecuniary loss”; (b) tax penalties that are not “compensation for actual pecuniary loss” are nondischargeable if they relate to a nondischargeable tax and accrued less than three years before the petition date; and (c) conversely, taxes that are not “compensation for actual loss” and accrued more than three years before the petition date are dischargeable.

The phrase “penalty [that] is not

compensation for actual pecuniary loss” seems redundant. Aren’t all “penalties” noncompensatory? The answer is that some taxes are labeled as penalties but in substance are compensatory. If a corporation fails to pay certain withholding taxes, the Internal Revenue Code imposes a “penalty” on certain responsible corporate officers in an amount equal to the amounts withheld but unpaid.10 This “100% penalty” is compensatory, in that it gives the government a mechanism to recover unpaid taxes.

The practitioner can do little to protect debtor clients against these rules.

One could delay filing the petition until some or all taxes fall out of the nondischargeable categories, but the debtor might face other financial pressures that make it impossible to wait long enough.

Further, discharge of nontax debts might free up income and other resources that the debtor can use to pay or resolve the nondischargeable tax debts.

C. Payment of Tax Debts in Chapter 7 In this district, the vast majority of chapter 7 cases produce no distributions to any creditors. More than 95% of our chapter 7 cases are “no-asset” cases, meaning that once exempt assets are set aside for the debtor and fully encumbered assets are eliminated, there are no assets that could be liquidated for the benefit of unsecured creditors. In the rare cases in which there are funds for distribution to unsecured creditors, tax debts again get special treatment.

Properly perfected tax liens are paid out of the property they encumber (after payment of any senior liens), but there are four limitations. First, tax liens can be avoided if the lien comes into existence only when a bankruptcy or insolvency case is started, a receiver is appointed, an execution is levied against the taxpayer, or the taxpayer becomes insolvent or fails to meet a specified financial standard.11 Second, a tax lien can be avoided if a hypothetical bona fide purchaser would acquire the

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property at the petition date free of the tax lien.12 Third, to the extent the tax claim consists of noncompensatory penalties, the lien is void.13 Fourth, tax liens are subordinated to certain kinds of unsecured claims, subject to complicated rules and limitations.14 Some unsecured tax claims have priority over other unsecured claims.

The priority taxes are taxes of the first, second, and fourth categories of nondischargeable taxes described above. This is actually good news for debtors, as some of the nondischargeable taxes have an improved chance of getting paid in the bankruptcy case. Unfortunately, because there is zero payment to creditors in most bankruptcy cases, the good news will not help many debtors.

If there are funds available for priority claims, debtors can maximize their benefit by making the so-called “short year election.” Ordinarily, filing a bankruptcy petition does not interrupt the

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debtor’s taxable year, and any taxes due for the entire year are post-bankruptcy claims that the debtor must pay out of non-estate resources. In a short-year election, debtors can elect to close their tax year on the day before bankruptcy, open a new tax year on the day of bankruptcy, and file separate returns for the two parts of the regular tax year. If the debtor makes this election, the taxes attributable to the prebankruptcy short year are paid out of the estate, and the debtor must pay only the taxes for the post-bankruptcy part of the year.15 The short year election is available only in the rare case where the estate has money to pay claims, but if it is available, it effectively lets the debtor force the creditors to pay part of the debtor’s taxes.

D. Tax Issues in Estate Administration The filing of a chapter 7 case creates an “estate,” which consists of all of

the debtor’s property interests at the time of filing with only a few exceptions.16 As is noted above, the chapter 7 trustee takes charge of the estate and liquidates any assets that could produce money for unsecured creditors.

The chapter 7 estate for an individual debtor is a separate taxable entity.

I.R.C. § 1398(c) requires the trustee to file tax returns for the estate and pay tax on its income. Our chapter 7 trustees regularly work with accountants who know when and how to file returns for bankruptcy estates.

The estate succeeds to certain of the debtor’s tax attributes, such as the basis in estate property, under I.R.C. § 1398(g). If the trustee sells estate property, the estate and not the debtor is liable for any capital gains tax.17 This means that trustees must carefully evaluate the tax consequences of a sale of estate assets and abandon assets that cannot be sold without incurring an

unpayable tax debt. Any unused tax attributes are passed back to the debtor when the estate is terminated.

In most cases, cancellation of debt results in taxable income to the debtor.

Under I.R.C. § 108, however, there is no cancellation of debt income if the debt is discharged in bankruptcy. The debtor still may have to pay a price for this benefit. The discharge of debt in bankruptcy reduces certain tax attributes, such as basis and loss carryovers, on a dollar-for-dollar basis. Thus, to the extent that the debtor has such tax attributes, § 108 defers taxes and does not permanently forgive them.

The trustee enjoys one unusual tax advantage. Under § 505(b)(2)(A), the trustee can submit a tax return for the estate to any taxing authority with a request for an early determination. The taxing authority has only 60 days to select the return for audit and only 180 days to complete the audit. If the taxing

authority does not comply, the trustee need pay only the tax reflected on the return. Any additional tax liability is discharged. In addition, § 505(a) gives the bankruptcy court jurisdiction to determine most tax disputes affecting the case or the estate.

II. Chapter 13 In a chapter 13 case, the debtor proposes a plan for payment of the creditors that is subject to court confirmation.

The plan can provide for payments over a period of up to five years (seven years for certain cases filed during the COVID-19 pandemic). There is a trustee in chapter 13, but the chapter 13 trustee is a very different creature from the chapter 7 trustee. The chapter 13 trustee does not take possession of the debtor’s property and has no authority to sell property. Instead, the chapter 13 trustee evaluates the debtor’s plan and recommends whether the court should

confirm it, receives the debtor’s plan payments and distributes them to creditors, and monitors and enforces the debtor’s performance under the plan.

There is some overlap between the tax issues in chapter 13 and chapter 7.

For example, chapter 13 and chapter 7 debtors have the same obligations to schedule tax debts and provide copies of prebankruptcy tax returns. But chapter 13 presents some tax issues that are not present in chapter 7 cases.

A. Tax Returns in Chapter 13 A chapter 13 debtor must file with the taxing authorities “all [required] tax returns for all taxable periods ending during the 4-year period ending on the date of the bankruptcy petition.” The debtor must accomplish this by the day before the first setting of the meeting of creditors, which is usually held about 45 days after the bankruptcy petition. The debtor can get only a fairly brief extension

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of the deadline, and only by showing “by a preponderance of the evidence that the failure to file a return as required . . . is attributable to circumstances beyond the control of the debtor . . . .”18 If the debtor does not comply, the debtor’s plan cannot be confirmed under § 1325(a)(9). This means that a chapter 13 debtor must get her tax return act together very quickly.

There is a small ray of sunshine, however. The estate in a chapter 13 case is not a separate taxable entity under I.R.C. § 1399. Therefore, the chapter 13 debtor need not bear the expense of an extra set of tax returns.

B. Treatment of Tax Claims in Chapter 13 The way in which a debtor may treat a tax claim under a chapter 13 plan depends on the status of the claim.

If the claim is secured by a valid tax lien that cannot be avoided under the Code, the claim is treated as secured to the extent of the value to which the lien attaches and the excess is treated as unsecured.19 The plan’s treatment of the secured portion of claim passes muster under § 1325(a)(5) if (a) the taxing authority accepts the plan, (b) the plan provides for full payment of the claim with post bankruptcy interest, or (c) the plan provides for surrender of the collateral.

If the claim is unsecured but entitled to priority over other unsecured claims (under the rules discussed above), the plan must provide for the full payment of the claim without post bankruptcy interest, unless the taxing authority agrees to another treatment.20 Stretching out tax debts without accruing interest is beneficial for debtors, but only if they can afford to pay the taxes in full during the plan term.

Even if the claim is not secured and not entitled to priority (for example, because the tax falls outside the applicable period), the debtor must meet numerous requirements under § 1325(a)-(b). Among other things, the debtor must prove that (1) the plan complies with the applicable provisions of the Code, (2) the debtor filed the petition and the plan in “good faith”, (3) the value of the distributions to each creditor under the plan is at least as much as the amount the creditor would receive in a chapter 7 case, (4) the debtor will be able to carry out the plan, (5) and, if the chapter 13 trustee or any unsecured creditor objects, the plan requires the debtor to pay at least the debtor’s “projected disposable income” to unsecured creditors.

If the debtor completes all payments under the plan, the debtor gets a discharge. The discharge encompasses all tax claims other than those for unfiled, late filed, and fraudulent returns, and includes most tax penalties.21 In practice, it is difficult to satisfy the plan confirmation requirements and successfully carry out a plan. Of all the

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debtors who file chapter 13 petitions, only about a third confirm and complete their plan.

III. Conclusion Every lawyer counseling a client with financial trouble needs to understand the interaction between bankruptcy law and tax law. All such clients need counseling about the effect of bankruptcy on tax debts and future taxes. Lawyers planning to represent clients in a bankruptcy case need more specific knowledge. Failure to file tax returns makes it much more difficult for a debtor to succeed in a bankruptcy case. Moreover, even a successful bankruptcy case will not provide much relief from unpaid taxes. Still, bankruptcy can indirectly help debtors solve tax problems by resolving most other debts and freeing up income that can make their taxes less onerous. ________________ 1

11 U.S.C. § 521(e)(2)(A)(I).

Id. § 521(e)(2)(B).

3 Id. § 521(e)(2)(C).

4 Id. § 521(f)(1)-(3).

5 Id. § 524(a).

6 §§ 507(a)(8)(A)-(B), (D), 523(a)(1)(A).

7 Id. §§ 507(a)(8)(C), 523(a)(1)(A).

8 Id. § 523(a)(1)(B).

9 See Berkovich v. California Franchise Tax Board (In re Berkovich), 619 B.R. 397 (B.A.P. 9th Cir. 2020).

10 I.R.C. § 6672; see also Haw. Rev. Stat. § 231-36.4 (providing penalties for any responsible person “who wilfully fails to collect or truthfully account for” Hawaii state taxes); Haw. Rev. Stat. § 237-41.5(a)-(b) (applying personal liability for unpaid general excise taxes to “any officer, member, manager, or other person having control or supervision over amounts of gross proceeds or gross income collected to pay the general excise tax”).

11 11 U.S.C. § 545(1).

12 Id. § 545(2).

13 Id. §§ 724(a), 726(a)(4).

14 Id. § 724(b), (e).

15 I.R.C. § 1398.

16 11 U.S.C. § 541.

17 Id. §§ 503(b)(1)(B)(i), 507.

18 Id. § 1308(a).

19 Id. § 506(a)(3).

20 Id. § 1322(a)(2).

21 Id. § 1328(a)(2).

2

Robert J. Faris is the Chief United States Bankruptcy Judge for the District of Hawaii. He is also a judge of the United States Bankruptcy Appellate Panel of the Ninth Circuit. He became a bankruptcy judge in February 2002 and joined the Bankruptcy Appellate Panel in August 2015. He is grateful for the skillful assistance of his law clerk, Ciara W.K. Kahahane.

The University of Hawaii Elder Law Program:

Celebrating 30 years of Advocating for Older Persons, their Families, and their Care Providers

by James H. Pietsch Coronavirus disease 2019 (COVID-19) continues to impact older adults disproportionately with respect to serious consequences ranging from severe illness and hospitalization to increased mortality risk. Concurrently, concerns about potential shortages of healthcare professionals and health supplies to address these issues have focused attention on how these resources are ultimately allocated and used. Some strategies, for example, misguidedly use age as an arbitrary criterion that disfavors older adults in resource allocation decisions . . . The COVID-19 pandemic further highlights the widespread and urgent need for all adults to engage in advance care planning discussions and create an advance directive.1 Coronavirus disease 2019 (COVID-19) is particularly deleterious to older adults, and there has been a massive increase in reports of elder abuse during the pandemic. Reports of elder abuse range from financial scams to incidents of family violence, with public warnings issued accordingly from the Federal Trade Commission and the American Bar Association.2

INTRODUCTION For the past three decades, the University of Hawaii Elder Law Program (“UHELP”) 3 has played a role in educating future lawyers, healthcare providers, and the community, and it has represented and has advocated for legal reform on behalf of older persons in the community. Unfortunately, there is a persistent lack of planning in the community for future incapacity and death, including lack of advance health care planning plus there continues to be relentless abuse, neglect, and exploitation of older persons in the community.

Now, it appears the pandemic may be exacerbating these two major problem areas. UHELP has played a role in addressing such problem areas and there is hope, even during a pandemic. More members of the community, including the legal community, are discovering that there are not only existing problem areas but also that there are potential remedies as advocates and politicians seek, perhaps in fits and starts, additional laws to better address planning for incapacity and death in identifying what has been called for decades the “epidemic of elder abuse.”4 There have been several examples of high-profile cases in the local news regarding advance healthcare planning, including end-of-life planning, as well as elder abuse, neglect, and exploitation. Older citizens have also expressed disappointment at what has happened to their lives or property toward the end of life. Examples include disputes over an older person’s wish for self-determination over one’s own property,5 allegations of improper use of an older person’s assets,6 and situations involving individuals who are fearful of pain and suffering at the end of life.7 In addition, during the COVID19 pandemic era, there is an increased urgency in addressing a continuing issue vexing both healthcare providers and the legal system, namely the increasing number of “unbefriended” and unrepresented in our community.8 UHELP has seen numerous personal and family controversies and conflicts involving the care of an older person or the assets of an older person, including less than peaceful deaths and upsetting dispositions of property upon death. In some instances, lawyers are intricately involved in end-of-life decisionmaking while in other cases, no lawyers are involved or consulted. As with knowledge about healthcare decision-making, knowledge of issues such as capacity (and incapacity or diminished capacity), undue influence or fraud, and the lack of adequate measures to protect vulnerable older persons in the community are fundamental to understanding elder abuse cases.

Over the years, UHELP has been at the forefront of education and training, for both law students and the Hawaii State Bar who seek to become “dementia-capable” attorneys.9

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UHELP Opening Celebration 1991--JHP, Congresswoman Patsy Mink, LHL , and UHELP Secretary Roberta Hironaka

This article is essentially descriptive and celebratory, and it is not designed as an advocatory or analytical piece. It is an attempt to highlight the origins of UHELP and its mission and some of its achievements, to highlight several major legal issues at the intersection of law, aging, and medicine, and, it is hoped, to encourage and motivate the present and future lawyers of Hawaii to help address the continuing legal and personal needs of the elderly. Some law students, and even some members of the law faculty, and some members of the bar may not be familiar with what “elder law” encompasses or what UHELP does, so this article may provide them with some up-to-date answers to their questions.

Accordingly, this article will first provide some basic answers to the question

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“Why Elder Law?” Then it will present an overview of UHELP and some of the accomplishments of its staff. While providing an opportunity to reminisce, the UHELP tales also may provide readers with insight into issues common to elder law as a practice area.

BACKGROUND Why Elder Law? Elder Law has been part of the Hawaii legal landscape for over forty years, yet many members of the bar and the community do not have a clear sense of this unique field of practice.

Elder Law is a unique field of practice because it is not defined by any particular technical legal distinctions but rather by the client to be served. The attorney who practices Elder Law may handle a

range of issues, but usually has a specific category of clients—older persons, or their representatives or their caregivers. Over the years the National Academy of Elder Law Attorneys (“NAELA”)10 has developed a more expansive definition of the concept of practice in the field of elder law, which now specifically includes the needs of disabled persons and veterans in addition to its traditional focus on older persons.11 For a significant percentage of members of the bar, the year 2030 marks an important demographic turning point in U.S. history according to the U.S. Census Bureau’s 2017 National Population Projections.12 By 2030, all baby boomers will be older than age 65.13 This will expand the size of the older population so that 1 in every 5 residents will be retirement age.14 By 2035, there will be 78 million people 65 years and older compared to 76.7 million under the age of 18.15 As our nation’s older population continues to grow, so does the importance of understanding the unique needs of the elderly, including responding to the physical and mental effects of aging on this segment of the population.16 Age is a known risk factor for developing dementia, and with the number of Americans age sixty-five or older doubling by 2060, so could the number of people with dementia.17 Dementia is the loss of cognitive functioning—the ability to think, remember, or reason—to such an extent that it interferes with a person’s daily life and activities. These functions include memory, language skills, visual perception, problem solving, self-management, and the ability to focus and pay attention. Some people with dementia cannot

disputes

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UHELP First Winter Holiday Celebration JHP, UHELP, Attorney (now Professor) Calvin Pang, UHELP Intake Paralegal Philip Iha, Randall Lee (son of LHL), LHL, UHELP Secretary Roberta Hironaka.

control their emotions, and their personalities may change. Dementia ranges in severity from the mildest stage, when it is just beginning to affect a person’s functioning, to the most severe stage, when the person must depend completely on others for basic activities of daily living. 18 It worsens over time, and there is no cure for this devastating disease. 19 Alzheimer’s disease is the most common cause of dementia in older adults.20 According to the Alzheimer’s Association, approximately 5.8 million Americans of all ages have Alzheimer’s disease in 2019, and 5.6 million of those Americans are over the age of sixty-five.21 The Alzheimer’s Association notes:22

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1003 Bishop St., Suite 1155 • Honolulu, HI 96813

…some individuals have dementialike symptoms without the progressive brain changes of Alzheimer’s or other degenerative brain diseases. Common causes of dementialike symptoms are depression, untreated sleep apnea, delirium, side effects of medications, thyroid problems, certain vitamin deficiencies and excessive alcohol consumption. Unlike Alzheimer’s and other dementias, these conditions often may be reversed with treatment.

As with other areas of the law, skills learned through the study of elder law

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Two major experiences at the Legal Aid Society helped shape UHELP’s advocacy efforts. Two years before UHELP was established at the law school, the Hawaii State Legislature enacted the Dependent Adult Protective Services Act (“DAPSA”).26 A task force convened to assist the legislature in drafting a law to protect older persons in Hawaii, but the law that was ultimately enacted and its subsequent amendments continued to fall short of protecting older persons within the state. Second, Hawaii’s first “right to die” case27 compelled major improvements over the years to the law with respect to healthcare decision-making, including end-of-life decisions.

Chief Justice (Ret.) William S. Richardson, kupuna, JHP

are transferrable. These skills learned in serving older persons are readily useful to assisting the general population, especially during this pandemic period. Just as importantly, by providing students with the opportunity to learn many of the substantive laws relating to the practice of Elder Law and invaluable experiences serving the community, UHELP hopes to continue to elevate the future practice of Elder Law by new practitioners.

UHELP’s Genesis at the Legal Aid Society of Hawaii The genesis of UHELP was in the Senior Citizen Unit at the Legal Aid Society of Hawaii,23 which remains a valued partner in addressing legal issues of older persons. The Legal Aid Society was seeking to expand its services to older persons under a federal grant24 administered through the City and County of Honolulu.25 Even prior to the establishment of UHELP at the law school, the then Senior Citizen Unit staff was already part of the law school and university ohana. The initial course was then called “Legal Problems of the Elderly.” Subsequently, an Elder Law Clinic course was established at the law school, providing law students with the opportunity to provide legal assistance to socially and economically needy older persons. The medical school asked for specialized education at the intersection of law, aging, and medicine for its geriatric medicine fellows, and, later, for its psychiatry fellows.

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The Program at the Law School The initial infusion of funding in 1991 allowed UHELP to initiate operations without any delay at the law school but it took a long time for its members to obtain permanent positions. Original members of UHELP included Lenora H. Lee, PhD, now a faculty specialist and administrative director of UHELP, Calvin Pang, then UHELP staff attorney and now a professor at the William S. Richardson School of Law, Roberta Hironaka, former UHELP secretary, Philip Iha, former intake paralegal, and the author, director of UHELP. Original startup funding was achieved through grants under Title IX of the Higher Education Act of 1990, Title III-B of the Older Americans Act and the Hawaii Justice Foundation.

The law school’s endeavor to establish UHELP at the university was headed by John Barkai, then and now a professor and clinical director, and Lawrence Foster, then associate dean and now former dean and professor emeritus.

The 1991 agreement among the law school, the Legal Aid Society of Hawaii, and the City and County of Honolulu Elderly Affairs Division created a unique program at the law school with three major objectives: (1) To provide law students and other students at the university substantive courses in Elder Law and related topics, including Health Law and Bioethics; (2) To provide law students an ability to participate in a clinical education program involving real clients with real cases; and (3) To provide direct legal services to older persons as a community service.

Education, research, and community service would be the hallmarks of the program. Costs of the program would be shared by the City and County of Honolulu through grants and by the law school through grants and other resources. The potential synergy of such a program was one of the prime motivations for the move. Since 1991, UHELP has provided legal services and education and has counseled and advocated on behalf of over 25,000 elders, veterans, and their caregivers.

Elder Law Clinic students making a presentation for kupuna at Kokua Kalihi Valley

Courses Substantive legal education at UHELP consists of three primary courses offered to law students and certain graduate students. These courses are “Law, Aging and Medicine” (formerly known as the “Elder Law” course), “Advance Health Law Studies (Experiential),” and “Health Law: Bioethics.”

These courses provide a basic foundation for legal practice with elderly persons and in health law. Substantive topics covered include: Social Security and Supplemental Security Income, food stamps, Medicare, Medicaid, the Older Americans Act, the delivery of legal services to elderly clients, guardianship and conservatorship, long-term care, elder abuse and neglect, adult protective services, medical treatment decisions, financial planning, estate planning, consumer protection, housing, and age discrimination in employment. Doctor of Nursing Practice students at the University of Hawaii are required to take “Health Law: Bioethics” as a graduation requirement. Geriatric Fellows and Psychiatry Fellows from the John A. Burns School of Medicine are also offered courses of instruction to help them understand the medical-legal issues affecting older persons.

Elder Law Clinic Law students and certain graduate students are eligible to

participate in the Elder Law Clinic (including an Advanced Elder Law Clinic). The goal of the Elder Law Clinic is to provide students with real-life experiences representing older clients with a variety of Elder Law issues. The Clinic combines traditional classroom education with the opportunity to provide direct legal services under the close supervision of UHELP faculty and volunteer community attorneys.28 The professor and volunteer attorneys are all licensed to practice law in Hawaii. One of the unique characteristics of the Elder Law Clinic is that it not only has a paralegal to assist clients under the supervision of a licensed attorney, but also this paralegal is a faculty specialist at the law school and coteaches the Elder Law Clinic course. This gives valuable insight to future lawyers as to the importance of paralegals and other team members in law firms.29 Often, time is of the essence and students learn life lessons in a hurry, as the following tale “Women in Black” 30 illustrates.

The dying older man looked up from his hospice bed at the three law students who coincidentally had matching outfits that day and asked, “Do you lady lawyers always wear black?” This broke any tension in the hospice (Continued on page 20)

H SBA HAP PE NIN GS Board Action The HSBA Board took the following actions at its meetings in November and December: • Voted to approve the recommendation of the HSBA Nominating Committee to appoint the following individuals to the Hawaii Access to Justice Commission for a 3-year term beginning January 1, 2021: Christine Daleiden (new appointment), Carol K. Muranaka (reappointment).

Attorney/Client Relations - Charles Crumpton and Peter Lenhart Civic Education - Ruth Oh, Ryan Hamaguchi and Troy Andrade Consumer Protection - Paul Alston CLE - Brian Black Delivery of Legal Services to the Public - Micah Smith Judicial Administration - Justice Simeon Acoba (ret.)

• Voted to approve the recommendation of the HSBA Nominating Committee to appoint the following individuals to the Hawaii State Bar Foundation for a 3year term beginning January 1, 2021: Jan Boivin (reappointment), Kimi IdeFoster (new appointment), Joelle Kane (new appointment), Cheryl Kakazu Park (reappointment), Shanlyn Park (new appointment), Calvin Young (reappointment).

Legislation - Noah Gibson

• Approved the HSBA Nominating Committee’s recommendation to appoint Clarissa Malinao as the HSBA representative on the Commission on Professionalism for the remainder of a term to begin immediately and expire in April 2023;

The following members will serve on the 2021 HSBA Board: President Levi Hookano, President-elect Shannon S. Sheldon, Vice President Rhonda L. Griswold, Treasurer Alika L. Piper, Secretary Russ S. Awakuni, and the directors: 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, Jacob L. Lowenthal (Maui), Mark K. Murakami, Paul W. Naso, Zale T. Okazaki, Ralph J. O’Neill, Christopher P. St. Sure (YLD).

• Voted to recognize the Christian Legal Society of Hawaii as a specialty bar association; • Voted to recognize the Hawaii Bankruptcy Bar Association as a specialty bar association; • Ratified President-elect Levi Hookano’s appointments of the following 2021 committee chairs (note: cochairs may be added to this list and committees not listed below are pending):

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Publications - Cynthia Johiro and Carol K. Muranaka Staff and Facilities - Paul Naso Technology - Jacob Lowenthal Transitioning Lawyers - Geraldine Hasegawa

2021 HSBA Officers and Directors

2021 HSBA YLD Officers and Directors The following members will serve on the 2021 HSBA YLD Board: Presi-

dent Christopher P. St. Sure, Vice President Jasmine Nicole Y. W. Wong, Secretary Nelisa K. M. Asato, Treasurer Leo Y. Shimizu, and directors: Jason K. Adaniya, Renee C. Arndt (Kauai), Nicole K. Bowman (West Hawaii), Taylor W. Gray, Ryan K. P. Kanakaole, Sabrina M. Kawana, Kristen Catherine Spees Marchello (Maui), Mallory T. Martin, Kelcie K. Nagata, Matthew B. Weyer, Shawn H. Yamada (East Hawaii), Lisa M. Yang.

2021 HSBA Senior Counsel Division Officers and Directors The following members will serve on the 2021 HSBA Senior Counsel Division Board: President Carole Richelieu, Vice President/Presidentelect Gilbert C. Doles, Secretary Ian Lorne Sandison, Treasurer Michael Lilly, and directors: Michelle Alarcon, Jonathan J. Chun (Kauai), Gilbert C. Doles, Rosemary T. Fazio, Charlene Y. Iboshi (Hawaii Island), Gregory LuiKwan, Scott A. Makuakane, David Raatz (Maui), Kenneth K. P. Wong, Michael J. Y. Wong.

Last Chance to Renew 2021 License If you have not renewed your HSBA license yet for 2021, please do so before February 28 to avoid 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) 537-1868 if you have questions.

You may also email the HSBA Membership Department at ars@hsba.org.

Lawyer Referral and Information Service (“LRIS”) As the economic landscape continues to transition and people continue to

need legal representation, the LRIS continues to be a reliable resource for members looking to build and maintain their practice. The service receives over 1000 inquires per month from local individuals as well as the continental US and overseas individuals seeking legal representation or information. While the majority of the inquiries are made by phone, the LRIS also receives a lot of email and handwritten correspondence, as well as referrals from governmental agencies, community organizations and the private sector.

The LRIS typically receives 75-80 calls per day and over 75% of the calls are referred to panel members. The amount of clients referred to each LRIS panel member varies depending on the number of categories and subcategories selected. LRIS members may choose up to four of 14 major categories, and as many of the 80 subcategories under each major category, for the basic fee included in the subscription. Currently, the Tort, Real Estate, and Labor categories are the most requested. Those unfamiliar with the LRIS program have tried it on a 3-month trial basis for just $106.25 and found it to be a perfect fit for their practice. Neighbor island bar members are encouraged to join and support the program as the LRIS continues to receive numerous requests for legal representation for neighbor island attorneys.

To join the service for the 3-month trial period at just $106.25 or to join for the rest of the LRIS 2021 fiscal year period which ends June 30, 2021, at the prorated fee of $187.50. Call the administrator’s direct line at (808) 7927350 or email egomez@hsba.org for more information.

Vacancy on CSR Board The Board of Certified Shorthand Reporters (“CSR”) will have an open po-

sition on its Board for a 3-year term beginning August 1, 2021. Qualifications for the position include being willing and able to devote time to perform necessary duties; and conscientious, studious, thorough, and diligent in learning methods and problems of the organization.

Duties of the CSR Board include examining applicants for certification as Hawaii certified shorthand reporters, and proposing rules and regulations for: (1) testing, licensing, and supervision of certified shorthand reporters, (2) standards governing conduct of Hawaii certified shorthand reporters, and (3) discipline, censure, suspension, or revocation of certification.

Anyone interested in serving in this capacity should submit a resume, including their area of concentration, and a reason for wanting to serve, no later than March 31 to the HSBA Nominating Committee at nominations@hsba.org or at 1100 Alakea Street, Suite 1000, Honolulu, HI 96813. Please note that this position is uncompensated, and that applicants need to disclose all public disciplinary sanctions. If there have been none, then state that such is the case. Nominations will be made at the HSBA Board meeting in June or July.

Member Benefits Spotlight AAA Hawaii Save $20 on their Classic Plan. To enroll, call AAA Hawaii at (808) 5932221 (for neighbor islands, call toll-free at (800) 736-2886). The HSBA campaign code is 47357.

Central Pacific Bank Central Pacific Bank is pleased to offer HSBA members exclusive status as a client of the Specialized Markets team.

This team specializes in servicing specific industries and works in partnership with clients to help them succeed by combining financial expertise with industry

knowledge and insights. For specialized service tailored to your needs from a team that is ready to work for you, call (808) 544-3602, or email specializedmarkets@centralpacificbank.com.

Cool Action Suit by Carson Introducing the Cool Action Suit by Carson, a patented, lightweight, moisture-wicking business suit that helps you maintain a professional appearance while staying cool.

Highlights of the suit include: • Breathable, moisture-wicking performance fabric • Extra interior jacket pockets for carrying gear • A lightweight and wrinkle-free design • Proudly made in the USA Log on to their website (https://bit.ly/34oQZbL) and use the code HAWAII17 to get 20% off your order.

HSBA Lexology Newstand Get free timely updates from around the United States and the world about subjects that matter to your practice.

Newsstand is powered by innovative newsfeed service Lexology, which utilizes its global legal knowledge base to deliver essential know-how and market intelligence in concise digestible form to keep you informed across legal issues in your area.

Please activate your account (https://bit.ly/3r6o4TI) with Lexology to select the work areas and/or jurisdictions you would like to be kept up to date on.

Change your settings (which include receiving the newsfeed weekly instead of daily) or cancel your subscription at any time. Your personal details will remain confidential at all times.

Liberty Mutual Liberty Mutual is offering a 10% discount on auto insurance and 5% dis-

February 2021

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17

count on home insurance. Contact Ched Cordero (808) 650-6162 or ched.cordero@libertymutual.com, or visit their website (https://bit.ly/34mL3zX).

Papa John’s Pizza Hawaii Papa John’s Pizza Hawaii (https://pj.pizza/3877dY0) is a locally owned and operated franchise. Serving pizza with better ingredients since 1999.

They are excited to partner with HSBA and offer Online Promo code HSBA. This code will allow HSBA friends and family to get 50% off menu priced pizzas and, for every code redeemed, Papa John’s Pizza Hawaii will allocate $1 toward HSBA initiatives.

PracticePanther PracticePanther, a practice management software, offers everything from contact and matter management to invoice, workflow, and automated document generation; one-click billing; calendar and inbox syncing; and seamless integrations with over one thousand different applications and platforms.

PracticePanther is a one-stop shop for all of a firm’s legal needs. Members receive 10% off their subscription for life and will have access to free demonstrations, training, tech support, and dedicated Account Managers. Log on to the website and use the code HawaiiBar18 to receive 10% off your subscription You can find the members-only discount link by visiting https://bit.ly/2LLwrE2.

The Island Club and Spa HSBA members will receive a onemonth complimentary guest membership to Island Club and Spa, the signature health and rejuvenation destination in Honolulu. Conveniently located in the beautiful Ko’olani complex and in the center of Waikiki at the Alohilani Resort Waikiki Beach. Included with your one-month guest membership: • Two complimentary one-hour personal training session to ensure you are on track to meet your health and fitness goals.

• Single guests may include a friend on their guest membership.

• Members qualify for discounted corporate membership rate of $134 per month (regularly $185) and enrollment fee of $59 (regularly $500).

• Towels and toiletries are provided, as well as free locker service.

• Complimentary valet parking provided.

• Over 60 group exercise classes such as Yoga, cycle, Pilates, Zumba are provided at no extra cost.

• Steam Room, Sauna and Whirlpool in ladies and men’s locker rooms.

To activate your complimentary membership, call Geri Lara Berger at (808) 543-3900 for an appointment, or email info@islandclubandspa.com or glaraberger@islandclubandspa.com for more information.

Visit https://hsba.org/memberbenefits to get more information on the more than 70 member benefits available.

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CASE NOTES Justice McKenna Retained Hawaii Supreme Court Associate Justice Sabrina S. McKenna was recently retained by the Judicial Selection Commission to serve on the Hawaii Supreme Court. Her new term begins on March 3, 2021.

Eddins Sworn-in as Associate Justice A virtual crowd of dozens of family, friends, and colleagues tuned in to watch Todd W. Eddins be sworn-in as Associate Justice of the Hawaii Supreme Court on December 11. Chief Justice Mark E. Recktenwald presided over the ceremony, which was livestreamed on the Judiciary’s YouTube channel.

Guest speakers were: Hawaii State Bar Association President P. Gregory Frey, Hawaii State Trial Judges Association President Judge Matthew J. Viola, Judicial Selection Commission Chair Ronette M. Kawakami, House Speaker Scott K. Saiki, Senate President Ronald D. Kouchi, and Governor David Y. Ige. Associate Justice Eddins’ term will be for 10 years.

livestreamed on the Judiciary’s YouTube channel.

Guest speakers were Kauai Bar Association President Adam P. Roversi; Hawaii State Bar Association President P. Gregory Frey, Hawaii State Trial Judges Association President Judge Matthew J. Viola, Judicial Selection Commission Chair Ronette M. Kawakami, and Senate President Ronald D. Kouchi. Judge Char will serve a six-year term.

Ching Reappointed as Per Diem Judge Jennifer L. Ching was recently reappointed as per diem judge of the District Court of the First Circuit and designated to act as District Family Judge.

Her term will be from January 13, 2021 to October 3, 2023.

Judge Daniel R. Foley (ret.) wMediation wArbitration wMoot court wMock trial

Dispute Prevention and Resolution 1003 Bishop Street Suite 1155 Honolulu, HI 96813

Phone:

808.523-1234

judgefoley2000@hotmail.com

www.dprhawaii.com

Murakami and Nakashima Appointed as Per Diem Judges Congratulations to Paul T. Murakami and Steven A. Nakashima on being appointed as per diem judges of the District Court of the First Circuit and designated to act as District Family judges. Their terms will be effective December 21, 2020 to December 20, 2021.

Char Sworn-in as District Family Court Judge As family, friends, and colleagues watched in the courtroom and remotely, Stephanie R.S. Char was sworn-in as Judge of the District Family Court of the Fifth Circuit on December 17. Chief Justice Mark E. Recktenwald presided over the ceremony, which was

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protect, and preserve the autonomy and independence of older (Continued from page 15) persons through education, training, and direct legal services.

UHELP places particular empharoom and helped start the sis on assisting socially and ecoconversation with the gentlenomically needy older persons man who needed legal assisand their caregivers. tance and who would get it thanks to the law students and UHELP was originally estabthe University of Hawaii lished on a base of external grants.

Elder Law Clinic. Mr. R UHELP now has a smaller staff needed help to make sure that than when it was formed and canhis friend, M, would be able not provide as much direct interto pick-up his ashes from the vention as before, but it is still mortuary and scatter them at the beach. Mr. R did not engaged in representation and adhave a spouse or a family, but vocacy on behalf of older perhe had a friend, M. sons.31 While UHELP is still able to For the law students, this Volunteer UHELP attorneys Christy Matsuba, Kristin Bryant, and assist many people each year was their first “in-person” Scott Suzuki with JHP through its legal services and comclient and perhaps their first real encounter with actual life munity outreach endeavors, the and death issues. For the client, this was the only hope to scope of services is limited, and especially due to the COVID-19 get needed legal assistance as both his friend and the hospandemic restrictions on in-person contact. Individuals may pice staff had failed to find a legal service provider or volqualify for services if they are older and are socially or ecounteer to help the patient. The client intake, counseling, nomically needy or if the individual is a caregiver of an older and provision of legal services took longer than anticiperson and needs legal assistance on behalf of the older perpated but the students remained patient, respectful and compassionate, even though it was a Friday afternoon. son. Each case is evaluated according to its own merits and in He was not expected to last much past the weekend and accordance with staff capabilities.32 he did not.

Through its affiliation with the departments of geriatric medicine and psychiatry at the medical school and with the The Elder Law Clinic allows students to serve socially and doctor of nursing practice program at the nursing school, economically needy older persons on Oahu with problems inUHELP also helps to educate and clarify end-of-life and volving public entitlements, guardianship/conservatorship and healthcare policies for the healthcare professionals from a their alternatives, landlord-tenant, elder abuse, age discriminalegal or ethical standpoint. Each year UHELP provides edution, planning for incapacity and death, consumer protection, cation and training to healthcare professionals about elder healthcare and medical treatment decisions. For the past sevlaw, healthcare ethics, and the importance of being more seneral years, the Elder Law Clinic has also had a Veterans Focus sitive to the related healthcare and legal needs of the elderly. component. The Elder Law Clinic is fortunate to have had Along the way, UHELP staff had been involved in helping community attorneys specializing in elder law issues to assist shape the current program and have been providing service on with mentoring students over the years. Attorneys Scott the Biomedical Institutional Research Board of the Human Suzuki, Christy Matsuba, Kristin Bryant and Neva Keres conStudies Program of the university.33 They have achieved success tinue to contribute their expertise and time. in education and service with the schools of nursing and medicine and have even received a provost award to start teaching an Service to the Community, Including Direct “elder law” course at the undergraduate level through the school Legal Services of nursing.34 UHELP operates throughout the calendar year as a direct During its years of service, UHELP staff produced valuable legal services provider. It has a caseload of several hundred handbooks, such as the Akamai Kupuna, and 10 editions of the cases a year and conducts extensive community outreach servDeciding What If/Deciding What’s Next/What Matters?35 handbooks, ices such as providing educational seminars for elder groups, as well as a prize-winning book, Elder Law Hawaii Handbook, caregivers, and service providers. UHELP’s goal is to enhance,

ELDER LAW

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products such as the Kokua Packet, Malama Caregiver Packet , and translated the advance directive into seven languages.

UHELP actively participates in community education efforts. Probably the most anticipated recurring program is UHELP’s annual “’Nite’ of the Living Will,” which is held close to Halloween in conjunction with the Elder Law Clinic.36 Several educational programs have been produced for television. At its start in 1992, UHELP assisted in the production on “living wills” shown at prime time. In 1994, a video presentation, “Putting Your House in Order” that discussed legal, financial and health preparation before death was produced. For several years, it was regularly shown on television.

In 1995, UHELP also participated in several Kapiolani Community College Legal Assistant Program television panel discussions on health law and aging issues. In 1996, UHELP along with the Hawaii Legal Auxiliary produced the “living will” and durable power of attorney for healthcare documents in Braille and a video concerning these two documents. In 1997, UHELP designed the Malama Care Packet for Caregivers. UHELP shared UHELP sign the award given by JC Penney for the best project for Americans with disabilities for both 1996 and 1997. UHELP members continue to appear in the media when requested to provide information about legal issues involving aging and healthcare.37 These community education and advocacy efforts continued over the ensuing years. These efforts included supporting legislation to enhance the autonomy and self-determination of older persons and protecting their property and lives in their best interests. This included service on the Governor's Blue Ribbon Committee on Living and Dying with Dignity and the Governor's Committee on Elder Abuse.38 Numerous research projects for the Elder Law Clinic and Advanced Elder Law Clinic and Advanced Health Law Studies students have emanated from actual cases discussed at monthly or emergency ethics committee meetings at the

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Queen’s Medical Center.39 These include medical futility, end of life decisions, refusal of blood products, the use of physical and chemical restraints, healthcare decisionmaking conflicts between patients and family members and retrieval of sperm from a comatose patient.

Internationally, UHELP has contributed to elder law and legal clinic initiatives as well.40 During and following the Iraq War troop surge in 2007, UHELP was involved in rule of law activities in Iraq, including the Kurdistan Region. The UHELP operational manual was used as a model by the Iraqi Bar Association to help to institute a Legal Aid Clinic for detainees at the Rusafa Rule of Law Complex in Baghdad under the Ambassador’s Targeted Development Program.41 UHELP staff provided logistical and research assistance while maintaining seamless UHELP operations in Hawaii.42 Later, at the law school, UHELP sponsored a student initiative, the Hammurabi Legal Forum, which was established in 2008 to support rule of law initiatives and legal scholarship in Iraq.43 UHELP is truly grateful to the law school, to the university and to the bar for all of the support provided over the years. Although UHELP is proud to be celebrating its 30th anniversary at the law school, much work remains to be done in educating our community about law, aging, and medicine and in combating elder abuse, neglect, and exploitation and even disappointment at the end of life. UHELP has a long history of advocating for older persons in our community and in teaching future generations of legal and healthcare providers in our community, nationally,44 and internationally.

As the population of older Americans increases, more people will likely become vulnerable to elder abuse. COVID19 has particularly impacted older adults, and the preventative measures such as stay-at-home orders and social distancing may increase the probability of depression and social isolation in seniors,45 thus making them more susceptible to abuse and undue influence. UHELP continues to serve this very important part of our community. __________________

1

Teneille Brown et al., Rationing Limited Healthcare Resources in the COVID-19 Era and Beyond: Ethical Considerations Regarding Older Adults, 68 J. OF AM. GERIATRICS SOCIETY 1143 (2020).

2 See Letter to the Editor, S. Duke Han PhD & Laura Mosqueda MD, Elder Abuse in the COVID-19 Era, 68 J. OF AM. GERIATRICS SOCIETY 7 (Jul. 2020), https://doi.org/10.1111/jgs.16496.

3 Visit UNIVERSITY OF HAWAII ELDER LAW PROGRAM, www.Hawaii.edu/uhelp (last visited Sep. 6, 2020) for a complete list of services and publications.

4 See, e.g., Priscilla Vargas Wrosch, What More Can Congress Do About the Elder Abuse Epidemic: A Proposal For National Movement, 23 TEMP. POL. & CIV. RTS. L. REV. ix (2013); U. S. DEPARTMENT OF JUSTICE ARCHIVES: FIGHTING BACK AGAINST THE HIDDEN EPIDEMIC OF ELDER ABUSE (2020), https://www.justice.gov/archives/opa/blog/fighting-back-against-hidden-epidemic-elder-abuse.

5 See, e.g., Hawaii’s ‘Last Princess’ Fights for Control of Her Fortune, Honolulu Civil Beat (Feb. 1, 2018), https://www.civilbeat.org/2018/02/Hawaiis-lastprincess-fights-for-control-of-her-fortune/; Let Kawananakoa spend her money, Letters to the Editor, F-2, Honolulu Star-Advertiser, May 26, 2019.

6 See, e.g., Katherine Kealoha’s Grandmother, 99, Finally Gets to Tell Her Story https://www.civilbeat.org/beat/katherine-kealohas-grandmother-99-finallygets-to-tell-her-story; Ailing grandma, 99, is key witness in Katherine and Louis Kealoha corruption case, Honolulu Star-Advertiser, (Mar. 28, 2019), https://www.staradvertiser.com/2019/03/28/breaking-news/grandma99-is-key-witness-in-kealoha-corruption-case/. Ms. Puana’s statement about her granddaughter is telling: “She promised that she’d help me and I believed her,” Puana said. “She said to trust her. She said, ‘Grandma, don’t worry.’ She said, ‘I’m the attorney and you can trust me.’”

7 See, e.g., Dr. David Grube & Dr. Chuck Miller, Medical aid in dying shows progress Editorial, HONOLULU STAR-ADVERTISER at F3 (May 26, 2019) (discussing Our Care, Our Choice Act, H.B. 2739, 29th Leg. (Haw. 2018)).

8 See, e.g., Thaddeus M. Pope, Unbefriended and Unrepresented: Better Medical Decision Making for Incapacitated Patients Without Healthcare Surrogates, 33 GA. ST. U. L. REV. 923 (2017).

9 See, e.g., James H. Pietsch, Becoming a ‘Dementia-Capable’ Attorney—Representing Individuals with Dementia, HAW. BAR J., Vol. 17 No. 13 (2015).

10 See, National Academy of Elder Law Attorneys, naela.org (last visited Sep. 5, 2020). Elder and Special Needs Law are specialized areas of law that involve representing, counseling, and assisting seniors, people with disabilities, and their families in connection with a variety of legal issues, from estate planning to long-term care issues, with a primary emphasis on promoting the highest quality of life for the individuals. Typically, Elder and Special Needs Law attorneys address the client’s perspective from a holistic viewpoint by addressing legal, medical, financial, social and family issues.

11 Id. Elder and Special Needs Law attorneys are experts in numerous key areas including: Estate Planning and Probate; Estate and Gift Tax Planning; Guardianship/Conservatorship; Medicaid; Medicare; Entitlement Programs; Retirement Benefits; Age Discrimination; Elder Abuse/Neglect; Housing; Long-Term Care Financing; Medical Decision Making; Disability Planning; and Insurance.

12 U.S. CENSUS BUREAU, OLDER PEOPLE PROJECTED TO OUTNUMBER CHILDREN FOR FIRST TIME IN U.S. HISTORY (2018), https://www.census.gov/newsroom/press-releases/2018/cb18-41-population-projections.html.

13 Id.

LHL, JHP and Volunteer UHELP Attorney Neva Keres 14

Id. Id. 16 SANDRA L. COLBY & JENNIFER M. ORTMAN, U.S. CENSUS BUREAU, PROJECTIONS OF THE SIZE AND COMPOSITION OF THE U.S. POPULATION: 2014 TO 2060, at 4 (Mar. 2015), https://www.census.gov/content/dam/Census/library/publications/20 15/demo/p25-1143.pdf (“...the population is projected to age over the coming decades, with a higher proportion of the nation’s total population in the older ages (sixty-five and over)”).

17 NAT’L INST. OF NEUROLOGICAL DISORDERS AND STROKE, NAT’L INST. OF HEALTH, WHAT IS DEMENTIA? SYMPTOMS, A TYPES, AND DIAGNOSIS 1 (2017), https:www.nia.nih.gov/health/what-dementia-symptoms-typesand-diagnosis [hereinafter WHAT IS DEMENTIA]. See also, NAT’L INST. ON AGING, The Dementias, Hope Through Research https://order.nia.nih.gov/sites/default/files/2018-01/the-dementiashope-through-research.pdf. [hereinafter THE DEMENTIAS].

18 Id. 19 Id. 20 Id. 21 2019 ALZHEIMER’S FACTS AND FIGURES at 17, https://alz.org/media/Documents/alzheimers-facts-and-figures-2019r.pdf (last visited Aug 22, 2020).

22 Id. at 8.

23 See, https://www.legalaidhawaii.org.

24 Title III-B, Section 321, of the Older Americans Act, as amended.

25 See, Administration for Community Living, Administration on Aging (AoA), “Legal Services For the Elderly Program,” Legal assistance provided under Title III-B is part of the essential core of AoA’s legal assistance and elder rights programs. The legal services network can provide important assistance for older persons in accessing long-term care options and other community-based services. Legal services also protect older persons against direct challenges to their independence, choice, and financial security. These legal services are specifically targeted to “older individuals with economic or social needs.” https://acl.gov/programs/legal-help/legal-services-elderly-program. After 25 years of collaborative success in partnership with UHELP utilizing funding under Title III of the Older Americans Act, in 2018 the City and County of Honolulu unilaterally rescinded its contract with the university.

15

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Elder Law Clinic law students and Doctor of Nursing Practice students in the Clinical Office Building at the Law School 26

See, 1989 Haw. Sess. Laws 189, codified at HAW. REV. STAT. Part X, Chapter 346 (1989).

27 In Re Guardianship of Crabtree, # 86-0031 (Haw. Fam. Ct., 1st Cir. Apr. 26, 1990). See, Lenora H. Lee, A Good Death: the Politics of Physician Assisted Suicide in Hawaii (Aug. 2009) (published Ph.D. dissertation, University of Hawaii) UMI Number 3378316, ProQuest LLC, 2009.

28 Over the years, volunteer attorneys Scott Suzuki, Christy Matsuba, Kristin Bryant (William S. Richardson School of Law graduates), and Neva Keres have assisted and continue to assist.

29 See, Kapiolani Community College, Legal Education Programs https://www.kapiolani.Hawaii.edu/academics/programs-ofstudy/legal-education/ 30 See, James Pietsch, Expanding Access to Justice for Needy Elderly Through Law School Experiential Programs, 30 THE ELDER L. J. 2, (2013).

31 Funding for UHELP is currently provided by the University of Hawaii William S. Richardson School of Law, the State of Hawaii Indigent Legal Assistance Fund managed through the State of Hawaii Judiciary, and the Hawaii Justice Foundation and through donations. There are no fees charged for services, but donations are welcome. Because of limited staff and resources, services are limited, and priority is given to the neediest of clients. For more about UHELP, see, UNIVERSITY OF HAWAII ELDER LAW PROGRAM, www.hawaii.edu/uhelp (last visited Sep. 6, 2020).

32 UHELP services include: • Advance Healthcare Directives-healthcare instructions (similar to the old “living will”) and healthcare powers of attorney • Simple wills-restricted to certain estate values • General durable powers of attorney • Planning for incapacity and death • Counseling on end-of-life decision-making • Information about public benefits • Counseling on legal issues relating to elder abuse, caregiving, and guardianship/conservatorship • General legal information and referrals

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Some types of cases UHELP does not handle are: criminal law (including traffic violations); commercial or income-producing matters; personal injury matters (including slip and fall cases); and public benefits and veterans’ benefits claims and claims appeals.

33 The Human Research Protection Program (“HRPP”) is an institutionalwide program administered by the UH Human Studies Program (“HSP”) under the Office of Research Compliance.

The HSP works together with the UH research community to ensure the health, welfare, rights, and dignity of people who participate in UH research. The HSP provides guidance and administrative support to its three UH Institutional Review Boards. As part of the HRPP, the primary goal of the UH IRBs is to protect the rights and welfare of individuals recruited to participate in research activities conducted under the auspices of the University of Hawaii. See, UNIVERSITY OF HAWAII: RESEARCH COMPLIANCE, https://researchcompliance. Hawaii.edu/ programs/human-studies/ (last visited Sept. 6, 2020).

34 Nurs 449, Gerontology, Health Care and the Law (Elder Law).

35 The latest UHELP publication is: DECIDING WHAT MATTERS— AND WHAT TO DO, A LEGAL HANDBOOK FOR HAWAII’S CAREGIVERS, FAMILIES AND OLDER PERSONS, HAWAII JUSTICE FOUNDATION. (2020). The hard copy version is available at the new law school Clinical Office Building at 2485 Dole Street (when the campus re-opens to the public) and is also available online at http://Hawaii.edu/uhelp/handbook.htm.

36 In the Fall of 2020, during Covid 19, this educational session on end-of-life issues was conducted via Zoom and participants included residents of several retirement communities.

37 Just prior to the COVID-19 pandemic crisis, UHELP and the new law school Clinical Office Building were featured on KITV’s “Aging Well Program.” https://www.kitv.com/story/41291758/aging-well-legalhandbook-sums-up-what-hawaiis-kupuna-and-their-families-shoul d-consider. Due to the lockdown, instead of an on-camera interview, UHELP was next featured on “Kupuna Wiki” remotely. https://kupunawiki.com/kw-radio-ep-173-uhelp/.

38 See, Final Report of the Governor’s Blue Ribbon Panel on Living and Dying with Dignity, Honolulu, Hawaii, May 1998 and Report of the Governor's Committee on Elder Abuse Committee, Honolulu, Hawaii December 2000. (on file with author).

39 See, e.g., Kenneth Kipnis & James Pietsch, The Reach of Ethics into the Law, 13 HEALTHCARE ETHICS COMMITTEE FORUM 41-48, (2001); see also QUEENS MEDICAL CENTER: PATIENTS’ RIGHTS, para. 10, https://www.queens.org/the-queens-medicalcenter/patients-and-visitors/rights-responsibilities/patient-rights # (last visited Sep. 4, 2020).

40 See, e.g., U.S. Experience Regulating Non-Allopathic Medicine, 1 ETHNIC L. & MED. (2006); James H. Pietsch and Margaret Hall, “Elder Law” and Conflicts of Interest in the United States and Canada, 117 (4) PENN STATE L. REV. 1192 (2013).

41 The Baghdad Embassy Provincial Reconstruction Team, Rule of Law Team, the Embassy Rule of Law Coordinator’s office and the Law and Order Task Force (LAOTF) of the

Multi-National Force engaged with the Iraqi Bar Association to institute the Legal Aid Clinic for the 7,000 detainees, some of whom had been detained for four years without having been charged with a crime.

42 A 12-hour time difference between Hawaii and Iraq made it easier to allow UHELP operations to continue without any critical gaps except during periods of internet failure.

43 Law students worked on a number of research projects for the Baghdad School of Law and expanded their scope of projects to include legal research assistance to other law schools in Iraq, the Iraqi and Kurdish Bar Associations, and the Office of the Staff Judge Advocate for the U.S. Army’s 25th Infantry Division, which was then deployed to Iraq.

44 See, e.g., Teaching Elder Law at the University of Hawaii—Integrating Health Law and Cultural Issues into the Curriculum, 40 STETSON LAW REVIEW 263 (2010).

45 Lena K. Makaroun, Rachel L. Bachrach & Ann-Marie Rosland, Elder Abuse in the Time of COVID-19–Increased Risks for Older Adults and their Caregivers, 8 AM. J. GERIATRIC PSYCHIATRY (Aug. 28, 2020), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7234937/.

James H. Pietsch is a Professor of Law at the William S. Richardson School of Law and Director of the University of Hawaii Elder Law Program. At the law school, Professor Pietsch teaches Law, Aging and Medicine, Elder Law Clinic, (including a focus on veterans), Advanced Health Law Studies (Experiential) and Health Law: Bioethics. He is also an Adjunct Professor of Geriatric Medicine and Psychiatry at the John A. Burns School of Medicine. Special thanks to Richard Malcolm Crum, J.D. Candidate, Class of 2021, William S. Richardson School of Law, and attorney Neva Keres, for their research assistance on this article and to Lenora Lee, PhD, Faculty Specialist, William S. Richardson School of Law, for being there at the beginning and for continuing to serve as UHELP’s Administrative Director.

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CAS E NOTES Supreme Court Civil Procedure Wolcott v. Administrative Director of the Courts, No. SCWC-15-0000859, December 21, 2020, (Nakayama, J.). Petitioner/Petitioner-Appellant Justin T. Wolcott (“Wolcott”) appeals from the judgment and order of the district court affirming the administrative revocation of his driver’s license by a hearing officer of the Administrative Driver’s License Revocation Office (the “ADLRO”) for a period of ten years. The ADLRO sustained the automatic revocation of Wolcott’s driver’s license for ten years based on its determination that Wolcott was subject to a mandatory ten-year revocation period for the offense of operating a vehicle under the influence of an intoxicant (“OVUII”) because Wolcott had three or more prior alcohol enforcement contacts. In its written decision, the ADLRO found that Wolcott had a total of four prior alcohol enforcement contacts, based on a driving history abstract obtained by the ADLRO from the Problem Driver Pointer System (“PDPS Abstract”). The ADLRO provided Wolcott with a copy of the PDPS Abstract in the form of a ten-page computer print-out prior to his hearing. The PDPS Abstract indicated that Wolcott had a total of four prior alcohol enforcement contacts: two in Hawaii, which Wolcott conceded, and two in Oregon, which Wolcott claimed to have no knowledge of. Wolcott appealed to the ICA and argued that (1) the district court erred in holding that the ADLRO was not required to lay foundation to admit the PDPS Abstract into evidence; and (2) the ADLRO failed to provide notice as what the PDPS Abstract actually was or where it originated until after the hearing. The ICA affirmed. In his application for writ of certiorari, Wolcott maintains that the 26 February 2021

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Appeal Pointer A circuit court order granting summary judgment or dismissing claims is not appealable unless it is reduced to a separate judgment.

HRCP 58; Jenkins v. Cades Schutte Fleming & Wright, 76 Hawai`i 115, 869 P.2d 1334 (1994).

ADLRO was required to lay foundation to admit the PDPS Abstract and that he was denied due process because the PDPS Abstract that he received in discovery was untitled, failed to identify its source, and used codes without any explanation of their meaning. Wolcott argues that the PDPS Abstract failed to provide him with adequate notice of the Oregon alcohol enforcement contacts and a meaningful opportunity to respond at the hearing. Due process requires that Wolcott have a “meaningful opportunity” to challenge the revocation of his driver’s license, which is a constitutionally protected property interest.

The procedures that the ADLRO implemented in this case, namely, sending Wolcott a cryptic and unclear computer printout, failed to provide him with adequate notice of the two Oregon alcohol enforcement contacts and denied him a meaningful opportunity to respond.

Thus, the ADLRO erroneously considered the two Oregon alcohol enforcement contacts in determining the length of his revocation period because Wolcott was not able to challenge those convictions at the revocation hearing. The Hawaii Supreme Court held that the procedures used by the ADLRO in this case denied Wolcott due process. Had the ADLRO considered only Wolcott’s two prior alcohol enforcement contacts in Hawaii, the mandatory revocation period would have been four years. Accordingly, the Hawaii Supreme Court

affirmed the ICA’s June 25, 2019 judgment on appeal, except that part of the judgment relating to the additional revocation period for having three or more prior alcohol enforcement contacts.

Criminal State v. Manuel, No. SCWC-180000420, December 23, 2020, (Nakayama, J.). Petitioner/DefendantAppellant Welden Manuel (“Manuel”) was charged with Assault in the Second Degree after he stabbed complaining witness Lianel Dison (“Dison”) in the chest during an altercation in Honolulu on October 13, 2017. At trial, Dison and several Honolulu Police Department (“HPD”) officers testified. Manuel did not. At the close of trial, the circuit court instructed the jury on assault in the second and third degrees. The circuit court also gave the jury an assault in the third degree by mutual affray (“Mutual Affray”) instruction. Neither party requested any other instruction. The jury convicted Manuel of second-degree assault. In his application for writ of certiorari, Manuel asserted that Reckless Endangering in the Second Degree was an included offense of assault in the second degree, and that there was a rational basis in the evidence to acquit him of assault in the second degree and to convict him of reckless endangering in the second degree instead. Therefore, Manuel claims that the circuit court was required to instruct the jury on reckless endangering in the second degree. The Hawaii Supreme Court agreed. Because the Hawaii Supreme Court held that reckless endangering in the second degree was an included offense of assault in the second degree and, under the circumstances of this case, there was a rational basis in the evidence to acquit Manuel of assault in the second degree and convict him of reckless endangering in the second

degree, the circuit court here was required to instruct the jury on second-degree reckless endangering under Haw. Rev. Stat. § 707-711(1)(d).

Villados v. State, No. SCWC-150000111, December 9, 2020, (Recktenwald, C.J., with McKenna, J. concurring, with whom Wilson, J., joins). In 2012, the Hawaii Supreme Court dismissed Albert Villados’s application for writ of certiorari, which asked it to review his 2010 conviction for promoting a dangerous drug in the second degree. Because Villados’s attorney missed the deadline to file an application for writ of certiorari, the Hawaii Supreme Court was deprived of jurisdiction to consider the merits of his appeal. Villados must now be allowed to refile his application. As the Hawaii Supreme Court held in State v. Uchima, 147 Hawaii 64, 464 P.3d 852(2020), a criminal defendant has the right to the effective assistance of counsel on certiorari review before the Hawaii Supreme Court. Therefore, the Hawaii Supreme Court concluded that Villados was entitled to appropriate relief because Villados’s counsel was ineffective. In this case, appropriate relief is the opportunity to refile an application for writ of certiorari in his original case so that the Hawaii Supreme Court could decide to accept or reject it on the merits.

McKenna, J., concurred, with Wilson J. joining. Because the previous certiorari application from the direct appeal was dismissed for untimeliness, in this certiorari proceeding from a post-conviction proceeding, it is appropriate to vacate the judgment of the ICA in the previous direct appeal with an instruction that it be refiled to then allow Villados to file a timely certiorari application.

After that, the Hawaii Supreme Court could consider the merits of the certiorari application in the direct appeal.

McKenna, J. stated that this case was procedurally distinguishable from State v.

Uchima, 147 Hawaii 64, 464 P.3d 852 (2020), in which the Hawaii Supreme Court accepted an untimely certiorari application from a direct appeal, where counsel admitted ineffective assistance by failing to effectuate a timely filing. In Villados’s case, because the previous certiorari application had already been dismissed as untimely, it was appropriate to order the ICA to enter a new judgment on appeal to allow filing of a timely application. This case did not affect the Hawaii Supreme Court’s ability pursuant to Uchima to take jurisdiction over untimely certiorari applications in direct appeals when the ineffective assistance of counsel is clear from the record.

Family L.R.O. v. N.D.O., No. SCWC-190000446, November 5, 2020, (Recktenwald, C.J.). Hawaii’s version of the Uniform Premarital Agreement Act

(“UPAA”) provides that a premarital agreement (“PMA”) is enforceable unless one of the parties proves they did not execute it voluntarily. Petitioner N.D.O. (“Wife”) argued throughout the parties’ divorce proceeding that she involuntarily executed a PMA prior to her marriage to L.R.O. The Hawaii Supreme Court concluded that the family court did not err in rejecting that argument and by enforcing the PMA. However, to provide further guidance to the family courts, the Hawaii Supreme Court adopted the California Supreme Court’s test for voluntariness in PMAs under the UPAA. The Hawaii Supreme Court further held that Wife’s other asserted points of error were meritless.

Insurance State Farm Mutual Automobile Ins. Co. v.

Mizuno, No. SCCQ-19-0000556,

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November 20, 2020, (Wilson, J.). On August 28, 2019, the Hawaii Supreme Court accepted the following certified question from the United States Court of Appeals for the Ninth Circuit (“Ninth Circuit”): Under Hawaii law, is a permissive user of an insured vehicle, whose connection to the insured vehicle is permission to use the vehicle to run errands and drive to work, entitled to uninsured motorist (“UM”) benefits under the chain-of-events test because he was injured by an uninsured motorist? The Hawaii Supreme Court answered the certified question in the affirmative. The proper inquiry under the chain of events test in this case is whether a permissive user, such as Mizuno, had retained a “sufficient connection” to the insured vehicle. Under the chain of events test, Mizuno is entitled to UM benefits because he was a permissive user of the insured vehicle during the chain of events resulting in his injury caused by an uninsured motor vehicle.

Labor Skahan v. First Ins. Co. of Haw., Ltd., No. SCWC-19-0000077, December 24, 2020, (McKenna, J.). These consolidated cases arise from pro se litigant Kenneth Skahan’s (“Skahan”) claims for workers’ compensation benefits against his former employer, Stutts Construction Company (“Stutts”), and its insurance carrier, First Insurance Company of Hawaii (collectively with Stutts, “Employer”). On November 30, 2004, Skahan injured his back while working for Stutts, and Stutts accepted workers’ compensation liability for the injury. On June 12, 2012, after Skahan’s employment with Stutts had ended, Skahan experienced mid and low back pain while wading in the ocean. Skahan was subsequently diagnosed with Diffuse Idiopathic Skeletal Hyperostosis (“DISH”) affecting his thoracic spine, and he filed

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multiple claims for additional workers’ compensation benefits against Employer.

The Labor and Industrial Relations Appeals Board (“LIRAB”) issued three decisions. On June 17, 2016, LIRAB determined Skahan’s DISH injury was compensable because it was causally related to the November 30, 2004 work injury, but his low back injury was not compensable because it was not causally related to the November 30, 2004 work injury. On June 21, 2016, LIRAB determined the dates for which Skahan was entitled to temporary total disability (“TTD”) benefits. In a January 3, 2019 decision, LIRAB again stated that Skahan’s DISH injury was related to his November 30, 2004 work injury. Skahan appealed all three LIRAB decisions. The ICA consolidated and addressed Skahan’s appeals of LIRAB’s June 21, 2016 and January 3, 2019 decisions in a SDO, and it addressed Skahan’s appeal of LIRAB’s June 17, 2016 decision in a separate SDO. Ultimately, the ICA affirmed all three LIRAB decisions. The Hawaii Supreme Court accepted and consolidated Skahan’s applications for writ of certiorari from both SDOs, and ruled as follows. The ICA erred in holding that Employer rebutted the Haw. Rev. Stat. § 386-85 (2015) presumption that Skahan’s low back claim was for a covered work injury. In addition, LIRAB’s finding that Skahan’s injury was “permanent and stationary and at maximum medical improvement” by April 19, 2013 was clearly erroneous, and LIRAB’s COL ending Skahan’s TTD benefits on April 19, 2013 was also clearly erroneous as it was not supported by the record. The additional issues raised by Skahan on certiorari were without merit.

Takings DW Aina Le`a Develop, Inc. v. State, No. SCCQ-19-0000156, December 17,

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2020, (Recktenwald, C.J.). The United States Court of Appeals for the Ninth Circuit asked the Hawaii Supreme Court to determine the statute of limitations for a takings claim brought under the Hawaii Constitution. In response, the Hawaii Supreme Court held that the statute of limitations for a regulatory taking is six years, pursuant to the catchall statute of limitations in Haw. Rev. Stat. § 657-1(4).

Intermediate Court of Appeals Civil Procedure Caravalho v. AIG Haw. Ins. Co., Inc., No. CAAP-16-0000167, November 16, 2020, (Ginoza, C.J.). Plaintiff-Appellant Bernet Carvalho, individually, and as personal representative of the Estate of Royden Kalavi, deceased, (“Plaintiff Carvalho”), appealed from the Judgment filed on February 23, 2016, by the circuit court in favor of Defendants-Appellees AIG Hawaii Insurance Company, Inc. and Hawaii Insurance Consultants, Ltd. (collectively “AIG”). Plaintiff Carvalho contended the Judgment should be vacated because the circuit court: (1) abused its discretion in entering the Order Precluding Evidence where it precluded Plaintiff Carvalho from seeking or introducing relevant evidence on her claim for bad faith against AIG; (2) abused its discretion in entering the Order Denying Motion to Amend Complaint because Plaintiff Carvalho made a prima facie showing under Hawaii Rules of Civil Procedure Rule 15(a) and pertinent case law warranting leave to amend her complaint; (3) abused its discretion in entering the Order Denying Reconsideration because the motion was timely filed, and the circuit court refused Plaintiff Carvalho’s request to provide specific guidance on the admissibility of evidence at trial; and (4) erred in entering

the Order Granting AIG’s MSJ in light of the Hawaii Supreme Court’s disfavor in granting summary judgment in factintensive insurance bad faith claim handling cases. The ICA concluded it was error for the circuit court to grant summary judgment.

Criminal State v. Forbes, No. CAAP 190000585, November 20, 2020, (Leonard, J. with Hiraoka, J., concurring and dissenting). In State v. Sheffield, the Hawaii Supreme Court held that a circuit court plainly erred when it failed to instruct a jury that the restraint necessary to support a conviction for Kidnapping under Haw. Rev. Stat. § 707-720(1)(d) must be restraint that is more than incidental to an accompanying crime. The Hawaii Supreme Court did not address the restraint necessary to support a conviction for Kidnapping based on other subsections of the Kidnapping statute. Therefore, the ICA addressed the restraint necessary to support a Kidnapping conviction under Haw. Rev. Stat. § 707720(1)(e), and based on the Hawaii Supreme Court’s rationale, the ICA held that the restraint necessary to support a conviction for Kidnapping under Haw. Rev. Stat. § 707-720(1)(e) must be restraint that is more than any restraint incidental to the intended terroristic threatening of the complaining witness.

Hiraoka, J., concurred in part and dissented in part. Hiraoka, J. concurred that Defendant did not release the Complaining Witness. However, he would not find plain instructional error. Even if State v. Sheffield applied to prosecution for kidnapping under Haw. Rev. Stat. § 707720(1)(e), in Hiraoka, J.’s view, the trial court’s failure to give Sheffield-type instruction was harmless beyond a reasonable doubt.

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POWERING

PAYMENTS FOR THE Trust Payment IOLTA Deposit

Amount

1,500.00 Reference

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