Hawaii Bar Journal - MAY 2019

H

A

W

A

I

I

BAR JOURNAL A N O FFICIAL P UBLICATION

OF THE

H AWAII S TATE BAR A SSOCIATION M AY, 2019 $5.00

TABLE O F C ON TE NTS VO LUM E 23 , N U M B E R 5

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

ARTICLES 44

15 19

From Hawaii Tax Lawyer to Beijing Law Professor

by Roger Epstein

24

OF NOTE

HSBA OFFICERS President Derek R. Kobayashi

Interview of Judge Richard R. Clifton

by Ed Kemper

20

HSBA Happenings

21

Hawaii Access to Justice Conference

22

Case Notes

27 20

Court Briefs Off the Record

YLD OFFICERS

30 22 31 28

President Summer Kaiawe

30

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

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

Classifieds

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: Figuration 2 by George Woollard. Woollard is a Hawaii based painter and art educator that has had 28 solo shows and has been in approximately 320 group, invitational or juried exhibitions. Venues have included galleries and museums in France, Germany, Italy, Norway, Finland, Korea and Japan as well as spaces in New York, Chicago, Los Angeles and Honolulu. His work can be found in the collections of the Honolulu Museum of Art, The Hawaii State Art Museum, The Persis Collection, The University of Hawaii, The State Foundation on Culture and Art, The Biblioteque Nationale des Art, Paris, France and numerous private collections both here in Hawaii and abroad. Woollard received numerous awards from around the world for painting, sculpture, and printmaking. Woollard is currently teaching printmaking and painting classes at the Honolulu Museum of Art School and at his art studio in Palolo valley. To see more of his work visit Cedar Street Galleries, at 817 Cedar Street in Honolulu, or visit www.cedarstreetgalleries.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.

INTERVIEW OF

Judge

Richard R.

Clifton

by Ed Kemper

1. Please provide your educational and legal background prior to your appointment to the Ninth Circuit Court of Appeals.

My father worked for an insurance company, and our family moved a couple of times when I was a kid. When I was 10 years old, we moved to Wilmette, Illinois, a suburb of Chicago. After graduating from New Trier East High School in a neighboring suburb, I headed east. I graduated from Princeton in 1972 and from Yale Law School in 1975.

The distinction held by my law school class is that it is said to have produced more federal court of appeals judges than any other single law school class, a total of five: Sam Alito (who was on the Third Circuit before taking another job), Duane Benton (Eighth Circuit), Guy Cole (Sixth Circuit), and Willy Fletcher (my colleague on the Ninth Circuit). If you had asked our classmates who might land such positions, I do not think anyone would have come up with that list.

In law school, I heard about judicial clerkships. Serving as a law clerk to a judge was and remains a great experience. It gives you a look behind the curtain at how the court operates and how decisions are made. On the court of appeals, it can be like an intense form of law school, applying the research, analysis, and writing skills that law school aims to cultivate, but with real cases and real people affected by the court’s decisions. Many lawyers describe it as the best job they ever had. (Being a judge is even better.)

After I decided to apply for a clerkship, I focused on judges on the Ninth Circuit Court of Appeals. I had grown up in the Midwest, gone to school in the East, and worked on a research project in the South, but had little experience with the West, so I decided to try to experience a different part of the country. At that time, the reputation of the Ninth Circuit was not ideological. It was simply a highly regarded regional court of appeals.

I applied to some Ninth Circuit judges who, by word

4 May 2019

HAWAII BAR JOURNAL

of mouth, were supposed to be good for clerkships. One of those was Herbert Y.C. Choy, the first Ninth Circuit judge from Hawaii and the first federal judge of Asian ancestry.

At the time, he had two law clerks, each for a one-year term. Judge Choy customarily hired one from Harvard Law School, which he had attended, and one from somewhere else. I was offered the job as the “somewhere else” clerk for the 1975-76 year.

I had never been to Hawaii when I accepted the position. I interviewed in San Francisco. Hiring was done nearly a year in advance, so I spent almost a year wondering what it would be like. I had seen pictures of the beach and ocean, but I started watching episodes of the original “Hawaii Five-O” with Jack Lord on an old black and white TV set to see what the city looked like.

I finally came to Honolulu to start the clerkship in September 1975. Judge Choy’s office was in the old federal building across King Street from Iolani Palace, where the downtown post office is still located. The federal courts moved into the current courthouse building a couple years later. The old building is mostly occupied by state agencies today, but the original name, “United States Post Office Custom House and Court House,” can still be seen at the front.

Serving as a law clerk for Judge Choy was a fantastic experience. He was thoughtful, careful, and extremely dedicated to his work. Every night he took home a bundle of briefs and other papers to review. He observed once that each case was probably the most important thing in the life of some person, and he tried to give careful attention to each.

Though quiet by personality, he was ready to share his thinking with his law clerks, and he encouraged us to offer our thoughts as well. He was also ready to share stories of growing up in an earlier Hawaii.

During that year, I also got the chance to know the other federal judges, their law clerks, and the rest of the court staff. Our offices were in close quarters on the third floor of the old federal building.

We shared one photocopy machine, located in the clerk’s office. That the offices were squeezed together probably helped me get to know others better. I spent time with Judge Sam King, in particular, and even served as a bailiff for one of his jury trials. He had gone to Yale for both college and law school and liked Yalies in the building. He also liked a new audience for his stories, which were both funny and insightful.

When I came to Hawaii to start the clerkship, I did not know what I was going to do after it was over, but remaining in Hawaii was not one of the options I anticipated. I assumed I would go back to Chicago or maybe Washington and would eventually work for the government, perhaps as a prosecutor or for the Department of Justice. I took the Illinois bar exam in July 1975, before coming to Hawaii for my clerkship. By the time the clerkship ended, I had learned much more about Hawaii and had come to appreciate the warmth and generosity of spirit of most of its residents. For example, I passed the Hawaii bar exam given in February 1976. The admission

May 2019

HAWAII BAR JOURNAL

5

ceremony took place at the Supreme Court in April. I was surprised and touched by the number of people, mostly from the federal courthouse next door, who gave me lei because they did not want this person with no family in the state to be left out. I wound up with a stack around my head like other new lawyers.

It was at about that time that I started thinking about practicing law in Honolulu. Judge Choy and Judge King were both encouraging, and they were emphatic in telling me I should work for someone from whom I could learn practical skills and good habits. They listed names. The main point was that law school did not in those days produce a finished lawyer.

I followed their directions and ultimately took a job with Cades Schutte, where some of the names on their lists worked. I knew a couple of other young lawyers there who had been law clerks the year before, and I liked what they described. What may have attracted me most of all was my experience playing on the courthouse softball team against the Cades Schutte team, both in the Lawyers League and in an informal preseason game. After the games most sat around, talking, drinking beer or soda, and seeming to enjoy each other’s company. Working somewhere people liked each other seemed like a good idea.

I started at Cades Schutte on February 14, 1977. I remember the date because it was Valentine’s Day. I did not know then how long I would be there. I probably would have guessed two or three years, but I wound up staying more than 25 years, becoming a partner in 1982. I did not leave until I joined the court in 2002. My practice focused on commercial and complex litigation. I also tried to have at least one case with an individual human being as a client and of smaller size that I could work on entirely by myself, usually pro bono. That work was rewarding in many ways, not the least being the experience I got. My first administrative proceeding was a claim for Social Security disability benefits for a woman with a serious heart condition. I felt adrift for much of the case, but in the end the woman got the benefits she needed, and I learned a lot about the process.

The most prominent case I worked on was probably a lawsuit brought by the state regarding the alleged corrosion

of weathering steel at Aloha Stadium. It was certainly the longest case. It was filed in 1982 and went to trial in 1993, after mediations and mini-trials, with a couple more years for appeal after that. I worked on it from beginning to end.

We represented U.S. Steel, which became USX Corporation. It was one of many defendants at first, but it became the state’s principal target. The last of the other defendants settled after jury selection, so USX was the only defendant at trial. I still have a souvenir in my office incorporating a front-page headline from the Honolulu Advertiser: “State loses suit against USX on stadium rust.” There was a time I could tell you far more about corrosion and the stadium than anyone should want to know. Even now, it is probably better not to get me started.

I thought seriously about leaving the firm only once during the time I was there. Like many young lawyers, I hoped to get more actual courtroom experience. It was not that the firm was holding me back. Indeed, I argued three cases to the Hawaii Supreme Court and one to the newly created Intermediate Court of Appeals while I was still an associate at the firm. Even for then, when most appeals were set for argument, that was a lot.

The problem was that not many civil cases went to trial, something that is even more true today. After three or four years at the firm, I thought about looking for a job someplace where I could get trial experience. As luck would have it, after that some cases I worked on actually went to trial. My first jury trial was on Maui in the old Wailuku courthouse. Because it was a small-sized case on another island, I soloed – I was the only lawyer there to represent our client. Fortunately, our client won.

I have no regrets about leaving the practice of law to become a judge. I enjoyed practicing law and I still value my time as a lawyer, but I had practiced a long time, and changing my role was a good thing by itself.

Being a judge on our court is challenging. Some cases seem very close – it is hard to decide on which side of a narrow line the case should fall. The stakes are often high, involving long criminal sentences, even the death penalty, or deportation, or large amounts of money, or amounts that are large for the people involved. Many present complicated legal issues. Our caseload is unrelenting, and sometimes it is hard to push through the next stack of

There was a time I could tell you far more about corrosion and the stadium than anyone should want to know.

Even now, it is probably better not to get me started.

6 May 2019

HAWAII BAR JOURNAL

We

cases. Still, serving as a Ninth Circuit judge is very engaging. I deal with challenging and important issues, and I know what I do has an impact. Sometimes the work is even entertaining, presenting factual scenarios that would have seemed unbelievable if offered as fiction. It is all very stimulating and even better than I had imagined. I have been very fortunate to have had the opportunity.

The part that I miss most is the lack of regular contact with other lawyers and continuing contact with clients. Being a judge, especially on an appellate court, can be isolating. I rarely run into people. I like to attend bar events, make CLE presentations, or give lunch talks in part because I get to see more people. I especially miss my former Cades colleagues. There is something special about relationships formed over decades of working together and sharing offices.

2. Recently, you took senior status. Prior to that designation, please describe your work pattern, travel requirements, etc.

Ninth Circuit judges are busy. When I am not traveling, I am usually in my office from about 7:30 am until 6 pm.

Thanks to modern technology, my work is portable, so I rarely work in chambers nights and weekends, but it’s common to read briefs or do other work at home. My wife observed after I had been on the court for a couple of years that I was working substantially longer hours than I did when I was at the law firm—where I used to get paid based, after a fashion, on the number of hours worked. But the caseload is what it is, and most people appointed to the judgeships are sufficiently dedicated that we just keep working, trying to keep up with the cases.

Each judge’s caseload is much larger than when I was a law clerk. There are more judges, but not nearly enough to keep up with the caseload. Technology helps, and the staff has increased. I have

four law clerks instead of the two that Judge Choy had, but there is still just one judge. That makes it important to be efficient. We know that some corners will have to be cut, but we try to be informed when we decide what corners will be cut.

We have different kinds of assignments, but most of my time is taken by cases assigned to panels of three judges for oral arguments. That is our most visible assignment and what most lawyers think of. Most of my time is spent getting ready in advance of those hearings.

We work extensively on cases in preparation for oral argument. Sometimes it is more than the lawyers anticipate. I have often watched lawyers be surprised that judges knew things about the case beyond what was said at the hearing or written in the briefs. Occasionally we know more about the case than the lawyers. That should not happen, but it does. We have done our homework, assisted by our law clerks. Sometimes a judge might seem confused about the facts or arguments in a given case, but if that happens, it is usually because there are so many cases that it is hard to keep them separated in our minds.

I estimate that more than 75 percent of the time I spend on a single case will be spent prior to oral argument. If a case requires a published opinion, more time will be spent after argument. Some cases require more thought and discussion amongst the judges afterwards, but for the substantial majority of cases, most of our work is done in advance.

The lesson for lawyers is to come prepared, and to expect the judges to be prepared. Do not think that you can bluff your way through questions, rely upon memory for what the record says, or offer up case or record citations that do not actually support the proposition for which they are cited. Even if the judge might miss something, the law clerks working on the case will see through the effort to fool

LOCATE

People • Companies Employment • Assets Bank & Brokerage Accounts Statewide – Nationwide

Request our fee schedule (808) 885-5090 mlwood@woodtait.com

Wood & Tait, LLC PRIVATE INTELLIGENCE AGENCY www.woodtait.com PI Lic PDA-895

May 2019

HAWAII BAR JOURNAL

7

Mediator, Arbitrator, Re-

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.

8 May 2019

HAWAII BAR JOURNAL

us. They can spend more time on individual cases than the judges generally can, they are young and bright and energetic, and they love to nail lawyers who are trying to get away with something.

As for the organization of calendars by our court, because the judges are scattered over such a big territory, we set cases for oral arguments in batches during specified weeks. For each panel, a certain number of cases are scheduled each day during the week. In theory, the load for each day is the same, but we know that is based on a very rough measure. It is rare for the same three judges to make up the panel for the whole week. The caseload requires us to utilize more visiting judges than we might like, and that has increased over my time on the court. We do not assign visiting judges to Honolulu calendars, so arguments here will almost always be before three Ninth Circuit judges.

The assignment of judges to panels is independent of the case assignment process. Our date and city assignments are made once each year, for the entire following year. I received my 2019 assignments last summer. Judges are not assigned to their home city or region more often than they are assigned elsewhere. I am not regularly assigned to Honolulu, for example. I receive a turn here once every four or five years, like everyone else.

The reason is that we do not want the court’s decisions to be different based on geographical assignment. We are one court, whether the case is argued in San Francisco or Seattle. So, a judge who lives in San Francisco will be assigned to other cities as much as the other judges.

That judge may get to stay home more often than I do, because there are a lot more panel calendars in San Francisco than there are in Honolulu, but everybody travels.

Indeed, every Ninth Circuit judge has to travel a lot. Starting in Honolulu, I have

to travel more miles, but everyone travels. There is one exception. For health reasons, Judge Ron Gould cannot travel away from Seattle, but he appears by video when assigned to another city. Occasionally another judge may appear by video for other health reasons, but it is not common.

Early in my tenure, I estimated that I was away from home maybe 25 to 30 percent of the time. My wife was skeptical, so she kept track one year and calculated that it was more like 35 to 40 percent. She was right. I travel to the mainland 12 to 18 times each year.

My schedule has actually gotten worse because I have taken on several administrative responsibilities. I was surprised to learn early in my time on the court how much time of judges has to be devoted to running the court. We have an excellent staff, but ultimately judges are responsible. Everyone is called upon to help.

Some turn out to be better at it than others, or at least more reluctant to say “no” when called upon. Some devote more time and energy to the task. I fall into that category. I am currently a member of our court’s executive committee and of the Ninth Circuit Pacific Islands Committee, working with courts in U.S. Pacific territories and in other Pacific nations. I am a director of the Federal Judges Association and have been an officer for the past four years. For ten years, I have been a member of a national committee called the Judicial Conference Committee on Federal-State Jurisdiction, and I have been the committee chair the last four years. In that position, I attend at least six meetings on the mainland each year, including serving as a liaison from the federal courts to the state courts. That committee takes maybe 20 to 25 percent of my work time.

tom, a senior status judge on our court does not preside over hearings. I think those are the only limitations.

Judges in senior status can effectively decide for themselves how much or how little they will do. A senior status judge will be provided an office and at least some staff as long as he or she performs the equivalent of one-quarter of the full workload. Most do much more.

Judges are dedicated and enjoy their jobs, so they keep working in senior status. At this point, our court has 18 judges in senior status, and all are working to some level. I would guess that all but perhaps three or four are working at least half-time, including a couple who are seriously engaged at age 90. Even in senior status, I am younger than more than half the judges on our court. At age 68, there are not many groups where I can still be one of the younger members, but my court is one of them.

I have reduced my number of cases somewhat but not the total workload. In essence, the reduced number of cases has balanced the additional administrative duties I have taken on. I expect to keep working, but I do expect to lighten my load soon. There is life outside the court, and nobody is indispensable.

Judges are dedicated and enjoy their jobs, so they keep working in senior status.

At this point, our court has 18 judges in senior status.

3. Now that you have moved to senior status, how has the work pattern, travel requirements etc. changed?

They have not really changed very much yet, but that is up to me, and at some point they will.

The required changes in taking senior status are minor. I am still a federal judge. By statute, a court of appeals judge in senior status does not vote on whether a case should be heard by the entire court en banc and rarely is called upon to serve on an en banc panel. A judge in senior status cannot serve as the chief judge of a court. By cus-

4. The Ninth Circuit Court of Appeals is the biggest Federal Court of Appeals in the country. In that regard please describe the states it covers, where it has court hearings, how many judges there are, etc.

The Ninth Circuit covers nine states and two territories: Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, the Northern Mariana Islands, Oregon, and Washington. Our headquarters are in San Francisco, in the James R. Browning Courthouse, at the corner of Seventh and Mission. The building opened in 1905. The neighborhood is not the greatest, though better than it was, but the building’s interior is glorious. If you have free time in San Francisco, it is worth a look. We also have courthouses in Pasadena, Portland, and Seattle. All are historic to some degree. The Pioneer Courthouse in Portland is another gem, dating back to 1875, and also worth a look.

Each month, at least one three-judge panel hears cases in San Francisco, Pasadena, and Seattle. There may be as many as four different panels hearing arguments in the same city in the same month. Hearings are scheduled in Portland six to eight weeks each year, in Honolulu three

May 2019

HAWAII BAR JOURNAL

9

weeks, and in Anchorage two weeks. Occasionally arguments are held elsewhere.

This year, we began an experiment with Phoenix. Cases from Hawaii are customarily assigned to Honolulu or sometimes San Francisco.

The court has 29 active status positions. As of this moment, 23 are filled.

There are six vacancies, though some may be filled by the time this is published.

There are 18 judges in senior status still working to some extent, so there are 41 judges on our roster. The chief judge is always listed as first in seniority. Otherwise, our seniority list does not distinguish between senior status and active status judges.

Many judges defer taking senior status for years after they are eligible for it.

At least ten of our 23 active status judges meet the age and length of service requirements to take senior status, but they

have not done so.

In contrast, I took senior status almost immediately after my date of eligibility. That date when I became eligible was November 13, 2016, my 66th birthday. Because our court schedules a year at a time, I made the effective date December 31, 2016. I announced my intent to take senior status a year in advance, as we are asked to do. That was well before the last presidential election, so my decision had nothing to do with which president would be in office to nominate my successor. Instead, I took senior status mostly to open up a seat that would give our court another judge. That the judge would be from Hawaii was an extra benefit. It was not that way when Judge Choy took senior status, which is why Hawaii did not have a judge in active status on the Ninth Circuit for many years, until I was appointed as the second judge from Hawaii.

Our state’s hold on the seat at this point seems secure, but it is unlikely that a state of our size will have two active status judges at the same time. So, the way for me to open the door to another person from Hawaii was to take senior status myself. I am very happy that Mark Bennett recently joined our court.

Sidney Thomas of Montana is our chief judge now and will likely retain that position until November 2021, as long as he will be eligible. Our next chief judge will probably be Mary Murguia from Arizona. The selection and maximum term of chief judges are set by statute.

5. At one time there was an effort to split the Ninth Circuit. What is the status of that effort, and how would the proposed split divide the states presently covered?

The structure of the federal courts is mostly set by statute. Over the past two

Assisting Hawaii’s Attorneys with Estate, Trust, and Conservatorship Needs.

www.eas-hawaii.com I 808-550-0800 10 May 2019

HAWAII BAR JOURNAL

decades, the political impetus in Congress for splitting the circuit has come from conservative Republicans in states other than California, in particular from Alaska, Idaho, and Arizona. With the Democrats currently in control of the U.S. House of Representatives, proposals to split the court are not expected to have traction this year.

I opposed the proposed split. I am glad that the HSBA and the Hawaii chapter of the Federal Bar Association adopted resolutions opposing a split.

There are legitimate reasons to prefer a court that is smaller than our current size, but I think the economies of our scale provide more benefits than detriments.

The Ninth Circuit is larger than all the other circuits, but we would probably be better off if the other circuits were larger in size and fewer in number. We are not too large; they are too small. Besides, Cal-

ifornia is so large that it’s hard to break the Ninth into logical smaller pieces.

Many different plans for dividing the circuit have been proposed. Most would put Hawaii together with California in one circuit and divide the rest of the states into one or two new circuits. A few bills would group Hawaii with Pacific Northwest states (Alaska, Oregon, and Washington, and sometimes Idaho and Montana).

6. Can you explain the normal process for the nomination of the Ninth Circuit judges if there is a normal process?

I am not sure there is a “normal” today. What used to be common practice has changed. Judge Choy was the first Ninth Circuit judge from Hawaii, and he was nominated, had a hearing before the Senate Judiciary Committee, was confirmed by the Senate, and was sworn in,

all in about two weeks in the same month, April 1971. I was the second Ninth Circuit judge from Hawaii, and the process took nearly a year and a half, though there was no substantive opposition and my nomination was confirmed in July 2002 by a vote of 98-0.

The President has the authority to make nominations, so the politics start with the party that controls the White House. The White House counsel’s office usually takes the lead in identifying candidates for consideration, and it receives suggestions from many sources. If there are senators of the same party from the state linked to the given judgeship, they usually play a key role in proposing candidates. Eventually one or more candidates will be interviewed and a prospective nominee selected, subject to exhaustive background checks. If all goes well, a formal nomination will be made and the

May 2019

HAWAII BAR JOURNAL

11

name sent to the Senate.

If the senators from that state are both from the opposing party, the path is trickier. After I was selected by President Bush, Senators Inouye and Akaka met with me, looked into my background, consulted with people they knew here, and supported my confirmation. For the vacancy created by my senior status, an agreement was reached between the White House counsel’s office and our senators. That agreement smoothed the confirmations of Mark Bennett and Jill Otake to the court of appeals and district court. Similar agreements have not been achieved in other states in our circuit with circuit court vacancies and two Democratic senators: those states include California, Oregon, and Washington. To date, no judges have been confirmed to the Ninth Circuit from those states, although a nominee from Washington may be nearing confirmation.

In the last Congress, the chair of the Senate Judiciary Committee declined to honor “blue slip” objections to court of appeals nominees. That is the process through which senators could block consideration of nominees from their home states. The explanation given was that a senator from one state should not have veto power over nominees to courts that cover multiple states. The new chair of the committee, Sen. Lindsey Graham from South Carolina, has indicated that he will likely continue that practice, but will recognize objections to district court nominees.

It all seems pretty fluid. I can observe, though, that being a member of a court is like being a member of a very exclusive club, but without any blackball power. Current judges have no say on who gets to join the club.

7. What is the normal tenure of Ninth Circuit judges, again, if there is a normal pattern?

In essence, we seem to serve for life, which means until we die or become incapacitated. Only three judges have left the Ninth Circuit in the last forty years for another position. Anthony Kennedy left when appointed to the Supreme Court. Shirley Hufstedler left when appointed

by President Carter to become the first Secretary of Education in 1979. I have heard that might have been planned as a prelude to appointing her as the first woman on the Supreme Court, but President Carter never got to appoint anyone to that position. William Norris retired in 1997 and gave up his commission as a judge to go into private practice.

I am currently number 26 in seniority out of 41

12 May 2019

HAWAII BAR JOURNAL

judges, so I am almost two-thirds down the list. I have been on the court nearly 17 years. We have two judges appointed by President Nixon and four by President Carter.

Our tenures are long.

8. Now that you have senior status, how is the work of the court divided between senior judges and regular judges?

For the most part, there is no difference in case assignment. As I noted earlier, judges in senior status do not generally participate in the en banc process. Senior status judges can choose not to serve on the court’s motions panel, which puts you on call for a month to deal with emergency motions and also responsible for going through hundreds of routine motions for that month. Similarly, a judge in senior status can opt out of service on what we call our screening panels, during which three judges will go through and render decisions on the merits for literally hundreds of cases in three days. Many cases are not hard – the right to appeal does not mean a party will necessarily have a serious argument on appeal – but screening is an exhausting process, and some senior status judges elect not to take it on. We can also elect not to be assigned to death penalty cases.

I have not taken advantage of those options so far.

I view motion and screening duty as a burden to be shared by as many judges as possible. The same is true for capital cases, especially because we have a substantial backlog. Death penalty cases are exceptionally difficult, though, so someday after we catch up on that backlog, I might opt out.

We do not have the option of declining other categories of cases. In most district courts, senior status district judges may elect not to be assigned new criminal cases, for example, but it does not work that way for us.

9. Is the pay the same for the senior judges?

Yes. 10. Among the judges of the Ninth Circuit, is there a clear division of assignments of cases between judges, and does the prior experience of the judge (say criminal vs civil background) affect the assignments?

There is no division of assignments based on background, preferences, or anything else. With two narrow exceptions, cases are assigned to panels without regard to the identity of the judges on the panel. One exception is that capital cases are assigned only to panels of Ninth Circuit judges (no visiting judges). That also excludes those senior status judges who have opted out of death penalty cases.

The other exception is that a court motions panel may designate a case to be assigned to a panel made up only of Ninth Circuit judges (again, no visitors), but senior status judges are in the pool for those assignments. I do not think that happens more than five or ten times each year.

Usually it is because the case is viewed as likely to have significant impact on other cases before our court or because the case is so large that it would be unfair to drop it on a visiting judge.

11. Is there is one case that came before you that was particularly interesting and that you can comment on, what was it and why?

One of the side effects of the heavy caseload is that I do not dwell on cases that have already been decided. I suspect that each judge may have a few cases that are hard to shake, but we do not have the luxury of revisiting old cases because there is so much to attend to in the next ones. At oral argument, it is common for a lawyer to make a point of citing a case I authored, but I often do not recognize it.

When asked to identify my most important cases, I struggle to respond because I do not think in those terms. In part that is because, as Judge Choy said, every case is important to the people involved. Even more, it is because I am focused on what is ahead, not what has been finished.

Having said that, there is little doubt which case to date has put me most into the public spotlight and which is likely to be noted in my obituary. It was the first so-called “travel ban” case, Washington v.

Trump. About one week after taking office, President Trump issued an executive order imposing severe limits on entry into the United States by persons from seven specified countries. Many lawsuits were filed. One filed by the state of Washington resulted in the issuance of an order by a district court in Seattle staying the application of the executive order. The government immediately sought review by

Would you like a second opinion? mel r. hertz, MBA, CFP® 808-522-0100

237 Kuumele Place #8, Kailua, HI 96734 melhertz@theretirementcoach.org Securities and advisory services offered through the Strategic Financial Alliance, Inc. (SFA), member FINRA and SIPC, mel r. hertz is a registered representative and an investment adviser representative of SFA, which is otherwise unaffiliated with the retirement coach. Supervising Office (678) 954-4000

May 2019

HAWAII BAR JOURNAL

13

our court. That kind of application is referred to our court’s motions panel. I was on the motions panel for February 2017. Each judge ordinarily has to serve on motions one month each year. It is usually boring duty, so I was happy to see on the 2017 list that I had been assigned to the shortest month, which I hoped would produce the lightest load.

It did not turn out that way. What we decided is a matter of public record, so I will not elaborate except to say that we declined the government’s application to set aside the district court’s stay order. [See Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017).] The President said he would “see us in court,” suggesting the intent to seek further review by the Supreme Court, but the administration did not proceed with the case. Instead, it abandoned the first executive order and issued a revised order addressing some of the identified defects. The later order became the subject of new challenges, including by the state of Hawaii, leading to more litigation, initially before Judge Watson, and ultimately a decision by the Supreme Court regarding the third version of the order. [See Trump v. Hawaii, 138 S.Ct. 2392 (2018).] That was not our case, though, and I was not on the Ninth Circuit panel that considered that appeal.

What I did not anticipate was the level of public attention that our case got. Perhaps because it was so early in President Trump’s term, we received front page attention all over the country. We conducted oral argument by telephone, because we were on a tight schedule and elected not to take the extra time that travel to San Francisco would have required. Because it was audio only, it was my first argument where I wore an aloha shirt.

Our court live streams all arguments, so the telephonic argument was available on our website. I was stunned when told a few days later that cable news networks had carried the arguments live and estimated a total audience of over 1.6 million people. Oral argument is not a great spectator sport, and I think the argument would have been hard for someone not familiar with the case to follow, but many listened anyway.

The bonus for me was that the TV people needed more than sound, so they posted photos of each lawyer and judge when that person spoke. In my case they used a court photo from 15 years earlier, so I looked much younger.

The cherry on top came a few nights later, when “Saturday Night Live” [(SNL)] featured a skit involving the three Ninth Circuit judges, including me. Picking up on

14 May 2019

HAWAII BAR JOURNAL

President Trump’s comment that he would see us in court, SNL offered the People’s Court, hearing the case “Donald J. Trump v. Ninth Circuit Court of Appeals,” complete with Alec Baldwin playing the President. To be portrayed favorably on Saturday Night Live is probably the pop culture peak for my generation. It will be downhill from there.

12. Are there any proposed rule changes or other changes that may affect the practice before the Ninth Circuit in the near future?

There are always proposed rules changes under consideration, but I do not know of any of great significance. It is possible that the requirement to file excerpts of record in hard copy form will be eliminated, but I suspect the first step may be limited to reducing the number of copies to be filed.

Eventually, electronic filing may eliminate excerpts of record and even hard copy filing of briefs, at least in cases that do not involve pro se parties, but that will take more time.

13. What advice do you have for attorneys appearing before the Ninth Circuit?

The single most important rule is to get to the point.

Most briefs are much longer than they need to be.

I blame word processing for the lengthening of most written memos. That includes briefs, bench memos written by our law clerks, and, regrettably, court opinions. Everything is longer than it was when I was a law clerk in 1975, but longer is not better. It used to be that writers spent time editing and trimming written works, if only to avoid having to go through the process of typing and proofreading a longer memo all over again. Now it is easier to leave in the parts that should be cut out. Few bother with the effort to hone a brief or memo down to a more succinct final product.

Flabby briefs are not just burdensome on judges. They are less effective. Judges are busy and have lots to read. A brief that is concise has more impact. It is also less likely to distract us from the main point you are trying to make. I used to be surprised by the number of briefs that offered digressions or rambled on about things irrelevant to the ultimate question to be decided, making it hard for us to absorb the points the lawyer should want us to pay attention to. I notice and respect a brief that makes its points efficiently. Similarly, a lawyer can leave a positive and confident impression if at oral argument, he or she asks if there are further questions and, receiving none, sits down with time left on the clock.

Bridge over the Summer Palace Lake in Beijing

AI I W A H FROMLAWYER TAX

to Beijing Law Professor

By Roger Epstein I first went to China about 45 years ago when, as a young lawyer at Cades Schutte, a client flew me to what was then the British Crown Colony of Hong Kong. This was at the beginning of my legal career and my assignment was to develop a tax strategy for my United States expatriate client.

This client was in the travel business and had a luxurious two-bedroom suite at the Hyatt Hotel, which is where I stayed. The suite had a great view of Hong Kong Harbour, a dining room table for eight, and a waiter who took my breakfast order the morning after my arrival.

Synchronistically, I also began representing several very large Hong Kong clients, including Hong Kong Movie Magnate Sir Run Run Shaw (whose movie studio created the kung fu film industry in the late 60s). At my travel business client’s insistence, I had my first conference with Sir Run Run, his chief operating officer, and his chief financial officer in the two-bedroom suite at the Hyatt, as their 28-year-old American tax lawyer.

I also was engaged by and did a lot of work for Jardine Matheson & Co, (Jardines) one of the largest and oldest British (actually Scottish) companies in Hong Kong (the company about which the novels Taipan and Noble House were written). I met with them frequently in Hong Kong and Hawaii.

Jardines eventually moved its official headquarters to Bermuda in 1984 ahead of the 1997 handover of Hong Kong to China; but it remains a business operator throughout China and other parts of Asia. I became a director of their United States subsidiary, Theo Davies and Co. in 1982 and remained on the board until they reorganized and liqui-

dated that old “Big Five” company.

On my regular bi-annual trips to Hong Kong, I would get quite different perspectives of life in that city, from an old time Chinese company, an old time British company, and the local contact of my U.S. travel business client.

The Shaw Organization was run as a family business with a handful of senior executives. Movie-making was done in Hong Kong, and film distribution was handled in Singapore, under Run Run’s brother, Runme Shaw. Movie theaters were owned in both locations and in many other expatriate Chinese communities, correspondingly creating a large international real estate empire of shopping centers and commercial buildings. On a personal basis, at a young age, the children of each brother were sent to be “hanaied” by their uncles or other highly trusted colleagues. Efforts were made to involve the males in the movie business, but they all preferred real estate, and the movie empire was eventually sold.

From Jardines, I learned about the functioning of a large international business corporation, with numerous executives changing countries and divisions to advance their careers. Lots of entertaining and politics. And lots of capable people working hard until retirement at the ripe old age of 55. I was the odd and greatly envied American when I was in Hong Kong, not wearing any corporate tie and working with the Taipan, General Counsel, and other Directors on United States and international tax matters. I had many adventures.

Jardines had a dining room at the Happy Valley Race Track whose lanai was the finish line of the race. You didn’t need to go to a window to buy a ticket, the track staff would come by to take your bet and come back to give you your

May 2019

HAWAII BAR JOURNAL

15

Central Park at Beiwai Foreign Studies University

winnings, if any. For most, a night at the track was for dinner and schmoozing.

Since I went to college in Maryland, home of legendary race tracks Pimlico and Laurel Park, I had lots of experience reading the sheets and betting on races. As the evening went on and it became clear that I was the only one receiving winnings, I was held in higher esteem by many. Finally, in an era now long gone, I remember having a luncheon with my General Counsel mentor, whom after two cocktails and a shared bottle of wine, admonished me not to turn down the offer for coffee, because we had a lot of work to do that afternoon!

The local company working with my travel agent client offered yet another perspective. Born in Hawaii, Bill Newport had flown missions over the Khyber Pass in World War II, settled in Hong Kong, and become a dean of the Hong Kong and Asian travel industry. Bill showed me a bit of how a successful expatriate lived.

Somehow, he had purchased one of the 20 or so single family houses in Shek-O, on the back side of Hong Kong Island, which was one of perhaps 50 single family houses in all of Hong Kong. Bill raised his family there, and often took me to lunch or dinner at the American Club. Bill tried to balance his and his three children’s Asian lives with their American heritage and sent each of them to school in California. It was great to have a well-connected travel agent client, and Bill was able to send me by myself to Beijing in 1982, when you could only travel there in a group. Since I was single and often took a few weeks to vacation in Asia after my semiannual business trips to Hong Kong, Bill would set me up with suites or other upgrades in luxury hotels in Singapore, the Philippines, Kuala Lumpur, Tokyo, Bangkok, and the like.

Much has changed in Hong Kong, China, and all of Asia since those days.

For instance, when I first went there, a room at the Hong Kong Hilton was $25

16 May 2019

HAWAII BAR JOURNAL

(U.S.) a night and breakfast was $1.25 (U.S.). A trip across Hong Kong Harbour on the Star Ferry was three cents (U.S.) first class and 1.25 cents (U.S.) below deck.

One day, I was provided a guide who took me to a lookout in the New Territories, which is in the north of Hong Kong, where I could look over a fence, at the end of a train track, and catch a glimpse of mysterious China, which was not then open to any outsiders. That seems like a very long time ago.

Today, a room at any of the numerous new or old hotels in Hong Kong charge New York City prices or higher, and everything generally from politics to the economy to social activity, revolves around mainland China. Now China has opened the door, and we all can view it first-hand, not behind a fence at the end of a train track.

I have also changed since those early days. However, my interest and appreciation for China and its culture and customs has continued and expanded during my 45 years of practice as a Hawaii attorney.

Since my first heady experience representing extraordinary clients in exotic Hong Kong, I have been the Chairman of a Taoist acupuncture college in Honolulu, I have practiced my chi kung (the breathing and movement practice that is the foundation of tai chi) on the fortifications of the Forbidden City in Beijing (to the amusement of my Hawaii lawyer buddy who had accompanied me there), I have

waltzed with a Chinese lady during her early morning dance exercise routine on the streets of Shanghai, and I have repeatedly toasted glasses of mao tai with Chinese lawyer colleagues and friends over multi-course dinners in many Chinese cities.

I did not realize when I was on my first trip to Hong Kong, that, 44 years later, my life and legal career would be so intertwined with China.

I recently retired from the full-time practice of law and formed a company, the Asia Pacific Group, in Beijing, Honolulu, and Seattle, with other American business people to help Chinese invest in the United States and vice versa. Looking to spend time to help the new company as well as enjoy a little professional adventure, I accepted an offer from fellow Hawaii lawyer, Russell Leu, to teach legal writing and tax law for a semester at the Beiwai Foreign Studies University Law School in Beijing, from February through June 2018.

Although I have been to China often as a practicing lawyer during my legal career and during the last ten years as I actively developed the United States-China Legal Network to mentor Chinese lawyers, living in Beijing and teaching law to young Chinese university students was a wonderful way to continue my semi-retirement.

During my Beijing professorial experience, by observing the Chinese law school curriculum and students, it became clear to me that, whatever the economic and political situation, the people of China admire the United States and want to collaborate and learn from us.

My first surprise, as a Beijing Law Professor, to my great relief, was to learn that legal writing classes in a Chinese law school are taught in English and use American contract and tort cases as precedents in class and in writing assignments. I also learned that having an American lawyer with my years of practical experience for such a class was a great attraction for students at Beiwai.

It makes sense to use American legal precedents for teaching purposes because modern China only began having relevant commercial written laws around 1983, and the popular pathway to become a practicing lawyer in China has been to complete undergraduate studies in law in China and then obtain a JD or LLM in the United States, England, Australia, or Japan.

Beiwai focuses on preparing its students for international affairs (a large majority of current Chinese diplomats attended Beiwai), and there is a particular scholastic focus on the common law practiced in international trade, much of which is modeled on American law and analysis.

There were 66 undergraduates in their second year of the law school at Beiwai, and all were required to take a legal writing class. I taught two of the three legal writing classes in two-hour per week sessions. There were 18 young ladies and four young men in each class.

My students were universally hesitant about practicing their English language skills on an American law professor, so I made a special effort to get all the students to speak English in class. Not only is it difficult to participate in a college level class in a foreign language, but I also felt there was some inherent cultural reservations that needed to be overcome. As soon as I asked the class a general question, all heads immediately looked down at their desks. I would step down from my teaching platform and look someone in the eye to get the student to speak. I felt it was part of my job to help these young students be successful in school, in life, and in law practice.

We also did a few mock arguments, which were video-taped. At the end of the last day of the semester, I threw a small party for both classes, and we watched the videos. When the video of each student was on the screen, the respective student would practically hide his or her head under the desk. Despite their timidity, by the end of the semester, the improvement in each student’s analytical and writing ability was dramatic, and, they had

18 May 2019

HAWAII BAR JOURNAL

Main campus entrance

worthwhile public speaking experience. I felt that I had done my job.

I also taught a graduate level law class at Beiwai on United States tax law, which is reflective of the laws in many countries, and the University thought it would be helpful to offer this class to its students. This tax law class was elective, but a majority of the more than fifty graduate students enrolled to take it. To learn complicated accounting and tax concepts in a foreign language is extremely difficult. Although I was told this was a graduate level class and I was prepared to teach a similar class to the one I have taught at the law school at the University of Hawaii. I had to begin with basic business accounting and tax principles, because no one in the entire class had any prior accounting or tax knowledge.

Even at a graduate level, it was difficult to get anyone to speak up in class. I would explain a concept and then ask if it was clear. No one would respond or register any understanding. Not a yes or a no.

This made it harder to teach the class, but I kept repeating the material in slightly different ways until they got it.

I was pleased that, by the end of the semester, some students would respond to me and ask questions, and class participation began to increase.

I did accomplish my intended goal of having the students master a basic understanding of accounting concepts (balance sheets and profit and loss statements) and the fundamental issues of corporate and partnership taxation for businesses, as reflected in their final exams. I also received much positive feedback of appreciation for working hard with them and for getting them to master what had seemed to them, at first, to be impossibly difficult concepts.

From a personal standpoint, it was fascinating living in Beijing and teaching at Beiwai.

First, it turned out that two of my classes were held in the Sir Run Run Shaw Building. I used to ride with Sir Run Run in his Rolls Royce to Hong Kong Clubs in

the 70s. He was the most philanthropic benefactor in the world for universities in China and Chinese students studying overseas. While he died at 104 a few years ago, I shall always remember how well he treated me during the forty-plus years I was his attorney.

Probably the best thing I did, about mid-way through my tenure at Beiwai, was to buy a bicycle (and a very good air respirator) and ride all over the city.

There are huge bike lanes everywhere in Beijing, and although no one really follows the traffic rules, all drivers (of varied vehicles) and pedestrians are keenly aware and watch out for bikes and all vehicles while on the road.

Beijing is quite flat, and there are many beautiful parks, canals, and lakes.

The fact that you may be taking your life in your hands if you’re not careful, added a little excitement to my rides. I was able to stop in many parks and do my chi kung; which was wonderful to be doing in China. There were some older people practicing chi kung and tai chi in various parks, and they would look at me with bemused curiosity. Very few Chinese had ever seen a haole, with many years of chi kung experience, joining in or practicing on my own. My Mandarin is still quite limited, although it improved some while I was in Beijing. Many local citizens smiled and laughed when I told them, in my best Mandarin dialect, that I was a Chinese person. (“Wo shi Zhongguo ren.”)

Being a Beijing Law Professor was a

worthwhile experience for me and I hope that it was also worthwhile for the three classes of students I taught. Despite current politics, I believe that China will become an equal to the United States in the business world in and for the lifetimes of most of us. I am convinced that most Chinese are eager to collaborate with Americans and recognize that we have a lot to offer them. Perhaps living and working with each other, instead of raising barriers and tariffs, is the lesson that should be taught at all our schools. Perhaps we can find peace if we exchange students and professors for a semester.

I would highly recommend to any Hawaii lawyers who would like to spend a semester teaching in Beijing, to contact Russell Leu at RKLeu@yahoo.com.

Beiwai University is a welcoming cultural milieu and a very pleasant setting where you can help Chinese youth learn how to be global citizens and ethical lawyers. This seems a perfect way for Hawaii lawyers, who already understand Asian culture generally, as well as the value of Aloha, to expand their own worlds.

Hawaii has a unique role in bringing East and West cultures together, and business and law are two areas to fulfill that role. _________________ Roger Epstein began representing major Hong Kong clients in 1974 and first went to Beijing in 1982. From 2007-2016, he collaborated on an HSBA sponsored program of bringing practicing Chinese lawyers to Hawaii from Shanghai and Suzhou for three-month periods to work out of the Cades Schutte law firm, where he was chairman of the firm’s tax department. From 2011-2016, he travelled to Shanghai, Suzhou, and Beijing twice a year to facilitate the visiting lawyer program and to give numerous presentations on Chinese investing in the United States. He is currently a principal of Asia Pacific Group, LLC, which helps facilitate ethical Chinese and American investment.

May 2019

HAWAII BAR JOURNAL

19

H SBA HAP PE NIN GS Board Action The HSBA Board took the following actions at its meeting in February: • Voted to expand the mandate of the Fleck subcommittee to develop recommendations for Board consideration regarding the association’s organizational structure; • Voted to agree to (a) be a partner in and market the MoveMeHawaii fundraiser on April 28, along with the Hawaii State Bar Foundation and the Beta Beta Gamma Foundation; and (b) receive a $5 discount for HSBA members on tickets to such event; • In response to a request from the Collection Law Section regarding the same, voted to submit testimony, if a hearing is scheduled, in support of SB1286, which raises the district courts’ jurisdictional limit for civil actions involving specific performance to $40,000; • Adopted the recommendation of the HSBA Nominating Committee to nominate the following individuals to the Special Committee on Judicial Performance for terms to begin on March 6, 2019: Clarissa Malinao and Alan Van Etten; • Adopted the recommendation of the HSBA Nominating Committee to nominate the following individuals to the Commission on Professionalism: Susan Arnett and Jane Kwan to begin on March 14, 2019; Rebecca Copeland and Judith Pavey to begin on April 27, 2019; • Adopted the recommendation of the Executive Committee to select Wikoff Combs & Company as its new auditor.

HSBA Awards: Nominate a Colleague HSBA Awards will be presented at the Annual Meeting Luncheon on October 11, 2019, at the Bar Convention.

The HSBA Awards Committee seeks nominations of individuals or entities deserving of recognition for the following:

20 May 2019

HAWAII BAR JOURNAL

• Golden Gavel Award recognizes an attorney or non-attorney for outstanding service to the state or federal judiciary in Hawaii.

• C. Frederick Schutte Award recognizes an attorney for outstanding service to the legal community and the profession.

• ‘Ikena Award recognizes an attorney or non-attorney for exceptional service in legal education to the public or the profession.

• Ki’e Ki’e Award recognizes an attorney for outstanding provision of professional legal services at no charge to the recipient.

• Greeley Key Award for Innovation recognizes an attorney or non-attorney for promoting new and creative uses of, or approaches to, the law.

• Champion for Social Justice Award recognizes an attorney for courageous legal work in the face of public controversy.

• Malama Hawaii Award recognizes an attorney for effective non-legal community service activities that make a difference and improve the quality of life in Hawaii.

For a full description of these awards, please go to www.hsba.org>About Us> Awards.

Please submit nominations to the Awards Committee, c/o HSBA, by mail or email (nominations@hsba.org) no later than July 10, 2019.

Reminders, News & Notes: The Hawaii State Board of Continuing Legal Education is looking for applicants, including at least one neighbor island representative, to fill three expiring attorney terms on its Board beginning on October 2, 2019, and expiring October 1, 2022.

Responsibilities and duties include but are not limited to: attending quarterly

board meetings, reviewing applications for CLE credits, and providing recommendations with respect to various oversight issues.

Board positions are uncompensated.

If interested in serving, please submit a resume, cover letter, and area of law practice concentration to the Nominating Committee at nominations@hsba.org no later than Friday, May 31, 2019.

Member Benefits Spotlight Adore Clothing Adore is a local women’s boutique offering complimentary styling at both locations at the Ka Makana Ali’i Shopping Mall and Kahala Mall. Members will receive 20% off a regular priced item when they show their HSBA card.

Allison Izu Allison Izu is a Hawaii-based designer and fashion brand, creating elevated basics for the modern woman. For the past 10 years, Allison Izu has been obsessed with fit and function. As the brand has evolved, so has her focus. In 2018, Allison Izu launched her inclusive campaign which empowers women #LiveYourLetter. Learn more about your body type, what to wear to accentuate it, and about informative semi-private styling seminars with designer Allison Izu at her Kaimuki boutique (1114 11th Ave.) and new store location at Ala Moana Center, Level 3— because the right outfit can empower you to live your best life. Members will receive 10% off all regular priced items when they present their HSBA card.

Ten Tomorrow TEN TOMORROW is a modern resort brand based in Honolulu, Hawaii.

We design clothing to translate from sandy beaches to city sidewalks. We strive to create unique details and silhouettes with the versatility of everyday wear so you can put on TEN TOMORROW anytime, anywhere. All of our clothing is

made in Hawaii. We are located in the heart of Kaimuki on 11th Ave with our own free customer parking out front.

Members will receive 10% off their entire purchase when they present their HSBA card (not combinable with any other sales and/or promotions). For more information, call us at 808-591-6219.

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

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

Enterprise / National / Alamo • Emerald Club enrollment link: https://www.nationalcar.com/offer/5027 285 • HSBA custom booking link for Enterprise / National / Alamo: http://tinyurl.com/y6otyx5g

• Emerald Club Benefits Flyer: http://tinyurl.com/y69yu9n3 • HSBA’s dedicated local team to assist with questions, concerns, and or sold out requests: http://tinyurl.com/y5xlsxz9 • Please contact Nadine Cunningham at 543-1508 with any questions, concerns or assistance. _________________________________

Hawaii Access to Justice Conference Save the date: Friday, June 7, 2019. The Hawaii Access to Justice Conference, sponsored by the Hawaii Access to Justice Commission (“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.

Daniel Greenberg, Special Counsel for Pro Bono Initiatives, Schulte Roth &

Zabel, a New York City law firm, will be the keynote speaker. He was the President and Attorney-in-Chief for the Legal Aid Society in New York City.

Hawaii Supreme Court Chief Justice Mark Recktenwald and former Associate Justice Simeon Acoba, Chair of the Commission, will provide opening remarks at the conference.

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.)

Volunteer Appreciation Breakfast

Thank you to the following law firms, organizations, and individuals for volunteering in the

Honolulu District Court’s Access to Justice Room in 2018.

Firms and Organizations Chong, Nishimoto, Sia, Nakamura & Goya. Chun Kerr. Hawaii Association for Justice. McCorriston Miller Mukai MacKinnon. Carlsmith Ball. Cades Schutte.

Goodsill Anderson Quinn & Stifel. Hawaii Filipino Lawyers Association. Bronster Fujichaku Robbins. Schlack Ito. Starn O’Toole Marcus & Fisher. Hawaii Women Lawyers. Ashford & Wriston. Damon Key Leong Kupchak Hastert.

Marr Jones & Wang. Yamamoto Caliboso.

Individuals William Bagasol, Leroy Colombe, Stacey Djou, Cheryl Nakamura, Sue Hansen, Arlette Harada, Walter Hebblethwaite, Nathaniel Higa, Miriah Holden, Daniel Kim, Dan O’Meara, Bruce Paige, Calvin Pang, Jae Park, Megumi Sakae, Beverly Sameshima, Kimberly Van Horn, Shannon Wack, Jefferson Willard, Bryant Zane, and Eileen Zorc.

For pro bono opportunities or to make a donation in lieu of pro bono under HRPC Rule 6.1, please contact Sergio Alcubilla at 527-8063 sergio.alcubilla@legalaidhawaii.org. Please visit www.legalaidhawaii.org

Judge Daniel R. Foley (ret.) has joined Dispute Prevention & Resolution as a mediator and arbitrator.

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

Phone: 808.523-1234 www.dprhawaii.com May 2019

HAWAII BAR JOURNAL

21

CAS E NOTES Supreme Court Civil Procedure Uyeda v. Schermer, No. SCWC-160000200, March 19, 2019, (Wilson, J.).

Both parties filed applications for writs of certiorari. Schermer’s application was granted and the Uyedas’ denied. In his application for certiorari, Schermer presented the following three questions: 1. Whether the Intermediate Court of Appeals (the “ICA”) gravely erred in concluding that the District Court did not err in taking judicial notice of the testimony presented at trial in a separate case, (Case 639), because that testimony was not the proper subject of judicial notice under Hawaii Rules of Evidence Rule 201. 2. Whether the ICA gravely erred in concluding that an injunction against harassment under Hawaii Revised Statutes § 604-10.5 could be imposed where the requirements of the statute have not been satisfied. 3.

Whether the ICA gravely erred in concluding that the record in this case is sufficient to support the district court’s grant of summary judgment in favor of either Carolyn Uyeda or Jay Uyeda on their petition for an injunction against harassment against Evan Schermer.

Schermer’s application argued that all three questions should be answered in the affirmative. With regard to the first question, Schermer also adopted the argument from Chief Judge Nakamura’s dissent that it was not appropriate for the district court to take judicial notice of the findings of fact in Case 639.

With regard to the third question, Schermer argued that the district court lacked jurisdiction over the case, which he contended should have been heard by the family court, and that the district court’s findings of fact and conclusions of law, including its finding that there were no genuine issues of material fact, were clearly erroneous. The Hawaii Supreme Court held that: (1) the district

22 May 2019

HAWAII BAR JOURNAL

Appeal Pointer In multi-claim or multi-party circuit court cases, a final judgment is not appealable unless it identifies the claims and the parties for which the judgment is entered and unless it resolves, on its face, all claims against all parties. Jenkins v. Cades Schutte Fleming & Wright, 76 Hawai`i 115, 119-20, 869 P.2d 1334, 1338-39 (1994). court had jurisdiction in this case; (2) the district court should not have taken judicial notice of the facts in another case involving the same parties; and (3) because the district court erroneously took judicial notice of the facts in the other case involving the same parties, the granting of an injunction in favor of the Uyedas was erroneous.

Criminal Akau v. State, No. SCWC-130003754, March 5, 2019, (Wilson, J.).

In 2013, Appellant filed a petition with the district court pursuant to Hawaii Rules of Penal Procedure Rule 40 to vacate, set aside, or correct his 1987 conviction for driving while under the influence of an intoxicating liquor (DUI). The district court denied Appellant’s petition and the ICA affirmed the district court’s denial of his petition in an unpublished memorandum opinion.

The ICA observed that Appellant had waited over twenty-five years to challenge his DUI conviction. As a result of the intervening delay, no transcripts of any of the proceedings in Appellant’s DUI case were available. The ICA affirmed the denial of Appellant’s Haw. R. Penal P. Rule 40 petition on the basis of the equitable doctrine of laches. The Hawaii Supreme Court concluded that Appellant’s right to counsel was violated in 1987 and also held that the equitable doctrine of laches did not apply to Haw. R. Penal P. Rule 40 petitions.

State v. Pitolo, No. SCWC-160000413, March 18, 2019, (McKenna, J.). This case arose out of the circuit court’s dismissal of criminal charges based on the statute of limitations. Haw. Rev. Stat. § 701-108(3)(a) enables prosecution to be commenced “within three years after discovery of the offense by an aggrieved party or by a person who has a legal duty to represent an aggrieved party and who is oneself not a party to the offense,” despite the expiration of the statute of limitations if the charged offense contains an element of “fraud, deception . . . or a breach of fiduciary obligation[.]” The circuit court dismissed all six counts of theft filed by the State against Laura Pitolo (“Pitolo”) on the grounds that the March 17, 2015 felony information was filed after any extension of the three-year statute of limitations based on Haw. Rev, Stat. § 701-108(3)(a) had expired. After the State appealed, in a published opinion, the ICA reinstated Counts 4, 5, and 6.

State v. Pitolo, 141 Hawaii 131, 406 P.3d 354 (App. 2017). Pitolo sought certiorari review of the ICA’s reinstatement of those counts. The Hawaii Supreme Court held that the ICA did not err by reinstating Counts 4 through 6 because there were questions of fact regarding the statute of limitations applicable to those counts that must be determined by the fact finder, the jury, and the circuit court therefore erred by dismissing these charges. As factual issues exist, however, the ICA erred by ruling that the earliest date of the “discovery of [Counts 4 through 6] by an aggrieved party or by a person who has a legal duty to represent an aggrieved party and who is oneself not a party to the offense” under Haw. Rev. Stat. § 701108(3)(a) was the State Department of Human Services’ September 5, 2013 commencement of an investigation regarding the allegations.

Tax In the Matter of the Tax Appeal of Priceline.Com, Inc., No. SCAP-17-0000367, March 4, 2019, (Pollack, J.). This case was a consolidated appeal from twentynine General Excise Tax assessments levied by the Director of Taxation of the State of Hawaii against five online travel companies based on car rental transactions that took place in Hawaii between January 1, 2000 and December 31, 2013. The online travel companies contended that the majority of the assessments were barred because they had already litigated their General Excise Tax liability for the years in question to final judgment in a previous case. They further argued that the rental car transactions should qualify for a reduced General Excise Tax rate that is calculated based only on the portion of the proceeds that they retain because rental cars are “tourism related services� within the meaning of a statutory income-reducing provision. The Director of Taxation of the State of Hawaii responded that the State cannot be estopped from collecting taxes it is legally owed based on a previous litigation and that the rental car transactions must be taxed at the full rate because no income-reducing provision applies. The Hawaii Supreme Court held on review that, because its precedent did not permit the actions of a specific government official to impede the fundamental sovereign power of taxation, the assessments were not barred and may be considered on the merits.

The Hawaii Supreme Court further held that rental cars are tourism related services and the assessed transactions qualify for the reduced General Excise Tax rate based only on the portion of the proceeds that the online travel companies retained.

Tax Found. v. State, No. SCAP-160000462, March 21, 2019, (Part One, Recktenwald, C.J.; Part Two, McKenna, J.; Part Three, Recktenwald, C.J.; Recktenwald, C.J., dissenting as to Part Two; Nakayama, J., dissenting as to Parts Two

May 2019

HAWAII BAR JOURNAL

23

and Three). Tax Foundation of Hawaii (“Tax Foundation”) challenged the State’s implementation of Haw. Rev. Stat. § 248-2.6 that authorizes the State to be reimbursed for its costs in administering a rail surcharge on state general excise and use taxes on behalf of the City and County of Honolulu. More specifically, the issues on appeal were: (1) whether the Hawaii Supreme Court lacked jurisdiction because this was a “controversy with respect to taxes” under Haw. Rev. Stat. § 632-1; (2) whether Tax Foundation had standing to bring its challenge; (3) whether the State violated Haw. Rev. Stat. § 248-2.6 by retaining ten percent of the gross proceeds of the surcharge without calculating the actual cost of administering the surcharge; and (4) whether the State’s application of Haw. Rev. Stat. § 248-2.6 was unconstitutional. The Hawaii Supreme Court concluded that: (1) the circuit court had jurisdiction to hear Tax Foundation’s claims because its complaint was not a “controversy with respect to taxes” within the meaning of Haw. Rev. Stat. § 632-1; (2) Tax Foundation has standing; (3) the State did not violate Haw. Rev. Stat. § 248-2.6 by retaining ten percent of the gross proceeds of the surcharge; and (4) the State’s application of Haw. Rev. Stat. § 248-2.6 did not violate the Hawaii or United States Constitutions.

(Four members of the Hawaii Supreme Court determined that Tax Foundation had standing, but on different grounds.

Justices McKenna, Pollack, and Wilson concluded that Tax Foundation established standing under Haw. Rev. Stat. § 632-1, and as such, did not believe it was necessary to address taxpayer standing.

Justice Nakayama concluded that Tax Foundation did not have standing to challenge the State’s implementation of Haw. Rev. Stat. § 248-2.6. See Part Two, the Dissenting Opinion by Recktenwald, C.J., and the Dissenting Opinion by Nakayama, J., for detailed discussions regarding Tax Foundation’s standing.).

Recktenwald, C.J., dissented as to Part Two. Recktenwald, C.J. concluded

24 May 2019

HAWAII BAR JOURNAL

that Tax Foundation had standing to pursue declaratory and injunctive relief in this case; he disagreed that Haw. Rev. Stat. § 632-1 established standing criteria. To establish a personal stake in the controversy and its outcome, a plaintiff must assert an injury, or threatened injury, to a judicially cognizable interest.

The plaintiff ’s injury, or threat of injury, cannot be “abstract, conjectural or merely hypothetical,” but concrete, such that a court may fairly trace its cause and provide the parties an adequate resolution. Life of the Land II, 63 Haw. at 173 n.6, 623 P.2d at 446 n.6. In Hawaii’s Thousand Friends, this court articulated two requirements for taxpayer standing: “(1) plaintiff must be a taxpayer who contributes to the particular fund from which the illegal expenditures are allegedly made; and (2) plaintiff must suffer a pecuniary loss [by the increase of the burden of taxation], which, in cases of fraud, are presumed.” 70 Haw. at 282, 768 P.2d at 1298. Tax Foundation satisfied both elements in this case. First, Tax Foundation established that, through the tax it pays on its annual fundraising activities, it contributes to the particular fund from which illegal expenditures are allegedly made. In addition to paying general excise and use taxes at a 4% rate to the State, Tax Foundation pays the county surcharge at a rate of 0.5%. The State collects this surcharge, deposits it into a special fund, and, after deducting 10% of the gross proceeds, disburses the balance to the City and County of Honolulu. Tax Foundation alleges that “the bulk of the 10% retained by the State” exceeds the State’s costs of administrating the county surcharge. Thus, according to Tax Foundation, the excess portion of the 10% is retained and diverted illegally.

Second, Tax Foundation has alleged future pecuniary loss. Tax Foundation contended that, if permitted, the State’s continued retention of the 10% of gross proceeds from the surcharge will result in an increased tax burden for Honolulu taxpayers, including Tax Foundation.

Recktenwald, C.J. disagreed that Haw. Rev. Stat. § 632-1 established a distinct test for standing or conflicts with the prudential requirement that a plaintiff demonstrate an injury in fact. Removal of this requirement in actions for declaratory relief marks a departure from a long history of judicial intervention only in justiciable controversies that are presented in an adversary context. Accordingly, although he concluded that Tax Foundation has standing, Haw. Rev. Stat. § 632-1 does not itself create the test to be applied.

Nakayama, J., dissented from Parts Two and Three. Nakayama, J. dissented from Part Two, as she agreed with the Chief Justice’s dissent to the extent that the Chief Justice concluded Haw. Rev. Stat. § 632-1 did not eliminate the requirement that a plaintiff establish an “injury in fact” in a declaratory judgment, and therefore did not establish a distinct test for standing. Nakayama, J. disagreed with the Chief Justice to the limited extent that she believed that Tax Foundation did not raise taxpayer standing, and that the Chief Justice considered whether Tax Foundation had taxpayer standing sua sponte.

Nakayama, J. believed that the Chief Justice’s sua sponte consideration of whether Tax Foundation possessed taxpayer standing was inappropriate for two reasons. First, she believed that the Chief Justice’s decision to address whether Tax Foundation possessed taxpayer standing sua sponte was inconsistent with case law. The Hawaii Supreme Court had previously declined to entertain whether a plaintiff possesses standing as a taxpayer when the plaintiff did not expressly rely upon such a basis for standing. Second, Nakayama, J. believed that by effectively raising an alternative theory of standing on Tax Foundation’s behalf, the Chief Justice undermined the principle of party presentation that lies at the core of the adversarial process. Because as Tax Foundation itself proffered no other basis for standing, she would hold that

Tax Foundation failed to establish that it had standing to challenge the State’s implementation of Haw. Rev. Stat. § 2482.6. Finally, Nakayama, J. could not join the Majority’s holding in Part Three because, as she believed Tax Foundation lacked standing, she would not reach the merits of Tax Foundation’s arguments.

Unauthorized Practice of Law Sheveland v. Wells Fargo Bank, N.A., No. SCAP-17-0000325, March 18, 2019, (McKenna, J.). Dentons represents itself as the world’s largest law firm. Dentons US LLP maintains offices throughout the United States, including, as of July 2018, an office in Hawaii comprising the former partners (and other employees) of the former Hawaii law firm Alston Hunt Floyd & Ing (“AHFI”).

Prior to joining Dentons US LLP as partners, the AHFI partners incorporated themselves into separate lawyers’ professional business organizations.

Dentons US LLP represented Appellee CIT Bank (“Appellee”) in this appeal, through two former AHFI partners who are Hawaii-licensed. During the course of the appeal, Dentons US LLP, through these two partners, filed a motion for admission pro hac vice of a California attorney with a different law firm.

Counsel for Appellant Stephanie Sheveland (“Appellant”) opposed the motion, alleging that Dentons US LLP, as a firm, was engaged in the unauthorized practice of law in Hawaii, in violation of Haw. Rev. Stat. § 605-14. The specific court rule governing the organized practice of law in Hawaii is Rule 6 of the Rules of the Supreme Court of Hawaii (“RSCH”), titled “Lawyer’s Professional Business Organizations.” RSCH Rule 6.

Appellant contended that the language of RSCH Rule 6 requires every partner of Dentons US LLP to be Hawaii-licensed. Appellant argued that, without such a requirement, non-Hawaii-licensed attorneys could direct the activities of Hawaii-licensed attorneys in a Hawaii firm without regulation or oversight by this court or the Office of Disci-

26 May 2019

HAWAII BAR JOURNAL

plinary Counsel. Appellant also asserted that Dentons US LLP is “majority owned by persons not licensed to practice law in Hawaii,” in violation of the rule. Appellant asserted that the Hawaii-licensed attorneys appearing in this appeal “should be barred from stating or representing that they are practicing or appearing as part of ‘Dentons US LLP.’” Appellee counter-argued that Appellant’s interpretation of RSCH Rule 6 contradicts the rule’s plain text, purpose, and history. As to Rule 6(d)(1)’s plain language, Appellee asserted that shares or interests in a law firm can be owned either by another lawyer’s professional business organization or by one or more Hawaii-licensed attorneys. Appellee next turned to the history of RSCH Rule 6. Appellee argued when the rule was first promulgated, there were no express jurisdictional limitations contained in the statutes the rule referenced (namely, Haw. Rev. Stat. Chapter 416, the Hawaii Professional Corporation Law, and Chapter 605, the chapter governing attorney licensure in Hawaii).

Instead, Appellee argued, the statutes “reflected an intent only to limit management and control of professional corporations to licensed individuals.”

Appellee also pointed out that the rule was not updated after the repeal of the Hawaii Professional Corporation Law in 1987 and its replacement with the Professional Corporation Act. The Professional Corporation Act expressly provided that corporate shares could be owned by anyone in the United States, its territories, and the District of Columbia. Appellee further argued that Appellant’s interpretation was inconsistent with other court rules that contemplate multi-jurisdictional law firm practice in Hawaii. Appellee cited to RSCH 11(b) (2016), which requires firms composed “in whole or in part” by Hawaii-licensed attorneys to participate in the IOLTA program. It also noted that Hawaii Rules of Professional Conduct (“Haw. R. Prof. Conduct”) Rule 7.5 similarly permits multi-jurisdictional law jurisdic-

tional law firm practice in Hawaii, as it requires Hawaii law firm letterheads to indicate which attorneys are not licensed to practice in Hawaii. Appellee cited to RSCH 11(b), which requires firms composed “in whole or in part” by Hawaii-licensed attorneys to participate in the IOLTA program. CIT Bank also pointed out that this court’s ethical rules once prohibited Hawaii law partnerships from including any person not licensed to practice law in Hawaii. Over thirty years ago, however, those rules were deleted. Lastly, Appellee asserted that statutes on similar subject matter, namely the licensure of Hawaii professionals organized into corporations, do not limit ownership of corporate shares to just Hawaii-licensed individuals. The Hawaii Supreme Court issued an order granting Dentons US LLP’s motion for pro hac vice admission and stating that an opinion on the RSCH Rule 6 issue would be forthcoming. This opinion now addressed the issue. The Hawaii Supreme Court held that the portions of RSCH Rule 6 identified in Section I have been superseded by implication to mean “in this state or in any other state or territory of the United States or the District of Columbia” and do not prohibit the former AHFI partners’ practice of law in Hawaii as part of Dentons US LLP.

Intermediate Court of Appeals Criminal State v. Abella, No. CAAP-160000004, March 22, 2019, (Ginoza, C.J.). Appellant was convicted of manslaughter. On appeal, Appellant argued that the circuit court: (1) plainly erred by not instructing the jury regarding the causal connection or lack thereof between Appellant’s conduct and the death of the victim; (2) erred by not applying Haw. Rev. Stat. § 327E-13 to his case; and (3) erred by not granting a mistrial upon the prosecution’s misconduct (Continued on page 29)

C O URT BR IEF S Honda and Taniyama Named Per Diem Judges Mark T. Honda was recently appointed as per diem judge of the District Court of the Second Circuit, designated to preside in District Family Court (March 15, 2019 to January 23, 2020).

Kimberly B.M. Taniyama was appointed as per diem judge of the District Court of the Third Circuit (March 18, 2019 to March 17, 2020).

Success for Kona Jail Diversion Program

Supervisor, Hawaii Intake Service Center-Kona, Department of Public Safety; Gail Werner, Case Manager/Jail Diversion, West Hawaii Community Mental Health Center; Dr. Hawken Shields, Department of Health; Kori Weinberger and Anmar Alnagem, Kona Deputy Prosecuting attorneys; work with Kona District Court Judge Margaret Masunaga to guide participants through the program.

“Prompt screening and evaluation has been a key component of the program,” said Judge Masunaga.

“Hawaii Intake Service Center makes referrals based on cellblock interviews and Adult Mental Health does the eligibility screening. The information is available at the first appearance during which the prosecutor will agree to a supervised release of the defendant as a participant in the Jail Diversion program.”

The participants waive speedy trial rights and appear in court once a month for six months. The program currently has 12 participants.

President of the East African Court of Justice Visits the Hawaii Supreme Court From left: Judge Margaret Masunaga, a program participant, Ann Datta, Gail Werner, Dr. Hawken Shields, Kori Weinberger, and Jill M. Akuna.

Collaboration has been the key to the success of the Kona Jail Diversion program, which helps participants involved in non-violent crimes to avoid jail by voluntarily engaging in community-based behavioral health services and programs. Typically, these individuals have been charged with failure to appear, contempt of court, remaining in a park after closing hours, criminal trespass, shoplifting, criminal property damage, and driving without a license. These are petty misdemeanors, with a maximum term of 30 days in jail or a $1,000 fine.

If the participant successfully completes the Jail Diversion program after six months, the court will dismiss the charge, and the participant receives a certificate signed by the judge and case manager.

The success of the program comes from the collaboration of seven agencies and the Judiciary. Ann Datta, Kona Supervising Public Defender and Deputy Public Defender Matt Sylva; Jill M. Akuna, Pretrial Services

Justice Emmanuel Ugirashebuja, President of the East African Court of Justice is this year’s International Jurist-in-Residence at the University of Hawaii at Manoa William S. Richardson School of Law. He met with Hawaii’s Supreme Court justices on March 6, at the historic Aliiolani Hale. During his visit he also spoke with attorneys and students about topics such as the Rwandan genocide and the process of rebuilding the East African judicial system.

National Judicial Outreach Week In observance of National Judicial Outreach Week, March 1 to 10, the Hawaii State Judiciary produced videos with judges answering questions most frequently asked by the public. These videos are part of the Judiciary’s ongoing efforts to increase public understanding of the courts and system of justice. The topics included: “Fairness: How Judges Apply the Law,” “The Key Role Jurors Play in Trials,” “How Sentencing Is Decided in Criminal Cases.” These and other informative videos are available on the Judiciary’s YouTube page at https://www.youtube.com/user/hawaiicourts.

May 2019

HAWAII BAR JOURNAL

27

Named

Oahu’s #1 Realtor & Voted Hawaii’s Best *

Realtor in 2018 **

* Named in Hawaii Business Magazine in 2018 ** Voted by Honolulu Star-Advertiser Readers in 2018

LOCAL Market Expertise NATIONAL Brand Support GLOBAL Reach

Myron Kiriu (R) Call 808.864.9000

ELITE LD

AR AW D

2017

Myron Kiriu CEO, Owner, Realtor®

EMERA

MyronK@BetterHawaii.com MyronKiriu.com

Named #1 Agent Team Nationwide among all Better Homes & Gardens Real Estate Agent Teams Nationwide

Ambur Kiriu Owner, VP, Public Relations

Named #1 Agent on Oahu in 2018

Voted Hawaii’s Best Realtor in 2018

RB-17242

Team Kiriu

SHERRIE SASAKI KERRI TAMAKAWA CHRIS LEE, RA Client Relations JD, RA JD, RA Team Manager

Listing Specialist

RS-74829

RS-77631

Specialist RS-78895

TARYN LOO, RA Buyers Specialist RS-76619

SUE JO, RA

Executive Sales Agent Bi-lingual English/Korean RS-78530

TRISHA KAGAWA, RA

Listing Specialist RS-80452

LEAH CHUN, RA GRACE HWANG, RA

Escrow Specialist Business Development Specialist RS-80010 Bi-lingual English/Korean RS-81233

MARY MARTIN, RA Executive Associate RS-61523

DEBBIE JOW ITO, RA Technology Marketing Specialist RS-73401

BETTER HOMES AND GARDENS REAL ESTATE ADVANTAGE REALTY | KAHALA MALL, UPPER LEVEL, 4211 WAIALAE AVE. BOX 9050, HONOLULU, HI 96816 | (808) 738-3600 ©

2018 Better Homes and Gardens Real Estate Advantage Realty. Better Homes and Gardens® is a registered trademark of Meredith Corporation licensed to Better Homes and Gardens Real Estate LLC. Equal Opportunity Company. Equal Housing Opportunity. An Independently Owned & Operated Franchise.

CASE NOTES (Continued from page 26) of attempting to elicit testimony of why Appellant did not go or report to police what occurred between himself and the victim. The ICA affirmed. The ICA concluded that: (1) the jury instructions as a whole were not prejudicially insufficient or erroneous; (2) there was nothing in the legislative history to suggest that Haw. Rev. Stat. § 327E-13(b) was intended to absolve defendants of alleged criminal conduct that necessitated that a victim receive medical treatment in the first place; and (3) even if Appellee’s questioning was improper, the circuit court took immediate action by instructing the jury to disregard the questions about whether Appellant reported any incident to the police and any of his responses to those questions.

WILLIAM C. DARRAH

ROXANNE KWONG

On March 1, 2019, after nearly forty-three (43) years of litigating some of Hawaii's most financially complex and involved divorce cases, we stopped taking on new clients for whom there was any possibility of litigation. For us, and for our clients, litigation has just become too risky, expensive, and adversarial. Instead, our practice will now solely offer consulting, mastering, mediation, and collaborative representation services in cases involving particularly substantial and complicated marital estates. If you have a question about a case of yours, please give us a call.

WILLIAM C. DARRAH T H E L AW O F F I C E S O F

A P R A C T I C E I N M A T R I M O N I A L L AW

AN AWARD WINNING MATRIMONIAL PRACTICE SINCE 1976 737 BISHOP ST., STE. 2820, HONOLULU, HAWAI‘I (808) 533-2930

State v. Otani, No. CAAP-170000530, February 28, 2019, (Ginoza, C.J.). District court convicted Appellant of one count of Operating a Vehicle Under the Influence of an Intoxicant (“OVUII”). Appellant’s passenger was under the age of fifteen years old. On appeal, Appellant argued the district court abused its discretion in sentencing her to imprisonment under Haw. Rev. Stat. § 291E-61(b)(4) because it did not also sentence her to imprisonment under Haw. Rev. Stat. § 291E-61(b)(1)(C)(ii).

The ICA affirmed. According to the plain language of Haw. Rev. Stat. § 291E-61(b)(4), when a person eighteen years of age or older commits OVUII with a passenger under fifteen years of age in or on the vehicle, in addition to “a” sentence, the trial court must sentence the defendant to a forty-eight hour term of imprisonment. The ICA did not interpret the “[i]n addition to” wording as indicating a legislative intent to limit the imposition of the prison sentence under subsection (b)(4) to situations in which the trial court has also sentenced the defendant to imprisonment under subsections (1), (2), or (3).

May 2019

HAWAII BAR JOURNAL

29

O FF THE R EC ORD Madeleine M.V. Young is now a Director at Damon Key Leong Kupchak Hastert. She joined the firm in 2013 and practices in the Trusts and Estates and Business and Commercial Law practice groups. Her practice focuses on probate and trust litigation, estate planning, conservatorship and guardianship proceedings, estate and trust administration, business planning, and property conveyances. She is licensed to practice in Hawaii and California.

Isaac Moriwake was named managing attorney for Earthjustice’s Mid-Pacific Office in Honolulu.

Olan Leimomi Fisher joined MacDonald Rudy O’Neill & Yamauchi as a new associate attorney. Fisher previously served as an environmental compliance specialist for the third phase of the Honolulu rail transit project.

Mike Biechler joined Porter McGuire Kiakona & Chow as an associate attorney in its growing association practice, which handles collections, litigation, and covenant violations.

On April 10, the Hawaii Women Lawyers honored the following individuals at its Annual Awards Reception: Outstanding Woman Lawyer Award: Rebecca Copeland; Judicial Achieve-

WALTER S. KIRIMITSU Mediator & Arbitrator

• Education Law & Disputes • Insurance/Personal Injury • Commercial/Business • Labor/Employment • Construction/Real Property

• Former Judge, Hawaii Intermediate Court of Appeals • General Counsel/VP Legal Affairs, University of Hawaii • President/Head of School, Saint Louis School • President, HI State Bar Association • Fellow, American Board of Trial Advocates, American College of Trial Lawyers • Certified Trial Counsel, U.S. Air Force Judge Advocate Corps • Certified Completion of Mediation Course (Pepperdine U. School of Law) • Fluent in Japanese Language

DISPUTE PREVENTION AND RESOLUTION, INC. 1003 Bishop Street, Honolulu, HI 96813 | Phone: 523-1234

30 May 2019

HAWAII BAR JOURNAL

ment Award: Senior Judge Helen Gillmor; Lifetime Achievement Award: Esther Arinaga; Distinguished Service Award: Karen Char; President’s Award: the late Dr. Jackie Young.

News for “Off the Record” Please send in information about movement within the bar, about elections to various boards, awards, and other news to any one of the editors on the editorial board, Carol K. Muranaka at <carol.k.muranaka@gmail.com> or Cynthia M. Johiro at <Cynthia.M.Johiro@hawaii.gov>.

Articles Wanted If you are interested in writing either a short or long article of general interest to members of the bar, please send your submissions to Ed Kemper at edracers@aol.com; Cynthia M. Johiro at cynthia.m.johiro@hawaii.gov; or Carol K. Muranaka at carol.k.muranaka@gmail.com; or to any of the volunteer editors on the editorial board.

All submitted articles should be of significance to and of interest or concern to members of the Hawaii legal community. A short article is approximately 500 to 1,500 words.

The longer law-review type articles are published in a special issue. The Cades Foundation has been gracious and generous in funding this special issue. These articles exceed 7,000 words.

The Hawaii Bar Journal reserves the right to edit or not publish submitted material.

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 St., Suite 2600 Honolulu, HI 96813 Email: recruitingdirector@caselombardi.com COATES F R EY TAN I M OTO & GI B SO N, Hawaii’s largest Family Law Firm, seeks associate attorney with interest and/or experience in divorce/family law. Background in litigation /TRO procedures a plus, but not essential.

Excellent benefits, advancement and atmosphere. Email (divorce@coatesandfrey.com) or fax (524-0717) resume to Greg Frey.

F U K U N AG A M ATAYO S H I C H I N G & KON -H ER R ER A is looking to hire an associate attorney with three to five years of civil litigation experience. The firm handles a variety of cases in numerous practice areas including products liability, construction, professional liability, personal injury, and insurance law. Must be licensed in Hawaii with experience in both state and federal courts. Qualified candidates must have exceptional research, writing, and analytical skills; ability to manage multiple cases and assignments; excellent verbal and written communication skills; and a desire to learn.

The firm offers a competitive salary and benefits package Interested applicants should email their resume and letter of interest to eol@fmhc-law.com HAWAII MEDICAL SERVICE ASSOCIATION (HMSA) is seeking a Strategic Contracts Counsel Manager. This position will be responsible for leading provider and vendor contracting efforts for Legal Affairs (particularly as to major strategic partners), including managing and supporting attorneys, paralegals, and staff involved in those efforts, and promoting strategic alignment between the provider and vendor contracting areas. The major duties will include, among other things, partnering with the business areas as above, drafting and reviewing provider and vendor contracts, and representing HMSA in negotiating contract issues with other parties. The position will also be responsible for providing proactive, easy to understand legal advice and guidance to the company on contracting

issues, and finding innovative solutions to provider and vendor contracting. For more information and to apply, go to www.hmsa.com/careers IMMEDIATE ATTORNEY vacancies within the Hawai’i County Prosecuting Attorney’s Office. Please send resume and contact information to tkaniho@hawaiicounty.gov

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 COLLISION RECONSTRUCTION EXPERT, serving all the Islands: 40 years experience, qualified as expert in state and federal courts.

John H. Meserve, CRS. (808) 450-5555 jhmeserve@gmail.com CONSTRUCTION DEFECTS, contractor issues, premises liability, real estate disclosure.

National Building Expert. Best Selling Author. www.lanceluke.com 808-422-2132 CONSTRUCTION / MARITIME Liability litigation support witness. Risk Analysis, Activity Hazard Analysis, & Determination of Hazard Control Measures. See page 197 of the HSBA Directory for more infomation. 808-800-7124 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/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 SPECIALIST 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) 735-8701 or (808) 227-2141.

OFFICE CONCIERGE WANTED ESTATE PLANNING FIRM looking for individual to help welcome clients into our office.

Amongst other administrative tasks, this person’s main focus will be to provide support to the clients through the estate planning process.

They will be answering majority of the client’s phone calls and directing them, when necessary, to office staff. Will also be required to schedule/manage calendar, prepare files for meetings, scan and file paperwork. Excellent written and oral com munication skills is a must. Must be a notary or willing to become a notary. For more information and to apply, please call or email Britta at (808)524-0251, estateplanninginq@gmail.com

OFFICE SPACE 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 April 1, 2019. If interested, call Bob at 524-7331.

PARALEGAL WANTED ESTATE PLANNING FIRM seeking paralegal, responsible for drafting estate planning documents (i.e. Wills, Trusts, Powers of Attorney, Deeds, Affidavits, Memorandums, etc.) Prior paralegal experience is necessary.

We are seeking a highly motivated, organized, and detail oriented individual. For more information and to apply, please call or e-mail Britta at (808)524-0251, estateplanninginq @gmail.com

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 May 2019

HAWAII BAR JOURNAL

31

Call Honolulu’s Most Respected Real Estate Advisor

Call or Text Pat Choi at (808)285-2484 or Email pat@choi-realty.com www.Choi.HawaiiLife.com

SOLD

SOLD

Powerful as semblage of lluxury uxur y m aders • Powerful assemblage market arket le leaders across across the en entire tire S State tate of H Hawai‘i awai‘i

LLicense ic ens e numbers: numb er s: RRB-19928 B -19928 The Choi C hoi Group Gr oup RRB-11824 B -11824 Pat P at Choi C hoi

• 14 14 Offices Offices a and nd 2 235 35 A Agents gents S Statewide tatewide Unrivalled M arket K nowledge a nd E xpertise • Unrivalled Market Knowledge and Expertise TTEL E L ((808) 808 ) 7734-7 3 4- 7 7711 1 1 • FFAX A X ((808) 808 ) 7735-8879 3 5 -88 7 9 • 44614 6 14 KKilauea il a ue a AAvenue, v enue, SSuite ui te 20 201, 1 , Honolulu Honolulu,, HI 968 96816 16