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BAR JOURNAL A N O FFICIAL P UBLICATION
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H AWAII S TATE BAR A SSOCIATION N OVEMBER , 2020 $5.00
TABLE O F C ON TE NTS VO LUM E 24 , N U M B E R 11
EDITOR IN CHIEF Carol K. Muranaka BOARD OF EDITORS Christine Daleiden Susan Gochros Ryan Hamaguchi Cynthia Johiro Edward Kemper Laurel Loo Melvin M.M. Masuda Eaton O'Neill Lennes Omuro Brett Tobin
ARTICLES 44
Interviews of the Chief Judges and Deputy Chief Judges of the Circuit Courts, the District Courts, and the Family Court. by Edward Kemper
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OF NOTE
President P. Gregory Frey
16
HSBA Happenings
President-Elect Karin Holma Vice President Levi Hookano Secretary Russ Awakuni
26
Case Notes
28
Court Briefs
30
Notice of Discipline
Treasurer Paul Naso
31 20
Classifieds
YLD OFFICERS
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HSBA OFFICERS
President Addison Dale Bonner Vice President/President-Elect Christopher St. Sure Secretary Kyleigh Nakasone Treasurer Tiffany Kaeo
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EXECUTIVE DIRECTOR Patricia Mau-Shimizu GRASS SHACK PRODUCTIONS Publisher Brett Pruitt Art Direction Debra Castro Production Beryl Bloom
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On the cover: Island Huts by Catherine E. Cranford. Hawaii’s beautiful beaches, shorelines and landscapes have been the influence and focus of Catherine E. Cranford’s paintings. Though basically self-taught, she has attended art courses in Oregon, California and the Honolulu Academy of Arts. She works mostly in oils and acrylics. Her art is available through catherinecranford.com (This wonderful painting orignally graced our cover in April of 2004)
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.
of the Chief Judges and Deputy Chief Judges of the Circuit Courts, the District Courts, and the Family Court By Edward Kemper Over the years, the Hawaii Bar Journal has interviewed various judges. Usually, these interviews have focused on the state appellate judges and chief judges of the United States District Court, First Circuit Court, or judges of specialized courts. Because of the current unusual circumstances, the editorial board thought that interviews of all state chief and deputy chief judges would be informative and useful to the bar. The Circuit Court Judges who were 4 November 2020
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interviewed are Judge R. Mark Browning, Chief Judge of the First Circuit; Judge Shirley M. Kawamura, Deputy Chief Judge of the First Circuit, criminal division; Judge Jeannette Castagnetti, Deputy Chief Judge, First Circuit, civil division; Judge Christine E. Kuriyama, Family Court Administrative Judge, First Circuit; Judge Richard T. Bissen, Chief Judge of the Second Circuit; Judge Robert D.S. Kim, Chief
Judge of Third Circuit; and Judge Randal G.B. Valenciano, Chief Judge of the Fifth Circuit. CIRCUIT COURTS 1. Please provide a short biography of yourself for our readers.
Judge R. Mark Browning: I grew up in Japan. My family moved to Hawaii when I was in college,
and I subsequently taught for two years at ‘Iolani School. I became a member of the HSBA in 1983, after graduating with a juris doctor degree from Lewis & Clark Northwestern School of Law. I worked for approximately four years as deputy prosecutor for the City & County of Honolulu in the mid-1980s. Thereafter, I was an associate, and then a partner, in the law firm of Shim, Tam, Kirimitsu, Kitamura & Chang from 1988 through 1997. My time as a judge began in 1997, when I was sworn in as a District Family Court Judge. I then became a First Circuit Judge in 2010 and served in the Circuit Court Civil Division. In 2011, I was appointed as the Senior Judge of Family Court and Deputy Chief Judge of the First Circuit. In 2017, Chief Justice Recktenwald selected me to serve as the Chief Judge of the First Circuit, which is the role you find me in today.
Judge Shirley M. Kawamura:
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ceiver, and Special Master Services, Employment Investigations
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I am a graduate of Iolani School, received a Bachelor of Arts degree from Brown University and my law degree from Stanford University. Upon my return from school, I worked as a law clerk for the Honorable Dexter D. Del Rosario for one year before joining the firm of Ashford & Wriston. I left Ashford & Wriston to become a deputy public defender with the Honolulu Office of the Public Defender, where I was a trial deputy for over six years. After I left the Public Defender’s office, I practiced commercial and insurance defense litigation with Kawashima Lorusso LLP until I was selected as a district court judge by Chief Justice Mark Recktenwald in 2012. I was appointed by Governor David Ige to the circuit court bench in 2015.
Judge Jeannette H. Castagnetti: I earned a bachelor of arts degree in political studies from Pitzer College and my law degree from California Western School of Law. I worked as a full-time extern with U.S. Magistrate November 2020
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Judge Barry Kurren during my final semester of law school and then after graduation, I clerked at the Office of the Prosecuting Attorney for the City and County of Honolulu. I was a deputy prosecuting attorney from 1999 to 2002 before I joined the law firm of Bronster Crabtree Hoshibata (now known as Bronster Fujichaku Robbins), where I handled a variety of civil litigation matters, including employment discrimination and wrongful termination claims, trust litigation, conservatorship and guardianship proceedings, and contract and commercial disputes. I represented plaintiffs and defendants in state and federal courts with the majority of my practice in circuit court. While at the firm, I served as a per diem judge in district court from 2007 to 2010 and also worked as a special deputy attorney general for the insurance fraud division of the Department of Commerce and Consumer Affairs. I was appointed to the 6 November 2020
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circuit court in 2010 and have presided over family court criminal jury trials and civil trials.
Judge Christine E. Kuriyama: I currently serve as the Senior Judge and Deputy Chief Judge of the Family Court of the First Circuit. I am a graduate of Kalani High School, received a bachelor’s degree in psychology from the University of Hawai‘i, and a juris doctor degree from the University of California Hastings College of the Law. I worked at government agencies after law school, was in private practice from 1986-2004, served as a Family Court Per Diem Judge from 1995-2004 and as a full-time District Family Court Judge from 20042014, and in 2014, was appointed to the Circuit Court bench, where I presided over a criminal calendar for four years. I was assigned as Senior Judge and Deputy Chief Judge of Family Court on September 24, 2018.
Judge Richard T. Bissen: I am married with three adult daughters, two grandsons, and two dogs. I was appointed as a Circuit Court Judge from 2005 to the present. I am a former Acting Director of the Department of Public Safety, former First Deputy Attorney General, and former Prosecuting Attorney and deputy prosecuting attorney, Maui County. I worked in private practice for a short while and clerked for the Honorable Richard R. Komo on Maui. I earned my JD from William S. Richardson School of Law, my Bachelor's degree in Political Science from Santa Clara University and graduated from St. Anthony High School.
Judge Robert D.S. Kim: I had worked in the Hawaii State Senate for five sessions after college. I graduated from the University of Hawaii law school. I worked in private practice as a trial attorney since 1987.
Judge Randal G.B. Valenciano: I am a proud graduate of Waimea High School, received a bachelor of science degree from the University of Oregon and graduated from the University of Washington School of Law. Prior to being appointed to the Circuit Court of the Fifth Circuit in 2007, I worked as a Deputy Public Defender, Deputy Prosecuting Attorney, and in private practice. 2. What are your duties as Chief Judge of your court?
Judge Browning: As the Chief Judge of the First Circuit, I am responsible for all the trial courts on Oahu – staff, judges, and facilities. I report directly to the Chief Justice. Chief Judges set policies, procedures, and make decisions with respect to their individual circuits. Chief Judges also confer with the Chief Justice regarding initiating policies and other matters related to the Judiciary as a whole. My leadership team includes our Deputy Chief Judges and Senior Administrators. All of these people are extremely important in everything that we do as the First Circuit.
Judge Kawamura: As Deputy Chief Judge of the First Circuit Court and the Criminal Administrative Judge, I am the lead judge for all the First Circuit Court Criminal Divisions and the liaison between the First Circuit Court Chief Judge and the trial divisions. As such, I am tasked with a variety of duties both judicial and administrative and one of my main jobs is to provide support to the criminal trial divisions and Chief Judge R. Mark Browning. Some of the duties of the criminal administrative judge include: • Oversee the personnel of the criminal assignments division (consisting of five court clerks), the criminal administrative division (consisting of one court clerk and two law clerks), as well as my
own division (consisting of one judicial assistant, one ) court clerk, and one law clerk) • Conduct all arraignment and plea hearings; • Conduct all bail hearings for those defendants set for arraignment and plea; • Oversee and preside over all grand jury proceedings, including yearly empanelling of grand jurors (the summoning of 300 jurors and the selection of 96 grand jurors and alternates); • Receive, review, and select applicants for the six grand jury counsel positions every year; • Manage, conduct, and review all proceedings involving Chapter 704 of the Hawaii Revised Statutes (including, but not limited to, fitness determinations, orders to treat over defendant’s objection (whether in Department of Health or Department of Public Safety custody), jury-waived trials on the issue of penal responsibility, and the granting/denial/ revocation of any conditional release to defendants found not guilty by reason of physical or mental disease, disorder, or defect, and the periodic review of all those granted release); • Manage, conduct, and review all extradition hearings; • Review and approve/deny all requests from City and County of Honolulu Prosecuting Attorney’s Office and State of Hawaii Office of the Attorney General related to 18 U.S.C. § 2703 and/or H.R.S. § 803-47.6 and/or H.R.S. § 80347.8 (regarding the disclosure of electronic records); • Review all requests from law enforcement regarding the placement of electronic devices in packages entering Oahu; • Manage and conduct all hearings on requests from out of state jurisdictions for witnesses who are residents of Oahu; • Manage, review, and assign all Hawaii Rules of Penal Procedure Rule 40 peti-
tions for post-conviction relief; • Maintain and approve the list of court appointed defense counsel and appoint them in cases where the defendant so qualifies; • Approving attorney’s fees over the statutory maximum for court appointed counsel as well as all non-routine litigation costs for court appointed counsel; • Conduct and preside over any overflow jury trials as time permits; • Receive, review, and comment on all proposed legislative bills relating to the Judiciary during each legislative session; • Conduct monthly meetings of the criminal division judges to provide upto-date information on Judiciary policies and matters concerning the criminal divisions; • Chair and conduct monthly meetings of the Permanent Committee on Rules of Penal Procedure and Circuit Court Criminal Rules; • Participate as a member of the Standing Committee on Pattern Criminal Jury Instructions; • Meet weekly with the First Circuit Chief Judge and the Deputy Chief Judges of the First Circuit; • Conduct periodic meetings with the Office of the Public Defender, Office of the Prosecuting Attorney, and Office of the Attorney General to address issues that arise in the conduct of the criminal justice system; • COVID-19 related — Weekly meeting with the Chief Justice and the Chief Judges and Deputy Chief Judges of the State related to COVID-19; • Served as Reporter for the Criminal Pretrial Practice Task Force; • Serve on Mental Health Core Steering Committee; • Serve on the following committees: —Governor’s Committee on Crime —Lt. Governor’s Committee on Gun November 2020
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Violence Prevention —Co-Chair of Committee on Court Interpreters and Language Access —American Judicature Society, CoChair of Criminal Sub-Committee —Bencher, American Inns of Court.
8 November 2020
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Judge Castagnetti: I have been the Deputy Chief Judge and Civil Administrative Judge of the Circuit Court of the First Circuit since January 2017. My main duties involve overseeing established internal standards and policies for assignment of cases by
the legal documents branch to seven civil trial divisions, reassigning cases in the event a judge has a conflict in a case, providing recommendations to the chief judge on judge assignments to the civil division, and assigning partner judges for the civil divisions for settlement
conferences in non-jury or bench trials. Other general duties include establishing uniform operations (if possible) amongst the civil divisions and staff and reviewing and approving bonds for notaries in the First Circuit. I also conduct monthly meetings with the civil judges to address administrative and court operational issues or changes. Last year, much of my administrative work involved ensuring that the civil divisions were prepared for the launch of the Judiciary’s electronic filing system (“JEFS”) which launched statewide in Circuit Court on October 29, 2019, and also communicating to members of the bar the various rule amendments and changes in court operations related to electronic filing. With the help of HSBA Executive Director Pat Mau-Shimizu, Judge Gary Chang (the JEFS project judge), and Judge Jim Ashford, we were able to hold lunchtime in-person and remote meetings with HSBA members statewide to discuss the new electronic filing system for civil cases. Other duties include: • Arbitration Judge for the Court Annexed Arbitration Program (“CAAP”) in the First Circuit. As the Arbitration Judge, I rule on CAAP-related requests and motions, such as motions to remove or readmit a case into CAAP and motions to extend the nine-month deadline. • Judicial Arbitration Commission. I serve as chair of the Judicial Arbitration Commission, which has the responsibility of developing, monitoring, maintaining, supervising, and evaluating CAAP statewide. Commission members include the Arbitration Judges and CAAP administrators from each circuit, as well as attorneys and other court administrators designated by the Chief Justice. • Permanent Committee on Rules of Civil Procedure and Circuit Court Civil Rules. The purpose of the civil rules committee for circuit court is toreview and address issues regarding rule amendments and to make recommendations to the Supreme Court. I serve as
chair of this committee. • Committee on Pattern Civil Jury Instructions. This committee proposes new or revised standard civil jury instructions. I also serve as chair of this committee. Separate and apart from my administrative duties, my judicial duties involve presiding over the majority of foreclosure cases filed in the first circuit court. Foreclosures are the largest category of civil cases and make up approximately 35% of all the civil cases filed. Unfortunately, with the COVID-19 situation and the dire economic road ahead, foreclosure filings will undoubtedly increase.
Judge Kuriyama: Pursuant to Hawai‘i Revised Statutes § 571-4, the First Circuit Senior Family Court Judge is appointed by the Chief Justice of the Hawai‘i Supreme Court to oversee the operations of the court, including Hale Hoomalu, our juvenile detention facility and Home Maluhia, our shelter for youth, as well as the full-time and per diem judges who are assigned to Family Court. In terms of court operations, § 5716(a) provides that the Senior Judge “shall appoint a chief administrative and executive officer who shall have the title of director of the family court (currently the Deputy Chief Court Administrator for the Client Services Division).” The section further provides that under the supervision of the Senior Judge, the Deputy Chief Court Administrator is responsible for carrying out the following specific duties and responsibilities: (1) Prepare an annual budget for the court; (2) Formulate procedures governing the routine administration of court services; (3) Make recommendations to the court for improvement in court services; (4) Make recommendations to the senior judge for the appointment of administrative, supervisory, consultant, and necessary professional and clerical and other personnel to perform the
duties assigned to the court and the director; (5) Provide supervision and consultation to the administrative and supervisory staff regarding the administration of court services, recruitment of personnel, in-service training, and fiscal and office management; and (6) Perform other duties as the senior judge shall specify. Further, in accordance with § 5716(b), the Senior Judge “shall appoint necessary probation officers, social workers, and marital counselors and may appoint, or make arrangements for the services of physicians, psychologists, psychiatrists, and other professionally competent persons, to carry on the work of the court.” Currently, the foregoing duties and responsibilities are performed or executed by various administrative and supervisory staff in the Family Court units designated to handle these duties and responsibilities. The First Circuit Family Court has 11 full-time District Family Court positions in Kapolei, two Circuit Court Adult Criminal (domestic violence) positions operating on the 8th floor of the Honolulu District Court on Alakea Street, and 14 per diem judges. Our judges in Kapolei are assigned to one of three divisions, Juvenile, Domestic and Special, where they preside over a wide array of cases, such as: • juvenile status offenses and law violations • Child Welfare Services (temporary foster custody, foster custody, family supervision and termination of parental rights) • divorce • temporary restraining orders • gun violence protective orders • paternity • adoptions • guardianships • adult abuse • assisted community treatment • involuntary commitment (hospitalization) November 2020
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Circuit, District, and Family Court judges in our Circuit.
Judge Kim: The Chief Judge is responsible for administrative matters involving the circuit. This position has no job description, except to address everything and anything that arises in the judicial circuit. These responsibilities are in addition to the normal duties of a circuit court judge.
Judge Valenciano: As Chief Judge, I perform administrative duties for the Fifth Circuit. In addition, I serve as Senior Family Court judge and am assigned a regular workload of cases. I also participate on numerous committees involving the Judiciary and the bar. • Uniform Child-Custody Jurisdiction and Enforcement Act • Uniform Interstate Family Support Act • miscellaneous cases such as name changes for minors and other types of requests submitted by parties that do not fall within the foregoing categories of cases. We also cover, on a rotational basis, after hours emergency mental health examination and hospitalization calls pursuant to HRS § 334-59(a)(2), governing the initiation of emergency admissions to a psychiatric facility. At this time there are four judges assigned to the Juvenile Division, three judges assigned to the Special Division, and three judges assigned to the Domestic Division. Each division has a Lead Judge who provides direct oversight of the division’s court calendars. Our judges also preside over the Girls Court, Juvenile Drug Court, Family Drug Court, Zero to Three, Imua Kakou and Truancy Court Specialty Courts, which were established to address specific issues in vulnerable segments of our community. Among my other duties and responsibilities, I preside over juvenile waiver hearings, child support appeals 10 November 2020
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and other court calendars; meet monthly with all of the full-time and per diem judges; meet as regularly as schedules permit with various agency and stakeholder groups; help to organize our annual Family Court Symposium, a training and planning conference we hold each fall which includes the statewide Family Court judges and administrators; schedule other training sessions for the judges on topics that are pertinent to our court calendars; interface with different Family Court units or sections to implement or streamline procedures relating to our court operations and to resolve issues; chair the four-judge Committee to Evaluate Qualifications of Per Diem Judges in the First Circuit; and participate in Family Court related activities and events.
Judge Bissen: It is my duty is to look out for the health and safety of all employees and court users who work in and enter into any of our circuit, district or family courts in the Second Circuit and to promote access to justice by implementing the policies set forth by the Chief Justice by meeting with and working with the
3. During a typical month how much of your time is devoted to carrying out your duties as Chief Judge?
Judge Browning: I devote at least 70% of my time to my duties as Chief Judge.
Judge Kawamura: I preside over administrative hearings and the mental health calendar four days a week. My out of court time is devoted to either administrative duties or the conducting of court duties assigned to the Criminal Administrative Deputy Chief Judge.
Judge Castagnetti: My foreclosure hearing motions and conferences are typically scheduled every Tuesday, Wednesday, and Thursday in the morning. When I am not in court or in a conference, my time is spent reviewing and preparing for hearing motions, disposing of non-hearing motions, ex parte motions, reviewing and signing foreclosure related orders, notary bond approvals, CAAP matters, as well as my civil administrative duties, such as committee work and meetings, and attending
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Robert B.
weekly or monthly judiciary related meetings.
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Judge Kuriyama: The majority of my time is devoted to carrying out my duties as Deputy Chief Judge/Senior Judge.
For Early Case Evaluation, Arbitration and Mediation
Judge Bissen: Probably 50%.
Judge Kim: During this pandemic period most of my time is devoted to administrative matters. I was appointed Chief Judge for the Third Circuit on July 1, 2020. During this time there were no jury trials. I anticipate that when jury trials resume my time will be evenly devoted to court and administrative duties.
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Judge Valenciano:
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The time varies depending on the needs of the Fifth Circuit, committee activities, and meetings. Since late February, a much greater percentage of my time has been devoted to leading us through this pandemic, including the necessary adjustments we have made to ensure justice is served in our community, while keeping our employees and court users safe.
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4. Do you and the other Chief Judges confer with each other, and, if so, what are the usual topics?
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Judge Browning: Since the beginning of the pandemic, the Chief Judges of all the Circuits generally confer on a weekly basis. I confer with the Deputy Chief Judges of our circuit every day.
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Judge Kawamura: Yes. All of the First Circuit Chief Judges/Deputy Chief Judges confer on a regular basis. At a minimum these meetings take place one a week; however, during times of crises they occur several times a week. Prior to the COVID-19 outbreak our meeting agendas mainly
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revolved around the state of the Judiciary and the First Circuit in general, including but not limited to human resource, project management production, operational issues, judicial training, and judiciary information management system (“JIMS”) issues.
Judge Castagnetti: The chief judge, deputy chief judges, the chief court administrator, and deputy chief administrators meet weekly; however, depending on the circumstances and pressing issues, we may hold additional meetings, if necessary. Topics can range from court operations, special projects for the district, family and circuit courts, and human resource and management issues. As the coronavirus situation worsened, we have met much more frequently since February as we had to prepare plans to modify our operations and issue emergency orders as necessary. One thing that really helps in all of our meetings is just how well we all work together. Chief Judge Browning has done an excellent job setting the right tone and providing strong leadership for the First Circuit. Chief Judge Browning, along with Deputy Chief Judges Shirley Kawamura, Christine Kuriyama, and Melanie May, and our court administrators are a pleasure to work with and true professionals who have worked tirelessly through this pandemic to keep our courts operational as much as possible.
meeting more often to discuss our court operations and continuation of our court hearings while doing our best to ensure the safety and well-being of our court users and our staff.
Judge Bissen: I confer with my fellow Chief and Deputy Chief Judges on a variety of subjects ranging from policies, procedures, and personnel issues. I seek their advice and ideas on matters they may have previously dealt with.
Judge Kim: Yes. Chief Judges confer with other Chief Judges, especially between the neighbor island circuits. I also confer with the Deputy Chief Judge in the Third Circuit. In all cases, we discuss issues as they arise. Since July 1, most of the discussions center on the impacts of COVID-19, and how to keep everyone safe from exposure.
Judge Valenciano: Yes, the Chief Judges do confer with one another, more so since the pandemic hit. I have found it helpful to share ideas and talk through the issues confronting our courts with my colleagues. I also regularly confer with Judge Michael Soong, Deputy Chief Judge, and with the Kauai administrators, on a daily basis. 5. How has the COVID-19 pandemic affected your courts?
Judge Kuriyama: The First Circuit Deputy Chief Judges meet weekly with First Circuit Chief Judge Mark Browning and the First Circuit Chief Court Administrator and Deputy Chief Court Administrators for the District and Family Courts to discuss a variety of issues that need to be addressed. Judge Browning has provided each of the courts with guidance and support as we are called upon to adjust to ever-changing circumstances. At this time, in light of the COVID-19 pandemic, we have been 12 November 2020
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Judge Browning: Obviously, the pandemic has greatly affected our courts. First, jury trials have had to be suspended. Second, the vast majority of hearings and/or proceedings are now conducted virtually, or by telephone. There has been a lot of shifting and maneuvering that we have all had to do as we navigate these difficult times.
Judge Kawamura: Since the first stay-at-home order issued in March, there have been a number
of changes in the way we conduct criminal cases here in the First Circuit at Ka‘ahumanu Hale. Jury trials have been postponed until December. In addition, at this time we have postponed all grand jury proceedings until such time as we can accommodate those proceedings while complying with the Department of Health (“DOH”) and Centers for Disease Control (“CDC”) guidelines. All essential hearings where court rules and statutory and/or constitutional provisions dictate certain time deadlines and/or a requirement of an in-person proceeding continue to be conducted in a face-to-face manner. However, these hearings are staggered to comply with social distancing mandates. Our courtrooms have been outfitted with plexi-glass around the witness box. Currently, the hearings that must be conducted (and are considered essential) include arraignments, extradition hearings, initial appearances in felony cases, preliminary hearings, bail hearings, and various hearings required under Chapter 704 of the Hawaii Revised Statutes. Where we are able to conduct these hearings via video conference, we are doing so. For example, all of our procedural motions are now conducted via video conferencing via either the Zoom or Webex platform. However, there are a number of hearings that require constitutional considerations where substantial rights of the defendant are involved, and these simply cannot be done via video conferencing unless all parties agree. This is an ever changing model, and we are constantly working with all stakeholders involved to conduct the required business of the court while prioritizing the safety of the public, the parties, and the Judiciary employees.
Judge Castagnetti: For civil proceedings in circuit court, we have substantially increased the use of remote technology to conduct court business in the civil divisions. Since May, the majority of court hearings and
conferences have been conducted via video (Webex) and/or by telephone. Evidentiary hearings and one bench trial have been conducted entirely by video. In-person hearings and conferences are rare. Jury trials, on the other hand, have been postponed until at least December in the First Circuit. When we will be able to resume jury trials remains to be seen. Overall, the circuit civil divisions have been able to keep our courts open, just not in person, and to keep civil cases moving forward.
Judge Kuriyama: As you can imagine, COVID-19 has affected the court’s operations and procedures in significant and unprecedented ways. Court hearings and deadlines have been continued, delayed, or extended pursuant to government and Judiciary orders to ensure the safety of our community. Court operations have changed to ensure the safety of those who must appear in person. Under current emergency orders that have been issued by the Chief Justice and First Circuit Chief Judge, the majority of our court hearings are being held remotely, we are staggering our hearings for those who must appear in person to minimize the number of individuals who are present in the waiting areas outside the courtrooms, we are following CDC and DOH protocols in terms of social distancing in our courtrooms and throughout the courthouse, the wearing of face masks for court users and our staff, and the placement of touchless hand sanitizer dispensers in our public and staff areas. We will continue to respond accordingly to changing circumstances to ensure the safety of the community and that the needs of our court users are properly addressed.
Judge Bissen: The impact of the COVID-19 pandemic is an increase in remote and videoconferencing hearings and an
increased awareness of cleaning and disinfecting our offices, workspaces, and common areas in all of our courthouses.
Judge Kim: Except for World War II, there has never been a disruption of our courts, communities, and the world like this pandemic. The effects of this pandemic have changed our society in many ways.
Judge Valenciano: The pandemic has had a significant impact on our courts, mainly adjusting the way we conduct business so that employees and court users are kept safe. For example, we have increased the use of technology to conduct remote hearings to minimize the number of people in the courthouse. When people do need to come to court, we have implemented multiple safety measures, following DOH and CDC guidelines. We are doing enhanced health screening prior to entering the courthouse, requiring everyone in the courthouse to wear face coverings, marking the areas where people may sit or stand, and limiting the number of people in a courtroom. Also, we have delayed the resumption of jury trials.
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6. As a result of the COVID-19 pandemic, will there be any permanent changes in the court you administer and, if so, what would those changes entail?
Judge Browning: There may be some permanent changes. As a result of the pandemic, we – the Judiciary – moved into the 21st century. Prior to the pandemic, we did not have the capability to conduct proceedings via Zoom and/or Webex. Now, all our courts are relying on those platforms to operate on a daily basis. The lessons we have learned and the technology we have acquired will allow us to better serve the community and the Hawaii State Bar even after the pandemic ends. November 2020
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Judge Kawamura: It is too early to tell what changes will be permanent, if any.
Judge Castagnetti: Any permanent changes to circuit civil proceedings will be considered at the appropriate time. For now, it is just too early to tell.
Judge Kuriyama: The COVID-19 situation remains fluid, and we do not have sufficient information at this time to say whether any of the changes we have had to implement will be permanent.
Judge Kawamura: Yes, as noted above, currently the Chief Justice holds weekly meetings with all of the circuits to discuss the matters pertinent to the Judiciary.
Judge Castagnetti: Since the pandemic, Chief Justice Recktenwald confers regularly with the chief judges and deputy chief judges from each circuit to discuss our operations and administrative matters. Each circuit is different operationally, and each court faces various challenges in addressing how to keep court staff and users safe.
Judge Bissen:
Judge Kuriyama:
Our remote and videoconferencing hearings could become a common feature in each division of our court structure.
Chief Justice Recktenwald is kept apprised of our court operations by Chief Judge Browning, and the Chief Justice has reached out to me and other Family Court judges if he has specific questions or concerns about a Family Court related matter. The statewide Chief Judges and Deputy Chief Judges meet regularly with the Chief Justice and his administrative staff to discuss various matters that impact the Judiciary, including COVID-19 related issues that may require the courts to modify their operations and procedures. Chief Justice Recktenwald is very inclusive and collaborative and seriously considers all of the comments he receives from his Chief and Deputy Chief Judges.
Judge Kim: Yes. Remote access to the courts will be the new normal for the future.
Judge Valenciano: I believe we will continue to used technology to conduct remote hearings. It has proven to be convenient and efficient for the parties and attorneys, especially those from the neighbor islands who use to spend a lot of time traveling to and from Kauai. 7. Do you as a matter of course confer with Chief Justice Mark Recktenwald about matters relating to your courts? If so, what are typical matters you cover with the Chief Justice?
Judge Browning: I confer with Chief Justice Recktenwald at least a couple times per week. We confer regarding important and pressing matters facing the First Circuit, and with respect to the Judiciary as a whole.
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Judge Bissen: We average approximately one meeting a week with CJ Recktenwald, depending upon issues that arise in our courts. Typical matters are updates on any new policies or changes or reporting on any significant event happening in your respective Circuit.
Judge Kim: The Chief Judges meet regularly with the Chief Justice and his administrative staff. We discuss important matters as they arise. The Chief Justice is very clear that he values the input from
the Chief Judges in making his final decisions. As a circuit court judge I had no idea how much work was involved in administering the Judiciary. The dedication and hard work by our Chief Justice and his administrative team are impressive, and I have only the greatest admiration for their work.
Judge Valenciano: We have regular meetings with the Chief Justice. Most of our meetings focus on improving the Judiciary’s ability to deliver services in a timely and efficient manner. Of course, this year the meetings became more frequent to quickly address the unprecedented challenges brought by COVID-19. The collaboration between the circuits and having the Hawaii State Bar Association (President Greg Frey and Executive Director Pat Mau-Shimizu) actively involved in our Committee on Operational Solutions has given us the flexibility to pivot when needed. 8. Are there any matters under consideration in your court that the bar members should be made aware of ?
Judge Browning: As we all know, the pandemic has created a very fluid situation. As such, I have had to issue Emergency Orders as things have changed. We had planned to begin jury trials in September but given the increase in COVID cases in our community, we have had to delay this. Hopefully, the number of COVID cases will be significantly reduced in the next month to allow us to open our courts to in-person proceedings and jury trials.
Judge Kawamura: Generally, any matters under consideration that would be relevant to members of the bar or the public are discussed at one of the Bench/Bar conferences either prior to or immediately after implementation. In addition, we
have several “stakeholder” meetings with those members of the bar affected by any changes to policy or practice. As for the fluid changes that are necessarily occurring during the current pandemic, those changes in court policy and procedures are being relayed to the members of the bar and the public as they are issued by the Chief Justice and Chief Judge Browning through their emergency orders.
Judge Valenciano: We will continue to use technology as a key tool in court operations. 9. What advice would you provide to members of the bar who practice in your court?
Judge Browning: The attorneys who practice in my court do an excellent job.
Judge Castagnetti:
Judge Kawamura:
Last year, the Civil Justice Improvements Task Force issued its report and recommendations to the Supreme Court about proposed rule changes to improve civil litigation in circuit court. On October 8, 2020, the Supreme Court issued comprehensive amendments to the Hawaii Rules of Civil Procedure and the Rules of the Circuit Courts of the State of Hawaii largely based on the proposals and recommendations of the Task Force. The rule changes take effect January 1, 2021. Members of the Bar who practice in the circuit courts should familiarize themselves with the rule changes, and also take a look at the Task Force report, both of which are available on the Judiciary’s website.
During this pandemic, I would advise that they be flexible and patient as we try to ensure the safety of the parties, the public, and our employees. In other times, my advice has always been to be prepared when practicing in any courtroom.
Judge Kuriyama: The Family Court judges, administrators, and staff appreciate the bar members’ patience and understanding as we navigate through these unprecedented and challenging times, while ensuring that our community continues to have safe and effective access to Family Court.
Judge Bissen: We are working towards restarting jury trials in November 2020.
Judge Kim: Greater utilization of remote access to the courts and preparation for jury trials with the constraints of COVID. Further, the impact of financial constraints on the Judiciary.
Judge Castagnetti: For civil litigation, practitioners should know that matters continue to be heard remotely during this pandemic and period of uncertainty. Judges are available for and holding remote status and settlement conferences. If attorneys want to hold a conference with a court, they should send an email to the judges’ division email address or call chambers to request a conference. Parties and attorneys are encouraged to be flexible as far as discovery. For example, agreeing to conduct depositions by video to keep cases moving forward. As far as general advice, attorneys should do their best to always be prepared for court.
Judge Kuriyama: With input from our full-time judges, here is some advice we have for HSBA members who practice, or are thinking of practicing, in Family Court. Be mindful that as a family law attorney, your work has long-term, lasting consequences for your client and his or her family. You owe a duty to your client, but that should not be used as an excuse to be unreasonable or take unreasonable positions that are not
supported by the evidence just because your client wants you to do so. Family law attorneys have a unique opportunity to truly help people get through the most difficult times in their lives. You also need to be mindful (and often remind your clients) that being unreasonable reduces the financial and other resources available to the client and the client’s family during and after the case. Remember that your reputation is everything. Attorneys who practice in Family Court are part of a very small legal community, and you want to practice in a way that the judges and their staff, your fellow attorneys, and your clients respect you and know that they can rely on you for accurate representations of the facts and the law. Be prepared, know the applicable law, know the facts of your case, be on time to court, follow court rules and procedures, treat everyone (not just the judges) with respect (including clients, opposing parties, opposing counsel, and court staff), and be reasonable in your pleadings, your court positions, and your settlement positions.
Judge Bissen: Please communicate to the Court if you plan to be absent or late for your hearing or if you plan to cancel or modify your calendared hearing. Please do not file an uncalendared motion without permission from the court.
Judge Kim: Remember always to provide two copies of motions/filings to the court in conformity with Rule 7.2(g)(6), Rules of the Circuit Court. This is the biggest mistake by attorneys. If we do not receive copies, your action items will not be decided. Also, secure a good internet system and computer for Zoom access. Always dress appropriately in court attire for court appearances on Zoom.
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H SBA HAP PE NIN GS Board Action The HSBA Board took the following action at its meeting in August: • Adopted the recommendation of the joint Executive-Finance Committee to approve the proposed 2021 Goal Group requests with the addition of $1,000 for the West Hawaii Bar Association for CLE funding; • Voted to approve the new membership benefit with HEMIC in offering a comprehensive package of insurance products for HSBA members; • Voted to approve the recommendations of the HSBA Awards Committee to present awards to the following individuals at the Annual Meeting portion of the virtual Bar Convention on October 16: — Cynthia Tai - Champion for Social Justice Award (for courageous legal work in the face of public controversy that helps to promote the interests of justice and preserves the integrity of the Judiciary) — Ian Wesley-Smith - Kie Kie Award (for outstanding provision of professional legal services at no charge to the recipient) — Momi Cazimero - Ikena Award (for outstanding service to the public or profession toward legal education) In addition, the HSBA President’s Award (for extraordinary contributions and lifetime achievement that best exemplify the mission statement of the HSBA) will be presented to: the Attorney and Judges Assistance Program; and the Hawaii Task Force on Lawyer Well-Being.
CLE FAQs What is Hawaii’s CLE reporting period? The annual reporting period for CLE requirements is from January 1 through December 31 of the calendar year.
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What is Hawaii’s ethics CLE reporting period? The current three-year reporting period for the RSCH 22(b) ethics requirement is January 1, 2018 through December 31, 2020. Note: It is recommended that compliance with CLE requirements be completed before the 2021 annual licensing registration which begins on December 1, 2020. Where may I find CLE courses to meet CLE requirements? (1) HSBA Sponsored Live Seminars and On-Demand Webcasts: Visit www.hsba.org under the Events and Programs tab/Continuing Legal Education for live programs and webcasts. (2) HSBA Accredited Providers and HSBA Approved Jurisdictions: Visit www.hsba.org under the Events and Programs tab/Mandatory Continuing Legal Education/Accredited Providers and Approved Jurisdictions for a list of Accredited Providers and information on HSBA Approved Jurisdictions in connection with meeting CLE requirements. For additional information contact Debbie Blanton, MCLE Administrator at dblanton@hsba.org.
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(Continued from page 15)
counsel and seek to find patches and/or solutions.
Judge Valenciano: Be prepared to answer questions about your case. You do not need to repeat contents of pleadings, but you can highlight critical points for which you want to advocate. 10. How is the electronic filing system working in your court?
Judge Browning: Fine.
Judge Kawamura: Although there were some growing pains when JIMS was first implemented, I believe the employees and the users of the electronic filing system have settled in well with the system.
Judge Valenciano: We fully utilize JIMS and the electronic filing system. In fact, transitioning civil cases to efiling last October has been very helpful during the pandemic because attorneys can efile rather than have to come to the courthouse. 11. Is the court division you administer able to handle the cases with reasonable dispatch at this time? If not, what is the proposed solution?
Judge Browning: Yes. I run the Probate Calendar, which has continued uninterrupted through the pandemic by utilizing the WebEx platform.
Judge Castagnetti: Overall, the electronic filing system is working very well. With any new system, there are learning curves for users and glitches from time to time, but generally speaking, the system has been a success for members of the civil bar and the Judiciary.
Judge Kuriyama: Other than our Adult Criminal (domestic violence) courtrooms which have been using JIMS successfully over the past several years, Family Court has not yet converted to the electronic filing system used by the other courts. We will be the last statewide court to implement JIMS, beginning with our civil calendars in the spring of 2022 and followed by our statewide juvenile calendars in the spring of 2023.
Judge Bissen: The EFS is working well most of the time in my courtroom.
Judge Kim: We are moving further toward paperless in our respective courts. We need to be able to listen to the issues from 18 November 2020
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Judge Kawamura: Yes, our division meets the required deadlines and suggested timetables for the various duties we perform. Especially in these times, the staff is dedicated to ensuring the continued operation of our courts while keeping in mind the safety of the public, the parties, and our employees.
Judge Castagnetti: Yes, the civil judges in the First Circuit are handling their cases and presiding over matters remotely to keep cases moving forward. As I mentioned, evidentiary hearings, for example, probable cause hearings on mechanics’ liens, and preliminary injunction motions have been and will continue to be handled remotely by video. Bench trials and settlement conferences are proceeding as scheduled and are conducted remotely by video as well. As for jury trials, we will be resuming jury trials once it is determined they can be safely conducted and in accordance with CDC and DOH guidelines.
Judge Kuriyama: I believe the Family Court has adapted as well as can reasonably be expected to the COVID-19 circumstances. This has necessitated compliance not only with the State and City and County mandates, but as your readers know, with the various emergency orders that have been issued by Chief Justice Recktenwald and Chief Judge Browning. Our judges are hearing the majority of their cases remotely, and hearings that are being held in person are staggered to allow for appropriate social distancing both in the courtroom and in the waiting areas outside the courtrooms. Hearings that had to be rescheduled when our court operations initially were suspended for two months in late March were rescheduled, and the judges have worked diligently to address any calendar backlogs. With the exception of our Adult Criminal (domestic violence) courtrooms, where jury trials have continued to be suspended under orders issued by the Chief Justice and First Circuit Chief Judge based on COVID-19 considerations, the judges in each division are generally current with their cases and are continuing to schedule as many hearings and trials as their court calendars are able to accommodate on a daily and weekly basis.
Judge Bissen: I believe we are handling our cases in a timely fashion, at least so far.
Judge Valenciano: We continue to schedule cases. Aside from jury trials, we are conducting regular court hearings. 13.
Any other comments?
Judge Browning: I truly appreciate the cooperation and the assistance of the Hawaii State Bar Association. I hope that all of you and your families remain healthy and safe.
Solutions Start Here Judge Castagnetti: Thank you for the opportunity to answer your questions and address any pressing questions from members of the bar.
Judge Bissen: Thank you for the cooperation and patience from all members of the Hawaii State and Maui County Bar Associations during these challenging times
Judge Kim: Yes. We will take all precautions to protect our citizens from the pandemic.
Judge Valenciano: No, other than to say thank you for the opportunity. STATE DISTRICT COURTS The District Court deputy chief judges who were interviewed are Judge Melanie M. May, Judge Blaine J. Kobayashi, Judge M. Kanani Laubach, and Judge Michael K. Soong.
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1. Please provide a short biography of yourself for our readers.
Judge Melanie M. May: Born and raised in Hawaii, I am a proud product of the public-school system. After graduating from Kaiser High School, I obtained my undergraduate degree from Santa Clara University and my law degree from Hastings. I served as a law clerk to the Honorable Daniel Heely, the Honorable Elwin Ahu, and the Honorable Kevin S.C. Chang, who instilled in me the importance of commitment, resilience, and service to the community on and off the bench. Following my clerkship, I joined Marr Jones & Pepper (which is now Marr Jones & Wang) as an associate for five years, and as a partner for nine years. In 2011, I was appointed to the District Court by Chief Justice Mark E. Recktenwald. While on the bench, I have presided over civil, criminal, and traffic matters, and served as the DWI November 2020
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Court judge from 2017-2020. I became the Deputy Chief Judge of the District Court of the First Circuit shortly before the COVID-19 pandemic began. Off the bench, I am actively involved with Make-A-Wish Hawaii and HUGS, both of which serve local families and children with critical and lifethreatening illnesses.
Judge Blaine J. Kobayashi: I was born and raised in Kapaa, Kauai. I am a proud graduate of the public-school system, graduating from Kapaa High School. I furthered my education at the University of Hawaii at Manoa, where I obtained a bachelor’s degree in communications. After realizing that I could not have my dream job as a sportscaster, I decided to go to law school in Eugene, Oregon, where I graduated from the University of Oregon School of Law. I returned to Kauai, where I worked as a Deputy Prosecuting
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Attorney for several years, and later, as a Deputy County Attorney for several more years. I then moved to the island of Maui (which is where my mother was born and raised) where I worked as a Deputy Corporation Counsel for several years. I left the Corporation Counsel’s office to enter private practice with the law firm of Carlsmith Ball LLP. After several years in private practice, I had the great fortune of being appointed to the bench by Chief Justice Ronald T.Y. Moon (Ret.) and began my term on October 12, 2010. My better half, Nichole, and I have four children as well as four animals. In my spare time, I enjoy fishing, golfing, and pretty much doing anything outdoors.
Judge M. Kanani Laubach: I was born and raised in Hilo, Hawaii. My parents are Gilbert and Dolores Bugado. I graduated from the University of Hawaii at Manoa with a
bachelor’s degree in psychology in 1998. I then graduated from Chaminade University of Hawaii, where I received my master’s degree in counseling psychology in 2000. In 2003, I graduated from the William S. Richardson School of Law and was admitted to the Hawaii State Bar the same year. I served as a Deputy Prosecuting Attorney with the City and County of Honolulu and then the County of Hawaii. I left the Prosecutor’s office in 2011 and entered private practice. I was appointed by Chief Justice Mark E. Recktenwald and began my term on August 10, 2016.
Judge Michael K. Soong: I was born in Honokaa, Hawaii, and raised in Kailua on Oahu. I attended Kamehameha Schools K-12. I received my B.S. degree in Accounting and Business Administration from the University of La Verne, in California, and J.D. degree from Southwestern
University School of Law in Los Angeles, California. I have worked as a Deputy Corporation Counsel for Hawaii County, a Deputy Public Defender, a Deputy Prosecuting Attorney for the County of Kauai, and served as the elected Prosecuting Attorney for two terms. I also worked in private practice for approximately 15 years, before being appointed to the District Court by Chief Justice Mark E. Recktenwald in 2016. I live in Kapaa, Kauai, with my wife Liana, where we have raised seven children. 2. What are your duties as Deputy Chief Judge of your court?
team to ensure that cases are processed efficiently, addressed fairly, and resolved timely at each of the First Circuit District Courts (the Honolulu District Court, the Ewa District Court, the Kaneohe District Court, the Wahiawa District Court, and the Waianae District Court). The most rewarding part of my position is overseeing and working with the judges and per diem judges assigned to the District Court. Individually, each of these judges are talented, accomplished, and passionate; collectively, they are an amalgamation of the breadth and depth of our legal community and reflect the diversity of the community at large.
Judge May:
Judge Kobayashi:
As Deputy Chief Judge, my primary responsibility is to support the Judiciary’s mission at the District Court level. I work closely with Chief Judge Mark Browning and the First Circuit leadership
Being relatively new to the position of Deputy Chief Judge, my primary duty is to ensure that the District Court runs as efficiently as possible. To ensure that this occurs, I consult regularly with
our Chief Judge, fellow District Court Judge, Per Diem Judges, and the administration to address any issues or concerns. I also welcome any suggestions from the Maui County Bar Association, government, and private attorneys. My other duties include presiding on various calendars (traffic, criminal, civil, small claims, and TROs) every day of the week, as well as serving on various Judiciary related committees.
Judge Laubach: My duty as Deputy Chief Judge of District Court is to make sure that the District Court runs smoothly. I communicate with our Chief Judge, District Court Judges, Per Diem Judges, and administration to make sure that any issues or concerns are taken care of. I also am on a number of committees that help further Chief Justice Recktenwald’s mission for the Judiciary. At the forefront right now is finding solutions that will
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enable court to effectively function, but in a manner that is safe for everyone.
Judge Soong: The overall responsibility as Deputy Chief Judge is to ensure that the District Court system runs smoothly and that we are providing the best possible service we can to those who use the District Court system. 3. During a typical month how much of your time is devoted to carrying out your duties as Deputy Chief Judge?
Judge May: Currently, 95 percent of my work is typically devoted to carrying out my duties as Deputy Chief Judge. Having been on the job for eight months, COVID-19 has been my “normal” as opposed to “the new normal.”
Judge Kobayashi: It is difficult to tell you exactly how much of my time is devoted each month to carrying out my duties as Deputy Chief Judge. I have never had the time frankly, to sit down and figure that one out! All I will say is that every one of my workdays are filled!
Judge Laubach: Prior to COVID-19, I would spend anywhere from fifteen to twenty-five hours a month carrying out my duties as Deputy Chief Judge. Since March 2020, I average anywhere from thirty to forty-five hours a month. Every day is different and comes with a new challenge. This has become a new normal for me in addition to managing a full docket and my other duties as a District Court Judge.
Judge R. Mark Browning meets with all of the First Circuit Deputy Chief Judges (Judge Jeanette Castagnetti, Judge Shirley Kawamura, Judge Christine Kuriyama, and myself) at least once a week, and more frequently as required. During the past six months, COVID-19 has been the focus of our discussions; topics have included enhanced safety and screening measures, physical modifications to courtrooms and work spaces, implementation and expansion of remote court hearings, teleworking, and plans for the recommencement of jury trials when public health conditions permit. The Deputy Chief Judges for each of the District Courts (Judge Michael Soong, Judge Michele Laubach, Judge Blaine Kobayashi, and myself) typically meet once a week. During the past six months, COVID-19 has been the focus of our discussions; among other things, we have exchanged ideas for social distancing for high-volume courts, compared experiences with remote hearings on different videoconferencing platforms, and shared information about mediation services available during the pandemic, rent relief programs, and other community resources.
Judge Kobayashi: I have a wonderful relationship with the other Deputy Chief Judges from the First (Melanie Mito May), Third (Michelle “Kanani” Laubach), and Fifth (Michael Soong) circuits. We confer on a weekly basis to discuss issues of concern in our respective circuits and share any ideas which may help one another. I also meet on an as-needed basis with Chief Judge Richard Bissen, who has provided great leadership for our circuit and has seamlessly continued the fantastic work of Judge Joseph Cardoza (Ret.).
Judge Soong: I would estimate 40% of my time is spent on administrative duties, and 60% is spent on non-administrative duties. 4. Do you and the other Deputy Chief Judges confer with each other, and, if so, what are the usual topics?
Judge May: Yes. Within the First Circuit, Chief 22 November 2020
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Judge Laubach: Yes, I do confer with the other Deputy Chief Judges. We have a weekly Zoom meeting. At our weekly meeting we discuss any issues that have come up such as remote hearings and the upcoming eviction crisis. We also communicate via email and text. It has been very helpful to confer with Deputy Chief Judges Melanie May, Blaine Kobayashi, and Michael Soong.
Judge Soong: The four Deputy Chief Judges have a weekly Zoom meeting where we discuss issues that each of us may be facing. We all offer to support to each other however we can. In addition to the weekly meetings, rarely a day goes by where I do not email Judge May, Judge Laubach, or Judge Kobayashi, to discuss topics with them. In addition to the Deputy Chief Judges, I often reach out to the other District Court Judges throughout the state for advice and suggestions. There is a lot of experience and knowledge with the District Court Judges throughout the state. 5. How has the COVID-19 pandemic affected your courts?
Judge May: COVID-19 has had a profound impact on District Court. Prior to COVID-19, it was not uncommon for hundreds of people from all walks of life to appear in our courtrooms, sitting shoulder to shoulder or standing in the back of the courtroom on particularly heavy days. Now, most of those courtrooms are completely empty, other than a judge and court clerk addressing hundreds of people on Zoom. The District Court takes pride in being “the people’s court,” and the District Court staff has always excelled at meeting the needs of the public. COVID-19 has required us to find other means of doing so. Some of the changes implemented at District Court during COVID-19 have included: • Enhanced screening, safety, and sanitization measures • Expansion of services at the Information Booth at the Honolulu District Court • Electronic document drop off services (described more fully below) • Remote hearings through videoconferencing for defendants in the custody of the Honolulu Police Department, the Oahu Community Correctional Center, and the Hawaii State Hospital through videoconferencing
• Remote hearings through Zoom for many criminal and traffic matters, including arraignment and plea, compliance hearings, status conferences, pretrial conferences, non-evidentiary motions, and traffic infraction hearings • Remote hearings through Zoom for many civil matters, including the answer calendar, pretrial conference calendar, settlement conference calendar, and rural court calendars in the Ewa District Court, the Kaneohe District Court, the Wahiawa District Court, and the Waianae District Court • Staggered court times
Judge Kobayashi: It would be an understatement to say that COVID-19 has dramatically affected all courts throughout the State of Hawaii (as well as our entire country). We have had to significantly alter how we conduct the business of court by relying heavily on the use of remote hearings to ensure that the work of the Judiciary gets done while still being mindful of the health and safety of our staff as well as members of the public who enter our facilities. I would be remiss if I did not mention how unbelievably awesome everyone (administrative staff, clerks, bailiffs, legal documents staff, traffic violations staff, and custodians) has been during these unprecedented times. Each one of them has done an amazing job in their own special way, and there really is no way that I can ever thank them enough for all they have done. I feel truly blessed to be surrounded by such wonderful human beings.
Judge Laubach: COVID-19 has changed the way the District Court conducts hearings. In order to be able to maintain social distancing in the courthouse we have implemented signage and staggered the times of the hearings. The amount of the people allowed in the courtroom has been significantly reduced. Due to these changes to increase public safety more court staff are needed to monitor social distancing and conduct increased cleaning which has been difficult with the budget cut. The District Court has also November 2020
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implemented the use of Zoom hearings and telephone appearances are granted.
relating to your courts? If so, what are typical matters you cover with the Chief Justice?
consideration in your court that the bar members should be made aware of ?
Judge Soong: District Court of the Fifth Circuit was closed from March 16 through May 31, 2020, except for emergency type hearings. This created a backlog of cases that has taken several months to clear. Many calendars were two or three times the normal size, and we had to make adjustments to handle those calendars. We resumed in-person proceedings on June 1, 2020, with social distancing procedures and greater use of remote hearings. 6. As a result of the COVID-19 pandemic, will there be any permanent changes in the court you administer and, if so, what would those changes entail?
Judge May: One of the lessons COVID-19 has taught us is that nothing is permanent, and that change is vital to the success and sustainability of any organization.
Judge May:
Judge Kobayashi:
Yes. Chief Justice Mark Recktenwald regularly meets with all the Chief Judges and Deputy Chief Judges. During COVID-19, these meetings have occurred approximately once a week and have focused on the Judiciary’s response to the pandemic.
Bar members should regularly visit the Judiciary’s website, which contains all the latest court orders that impact Judiciary operations as well as the many resources available to assist their clients. Please call the court staff if you have any questions or concerns.
Judge Kobayashi:
Judge Laubach:
The Chief Judges and Deputy Chief Judges from each circuit regularly confer with Chief Justice Recktenwald and his administrative staff to discuss and address any issues of concern from an operational standpoint. Chief Justice Recktenwald and his administrative staff have worked tirelessly throughout the pandemic, and are genuinely concerned about the health, safety, and welfare of not just judges and Judiciary staff but also the members of the public who interact with the Judiciary.
We as a community need to be aware of the upcoming eviction crisis. I have met with community partners on the Big Island to address this concern. The bar should be aware of the resources available in the community. Mediation is available through Kuikahi Mediation Center (808-9357844) and West Hawaii Mediation Center (808-885-5525).
Judge Laubach: Judge Kobayashi: At this stage, it is still too early to say whether there will be any permanent changes once the pandemic is over. Time will tell.
Judge Laubach: It is too early to say if changes made will be permanent. I foresee that the use of Zoom will definitely be continued. This may cause litigants and attorneys to verify they have the application on their mobile device. Staggering court times does allow for less people to be in the courthouse at the same time and has helped tremendously.
Judge Soong: There has been a much greater use of remote hearings during the pandemic. I see this continuing past the pandemic as it seems to be convenient and popular with attorneys and the courts. 7. Do you as a matter of course confer with Chief Justice Mark Recktenwald about matters 24 November 2020
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Since COVID-19, I, along with all the Deputy Chief Judges and Chief Judges, confer with Chief Justice Recktenwald and his administration. Sometimes we meet weekly; it depends. We meet to discuss the operational plans during COVID-19 and any issues or concerns that have come up that the Judiciary needs to address. We do not discuss cases. Chief Justice Recktenwald is easy to talk with and shows genuine concern for all.
Judge Soong: There are regularly scheduled meetings with the Chief Justice and his administrative staff, the Chief Judges, and the Deputy Chief Judges to discuss matters of statewide concern. During the pandemic, we have used these meetings to share progress and procedures that are being used to address this situation. The Chief Justice’s administrative staff also provides valuable and greatly appreciated assistance on administrative matters and new issues as they arise. 8. Are there any matters under
Judge Soong: We are looking forward to rolling out Online Dispute Resolution for Civil Small Claims cases. 9. What advice would you provide to members of the bar who practice in your court?
Judge May: Attorneys should be professional, prepared, and mindful of the fact that their conduct in District Court directly influences the public’s perception of the legal profession. The vast majority of litigants in the District Court are unrepresented and will takes cues from attorneys — even attorneys appearing in cases completely unrelated to their own cases — about how to proceed when it is time for them to address the court.
Judge Kobayashi: My advice would be to always be prepared, always be professional, and always be respectful and courteous to everyone that you interact with.
Judge Laubach: The best advice I can give that will help you no matter which Judge you are in front of is to be prepared.
Judge Soong: Be prepared. Be professional. As a member of the bar, your credibility is your greatest asset. 10. How is the electronic filing system working in your court?
Judge May: Electronic filing through the Judiciary Information Management System (“JIMS�) has been successfully implemented for all District Court criminal, traffic criminal, and civil cases. To expand electronic filing services to pro se litigants, the District Court of the First Circuit has implemented an electronic document drop off service. This service allows pro se litigants to electronically submit documents, without being a JEFS user. The document drop off service is also available to attorneys and pro se litigants in traffic infraction cases. Information about the Court Document Drop-Off service is available at: https://www.courts.state.hi.us/legal_ references/efiling. During COVID-19, JIMS and eCourt Kokua have provided electronic access to documents in thousands of cases heard through remote proceedings that would have otherwise changed hands in paper form in the courtroom.
Judge Kobayashi: Electronic filing has been amazing, and kudos must go out to all who played a part in creating and implementing it. With the simple click of the mouse, the entire case file is in front of you, and as a judge, it has certainly made my job so much more efficient.
Judge Laubach: The electronic filing system is amazing. The ability to have a digital file makes court time more effective. Gone are the days of a paper file in the District Court. Now all it takes is a computer and a case number.
Judge Soong: Electronic filing is working well. The attorneys seem to like the convenience of electronic filing, and everyone has adapted to the system.
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11. Is the court division you administer able to handle the cases with reasonable dispatch at this time? If not, what is the proposed solution?
Judge May: During COVID-19, District Court filings have grown exponentially. For example, over 8,000 Emergency Order violation cases were created as of early August, adding to the already heavy criminal dockets. In addition, we anticipate that summary possession cases will be filed en masse when Governor David Y. Ige’s eviction moratorium is lifted. Although caseloads have increased significantly, court resources have not. The District Court has been working with stakeholder groups to explore solutions to address the growing dockets in an orderly and efficient manner. While there are no easy answers, there is a shared understanding that we are in this together and committed to doing the very best that we can with the cards that COVID-19 has dealt.
Court Administrator Lester Oshiro, Deputy Chief Court Administrator Cheryl Salmo, Deputy Chief Court Administrator Dawn West, and their respective departments. After implementing changes, we were able to re-open District Court on June 1, 2020 and hear cases. The use of Zoom will also aid in disposing cases in a timely fashion.
Judge Soong: As mentioned above, the closure of the court for COVID-19, created a backlog of cases that has taken us a few months to address. For the most part, the backlog has been addressed, and we are back to normal time frames for processing cases. 12. Any other comments?
Judge May: Yes. Zoom meeting numbers for the District Court are currently posted on the Judiciary’s website at: https://www.courts.state.hi.us/wp-content/uploads/2020/07/Zoom-MeetingNumbers_REV-7-10-2020.pdf.
Judge Kobayashi: I believe we have been able to handle all of our cases very efficiently despite the pandemic. We are able to accomplish this because of the tireless planning and work of those I previously mentioned. District Courts, commonly referred to as “the People’s Court,” have always had tremendous caseloads, and there is significant pressure on each District Court Judge to make sure we finish our daily docket yet be able to patiently give people their day in court which they rightfully are entitled to. COVID-19 and the need to have remote hearings, socially distance people, limit the amount of people in our courthouse, etc., has only added to that pressure for District Court Judges and staff.
Judge Kobayashi: These are stressful and anxious times for everyone, especially if you must come to court. I want the members of the public to know that the Judiciary is trying to do everything it can to ensure that your health and safety is protected as much as possible. Please be patient and kind to one another, and I know that working together, we will all get through this. Please stay safe and take care of each other.
Judge Laubach: Court can be stressful. Now with the addition of COVID-19 it has not helped. We all need to remember to be kind to one another, and we will get through this, together. Please take care of each other and stay safe.
Judge Laubach: The handling of the court docket is very important to me. In the Third Circuit we have an amazing team led by Chief Judge Robert D.S. Kim, Chief
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Judge Soong: Stay safe. Stay healthy. We are all in this boat together.
CA SE NOTES Supreme Court Criminal State v. Hosaka, No. SCWC-0000716, August 28, 2020, (Recktenwald, C.J.). In 2016, police arrested Troy Hosaka for Habitually Operating a Vehicle Under the Influence of Intoxicants (Habitual OVUII). After his arrest, a Honolulu Police Department (HPD) officer read Hosaka the Department’s implied consent form (HPD-396K) advising him of his right to refuse testing and explaining that Hosaka “may [] be subject to the procedures and sanctions under [Hawai i Revised Statutes (HRS)] chapter 291E,” if he refused. Hosaka signed and initialed the form, electing to take a breath test. Hosaka sought to suppress the breath test results, arguing that his consent was not knowing, intelligent, and voluntary because the form did not comply with the implied consent statutory scheme governed by Hawaii Revised Statutes Chapter 291E and is inaccurate as a result. The Hawaii Supreme Court concluded that HPD’s implied consent form complied with Haw. Rev. Stat. Chapter 291E and was accurate. Moreover, even if the form had been inaccurate, non-compliance with the implied consent statutory scheme does not automatically mandate suppression — suppression is only warranted where an arrestee did not validly consent to chemical testing. While an inaccuracy in an implied consent form is a relevant factor to consider, whether consent is knowing, intelligent, and voluntary must be determined by looking to the totality of the circumstances. Consent can be invalid if the inaccurate information conveyed is reasonably likely to influence an arrestee’s consent, in which case the consent is not knowing or intelligent; or it can be invalid because it was coerced, in which case the consent is not voluntary. In both situations, the question is whether the consent was valid, not whether the form complied
Appeal Pointer Any point raised on appeal that requires consideration of the oral proceedings requires that the transcript be made part of the record. HRAP 10(b)(1). A transcript obtained during the course of the trial court proceeding for the personal use of the litigants is not made a part of the record. Therefore, a separate request for the transcript of a proceeding for the record on appeal must be filed with the clerk of the court. HRAP 10(b)(1). A filemarked copy of the request must be delivered or mailed to the reporter. HRAP 10(b)(1)(D). Unless the appellant is exempt from the transcript payment or deposit requirement or the reporter has waived such payment, the reporter need not commence preparation of the transcript until payment has been made. HRAP 10(b)(1)(C). with every technical requirement in the implied consent statutory scheme. Here, because the totality of the circumstances showed that Hosaka validly consented to a breath test, the breath test results were admissible.
Intermediate Court of Appeals Criminal State v. Rosa, CAAP No. 180000592, August 31, 2020, (Leonard, J.). The principal issue in this case concerned whether the warrantless seizure of the defendant’s cellular phone, incident to his warrantless arrest, was a violation of his constitutional protection against unreasonable searches and seizures because his warrantless arrest was illegal under Hawaii law. Based on the applicable statutes and case law, the ICA held that: (1) the defendant’s warrantless arrest was unlawful where probable cause for his arrest was established nineteen days earlier, the police knew his identity and the location of
his residence and even served him with a subpoena to appear in court, and the police had no obstacles preventing them from making an arrest or obtaining an arrest warrant, but delayed in making the arrest because the lead officer was busy with other cases and for strategic reasons; (2) the fact that probable cause was established by way of evidence other than a police officer’s personal observations did not negate the immediacy element of a lawful warrantless arrest; (3) because the defendant’s arrest was illegal, the seizure of his cellular phone was not incident to a lawful arrest; and (4) as the trial court did not reach the issue of whether the evidence obtained from the defendant’s cellular phone would have been inevitably discovered, it was necessary to remand this case for further proceedings to determine whether that evidence should have been suppressed. The ICA also concluded that the trial court did not abuse its discretion in denying the defendant’s request for a new trial.
Elections State v. Nago, No. CAOT-200000528, September 3, 2020, (Leonard, J., with Hiraoka, J., concurring in part and dissenting in part). Plaintiff (the State) filed a complaint for injunctive relief naming the State’s Chief Election Officer as defendant (Nago). The complaint concerned a special election to fill a vacant seat in the Hawaii Senate. The parties did not agree on the proper method to advance the candidate filing deadline and therefore, asked the ICA to determine: (1) Whether Haw. Rev. Stat. § 17-3(b)(3) and Haw. Rev. Stat. Ch. 15D conferred discretion on Nago to advance the candidate filing deadline; and (2) If Nago did not have the discretion to advance the candidate filing deadline, whether the AG may obtain an injunctive or other equitable relief pursuant to Haw. Rev. Stat. § 15D-17 that would effectively advance the candidate filing deadline for the special
election. The ICA held that Nago did not have the discretion to unilaterally advance a candidate filing deadline, but that construing the applicable statutes with reference to each other, there was an alternative means to ensure substantial compliance with Haw. Rev. Stat. Chapter 15D. The ICA denied the Attorney General’s request for injunctive relief but granted other equitable relief, including a declaration that the subject statutes must be construed with reference to each other and in a manner to ensure that ballots and balloting materials for the City and County of Honolulu, including for the special election to fill the vacant Senate seat, were transmitted no later than September 18, 2020, and instructions to Nago to accept the nomination of party candidates and the nomination papers of nonpartisan candidates for the special election not later than 4:30 p.m., Saturday, September 5, 2020. Hiraoka, J., concurred in part and dissented in part. Hiraoka, J., concurred that Nago did not have discretion to unilaterally advance the filing dates prescribed by Haw. Rev. Stat. § 17-3(b)(3). Hiraoka, J. also concurred that under Haw. Rev. Stat. § 15D-17, the ICA could grant the Attorney General’s request for equitable relief to clarify directory language in the election statute, in this case, concerning deadlines for political parties. However, in absence of a constitutional challenge, Hiraoka, J. stated that the ICA did not have authority under Haw. Rev. Stat. § 17-3(b)(3) to grant equitable relief contrary to the plain and unambiguous mandatory language of Haw. Rev. Stat. § 17-3(b)(3). Hiraoka, J. would hold that Haw. Rev. Stat. § 173(b)(3) mandated that nonpartisan candidates be allowed to file nomination papers for the Senate special election until September 24, 2020, and that the Attorney General was not correct that such a ruling would result in irreparable damage.
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COURT BRIEFS Chief Justice Recktenwald Retained
Chief Justice Mark E. Recktenwald was recently retained by the Judicial Selection Commission for a second term. Associate Justice Paula A. Nakayama administered the oath of office remotely on September 11, 2020, to protect the health and safety of the participants. In his remarks, Chief Justice Recktenwald said, “I am so grateful to be part of the amazing institution that is the Hawaii Judiciary, and thank the Judicial Selection Commission for giving me the opportunity to continue to serve.” He went on to say how proud he is of the work done by the judges, Judiciary staff, and his personal staff, who all give their heart and soul to the Judiciary each day and expressed his appreciation for the resourcefulness and innovation demonstrated in response to the pandemic. He also thanked his family “for being the foundation of everything I do.” His new term is September 14, 2020 to September 13, 2030.
Judiciary History Center Webinars Now Online The King Kamehameha V Judiciary History Center began hosting a series of live webinars in April. Videos of the presentations are now available for viewing on the History Center’s YouTube channel at: https://www.youtube.com/user/jhchawaii. Recent additions include: “Understanding Filipinos and Racism in Hawaii: History and Experience – September 2, 2020.” Aina Iglesias and Maui attorney Lance D. Collins discuss Filipino identity and community across the islands. The evening challenged common stereotypes 28 November 2020
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and misconceptions. Aina Iglesias is a Waikiki hotel worker, labor and youth organizer, and an Ethnic Studies graduate from the University of Hawaii at Manoa. She was born in Pangasinan, Philippines and moved to Oahu, Hawaii at the age of nine. Lance D. Collins is an attorney in private practice on the island of Maui and holds a Ph.D. in Political Science from the University of Hawaii at Manoa. He publishes and presents on the comparative legal history of Hawaii and the Philippines before and during their American colonial periods.
Seeking Applicants for First Circuit (Oahu) Independent Grand Jury Counsel The Circuit Court of the First Circuit is seeking applications for Independent Grand Jury Counsel for the 2021-2022 term. Compensation shall be as provided by law. To be considered for a one-year appointment, please submit a letter indicating your interest and a resume by December 4, 2020, to: Judge Shirley M. Kawamura, 777 Punchbowl Street, Honolulu, Hawaii 96813.
NOTICE OF DISCIPLINE On September 9, 2020, the Hawaii Supreme Court entered a final order imposing the sanction of disbarment from the practice of law, upon Gary Victor Dubin, of Honolulu, effective Friday, October 9, 2020.1 In its disbarment order the Hawaii Supreme Court found, by clear and convincing evidence, that Dubin, committed multiple serous acts of misconduct. Specifically, in Office of Disciplinary (“ODC”) Case No. 16-O-151, the court found that Dubin knowingly misrepresented the truth in violation of Hawaii Rules of Professional Conduct (“HRPC”), Rule 8.4(c), when he stated in a 2008 application for a mortgage solicitors license that he had not been convicted of a crime within 20 years of the submission date. In ODC Case No. 16-O-147, the 30 November 2020
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court found that Dubin again violated HRPC Rule 8.4(c) by signing the names of his clients, without their permission, to cash a $132,000.00 settlement check made out to them alone, and placing the funds in his client trust account which he controlled. As to that deposit, the court found that Dubin did not immediately inform the clients of the receipt of the funds, and that the late 2015 invoice he issued to the clients was the first billing statement or accounting since the inception of his representation of them in early 2012. As to that 2015 invoice, Dubin asserted $69,702.87 in fees and costs owing, based upon an hourly rate of $385.00 for associates on the case, which the court found unreasonable as it exceeded by $115.00 the hourly rate agreed upon, and because it included charges for one “associate” attorney for work done at a time when that person was not licensed to practice law. The court then, finding violations of HRPC Rules 1.5(a), 1.5(b), 8.4(c) and 1.4(a)(3), concluded that Dubin overcharged the clients a minimum of $19,885.00. In ODC Case No. 16-O-326, Dubin withdrew $3,500.00 of the client’s funds at a time when, based upon Dubin’s own accounting, Dubin had not yet earned those funds, thereby misappropriating client funds in violations of HRPC Rules 1.15(a) and (d). The court also found that he did not inform the client when he fully disbursed the client’s $45,000.00 from his client trust account, thereby misappropriating client funds, violating trust reporting requirements of HRPC Rule 1.15(d), and for failing to cooperate with the disciplinary authorities investigating the case in violation of HRPC Rule 8.4(g). As to the first case (ODC Case No. 16-O-151) the court found Dubin’s conduct inflicted injury on the public at large and injured the integrity of the profession. As to the latter two cases (ODC Case Nos. 16-O-147 and 16-O-326) the court found Dubin inflicted actual, serious injury upon his clients and upon the legal profession. In aggravation, the court found that Dubin had two prior disciplinary findings against him; evinced a dishonest or selfish motive; demonstrated a pattern of mis-
conduct; committed multiple offenses; refused to acknowledge the wrongful nature of his conduct; and had substantial experience in the practice of law. In mitigation, Dubin presented many positive comments from clients, and the court noted that Dubin had contributed positively to the development of the law. The court, after reviewing relevant disciplinary precedent in this jurisdiction, including ODC v. Chatburn, Case No. 24777 (May 30, 2002) and ODC v. Burns, Case No. 20882 (December 17, 1999), and taking into consideration ABA Standards for Imposing Lawyer Sanctions, Standards 4.11, 4.41, and 7.1, determined that disbarment as the appropriate sanction and ordered that Dubin pay $19,885.00 in restitution to the clients harmed in ODC Case No. 16-O-147. The court also ordered that Dubin shall bear the costs of these disciplinary proceedings. Upon entry of this September 9, 2020 disbarment order, Dubin shall not accept any new retainer or engage as attorney for another in any new case or legal matter of any nature. However, between September 9, 2020 and concluding October 9, 2020 he may wind up and complete, on behalf of any client, all matters that were pending on September 9, 2020. During that time, he is required topromptly notify all of his clients, and any attorneys for any adverse party in any pending litigation, of his disbarment and consequent inability to act as an attorney. By October 10, 2020, Dubin shall surrender to all clients, all papers and property to which the clients are entitled, and refund any advance payments of fees that have not been earned. Dubin, age 82, was admitted to the Hawaii bar in 1982 and is a graduate of New York University, School of Law. 1
Office of Disciplinary Counsel v. Dubin, SCAD19-0000561 (filed September 9, 2020) [2020 WL 5412896]. The order was signed by Chief Justice Recktenwald and Associate Justices Nakayama, McKenna, and Wilson, with Intermediate Court of Appeals Associate Judge Leonard, assigned by reason of vacancy. The notice was prepared by Bradley R. Tamm, Chief Disciplinary Counsel [bradley.r.tamm@dbhawaii.org].
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