Hawaii Bar Journal - July

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BAR JOURNAL A N O FFICIAL P UBLICATION

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H AWAII S TATE BAR A SSOCIATION J ULY, 2015 $5.00

50 Years of Family Law Mediation of Condominium Related Disputes ODC Annual Statistical Summary

MEDIATOR INSPIRES NEW MEDIATION FUND FOR SENIORS AND THEIR FAMILIES Charles “Chuck” Hurd was a prominent trial lawyer for over 30 years before closing his litigation practice in 2006 to pursue a career in mediation. His mediation work, often called “Legacy Mediations,” reflected his love of helping seniors by resolving family disputes involving their health care, finances, or other needs. In recent years, Chuck had become one of the most highly sought after mediators in Hawaii.

Despite his success, he dedicated hundreds of hours and financial resources to help the Mediation Center of the Pacific grow and flourish.

It was only appropriate that upon Chuck's recent unexpected death on May 19, the Mediation Center decided to establish a memorial fund in honor of Chuck to foster his legacy and support Kupuna Pono, a mediation program for seniors that Chuck had championed at the Center.

The "Charles H. Hurd Memorial Fund for Kupuna Pono" supports an innovative program that helps bring families together to make plans and decisions to support elderly members. Hawai'i has a critical need for this program in light of our growing elder population and limited resources that place huge strains on families trying to care for an elderly member with Alzheimer, dementia, or other special care needs. Honolulu has one of the highest percentages of elderly in the country, with 17.8% of its population aged 65+ in 2010. Over 31,000 of these seniors are believed to have Alzheimer’s Disease or a related dementia, creating major impact on our health care systems, caregivers and families. When families don’t talk constructively about special may result.

The Mediation Center created the Kupuna Pono Program in 2012 to bring family members together to discuss these needs with a trained facilitator and access available resources, to help ensure that aging family members receive the assistance they need. The Program provides a culturally sensitive process for families from diverse backgrounds to address issues of concern and incorporate recommendations from healthcare personnel and other professionals into a customized plan to support the senior. Through the Kupuna Pono Program, families are more quickly able to agree on appropriate next steps to support their aging loved one, including transitioning from medical discharge to home or assisted living, maintaining the dignity of the elderly family member, strengthening family relationships, and eliminating the need for guardianship proceedings or other legal interventions.

Chuck Hurd was an energetic champion in the creation and operation of the Kupuna Pono program. He was also wellknown in the dispute resolution field in Hawaii. In 2008, he was appointed by Chief Justice Ronald Moon to the Appellate Mediation Program, as a mediator and trainer for retired judges. He recently presented a program for Elder Mediation International Network’s annual symposium in Chicago, on “Elder Abuse Warning Flags for the Mediator”, based in part on his experience for the last seven years as a hearing officer with the State of Hawaii Dept. of Human Services (where he heard over 100 cases, from disability to child and elder abuse).

Chuck first began performing volunteer mediations for the Mediation Center in 2001, in a broad variety of disputes. Prior to his untimely death, he had mediated a total of 60 cases, including 94 mediation sessions and hundreds of hours of volunteer work for the Mediation Center. Tracey Wiltgen, Executive Director of the Center, says Chuck "enjoyed the challenge of mediating cases of all types and helping people work through issues, no matter how complex. One of his secrets to success ... he always had a story to share that would inevitably bring smiles and laughter to all."

Persons interesting in further information about the Kupuna Pono Program and services available through this program, may contact the Mediation Center at www.mediatehawaii.org or at (808)521-6767. Donations to the Charles H. Hurd Memorial Fund may be made payable to the Mediation Center of the Pacific, with the note line referencing the "Charles H. Hurd Memorial Fund for Kupuna Pono." The Mediation Center is a 501(c)(3) corporation, and contributions to the Memorial Fund are tax deductible as permitted by federal law.

TA B L E O F C O N T E N T S VO L U M E 1 8 , N U M B E R 7

EDITOR IN CHIEF Carol K. Muranaka BOARD OF EDITORS Christine Daleiden David Farmer Susan Gochros Cynthia Johiro Edward Kemper Laurel Loo Melvin M.M. Masuda Lennes Omuro Brett Tobin Jodi Kimura Yi

ARTICLES 4 Happy Birthday, Family Court! 50 Years of Family Law

by William C. DarrahReport of the 2014 Civil Law Forum 19 Professional Mediation of Condominium-Related Disputes

by Philip S. Nerney

24 ODC Annual Statistical Summary

by Richard A. Platel

HSBA OFFICERS President Gregory Markham President-Elect Jodi Kimura Yi Vice President Nadine Ando Secretary Russ Awakuni Treasurer Mark M. Murakami YLD OFFICERS President Miriah Holden Vice President/President-Elect Ryan Hew Secretary Alicia Mears

OF NOTE 20 HSBA Happenings 22 Case Notes 28 Court Briefs 30 Off the Record 31 Classifieds

Treasurer Ryan Loeffers 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 second 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: Kaleidoscope by Judge Leslie Hayashi (ret.). Recently retired, Judge Hayashi is pursuing interests in art, writing, and other creative projects while continuing her commitment to education the public about the law.

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.

by William C. Darrah Happy 50th Birthday, Hawai‘i Family Court!

Fifty years ago, out of a growing concern that “children and families whose rights and well-being are jeopardized [need to] be assisted and protected,” the 1965 Hawai‘i Legislature created “a system of family courts [whose] policy and purpose [would be] to promote the reconciliation of distressed juveniles with their families, foster the rehabilitation of juveniles in difficulty, render appropriate punishment to offenders, and reduce juvenile delinquency.”1 In doing so, the Legislature gave the Family Courts exclusive original jurisdiction over all matters involving the family, including divorce, annulment, legal separation, custody, child support, support enforcement, paternity, adoption, guardianship of minors, protection of dependent adults, parental rights termination, domestic abuse, family criminal abuse, and civil

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of Family Law commitment.2 1.

What is Family Law? Family law is that separate and distinct area of the law which deals with all aspects of the family and family relations.

It extends to “spouses or reciprocal beneficiaries, former spouses or former reciprocal beneficiaries, people who have a child in common, parents, children, persons related by consanguinity, persons jointly residing or formerly residing in the same dwelling unit, and persons who have or have had a dating relationship” defined as those who have had “a romantic, courtship, or engagement relationship, often but not necessarily characterized by actions of an intimate or sexual nature, [not including] a casual acquaintanceship or ordinary fraternization between persons in a business or social context.”3 No other legal discipline covers such a broad, varied, and emotionally-charged terrain. Nor is any other area of the law so important, for family law defends the integrity of the family, and “[t]he state of the family determines the state of our society.”4

2. The Changing American Family Family law has been impacted by the dramatic changes in family life which have occurred in America over the past half-century. Marriage has become less central to the life course, as individuals marry at older ages or not at all.5 “Divorce rates rose rapidly until the 1980s, and then plateaued and declined somewhat, although about half of marriages in the early 21st century were still predicted to end in divorce or permanent separation, and the majority of those who divorce will remarry within 10 years.”6 Cohabitation before (or instead of) marriage has become much more widespread, as the percentage of younger women whose first union was cohabitation rather than marriage increased by almost 50%.7 Meanwhile, non-marital childbearing has risen dramatically since the 1960s, and today over 40% of all births occur outside marriage.8 Rising union instability (owing to high rates of cohabitation, non-marital childbearing, divorce, and re-partnering) in the context of persistent fertility rates has led to an increase in family complexity.9

3. The Jurisdiction of the Hawai‘i Family Court The Hawai‘i Family Court is a “division of the Circuit Court,” a Court of equity, and a court of law.10 No trial court has greater, or broader, authority than the Family Court. Besides adjudicating family law cases, the Family Court is also charged with assisting families and children in need through a variety of special programs and services. “From its beginning, the Family Court has had a complex purpose. It was constituted as a Court of law, having the rights, powers and duties of a trial Court. As such, it was intended to adjudicate cases, to resolve disputes, to enforce the laws and to dispense justice.

But, it was additionally constituted to investigate and respond to the underlying causes of family distress, disruption, and crime, and to provide a means for helping families involved in such difficulties.”11 4. Proceedings Adjudicated by the Hawai‘i Family Court The Family Court has the exclusive jurisdiction to legally determine 14 different types of judicial proceedings: divorce, separation and annulment proceedings

(FC-D); civil union divorce, separation and annulment proceedings (FC-CU); paternity proceedings (FC-P); adoption proceedings (FC-A); guardianship proceedings (FC-G); child protection proceedings (FC-S); juvenile proceedings (FC-J); domestic abuse proceedings (FCDA); adult protection proceedings (FCAA); family criminal proceedings (FCCR); interstate support proceedings (FCUIFSA); interstate custody proceedings (FC-UCCJEA); child support appeals proceedings (FC-AP); and miscellaneous proceedings (FC-M).12 5. Family Court Programs and Services The Family Court assists families and children in need through a variety of special programs and services.13 a. Self Help Centers The Judiciary operates its Ho‘okele self-help centers in all circuits in order to assist an ever-growing volume of unrepresented litigants, especially those involved in family law matters. In nearly 65% of the almost 4,000 First Circuit divorces filed in fiscal year 2013-2014 neither party had an attorney.14 The National Center for

State of Hawaii Family Court Filings (1996-2006) (Except Juvenile)

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Access to Justice has recently ranked Hawai‘i in the top five states for expanding access to justice, and number one for providing service to litigants who represent themselves.15 b. Kids First The Judiciary’s award-winning Kids First educational program, first established in 1997 to assist divorcing parents and their children, and expanded in 2003 to include parents and children involved in paternity proceedings, teaches children that they are not the cause of the separation of their parents, that parents do not divorce their children, and that they are not alone. Parents are provided resource materials and encouraged to seek counseling.16 Each circuit has its own special variation of the program. In fiscal year ending (FYE) June 2014, 3,867 parents and 2,243 children attended Kids First on a statewide basis.17 c. Divorce Law in Hawai‘i Since January 2002 the First Circuit Family Court’s “Divorce Law in Hawai‘i” monthly public education program has taught couples how to fairly resolve their divorce issues in a non-adversarial manner. Program participants are invited to engage in a divorce mediation at the Mediation Center of the Pacific. Last year, on the occasion of its 150th presentation, the Hawai‘i Supreme Court proclaimed August 28, 2014 “Divorce Law in Hawai‘i Day.”18 d. Volunteer Settlement Master Program Since 2004 the First Circuit Family Court’s VSM program has assigned volunteer attorney members of the HSBA Family Law Section to help divorcing couples mediate their legal issues. The VSM process is confidential and governed by the provisions of the Hawai‘i Rules of Professional Conduct and the Hawai‘i Rules of Evidence. The utilization of VSMs has significantly reduced the Family Court’s contested divorce caseload.19 e. Other Programs and Services The Family Court’s programs and services also include Juvenile Drug Court, Family Drug Court, “Zero to Three” Court, Girls Court, Oahu Child Welfare Mediation Program, Project Visitation, Ho‘olokahi Parent Facilitator Program, and Court Appointed Special Advocates (CASA). Five years ago, the

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Family Court, the Department of Health, the Department of Education, and the Department of Human Services developed the Wraparound Project to provide individualized comprehensive services for youth involved with multiple systems of care by better integrating and coordinating them. The strength of this approach is that it is youth- and family-focused.

Two years ago, the Family Court instituted Trauma-Informed Care, a system of care which acknowledges the trauma that litigants and children have suffered and promotes approaches that provide for healing. The Family Court has also established stakeholders meeting groups for all divisions of the Family Court, a commission to address the problem of sexually exploited children, and a commission to protect LGBTQ youth. In 2014, the Family Court added its Imua Kakou and Permanency Specialty Courts.20 6.

The Family Court’s Caseload The Family Court’s caseload is truly mind-boggling.

In FYE June 2014, the Family Courts collectively handled 53,269 cases,

including 10,045 divorces, 7,553 cases involving juvenile law offenders, 6,915 criminal actions involving family members, 4,953 paternity cases, and 2,026 abuse and neglect cases.21 The last “Family Law Update” article appeared in the April 2007 issue of the Hawaii Bar Journal. The chart on page 6, which originally appeared in the 2007 article, reflects the total number of statewide non-juvenile Family Court filings from July 1996 through June 2006.

The chart on page 9, in the same form as the chart in the 2007 article, reflects the total number of statewide non-juvenile Family Court filings from July 2006 through June 2014.

The chart on page 12 reflects the total number of statewide juvenile Family Court filings from July 1996 through June 2014. a. Divorce Divorce filings in Hawai‘i have been on a slow decline, as they have been nationally. In FYE June 2014, there were 5,251 divorce filings, the lowest in 18 years (the high was 6,183 in FYE June 1998).22 By comparison, by

some measure, national divorce rates peaked in 1979, and have fallen by about 24% since.23 Meanwhile, Hawai‘i has a large military population, and in 2014, the military’s divorce rate dropped again reaching its lowest point since 2005.24 Over one-third of all Hawai‘i divorces are filed by military personnel.25 b. Domestic Abuse Domestic abuse filings in Hawai‘i are at a near alltime high, and in FYE June 2014, for the first time they exceeded divorce filings (5,295 vs. 5,251). By comparison, in FYE June 1997, there were 5,915 divorce filings compared to only 2,859 domestic abuse filings.26 On Oahu, approximately 12% of families attending Kids First have active restraining orders.27 c. Paternity While paternity filings remain relatively constant, the paternity calendar has become more complex.

Approximately 38% of Oahu’s paternity cases in FYE June 2014 involved contested custody or visitation issues.28 Presently in Hawai‘i over 41% of children are born to unmarried parents and 51% of mothers under age 30 are unmarried.29

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New Family Law Statutes As of January 1, 2007, there were 19 chapters in the Hawai‘i Revised Statutes pertaining to family law. Of them, ten had been enacted between 1965 and 1975, and seven had been enacted between 1976 and 1986.

Since January 1, 2007, six new chapters pertaining to family law have been added to the Hawai‘i Revised Statutes.

They are (a) Chapter 577D Primary Medical Care for Minors Without Support, (b) Chapter 577E Commission on Fatherhood, (c) Chapter 587D Safe Place for Newborns, (d) Chapter 582D Interstate Compact for Juveniles, (e) Chapter 587A Child Protective Act, and (f) Chapter 572B Civil Unions.

Meanwhile, Chapter 587 (the old Child Protective Act) was repealed effective September 1, 2010, with the enactment of Chapter 587A (the new Child Protective Act).

In addition, since 2007, the Hawai‘i Legislature has enacted and the Governor has approved the following other family law measures: a. Determination of Custody Act 114 of the 2008 Legislature sets forth 7.

16 specific criteria for the determination of custody in a Family Court proceedings, and authorizes third-party custody and visitation awards. b. Custody Evaluators Act 149 of the 2008 Legislature requires the Family Court to define the criteria for service as a child custody evaluator, and establish standards of practice, ethics, policies, and procedures for custody evaluators. Act 103 of the 2013 Legislature further qualifies the criteria for service as a child custody evaluator. c. Contempt Act 157 of the 2008 Legislature provides that the failure by a parent to comply with a Family Court order requiring the payment of child support, medical support, or other “remedial care” for a child, shall constitute prima facie evidence of civil contempt, and that failure to comply may result in imprisonment. d. Foster Parents Act 5 of the 2008 Legislature amends Haw. Rev. Stat.

Ch. 587 to establish a preference for blood relatives and “hanai relatives” as foster parents. e. Guardianship Act 6 of the 2009 Legislature amends Haw. Rev. Stat.

Ch. 560 to impose a 12-month maximum term for the temporary guardianship of a minor. f. Military Parents Act 177 of the 2010 Legislature amends Haw. Rev. Stat. Ch. 571 to require the Family Court to give special consideration to deployed military parents in custody determinations. g. Civil Unions Act 1 of the 2011 Legislature and Act 267 of the 2012 Legislature extends the same rights, benefits, protections, and responsibilities of spouses in a marriage to partners in a civil union. h. Visitation Act 191 of the 2011 Legislature establishes additional factors for the Family Court to consider in awarding custody and visitation, and authorizes the Family Court to set conditions on visitation. i. Financial Restraining and Disclosure Orders Act 140 of the 2011 Legislature requires the Family Court to issue financial restraining and disclosure orders, and consider the concealment of, and/or failure to disclose, income or an asset, or violation of a financial restraining order, in dividing

State of Hawaii Family Court Filings (2006-2014) (Except Juvenile)

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property and ordering the payment of child support, alimony, and contribution to attorney fees and costs in a divorce proceedings. j. Restraining Orders Act 206 of the 2012 Legislature requires a minimum prison term of 15 days and a fine in the case of a person with certain prior convictions who is convicted of a restraining order violation for the first time. k. Discovery Act 17 of the 2012 Legislature enacts the Uniform Depositions and Discovery Act. l. Collaborative Practice Act 207 of the 2012 Legislature enacts the Uniform Collaborative Law Act.30 m. Paternity Act 136 of the 2013 Legislature removes the time bar against paternity actions. n. Criminal Abuse Act 251 of the 2013 Legislature amends the penal code to include persons in a dating relationship as family or household members for purposes of prohibiting physical abuse of family or household members, and

increases the period of mandatory initial separation. o. Mediation Act 284 of the 2013 Legislature adopts the Uniform Mediation Act. p. Marriage Equality Act 1 of the 2nd Special Session of the 2013 Legislature ensures that same-sex couples are able to take full advantage of all of the state and federal rights, benefits, protections and responsibilities granted to married opposite sex couples by allowing same-sex couples to marry under the laws of Hawai‘i. q. Domestic Abuse Act 117 of the 2014 Legislature requires a proactive investigation of allegations of domestic abuse, and increases the period of mandatory initial separation. r. Juvenile Justice Reform Highlighting collaboration between the executive, legislative, and judicial branches, Act 201 of the 2014 Legislature aims to reduce Hawai‘i’s secure juvenile facility population by half over the next five years, and directs investment in commu-

nity supervision and treatment programs that will be more effective at steering troubled youth toward productive, law abiding lives.

In addition, the 2015 Hawai‘i Legislature approved four measures relating to family law which now await the Governor’s action: (a) HB538 HD2 SD2 CD1 requires wireless telecommunications service providers to release domestic violence victims from shared service plans upon request and with documentation; (b) SB226 SD2 HD1 extends the period of a no contact order in a case of abuse of a family or household member to 6:00 p.m. on the second business day following the order; (c) SB1066 SD1 HD1 updates the Uniform Interstate Family Support Act to reflect requirements of the Hague Convention on the International Recovery of Child Support; and (d) SB1324 SD1 HD1 CD1 allows the State of Hawai‘i’s Employees’ Retirement System to make direct payment of benefits to a former spouse pursuant to a Divorce Decree.

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8. New Family Law Appellate Cases Pursuant to Hawai‘i Rules of Appellate Procedure Rule 35, published opinions are precedent, and memorandum opinions, summary disposition orders, and all other disposition orders issued after July 1, 2008 are citable for their “persuasive value.”31 From January 1, 2007 through April 30, 2015, the Hawai‘i Supreme Court and the Hawai‘i Intermediate Court of Appeals (ICA) issued approximately 417 citable appellate determinations on family law issues; of them, only 69 were published opinions.32 A selection of the holdings in the published opinions is as follows: a. Divorce, Separation and Annulment Proceedings Divorce cases for appeal purposes involve four discrete parts: (1) dissolution of the marriage; (2) child custody, visitation and support; (3) spousal support; and (4) division and distribution of property and debts.33 i. Custody and Visitation A wife may be estopped by her actions from denying husband’s status as a child’s presumed natural father in response to his request for an award of custody or visitation.34 The Family Court does not infringe on a joint legal custodian’s constitutionally-protected liberty interest in the upbringing of his or her children by resolving an impasse.35 ii. Property Division A premarital economic partnership may be formed even if one of the partners is still married to someone else.36 Whether a premarital economic partnership has been formed depends on the intention of the parties.37 A premarital agreement is enforceable if it was not signed under duress, coercion, undue influence, or any other circumstance indicating lack of free will or voluntariness, and it is not unconscionable.38 As applied to premarital agreements, two basic principles are encompassed within the concept of unconscionability, one sidedness and unfair surprise.39 Generally, unconscionability as a defense against the enforcement of a postnuptial agreement requires a showing of both procedural and substantive unconscionability, but there may be exceptional cases where a postnuptial agreement is so outrageous it must be set aside on grounds of substan-

tive unconscionability alone.40 The partnership model is the appropriate law for the Family Court to apply when exercising discretion in adjudicating property division in divorce.41 While the partnership model provides guidance, there is no fixed rule for determining the amount of property to be awarded each spouse in a divorce action other than as set forth in the statute governing the division of property.42 The partnership model requires the Family Court to start at partnership model division, decide whether valid and relevant circumstances justify equitable deviation, and then decide what deviation, if any, there will be.43 The allocation of a party’s own debt solely to them does not deviate from the partnership model.44 The Family Court may penalize a divorcing spouse in the divorce property division for filing bankruptcy to create an advantage, and for a wide range of other misconduct.45 A charging lien on property granted to a withdrawing attorney must be considered by the Family Court when it equalizes the parties’ assets and debts.46 Intellectual property is a marital asset subject to equitable division upon divorce.47 Non-divisible marital separate property includes (a) property covered by a valid premarital agreement, (b) property covered by a valid contract, and (c) property which was acquired through gift or inheritance during the marriage, expressly classified as separate property, and maintained and funded through nonpartnership assets or efforts.48 A party’s vested interest in a military pension cannot be unilaterally diminished by the act of the other party.49 Haw. Rev. Stat. § 580-56(d) does not limit the Family Court’s jurisdiction to divide property following a bifurcated divorce.50 iii. Child Support There is no statutory age limit on the Family Court’s broad authority to make just and equitable orders compelling a parent to provide educational support for his or her children.51 A divorced parent has the statutory right to void a direct payment of child support arrangement at any time; the Child Support Enforcement Agency does not have that right.52 Summer school is not an extracurricular activity for purposes of child support.53

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Thank you to the many attorneys who continue to volunteer at the Hilo Court Self-Help Center.

"What interests me about volunteering in our self-help center, and which I did not anticipate, are the number of clients who come in seeking our mana'o and assistance so that they can help someone else.

They are putting in lots of time so that they can achieve some legal objective that will benefit their children; their grandchildren; or their elderly parents. Seeing others giving of themselves like that makes me feel that this is all worthwhile."

- Volunteer attorney Charles Heaukulani Hilo Court Self-Help Center

Contact Sergio Alcubilla Director of External Relations (808) 527-8063 · sealcub@lashaw.org www.legalaidhawaii.org July 2015

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iv. Other Matters Serious sanctions require evidence of willful, contemptuous, or otherwise opprobrious behavior on the part of a party, or counsel.54 A challenge to the Family Court’s jurisdiction to grant a divorce on the basis that there was no lawful marriage must be raised in the divorce proceedings themselves, or in a subsequent appeal, and not following the divorce pursuant to Hawai‘i Family Court Rules (HFCR) Rule 60(b).55 Good cause is the proper standard for bifurcating the dissolution of marriage from the remaining parts of a divorce case, not “exceptionally compelling circumstances.”56 The Family Court can allow a mediator to testify that a party’s assent to a divorce property division was fraudulently obtained.57 Pleadings prepared by pro se litigants should be interpreted liberally.58 b. Paternity Proceedings Due process prohibits an ex parte order transferring custody absent evidence of imminent and irreparable harm.59 When the Family Court properly asserts jurisdiction and makes an initial child custody determination, the Family Court retains exclusive, continuing jurisdiction over custody.60 The Family Court has discretion to set reasonable time limits for trial.61 c. Guardianship Proceedings HFCR Rule 68 enables the recovery of

legal fees and costs in a guardianship proceeding.62 The Family Court has concurrent jurisdiction with the Circuit Court in all proceedings to appoint a guardian of an adult.63 d. Child Protection Proceedings A native Hawaiian parent is not entitled to the beyond a reasonable doubt proof standard applicable to the termination of parental rights of Native Americans under the Indian Child Welfare Act.64 An indigent parent is deprived of his constitutional right to due process when he is not provided with appointed counsel until 16 days before the termination hearing.65 The Family Court’s appointment of a “consulting attorney” with limited powers and duties to eligible parents in a pilot project does not constitute a denial of a party’s due process rights to full representation of counsel.66 A judge who did not hear the trial is not authorized to enter findings of fact and conclusions of law where no transcripts of the trial were available.67 The Family Court’s failure to appoint counsel for an indigent minor mother until nearly 19 months after the Department of Human Services (DHS) filed a petition for temporary foster custody is an abuse of discretion.68 Indigent parents are guaranteed the right to courtappointed counsel in termination pro-

ceedings under the Due Process Clause of the Hawai‘i Constitution.69 DHS has the discretion in the first instance to determine with whom a foster child shall live.70 There is no preference for permanent placement of a foster child with a relative.71 The Family Court, and not DHS, determines what placement of the child is in the child’s best interest.72 e. Juvenile Proceedings Any person who is alleged to have committed a criminal act prior to becoming age 18 shall be advised of his right to testify, and if he does not exercise that right, the Family Court must engage in an ageappropriate colloquy with him or her to obtain an on the record waiver of that right.73 A child adjudicated under Haw. Rev. Stat. § 571-11(1), which requires proof beyond a reasonable doubt, must be placed on probation or fined, while a child adjudicated under Haw. Rev. Stat. § 571-11(2) may be placed under protective supervision, but not placed on probation.74 Only a “true threat” can form the basis for penal responsibility for terroristic threatening in the second degree.75 f. Domestic Abuse Proceedings The right to conceive and raise children is an essential, basic civil right, and parents enjoy a fundamental liberty interest in the care, custody and control of their children.76 Parents do not have a constitu-

State of Hawaii Juvenile Family Court Filings (1997-2014)

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tional right to inflict upon a child force that the legislature has deemed to be excessive and harmful to the child’s welfare.77 A Family Court temporary restraining order (TRO) cannot be entered without a finding that a past act of abuse has occurred, or the threats of abuse make it probable that acts of abuse may be imminent.78 Because a TRO implies that the restrained party is an abuser, and potentially dangerous, and undermines the restrained party’s reputation and standing in the community, it should be issued with due care.79 Res judicata bars a second petition for a protective order where both the first and second petition sought the same protective order, the claims of both petitions were identical, and alleged facts which should have been plead in the first petition were not.80 The procedure for obtaining an ex parte TRO under Haw. Rev. Stat. Ch. 586 comports with due process.81 g. Family Criminal Proceedings A parent’s striking of his/her child on the hand and arm with various objects upon learning of the child’s duplicity is a reasonably proportional punishment.82 Non-testimonial hearsay testimony from an unavailable declarant is admissible under the Confrontation Clause of the Hawai‘i Constitution if it is demonstrated to bear an adequate indicia of reliability.83 The Family Court may not preclude a defendant from cross-examining a witness even if the defendant fails to provide a notice of his intent to cross examine that witness.84 Evidence of a prior conviction can only be used to prove the prior conviction element, and must not otherwise be considered by the jury.85 A delay of five years in the serving of a bench warrant violates the requirements of service without unreasonable delay.86 A statement obtained by the police outside the home after an unlawful arrest therein will be suppressed as “fruit of the poisonous tree.”87 A bill of particulars is not required if the information requested by the defendant has been provided in some other satisfactory form.88 A plea agreement implicates constitutional considerations, including the fairness and voluntariness of the plea, such that the terms of a plea agreement, which serve as the inducement for the plea, must be ful-

filled.89 The ultimate question in cases involving the assertion of an excited utterance exception to the hearsay rule is whether the involved statement was the result of reflective thought or whether it was rather a spontaneous reaction to the exciting event.90 The Family Court has the inherent power to dismiss an indictment with prejudice following one or more mistrials because of genuinely deadlocked juries, even though a trial would not violate the defendant’s constitutional rights.91 A defendant is entitled to an instruction to a defense having any support at all in the evidence, no matter how weak, unsatisfactory, or inconclusive the evidence might have appeared to the Family Court.92 An isolated instance of moderate or reasonable physical force that results in nothing more than transient pain or temporary marks or bruises is protected under the parental discipline privilege; this protection for a parent should exist even if the parent acts out of frustration or short temper.93 Where the state presents evidence of multiple incidences of misconduct but charges only one, the state must elect which act underlies the charge, or the Family Court must issue a specific unanimity instruction.94 A party guilty of a petty misdemeanor who is on bail is entitled to a continuance of bail as a matter of right pending appeal.95 The right to exercise peremptory challenges is a right that applies with respect to all potential alternate jurors.96 A defendant’s right to testify in his or her own defense is constitutionally protected, and a determination regarding whether it was waived must look to the totality of the facts and circumstances.97 Where a defendant timely objects to the sufficiency of the charge, the post-conviction liberal construction rule does not apply.98 The presumption that the right to a jury trial does not apply in prosecutions for petty offenses can be overcome in extraordinary cases.99 The appropriate standard for deciding whether to grant a continuance in a probation revocation/modification proceeding is good cause.100 h. Interstate Custody Proceedings Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), when the Family Court properly asserts jurisdiction and makes an initial

Hawaii Divorce Manual 40th Anniversary Edition Since it was first published in 1975, the Hawaii State Bar Association’s Hawaii Divorce Manual (or simply “the Manual”) has become the “gold standard” for all Hawaii matrimonial practitioners.

Besides digests of all of the published matrimonial law decisions since 1955, only in the Manual can you also find digests of the over 135 citable memorandum opinions, summary disposition orders, and other orders governing matrimonial law and practice decided by the ICA and Supreme Court since July 1, 2008.

Likewise, only the Manual includes all of the still effective Family Court policy memoranda issued pursuant to HFCR 83, all of the presently-in-use Family Court forms promulgated pursuant to HFCR 84, and a regularly updated collection of subject specific materials written by local and national family law experts on all aspects of divorce.

This year, on its 40th anniversary, the Manual will again be completely revised. This is the 26th time in its history that the Manual has either been updated or revised, a remarkable tribute to the nearly 200 attorneys, judges, mental health professionals, financial experts, and other family law professionals who have selflessly contributed their expertise to the Manual over the last four decades.

The 2015 Manual will be presented at the Family Law Update Program at the HSBA Bar Convention on Friday, October 23, 2015.

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child custody determination, the Family Court retains exclusive continuing jurisdiction to make further custody orders until either (a) the involved child, the child’s parents, and any person acting as a parent, no longer have a significant connection with Hawai‘i, and that substantial evidence is no longer available in Hawai‘i concerning the child’s care, protection, training, and personal relationships, or (b) the Family Court or another court determines that the child, the child’s parents, and any person acting as a parent do not presently reside in Hawai‘i.101 i. Miscellaneous Proceedings Haw. Rev. Stat. § 571-46.3, which allows grandparent and other third-party visitation, is not invalidated by the U.S. Supreme Court decision in Troxel v.

Granville, 530 U.S. 57 (2000); however, the statute does not survive strict scrutiny analysis.102 The Family Court can designate a file as confidential where the parties so stipulate, and the record contains sensitive information regarding the parties that could endanger the child.103 A prohibition against a party’s access to

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court records except through an attorney or in the company of a Family Court staff person violates that party’s constitutional right to free access to the courts.104 9. Other New Authorities Governing Family Law Practice a. Child Support Guidelines The Hawai‘i Child Support Guidelines have been completely revised, effective February 15, 2015. b. Family Court Rules For the first time since 2000 the Hawai‘i Family Court Rules have been amended in their entirety. Effective January 1, 2015, the new Rules regulate discovery, motion practice, and trial practice with more specificity, expand the range of alternative dispute resolution (ADR) options available to the Family Court, and abolish the presumption against the appointment of masters to assist the Family Court.105 c. Court Records Rules The Hawai‘i Court Records Rules (HCCR) effective September 27, 2010 seek to protect personal information (defined as “Social Security numbers, dates of birth, names of minor children, bank or invest-

ment account numbers, medical and health records, and social service reports”) in Court filings.

Implementation of the HCCR in Family Court cases was delayed until September 1, 2012, and is still ongoing.

10. The Present Challenge In FYE June 2014 there were 29,708 new Family Court filings, and the Family Courts handled 53,269 cases, each one potentially involving urgent and immediate issues.106 Meanwhile, there are presently only 12 full-time Family Court judges in the First Circuit, and a proportionately smaller number of judges in the other Circuits.107 Even if there were 20 full-time Family Court judges statewide, that would still be a staggering average of more than 2,600 cases per judge per annum.

On January 24, 2007, in an urgent plea for more resources for the Family Court, former Chief Justice Ronald T.Y. Moon decried “crowded dockets,” a “high volume of cases,” and “extreme pressures” on the First Circuit Family Court judges who must hear “ten to fif-

teen child protective cases” or “twelve to fifteen restraining order cases” on a typical morning calendar, or try “a divorce case, involving child custody and property division issues, that must be completed by the end of the day because the judge has [other cases].”108 When Chief Justice Moon made his plea, the total Family Court caseload was 48,400, or 10% less than it was in FYE June 2014. Likewise, while cases pending at the end of FYE June 2006 totaled 18,600, by the end of FYE June 2014 they had grown by over 43% to 26,690.109 As a result of this growing pressure, the Family Court now routinely sets time limits on many courtroom presentations.

In AC v. AC, 134 Hawai‘i 221 (2014), the Supreme Court in a split opinion approved “reasonable time limits to a trial in a child custody case involving allegations of domestic violence.”110 In his dissent, Justice Pollack warned of “the risk that time limits on trial [in such cases] may exclude probative evidence and hinder the ascertainment and just determination of truth does not warrant the

potential savings in judicial resources [by time limits],” observing that other Hawai‘i courts successfully utilize the rules of evidence “to limit cumulative evidence [and] prevent waste of time … without unjustly imposing upon fundamental rights” through trial time limits.111 “Time limits distract the court’s attention from the administration of justice [and] engender an unhealthy preoccupation with the clock.”112 “Asking counsel to select only a portion of the probative, noncumulative evidence in order to satisfy court imposed time restriction, impairs vigorous and zealous advocacy” on behalf of our respective clients.113 Concluding Remarks The founders of the Hawai‘i Family Court would probably be quite distressed to learn that FC-DA restraining orders are now the legal means of choice for addressing family conflict, and that persistent Family Court resource shortages now mandate hearing/trial presentation time limits which potentially threaten the constitutional due process rights of every-

one involved.

On the other hand, the founders of the Family Court would probably be intrigued that we now look, more than ever, to every possible form of non-traditional family lawyering, including mediation, arbitration, cooperative divorce, and even collaborative divorce, for the real enduring solutions to family problems.

So to them, thanks for what you started. Happy 50th Birthday, Hawai‘i Family Court, and best wishes for the years to come! _________________ 1 Haw. Rev. Stat. § 571-1. Haw. Rev. Stat. Ch. 571 establishing Family Court was signed by Governor John S. Burns on July 6, 1965, and became law on July 1, 1966.

2 Haw. Rev. Stat. §§ 571-11, 571-14.

3 These are the individuals who may now apply to Family Court for domestic abuse protective (restraining) orders against each other pursuant to Haw. Rev. Stat. Ch. 586.

4 Ronald T.Y. Moon, Chief Justice,

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Supreme Court of Hawai‘i, State of the Judiciary Address (Jan. 24, 2007).

5 See, e.g., Clair Cain Miller, Financial Security Is Increasingly Trumping Marriage, Report Says, N.Y. Times, Sept. 24, 2014, at A21.

6 Marcia J. Carlson & Daniel R. Meyer, Family Complexity: Setting the Context, Annals Am. Acad. Pol. & Soc. Sci. 6 (July 2014).

7 See, e.g., Clair Cain Miller, The Divorce Surge is Over, but the Myth Lives On, N.Y. Times, Dec. 2, 2014, at A3; Justin Wolfers, How We Know the Divorce Rate is Falling, N.Y. Times, Dec. 3, 2014, available at http://nyti.ms/1yQNPHq. 8 See, e.g., Emily Badger, The Unbelievable Rise of Single Motherhood in America Over the Last 50 Years, Wash. Post, Dec. 18, 2014, available at http://wapo.st/1Alh2Lk. 9 Carlson & Meyer, supra note 6.

10 Haw. Rev. Stat. § 571-3.

11 Report from the Hawai‘i Judiciary Fam. Ct. (2000) (on file with author).

12 The Family Court has exclusive jurisdiction over all of these matters, except the Circuit Court has jurisdiction over some guardianship proceedings.

13 A description of the available services and programs may be found in the special projects and events, services, community outreach, and Family Court sections of the Judiciary’s website at www.courts.state.hi.us/courts; not all services and programs are (yet) available in all Circuits.

14 Mark E. Recktenwald, Chief Justice, Supreme Court of Hawai‘i, State of the Judiciary Address (Jan. 28, 2015).

15 Id. 16 For more about the Kids First program go to www.kidsfirsthawaii.com.

17 Fam. Ct. First Cir., A Report on the Parent Education Special Fund, in Rep. to the 28th Leg., 22, 23 (Haw. 2014).

18 For more about the program go to the community outreach section of the Judiciary’s website at http://www.courts.state.hi.us/outreach/community_outreach.html.

19 For more about the program go to the services section of the Judiciary’s website at http://www.courts.state.hi.us/services/services.html.

20 Imua Kakou provides adult 16 July 2015

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children ages 18-21 who have aged out of foster care with vocational training, education, and housing. The Permanency Court assists children aged 14-17 in longterm foster care prepare for the transition into college, vocational training, and adult life in general.

21 The Judiciary: State of Hawai‘i, 2014 Annual Report Statistical Supplement 18 (2014).

22 Compare id., and The Judiciary: State of Hawai‘i, 1998 Annual Report Statistical Supplement 16 (1998).

23 Wolfers, supra note 7.

24 Amy Bushatz, Military Divorce Rate Hits Lowest in Level in 10 Years, Military.com, Feb. 25, 2015, available at h t t p : / / w w w. m i l i t a r y. c o m / d a i l y news/2015/02/25/military-divorcerate-hits-lowest-level-in-10-years.html.

25 Recktenwald, supra note 14.

26 Compare The Judiciary: State of Hawai‘i, supra note 21, and The Judiciary: State of Hawai‘i, Annual Report July 1, 1996 to June 30, 1997 43 (1997).

27 Fam. Ct. First Cir., supra note 17, at 24.

28 Id. 29 Recktenwald, supra note 14.

30 On July 1, 2012, Hawai‘i adopted the Uniform Collaborative Law Act (HUCLA). HUCLA authorizes divorcing couples to enter into a collaborative law participation agreement in which they promise to respectfully and creatively address their divorce issues without the intervention of a tribunal court, disclose information fully and readily without formal discovery, strive with their attor-

neys to settle their divorce issues in furtherance of their highest and best interests and intentions, with a particular focus on their children, and in the event that they are unable to settle their differences, discharge their lawyers.

31 Since January 1, 2007, lawyers have been free to cite unpublished opinions in federal appeals, where 88% of the decisions themselves are unpublished. Adam Liptak, Courts Write Decisions That Elude Long View, N.Y. Times, Feb. 3, 2015, at A10.

32 Neither Westlaw nor LexisNexis digest the non-published opinions of the Hawai‘i Supreme Court and ICA. They are digested in the HSBA Family Law Section’s monthly Journal of Hawai‘i Family Law (vol. 18 no. 1 through vol. 26 no. 4).

33 Nakajima v.

Nakajima, No. SCWC–29553 (Haw. Feb. 13, 2014) (order).

34 Inoue v. Inoue, 118 Hawai‘i 86, 185 P.3d 834 (App. 2008).

35 Hollaway v. Hollaway, 133 Hawai‘i 415, 329 P.3d 320 (App. 2014).

36 Chen v. Hoeflinger, 127 Hawai‘i 346, 279 P.3d 11 (App. 2012).

37 Collins v. Wassell, 133 Hawai‘i 34, 323 P.3d 1216 (2014).

38 Prell v. Silverstein, 114 Hawai‘i 286, 162 P.3d 2 (App. 2007).

39 Id. 40 Balogh v. Balogh, 134 Hawai‘i 29, 332 P.3d 631 (2014).

41 Kakinami v. Kakinami, 127 Hawai‘i 126, 276 P.3d 695 (2012), aff ’g, No. 29340

(App. May 11, 2011) (SDO).

42 Baker v. Bielski, 124 Hawai‘i 455, 248 P.3d 221 (App. 2011); Collins, 133 Hawai‘i at 42.

43 Jacoby v. Jacoby, 134 Hawai‘i 431, 341 P.3d 1231 (App. 2014).

44 Cox v. Cox, 125 Hawai‘i 19, 250 P.3d 775 (2011).

45 Schiller v. Schiller, 120 Hawai‘i 283, 205 P.3d 548 (App. 2009).

46 Bielski, 124 Hawai‘i at 456.

47 Berry v. Berry, 127 Hawai‘i 243, 277 P.3d 968 (2012).

48 Kakinami v. Kakinami, 127 Hawai‘i at 130 n. 4.

49 Jaylo v. Jaylo, 124 Hawai‘i 488, 248 P.3d 1219 (App. 2011), vacated on other grounds, 125 Hawai‘i 369, 262 P.3d 245 (2011).

50 Riethbrock v. Lange, 128 Hawai‘i 1, 282 P.3d 543 (2012).

51 Jaylo, 125 Hawai‘i at 373.

52 Doe v. Doe, 118 Hawai‘i 268, 188 P.3d 782 (App. 2008).

53 Doe v. Doe, 118 Hawai‘i 293, 188 P.3d 807 (App. 2008).

54 Weinberg v. Dickson-Weinberg, 123 Hawai‘i 68, 229 P.3d 1133 (2010).

55 Cvitanovich-Dubie v. Dubie, 125 Hawai‘i 128, 254 P.3d 439 (2011).

56 Kakinami, 125 Hawai‘i at 308.

57 Aiona-Agra v. Agra, No. 30685 (App. Feb. 23, 2012) (SDO), aff ’d, No. SCWC30685 (Haw. Aug. 10, 2012) (order).

58 Thomas-Yukimura v. Yukimura, 130 Hawai‘i 1, 304 P.3d 1182 (2013).

59 Doe v. Doe, 120 Hawai‘i 149, 202 P.3d 610 (App. 2009).

60 NB v. GA, 133 Hawai‘i 436, 329 P.3d 341 (App. 2014).

61 AC v. AC, 134 Hawai‘i 221, 339 P.3d 719 (2014).

62 In re Guardianship of Doe, 119 Hawai‘i 234, 195 P.3d 701 (App. 2008).

63 Id. 64 In re “A” Children, 119 Hawai‘i 28, 193 P.3d 1228 (App. 2008), abrogated on other grounds by, In re T.M., 131 Hawai‘i 419, 319 P.3d 338 (2014).

65 Id. 66 In re D.W., 113 Hawai‘i 499, 155 P.3d 682 (App. 2007).

67 In re T Children, 113 Hawai‘i 492, 155 P.3d 675 (App. 2007).

68 In re T.M., 131 Hawai‘i 419, 319 P.3d 338 (2014).

69 Id. 70 In re AS, 132 Hawai‘i 368, 322 P.3d 263 (2014).

71 Id. 72 In re AS, 130 Hawai‘i 486, 312 P.3d 1193 (App. 2013), aff ’d, 132 Hawai‘i 368, 322 P.3d 263 (2014).

73 In re TC, 121 Hawai‘i 92, 214 P.3d 1082 (App. 2009).

74 In re N.C., 123 Hawai‘i 184, 231 P.3d 457 (2010).

75 In re PP, 133 Hawai‘i 235, 325 P.3d 647 (App. 2014).

76 Hamilton ex rel. Lethem v. Lethem, 126 Hawai‘i 294, 270 P.3d 1024 (2012).

77 Id. 78 Id. 79 Id. 80 Tortorello v. Tortorello, 113 Hawai‘i 432, 153 P.3d 1117 (2007).

81 Lethem, 126 Hawai‘i at 303.

82 State v. Matavale, 115 Hawai‘i 149, 166 P.3d 322 (2007).

83 State v. Fields, 115 Hawai‘i 503, 168 P.3d 955 (2007).

84 State v. Pond, 118 Hawai‘i 452, 193 P.3d 368 (2008).

85 State v. Murray, 116 Hawai‘i 3, 169 P.3d 955 (2007).

86 State v. Owens, 116 Hawai‘i 172, 172 P.3d 484 (2007).

87 State v. Mariano, 114 Hawai‘i 271, 160 P.3d 1258 (App. 2007).

88 State v. Corder, 121 Hawai‘i 451, 220 P.3d 1032 (2009).

89 State v. Miller, 122 Hawai‘i 92, 223 P.3d 157 (2010).

90 State v. Delos Santos, 124 Hawai‘i 130, 238 P.3d 162 (2010).

91 State v. Correa, 124 Hawai‘i 179, 238 P.3d 706 (App. 2010).

92 State v. Kikuta, 125 Hawai‘i 78, 253 P.3d 639 (2011).

93 State v. Dowling, 125 Hawai‘i 406, 263 P.3d 116 (App. 2011).

94 State v. Pecpec, 127 Hawai‘i 20, 276 P.3d 589 (2012).

95 State v. Kiese, 126 Hawai‘i 494, 273 P.3d 1180 (2012).

96 State v. Ho, 127 Hawai‘i 415, 279 P.3d 683 (2012).

97 State v. Han, 130 Hawai‘i 83, 306 P.3d 128 (2013).

98 State v. Basnet, 131 Hawai‘i 286, 318 P.3d 126 (2013).

99 State v. Baker, 132 Hawai‘i 1, 319 P.3d

1009 (2014).

100 State v. Villiarimo, 132 Hawai‘i 209, 320 P.3d 874 (2014).

101 Beam v. Beam, 126 Hawai‘i 58, 266 P.3d 466 (App. 2011).

102 Doe v. Doe, 116 Hawai‘i 323, 172 P.3d 1067 (2007).

103 Doe v. Doe, 118 Hawai‘i 293, 188 P.3d 807 (App. 2008).

104 Id. 105 HFCR Rule 53.1 now authorizes the Family Court to order ADR sua sponte and expands the definition of ADR to include “mediation or any other such process the court determines may be helpful [to achieve] a fair resolution.”

The required “exceptional circumstance” showing for the appointment of a master in HFCR Rule 53 is stricken and the Family Court may now appoint a master (as broadly defined) “to perform specific tasks and/or obtain specific evidence to assist the court.”

106 The Judiciary: State of Hawai‘i, supra note 21.

107 The Family Court also utilizes per diem judges to handle the overflow of cases.

108 Moon, supra note 4.

109 Chief Justice Moon’s appeal was largely unsuccessful. The Family Court facility in Kapolei is far smaller than originally envisioned, and the plan to retain Family Court videoconferencing facilities in downtown Honolulu never materialized.

110 AC, 134 Hawai‘i at 234.

111 AC, 134 Hawai‘i at 249. Justice Pollack observes that there are no time limits in felony criminal trials.

112 AC, 134 Hawai‘i at 248.

113 AC, 134 Hawai‘i at 248-49.

William C. Darrah, a 1975 graduate of New York University School of Law, is the first “Hawaii Family Lawyer of the Year” selected by Best Lawyers in America. An AV-rated matrimonial specialist in financially more complicated cases, a fellow in the American Academy of Matrimonial Lawyers, and a pioneer in collaborative divorce, and cooperative divorce, in Hawaii, he has been the editor of the Journal of Hawaii Family Law since 1990, and the editor of the Hawaii Divorce Manual since 1994. His associate, Roxanne Kwong, assisted with this article.

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CARNAZZO CO U RT RE PORTI N G CO M PAN Y LTD.

To t a l L i t i g a t i o n S u p p o r t

888 Mililani Street, Suite 705 Honolulu, Hawaii 96813 532-0222 Fax: 532-0234 www.carnazzo.com

The good faith mediation of many condominium-related disputes (“Disputes”) should be a “best practice” within the condominium community.

Fortunately the condominium statute has been amended to subsidize access to professional mediation services.

Haw. Rev. Stat. §§ 514B-71 and -72 were amended in 2013 to provide that the condominium education trust fund (“Fund”) shall be used, in part, to provide: “[s]upport for mediation of condominium related disputes.” 2013 Haw. Sess.

Laws Act 187 (the “Act”).

Because only developers and condominium associations pay into the Fund, no public money is involved. Thus, the condominium community can be seen as pooling resources to enable the use of alternative dispute resolution to manage Disputes.

Section 4 of the Act authorizes the Real Estate Commission to: expend moneys from the condominium education trust fund specifically to support mediation of condominium related disputes utilizing professionally trained mediators for those parties and disputes specified in section 514B-161, Hawaii Revised Statutes. . . . As used in this section, “professionally trained mediators” includes retired judges and individuals who have professional mediation training which shall include appropriate knowledge of mediation procedures, ethics, standards, and responsibilities.

The use of professional mediators is expected to add value to the process of mediating Disputes, particularly if the mediator has subject matter expertise.

Subject matter expertise can be helpful in light of distinct attributes of condominium law and practice. For example, a condominium home is not a castle. It is a place where the rights of strangers can significantly affect how an owner uses the home: It appears to us that inherent in the condominium concept is the principle that to promote the health, happiness, and peace of mind of the majority of the unit owners since they are living in

Professional Mediation of CondominiumRelated Disputes

by Philip S. Nerney such close proximity and using facilities in common, each unit owner must give up a certain degree of freedom of choice which he might otherwise enjoy in separate, privately owned property. Condominium unit owners comprise a little democratic sub society of necessity more restrictive as it pertains to use of condominium property than may be existent outside the condominium organization.

Hidden Harbour Estates, Inc. v. Norman, 309 So. 2d 180, 181-82 (Fla. App. 1975) Thus, perceived infringements on personal autonomy, problems of economic interdependence, interpersonal relationships, intra-personal dynamics and other factors are common sources of conflict. Many such conflicts involve struggles for power and control.

In short, difficult and complex problems that do not necessarily yield easily to reason are characteristic of some of the more vexing Disputes that practitioners in the field are accustomed to handling.

The subsidy provided by the Act provides both motivation and an opportunity to resolve recalcitrant Disputes without litigation. The availability of the Fund should also free judges to refer litigated Disputes back to mediation without concern about imposing significant cost to the litigants.

Volunteer mediators at community mediation centers still have a role to play.

Many Disputes have been successfully resolved over the years by trained volunteers lacking specialized knowledge about condominiums.

Even so, the use of professional mediators should have value both for consumers who own condominiums and for boards of directors of condominium associations. Professional mediators with

subject matter expertise may be qualified to provide an evaluation of the positions and the prospects of the parties in a way that will command respect or that at least will be difficult to dismiss.

This use of professional mediators is important because the prevailing party in condominium litigation may be entitled to an award of attorneys’ fees limited solely by the concept of reasonableness.

There should be a robust and meaningful opportunity to come to terms before attorneys’ fees become a significant factor.

On the other hand, the litigant who has had a fair chance to assess the risks and benefits of litigation in the mediation context can be considered to have had fair warning. The choice to proceed beyond mediation will more likely be a considered choice of an informed party if professional mediators with subject matter expertise provide the service.

In all events, an effective ethical framework for conflict management and resolution, short of litigation, may save time and money for participants as well as preserve relationships. Cost and time savings, together with preservation of relationships, are particularly important values in the condominium context due to the nature of condominium living.

The Fund is robust. The cost barrier to mediation has therefore been removed in the condominium context and is no longer a meaningful basis upon which to refuse an offer of mediation.

The bench and bar should understand and embrace the Act. The mediation option should become reflexive and the first choice of all stakeholders when a Dispute proves resistant to amicable resolution by direct negotiation. Resorting to mediation first, as an industry best practice, should enhance owners’ opportunity to experience the quiet enjoyment of their homes while facilitating the effective and efficient functioning of condominium associations. ________________ Philip Nerney is a 1986 graduate of the William S. Richardson School of Law. He has represented condominium associations on a fulltime basis since 1990.

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HSBA HAPPENINGS SAVE THE DATES HSBA Annual Dinner

Saturday, August 22, 2015 is the Annual Dinner in the Hawaii Convention Center Ballroom. A portion of the net proceeds will be used to support the Courts in the Community Project.

HSBA Bar Convention

Friday, October 23, 2015 is the 2015 Bar Convention in the Hawaii Convention Center.

CLE Corner Upcoming LIVE Events - HSBA CLE 101 Series What is it?

These one hour CLE seminars are only $25 each and will be held in the HSBA conference room at either 8:30 AM or 12 noon.

Who should attend?

Attorneys who want exposure to various subject areas missed or not covered in law school, attorneys who do not currently practice in certain areas but would like to expand their general knowledge, and attorneys who just want to improve their professional skills.

Upcoming Scheduled Seminars: July 6, 2015 Immigration 101 July 23, 2015 Effective Legal Writing August 3, 2015 Ceded Lands August 19, 2015 Native Hawaiian Law More to come!

Webcasts of past HSBA CLE programs are available on the HSBA CLE page, for purchase. Questions? Call the HSBA CLE Department at (808) 7927336.

Member Benefits Highlight Mercer - Professional liability insurance

and premium financing. Call Blossom Tong, 808-585-3615.

Liberty Mutual - 10% discount on auto insurance and 5% discount on home insurance. Contact Jon Coito at 20 July 2015

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808-589-8920 or jon.coito@libertymutual. com.

Mass Mutual Financial Group Hawaii - Long term care options available to HSBA members. Discounts are available to HSBA members, as well as their families, and for ancillary benefits.

Contact 808-697-6457.

To view the full list of current benefits, visit the member benefits page at www.hsba.org.

Need a New Bar Card?

You can order your new Bar Card online at: http://bit.ly/1zJnCrx. It will take up to three business days for processing online orders. You can also contact Natalie Millon at nmillon@hsba.org to schedule a time to come to our office to make your card in about ten to fifteen minutes.

2016 HSBA Board Nominees

The HSBA Nominations Committee has made created and herein publishes its list of nominees below. Ballots will be distributed/deployed in mid-late September and the election results announced at the 2015 Annual Meeting at the Bar Convention.

HSBA members of active status may also be nominated by written petition signed by at least 20 regular members and submitted to the HSBA Board Secretary c/o the HSBA, 1100 Alakea Street, Suite 1000, Honolulu, HI 96813, within fifteen days of the publication date (the date this issue is received at the HSBA office).

Vice President Howard K.K. Luke Lisa A. Bail Secretary Russ Awakuni Treasurer Mark M. Murakami Director: West Hawaii Carol Kitaoka

Director: Kauai Emiko Meyers Director: Oahu R. Brian Black Rebecca Copeland Karin Holma Kristin Izumi-Nitao Gregory Kugle Mei-Fei Kuo Lisa Munger Mark K. Murakami Elmira Tsang HSBA/ABA Delegate James Kawachika Vacancies on HSBF Board

The Hawaii State Bar Foundation will have three open positions of threeyear terms beginning January 1, 2016.

General qualifications for these positions include: affirmative interest in the organization; willing and able to devote time to perform necessary duties; conscientious, studious, thorough and diligent in learning methods and problems of the organization.

HSBF Duties: Sets short-term and long-term strategic goals and directions for the HSBF; fundraises and develops sufficient resources to carry out goals and directions; and provides oversight of the HSBFâ&#x20AC;&#x2122;s finances, grants, programs, and operations.

Anyone interested in serving in this capacity should submit to the HSBA Nominating Committee (nominations@ hsba.org) by August 31, 2015: a resume, reason for wanting to serve, and area of practice concentration. Please note that these positions are uncompensated, and applicants need to disclose all public disciplinary sanctions. If there have been none, then state that such is the case. The appointments will be made at the HSBA Board meeting in December 2015.

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HAWAII BAR JOURNAL

CASE NOTES Appeal Pointers

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 Haw. 115, 11920, 869 P.2d 1334, 1338-39 (1994).

Supreme Court

marry. On appeal, Appellants claimed that the 2013 Act was unconstitutional under article I, section 23 of the Hawaii Constitution (also referred to as the “1998 marriage amendment”).

Specifically, Appellants argued that the 1998 marriage amendment was adopted by the voters to constitutionally require the legislature to reserve marriage to opposite-sex couples. The Hawaii Supreme Court first determined whether Appellants had standing. The Hawaii Supreme Court decided that Appellants failed to establish standing.

Labor

Attorneys Fees

Kolio v. Hawaii Public Housing Authority, No. SCWC-13-0000785, May 6, 2015, (Nakayama, J.; Reifurth, J., dissenting).

This appeal concerned Appellant’s eviction from Mayor Wright Homes (Mayor Wright), a federally-subsidized public housing project that is owned and operated by Hawaii Public Housing Authority (HPHA). While living at Mayor Wright, Appellant served as the president of the Mayor Wright Homes Tenant Association (Association) and misappropriated approximately $1,400 in Association funds. He later pled guilty to second degree theft.

HPHA evicted Appellant from Mayor Wright, alleging that Appellant’s theft of Association funds violated a term in his lease. The Hawaii Supreme Court held that HPHA failed to carry its burden of showing that Appellant’s theft threatened the health, safety, or peaceful enjoyment of the premises. Additionally, Appellant’s theft did not meet the definition of criminal activity given in Hawaii Administrative Rules § 17-2020, that governs the practice and procedure for terminating the tenancy of a person occupying a unit in a project that is owned or operated by HPHA. Civil Procedure

McDermott v. Ige, No. SCAP-14000843, May 27, 2015, (Recktenwald, C.J.). This case involved a challenge to the Marriage Equality Act of 2013. The 2013 Act changed Hawaii’s definition of marriage so that same-sex couples could

Rodrigues v. United Public Workers, AFSCME Local 646, AFL-CIO, May 27, 2015, (Wilson, J.). In 2008, Rodrigues filed a complaint in circuit court seeking indemnification from the UPW for the $850,000 plus attorneys’ fees and costs incurred in defending a federal lawsuit on the grounds that his liability to the Mutual Aid Fund arose from actions he took solely in his capacity as agent for UPW and/or that UPW ratified his actions. UPW responded that Rodrigues was not entitled to indemnification because he was negligent in making the loans, and his indemnification claims were preempted by ERISA. The circuit court agreed with UPW. Rodrigues appealed to the ICA that claims were not preempted under ERISA’s “implied conflict” doctrine because they did not duplicate, supplement, or supplant remedies provided by ERISA’s civil enforcement scheme. The ICA held that ERISA did not preempt Rodrigues’ indemnification claims but affirmed the circuit court, stating that Rodrigues’ state indemnity claim derived from the federal district court’s conclusion that Rodrigues breached his fiduciary duties to the MAF Plan, an employee benefit plan under ERISA. Rodrigues requested certiorari on the ground that the ICA erred in concluding that his negligence defeats his indemnification claim as a matter of law. The Hawaii Supreme Court held that ERISA preemption, not his negligence, defeated Rodrigues’ state indemnity claims against UPW as a matter of law.

Notice of Discipline On April 13, 2015, the Hawai‘i Supreme Court disbarred Hawaiilicensed attorney MARK L. WEBER (“Weber”) from the practice of law, effective 30 days after entry of the Order of Disbarment. Weber was disbarred from the State Bar of California for stealing numerous checks from his firm’s account, forging the firm’s signatory attorney’s signature or otherwise altering them, and converting the $11,126.00 in proceeds to his own use and benefit over a twelve-month period, despite being given repeated chances by his law firm to reform his conduct. The California Supreme Court concluded that Mr. Weber “wilfully engag[ed] in acts of moral turpitude, dishonesty, and corruption,” which the Hawai‘i Supreme Court determined would constitute violations of HRPC Rules 8.4(c) and 8.4(g) if committed in this jurisdiction.

Pursuant to RSCH 2.15, the Hawai‘i Supreme Court imposed reciprocal discipline after Weber failed to respond to an Order to Show Cause as to why the discipline imposed in California should not be imposed in this State.

Weber, 54, was admitted to the Hawai‘i Bar on November 8, 1996.

American Judicature Society’s Annual Sidebar Program The American Judicature Society invites summer associates and young lawyers to participate in their Annual Sidebar Program. The program offers a unique opportunity to observe a moderated panel discussion with some of Hawai‘i’s distinguished judges, engage in small group discussions with these jurists, and socialize with them and each other during the reception that follows.

American Judicature Society Annual Sidebar Program Thursday, July 23, 2015 4:00 - 6:00 p.m.

Supreme Court of Hawai`i 417 South King Street July 2015

HAWAII BAR JOURNAL

23

ODC ANNUAL STATISTICAL SUMMARY

by Richard A. Platel The Office of Disciplinary Counsel (“ODC”) presents its 2014 annual statistical summary.

Introduction

In Hawaii’s attorney discipline system, all communications and information concerning the conduct of Hawaii lawyers are first received by the ODC. The ODC investigates those complaints involving allegations of professional misconduct and may initiate and prosecute disciplinary proceedings before the Disciplinary Board of the Hawai‘i Supreme Court (“Disciplinary Board”).

Discipline System Terminology

Abatement refers to the procedure and grounds in the Disciplinary Board to stay a disciplinary proceeding.

Complaint refers to a written communication received by the ODC alleging misconduct by a Hawaii lawyer. When an inquiry determines that a complaint has sufficient allegations or information to show misconduct, which if proved, could result in discipline, an investigation may be opened. Each complaint against a lawyer is counted as one complaint. The terms case and complaint are used interchangeably. Complaint has also included an ODC initiated complaint, which is a matter opened

by ODC based on information about possible attorney misconduct received from anonymous sources or media reports.

Complainant refers to the person who makes a written complaint against a lawyer.

Docketing a Complaint signifies ODC has determined that a finding of an ethical violation and the imposition of discipline are likely to occur assuming the facts to be true and no other credible information contradict those facts.

Formal Disciplinary Proceeding means a proceeding before the Disciplinary Board for the purpose of seeking the imposition of discipline against a respondent.

Grievance refers to the evaluation of a written complaint after it is received by the ODC. The purpose of the inquiry is to determine whether an investigation or other action is warranted based on the information related to the alleged professional misconduct. The ODC first assigns an inquiry number to each complaint and a case number to each complaint when an investigation is opened.

Hawaii Attorneys and Judges Assistance Program refers to a professional organization that provides confidential services for a broad range of problems and personal concerns to attorneys and judges.

Investigation is the process during which the ODC gathers, evaluates, and reviews evidence and information about a complaint against a lawyer.

Minor Misconduct signifies a violation of the Hawai‘i Rules of Professional Conduct of a minor nature, resolved by way of non-disciplinary proceedings pursuant to the Rules of the Supreme Court.

Petition means the papers or “initial pleadings” filed to being the formal disciplinary proceedings before the 24 July 2015

HAWAII BAR JOURNAL

Disciplinary Board against a Respondent. The petition provides notice of the rules the lawyer is alleged to have violated. Each filing of a petition may consolidate and include multiple complaints against a lawyer. For the ODC’s process and handling of complaints, each complaint against a lawyer continues to be counted as one complaint throughout the discipline process.

Private Informal Admonition refers to the least serious discipline that may be imposed.

Private Reprimand signifies that misconduct has been found, and that while the matter does not warrant the filing of a report with the Supreme Court, the misconduct is too serious to be addressed by a Private Informal Admonition.

Public Reprimand signifies that misconduct has been found, and that while the matter does not warrant the filing of a report with the Supreme Court, the misconduct is too serious to be addressed by a Private Informal Admonition or a Private Reprimand, and requires public notice.

Respondent is a Hawai‘i lawyer who is the subject of an inquiry, investigation, or disciplinary proceeding before the Disciplinary Board.

Stipulation to Discipline refers to settlement by stipulation to facts, conclusions of law, and disposition reached between the ODC and the respondent. The stipulation is filed with the Disciplinary Board for review and any additional proceeding as ordered.

Overview

In 2014, the ODC received 320 new grievances, 77 of which were docketed for investigation.

Of the 77 complaints docketed in 2014, 16% involved alleged neglect of client matters, still the largest complaint area each year. The next largest complaint categories were incompetence (14%), conversion/misappropriation (9%), and disobedience of court order (9%).

Clients continued to be the largest souce of complaints (49%), followed by complaints filed by the ODC (23%).

Also in 2014, 83 docketed complaints were closed, 23% of which were concluded in conjunction with the imposition of public discipline. Of the 19 cases closed by public discipline, three (or 16%) were completed through the assistance of Voluntary Settlement Officers. Of the seven cases closed by private reprimand, three (or 43%) were completed through the assistance of Voluntary Settlement Officers. The Voluntary Settlement Conference process was initiated in 2012 as a pilot project to resolve appropriate cases through a stipulation of facts, rule violations, and final resolution regarding discipline and costs.

The ODC participated in presentations to the HSBA Collection Law Section, the HSBA Paralegal Certification Program, the Hawaii Paralegal Association, and recorded a video presentation for the HSBA regarding the new client trust accounting rules and the Rules Governing Trust Accounting.

In 2014, the ODC also responded to 206 contacts with members of the public and 305 telephone opinion requests.

The annual statistical summary is presented below.

ODC STATISTICAL SUMMARY FOR 2014 I. COMPLAINTS DOCKETED BY SUBJECT CATEGORY A. PERFORMANCE No. Of Complaints 1. Abandonment ..........................................................3 2. Abusiveness ...............................................................0 3. Neglect (phone calls, letters, etc.) ............................12 4. Incompetence ..........................................................11 5. Misrepresentations to client ......................................2 6. Misrepresentations to others .....................................0 7. Improper withdrawal from employment ..................1 8. Improper disclosure of confidential information .....0 9. Conflict of Interest ...................................................2 10. Improper contact with opposing party ...................1 11. Other ......................................................................0 Total: 32 B. FEES 1. Excessive fees ............................................................1 2. Failure to return unearned portion ..........................1 3. Improper referral fees ..............................................0 4. Fee dispute, no unethical conduct ...........................0 5. Other .......................................................................0 Total: 2

C. FUNDS AND PROPERTY 1. Commingling .........................................................2 2. Conversion .............................................................7 3. Failure to account ...................................................3 4. Failure to deposit in trust account ..........................0 5. Failure to maintain records .....................................1 6. Failure to promptly pay out ....................................0 7. Withdrawal—funds in dispute ................................0 8. Improper payment to client ....................................2 9. Improper assertion of lien on client’s property ......0 10. Failure to promptly deliver property ....................1 11. Other ....................................................................1 Total: 17 D. SOLICITATION 1. In-Person Solicitation ............................................0 2. Direct Mail Solicitation .........................................1 3. Other .....................................................................0 Total: 1 E. ADVERTISING 1. False, fraudulent, deceptive, or misleading ............0 2. Specialization..........................................................0 3. Other.......................................................................0 Total: 0 F. INTERFERENCE WITH JUSTICE 1. Advising violation of ..............................................0 2. Appeal in bad faith..................................................0

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Mediation

&Arbitration

“To sin by silence when they should protest makes cowards of men.”

- Ella Wheeler Wilcox

(Often misattributed to Abraham Lincoln)

Dan Bent Mediator & Arbitrator

Dispute Prevention and Resolution, Inc. 1003 Bishop Street • Pauahi Tower Suite 1155 Honolulu, HI 96813

3. Advising witness to hide, suppression of evidence, evidence, bribing witness .....................0 4. Aiding unlawful practice of law ...................................................4 5. Disobedience of court order.............7 6. Disrespect of court ..........................0 7. Gifts to officials ................................0 8. Harassment, claim not warranted ......................................0 9. Misrepresentations to court .............1 10. Threat of criminal prosecution......0 11. Abuse of process (sham or groundless lawsuits, etc.) ......................0 12. Prosecutorial misconduct................2 13. Improper contact with tribunal......0 14. Use of perjured testimony or false evidence ...................................0 15. Improper trial publicity...................0 16. Other...............................................1 Total: 15 G. FRAUD 1. Scheme to defraud............................3 2 .Other.................................................2 Total: 5

TRIAL ATTORNEY

The Disciplinary Board of the Hawaiʻi Supreme Court requests applications from Hawaiʻi licensed trial attorneys for a position with the Office of Disciplinary Counsel. The successful candidate will supervise the investigation of assigned attorney discipline matters, recommend action to be taken, prepare and present evidentiary cases to a hearings officer or panel, and brief and argue cases to the Disciplinary Board and the Hawaiʻi Supreme Court. Other responsibilities include conducting seminars and providing informal advice to members of the Bar about ethics issues, as well as arranging the disposition of abandoned law practices.

Applicants should have at least three years of experience in presenting cases to courts or other tribunals. Experience in applying the Hawaiʻi Rules of Professional Conduct or other attorney ethics rules is desired, but not required. To apply, please mail a resume, short writing sample, and your salary requirements to: Ms. Faye Hee, Office Administrator Office of Disciplinary Counsel 201 Merchant Street, Suite 1600 Honolulu, Hawaiʻi 96813

Applications will be accepted through August 21, 2015.

The Office of Disciplinary Counsel is an administrative arm of the Disciplinary Board of the Hawaiʻi Supreme Court.

An Equal Employment Opportunity Employer

26 July 2015

HAWAII BAR JOURNAL

H. PERSONAL BEHAVIOR AND CRIMES 1. Commission of crime.......................4 2. Failure to honor agreement or stipulation ........................................0 3. Offensive language or actions...........0 4. Extortion or intimidation..................0 5. Coercion to obtain payment/fee......0 6. Abusive collection practices..............0 7. Failure to pay bills (court reporters; expert witnesses, etc.) ..........................0 8. Other............................................... 1 Total: 5 TOTAL COMPLAINTS DOCKETED IN 2014 ...................77 II. COMPLAINT SOURCES 1. Clients ............................................38 2. Attorneys ..........................................4 3. Judges ...............................................1 4. Court Reporters ...............................0 5. Bar Association ................................0 6. Office of Disciplinary Counsel ......18 7. Attorney General .............................0 8. Other Governmental Agencies ........1 9. Opposing Party ................................4 10. Anonymous ....................................0 11. Member of the Public ...................2 12. Other ........................................ 9 TOTAL COMPLAINTS

77

III. NUMBER OF ATTORNEYS COMPLAINED AGAINST BY NUMBER OF YEARS IN PRACTICE Number of Years in Practice

Number of Attorneys

Less than 1 - 5 years....................... 7 6 - 10 years...................................... 5 11 - 15 years ................................... 1 16 - 20 years ................................... 8 21 - 25 years ................................... 5 26 - 31+ years............................. 36 Pro Hac Vice Admittees .............. 0 TOTAL 62 IV. NUMBER OF ATTORNEYS COMPLAINED AGAINST BY NUMBER OF COMPLAINTS PER ATTORNEY No. of No. of No. of No. of No. of

Attorneys with Attorneys with Attorneys with Attorneys with Attorneys with

1 complaint: 55 2 complaints: 4 3 complaints: 1 4 complaints: 0 5+ complaints:2

V. COMPLAINT DISPOSITION No. of Attorneys

Disbarment 1 Resignation in Lieu of Discipline 3 Suspension 4 Public Reprimand 1 Private Reprimand 6 Informal Admonition 22 Other 1 Dismissed or Dismissed with Caution 28 COMPLAINTS CLOSED IN 2014:

No. of Complaints Involved

1 5 7 1 7 24 6 32

83

COMPLAINTS PENDING AS OF 12/31/14: 184 ——————————————— Richard A. Platel is the Executive Director of the Office of the Disciplinary Counsel.

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HAWAII BAR JOURNAL

27

COURT BRIEFS

Kona Judiciary Complex Approved by the Legislature

William Domingo Sworn In as First Circuit District Court Judge

On May 5, 2015, the Legislature passed the Hawaii State Judiciary’s appropriations bill, which includes $55 million to fund construction of the new Kona Judiciary Complex. The bill was transmitted to Governor Ige for his review and consideration.

The Legislature’s action will enable the Judiciary to provide the people of West Hawaii with a secure courthouse, where they can access all court services in one convenient location, and meet the growing needs of the West Hawaii community.

“The Judiciary is grateful to the House and Senate for their support of this important project,” said Chief Justice Recktenwald. “We appreciate the efforts of all the Big Island legislators, in particular Rep. Nicole Lowen and Sen. Josh Green, as well as the leadership of Senators Jill Tokuda, Gilbert KeithAgaran and Ronald Kouchi, and Representatives Sylvia Luke, Karl Rhoads, and Kyle Yamashita.”

“Many members of the bar supported this effort, including the West Hawaii Bar Association, the Hawaii County Bar Association, and the Hawaii State Bar Association (HSBA),” Recktenwald said. “I appreciate the advocacy of HSBA president Gregory Markham, and Robert Kim, Andrew Kennedy and Carol Kitaoka of the West Hawaii Bar Association.”

Administrative Director of the Courts Rodney Maile expressed appreciation for the support of Mayor William Kenoi, the Hawaii County Council, Hawaii County Prosecuting Attorney Mitchell Roth, and the Kona-Kohala Chamber of Commerce.

Currently, court proceedings are held in three separate locations in Kona, in buildings not designed to serve as courtrooms. The present use of those buildings as courtrooms has created security, logistical, and operational problems.

The Judiciary plans to break ground on the new complex in the fall of 2016.

The total cost of construction is $90 million. In addition to the $55 million

Family, friends, colleagues, and supporters overflowed from the Supreme Court courtroom on May 18, 2015, as William M. Domingo was sworn in as judge for Hawaii’s First Circuit (Oahu) District Court.

During the ceremony, Domingo was described as a family man, strong mentor and community leader who volunteers with the YMCA, the American Youth Soccer Organization, Boy Scouts of America and other local organizations.

The program included remarks from Gregory K. Markham, President, Hawaii State Bar Association; Judge Christine E. Kuriyama, President, Hawaii State Trial Judges Association; James A. Kawachika, Chair, Judicial Selection Commission; Rep. Sylvia Luke, Hawaii State House of Representatives, and Sen. Will Espero, Hawaii State Senate.

Chief Justice Recktenwald thanked Domingo for his willingness to serve the people of Hawaii. Judge Domingo then addressed the court as a judge for the first time thanking his family for their support, and thanking those who mentored him such as retired Justice Simeon R. Acoba, Jr., Justice Richard W. Pollack, Judge Barbara Richardson, and late Chief Justice William S. Richardson.

Domingo, who received his law degree from the William S. Richardson School of Law in 1985, has nearly 30 years of experience as an attorney.

Prior to becoming a judge, he was in private practice. He also served as an Assistant Federal Public Defender for the District of Hawaii and a Hawaii State Public Defender, as well as a Deputy Assistant Attorney General.

28 July 2015

HAWAII BAR JOURNAL

approved May 5, $35 million was approved by the 2014 Legislature.

The Judiciary has created a webpage dedicated to the Kona Judiciary Complex Project to provide the public with more information, preliminary design plans, and to gather additional feedback from the community. Visit: www.courts.state.hi.us/special_projects/ kona_judiciary_complex_project.html Chief Justice Appoints Dyan M. Medeiros as Oahu District Family Court Judge

Chief Justice Mark E. Recktenwald has appointed Dyan M. Medeiros to serve as judge of the District Family Court of the First Circuit (Oahu).

Medeiros has been a partner in the Honolulu firm of Kleintop, Luria & Medeiros, LLP since 2008, where she specializes in family law. Prior to joining the firm in 1998 as an associate, she was an associate with the Honolulu law firm of Damon Key Leong Kupchak Hastert.

Medeiros received her law degree from the University of Hawaii William S. Richardson School of Law. She currently sits on the Board of Directors of the Family Law Section of the HSBA and has previously served as the Sectionâ&#x20AC;&#x2122;s chair.

Medeiros has served on a number of Family Court committees and has also served as a volunteer settlement master and special master for the Court. Over the past ten years, she has been a presenter at numerous seminars and continuing legal education events on topics related to family law. Since 1996, she has been a volunteer with Volunteer Legal Services of Hawaiâ&#x20AC;&#x2DC;i, a non-profit legal service provider.

The appointment of Medeiros fills the vacancy created by the appointment of Judge Christine E. Kuriyama to the Circuit Court of the First Circuit. If confirmed by the Senate, Medeiros will serve a six-year term. Because the chief justice has the discretion to assign judges to the district or district family court calendars, Medeiros may serve in the district or district family courts.

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29

OFF THE RECORD Chun Kerr, a limited liability law partnership, added a partner, three associates, and a chief operating officer: Pamela Macer is a partner who has been with the firm since 2008. Daniel Cheng is an associate concentrating on real estate, business and commercial litigation; Kimi Ide-Foster, is an associate, focusing on real estate, commercial finance and general business transactions; Imran Naeemullah is an associate, concentrating on real estate, finance and general business transactions, and tax litigation; Laura K.M. Colbert is the chief operating officer.

Carrie Okinaga, former general counsel of First Hawaiian Bank, joined the University of Hawaii as general counsel. She attended UH-Manoa and earned a bachelor’s degree in government and public policy. She received her J.D. degree from Stanford Law School.

Kenneth S. Robbins has joined the law firm of Bronster Hoshibata as a Director. The firm has changed its name to Bronster Fujichaku Robbins.

John T. Hoshibata, founding Partner, will continue as Of Counsel to the firm.

Ken Robbins will continue his practice in complex civil litigation.

Naomi M. Kusachi joined the Hartley & McGehee law firm as an associate in the area of family law.

Anne Lopez, formerly special assistant to the Attorney General, is currently CEO of Hawaii Health Systems Corporation.

Judge Walter Kirimitsu (Ret.) joined Dispute Prevention and Resolution, Inc. as a new Mediator/Arbitrator. He served as President/Head of School for Saint Louis School and was the University General Counsel/Vice President for Legal Affairs for the University of Hawaii and Associate Judge on the Intermediate Court of Appeals. Judge Kirimitsu is currently a member of the Judicial Selection Commission, to which he was appointed in September 2014.

Judge Kirimitsu served as certified trial 30 July 2015

HAWAII BAR JOURNAL

counsel in the Judge Advocate Group, U.S. Air Force and practiced law for over 25 years in private civil practice, mainly in personal injury litigation and international law and finance. He received his Bachelor of Arts degree from the University of Hawaii, majoring in Japanese Language and Literature and received his J.D. degree from the University of Michigan Law School.

Hazel Beh, Justin Levinson, and Mari Matsuda have been named Carlsmith Ball Faculty Scholars. Avi Soifer wrote: “We are so proud of the faculty’s very high level of scholarship, and the external committee and I have a very tough job in choosing which faculty members should receive this great honor.

But this trio clearly deserves it for their cutting-edge work, past, present, and future.”

Honolulu Mayor Kirk Caldwell opened the Hawaii Book and Music Festival in May 2015 on the grounds of Honolulu Hale. Musicians Lihau Hannahs Paik and her husband, Kellen Paik, performed on the main stage, and several faculty members and alumni participated in panel discussions about historic and environmental issues.

Kamana Beamer spoke about “New News in Old News; Lance D Collins talked about “Saving North Beach, Maui;” Kapua Sproat discussed activism and her chapter in “Ea: A Nation Rising,” and Melody MacKenzie, Susan Serrano, and Sproat spoke about their forthcoming book, “Native Hawaiian Law: A Treatise,” with Derek Kauanoe as moderator.

Lance D. Collins served as a judge at the national “We the People” competition in Washington D.C. April 2015, sponsored by the Center for Civic Education. The “We the People” program promotes civic competence and responsibility in the nation’s upper elementary and secondary students.

Collins has served as a judge at the Hawaii state competition and as a coach for several Maui and Oahu high schools for the past 15 years.

David Farmer’s show biz career continues. After shooting a guest appearance on “My Daddy is a Vampire” television show in Manila in January and doing a supporting role in April in “Toto,” a film also shot in Manila, he was seriously considered for a role in the 20th Century Fox film “Mike and Dave Need Wedding Dates,” shooting here on Oahu through July. The role disappeared with a revised script, but he did work for two days in June at the Turtle Bay Resort location playing a bocce player and catching glimpses of other stars.

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 between four and eight pages, double-spaced, 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 4,500 words.

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

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LITIGATION LAW FIRM looking for attorney with 2-3 years civil litigation experience.

Qualified candidates must be able to conduct complex legal research, prepare legal mem- oranda, draft correspondence, and conduct discovery. Excellent writing and communica- tion skills required, as well as a strong work ethic. Experience as a judicial law clerk pre- ferred. Interested candidates should submit their resume, writing sample, and references to eol@fmhc-law.com at Fukunaga Matayoshi Hershey & Ching.

REAL ESTATE / CORPORATE ATTORNEY. McCorriston Miller Mukai MacKinnon is seeking an attorney licensed to practice in Hawaii with at least 2-years’ experience in real estate and corporate transactions. Candidates must have strong research and writing skills.

Please submit a resume and recent writing sample to HR@m4law.com.

AUTO DETAILING IS BILLABLE HOURS coming between you and keeping your car looking nice? Drive into work and park, and by the time you go to lunch your car will be in it’s parking space looking showroom spotless.

Bo’s Auto Detailing, 1142 Bethel St. 782.1526

EXPERT WITNESS AQUATIC SAFTEY EXPERT 28 years aquatic Experience. Qualified as an expert in state and

Hawaii. Many local attorney references. www.aquaticexpert.com. 808.651.SURF PREMISES 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

LEGAL CONSULTING 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 ENGLISH SEMINAR LEGAL-EASE INTERNATIONAL will be presenting a Legal English Seminar for Attorneys and students engaged in foreign transactions.

Master Legal English and network with Attorneys and students from around the world. Please contact us directly at info@legalenglish.com or register here www.legalenglish.com Seminar will be held at U Hawaii, Manoa School of Law, August 14-15 2015 9-5 Materials included and Diploma. Don't miss this opportunity to meet clients worldwide and gain more!

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.

federal courts. See our ad on page 56 of the HSBA Directory. Aquatics consulting Servies 808-960-9348 www.aquaticsconsulting.com DROWNING & TOUR BOAT SAFETY EXPERT Former Hawaii ocean lifeguard and tour boat captain Patrick Durkin. 30 plus years in

OFFICE SPACE AVAILABLE FINANCE FACTORS CENTER at 1164 Bishop St. Beautiful ocean and mountain views available. Office spaces ranging from 523 sf to 3,000 sf (asking base rent is $1.10 psf).

Current full service operating expense is

$1.43 psf. Conference room available for building tenants. Check out our website at www.waiponoinvestment.com or call Lee Miller (S) at (808) 548-3358.

MCCANDLESS BUILDING at 925 Bethel St. Office spaces ranging in size from 297 sf to 343 sf (asking base rent is $1.00 psf).

Current operating expenses are $1.26 psf and include full service janitorial, security, air conditioning, and electricity. Storage space available at reasonable rates. Easy walking distance to courts. Check our website at www.waiponoinvestment.com or call Lee Miller (S) at (808) 548-3358.

SHARE A QUITE, pleasant, clean and organize office in ASB Tower with two attorneys, includes conference room, secretary station, kitchen, internet, copier, fax, scanner, phone system. call 523-1485 UNION PLAZA at 1136 Union Mall. Office spaces from 400 sf to 2,500 sf (asking monthly base rent is $0.70 psf). Current monthly operating expense is $1.20 psf; includes full service janitorial, security, air conditioning and electricity. Conference room available for building tenants. Storage space available at reasonable rates. Easy walking distance to courts, adjacent to US Bankruptcy court. Check our website at www.waiponoinvestment.com or call Lee Miller (S) at (808) 548-3358.

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

Advertise on this Page Classified advertisements are $8.00 per line with a four line min. For more information, or to place an ad, please contact Brett Pruitt at: 521.1929 or brett@grassshack,net July 2015

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