Hawaii Bar Journal - January 2019 by Hawaii Bar Journal

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TABLE O F C ON TE NTS VO LUM E 23 , N U M B E R 1

ARTICLES

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

New Legislation Arising from the 2018 Legislative Session by Ed Kemper

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Four Major Hawai`i Judicial Developments in the Last 50 Years by Hon. Simeon R. Acoba, Jr.

24 21

2018 Pro Bono Celebration by Tracey S. Wiltgen

HSBA OFFICERS President Derek R. Kobayashi President-Elect P. Gregory Frey Vice President Karin Holma Secretary Russ Awakuni Treasurer Paul Naso YLD OFFICERS President Summer Kaiawe Vice President/President-Elect Addison Dale Bonner Secretary Kyleigh Nakasone Treasurer Katherine Lukela

OF NOTE 20 20 26 22 27 28 31 30

HSBA Happenings Court Briefs Case Notes Classifieds

EXECUTIVE DIRECTOR Patricia Mau-Shimizu GRASS SHACK PRODUCTIONS Publisher Brett Pruitt Art Direction Debra Castro Production Beryl Bloom

Hawaii Bar Journal is published monthly with an additional issue in the fourth quarter of each year for the Hawaii State Bar Association by Grass Shack Productions, 1111 Nuuanu Ave., Suite 212, Honolulu, Hawaii 96817. Annual subscription rate is $50. Periodical postage paid at Honolulu, Hawaii and additional mailing offices. POSTMASTER: Send address changes to the Hawaii Bar Journal (ISSN 1063-1585), 1100 Alakea St., Ste. 1000, Honolulu, Hawaii 96813.

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On the Cover: Peleâ&#x20AC;&#x2122;s glory by Peggy Chun (1946-2008). Chun is known in Hawaii for her beautiful

and often whimsical artwork. Her work can be found in both private and corporate collections across the globe. Chun captured the "spirit of aloha" in her paintings and enjoyed sharing her love of the islands with the world. To see more of her work please visit the Louis Pohl Gallery at 1142 Bethel St. in Honoluluâ&#x20AC;&#x2122;s art district. 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.

N E W L E G I S L AT I O N A R I S I N G F RO M T H E

2018 LEGISLATIVE SESSION by Ed Kemper In 2018, the Hawaii Legislature passed, and the Governor signed 220 acts. Many of the new enactments relate to appropriations, bond approvals, the interworkings of state agencies or commissions, and what could be best described as technical amendments, corrections, minor changes and additions, and laws that affect a small number of people or organizations. These latter types of laws will not be summarized below. The new laws that may have an impact on the everyday practice of law will be highlighted below. There may be, however, omissions of laws that may affect your clients that are not covered by this article. As indicated below, the Governor’s website sets forth all of the new legislation. The brief descriptions of the enactments were taken from the Governor’s website (http://governor.hawaii.gov/bills/) and for the details that same website has the complete copies of the new laws. BUSINESS REGULATION ACT 22. RELATING TO CONSUMER CREDIT REPORTING AGENCIES. Expands the methods by which a consumer may request a security freeze. Specifies that a consumer credit reporting agency shall not charge a fee for placing, lifting, or removing a security freeze on a consumer’s credit report or for placing or removing a security freeze on protected consumers. ACT 23. RELATING TO CITATIONS FOR MOTOR VEHICLE REPAIR VIOLATIONS. Authorizes the issuance of a citation for specific violations of the motor vehicle repair laws and rules by licensees. Sets forth a process for licensees to contest the citation and provides for the assessment of fines for each violation. ACT 49. RELATING TO WIRELESS BROADBAND FACILITIES. Establishes a process to upgrade and

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support the next-generation wireless broadband infrastructure throughout the state. Establishes a permitting, application, review, and approval process for small wireless providers or communications service providers to install wireless facilities on state or county solely-owned utility poles or install associated utility poles in the right of way. ACT 73. RELATING TO VEHICLE INSPECTION STATIONS. Changes the penalty for the first three instances of improper conduct of motor vehicle inspections at inspection stations from revocation or suspension of the station’s operating permit to an administrative fine. ACT 82. RELATING TO FOUND ELECTRONIC DEVICES. Clarifies that found electronic devices that may contain personal information shall be sanitized before they are provided to finders or disposed of by public auction or other means. ACT 90. RELATING TO INTOXICATING LIQUOR. Authorizes the county liquor commissions to issue new class 2 restaurant licenses before restaurants commence operation. Clarifies that class 2 restaurant licenses are transferrable. Requires an applicant for a new class 2 restaurant license or a transferee to make certain certifications. ACT 108. RELATING TO EQUAL PAY. Prohibits prospective employers from requesting or considering a job applicant’s wage or salary history as part of an employment application process or compensation offer. Prohibits enforced wage secrecy and retaliation or discrimination against employees who disclose, discuss, or inquire about their own or coworkers’ wages. Takes effect January 1, 2019. ACT 163. RELATING TO THE MOTOR VEHICLE INDUSTRY LICENSING ACT. Specifies certain

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recall reimbursement or repair requirements for manufacturers where a stop-sale order has been issued. Authorizes a license holder to engage in business at motor vehicle dealer locations that are affiliated by common ownership under the same license and makes certain other clarifications. CIVIL PROCEDURE ACT 94. RELATING TO MANNER OF SERVICE. Authorizes service on nonresident property owners for actions involving the property owned by the nonresident through a summons mailed to the mailing address on record with the real property tax office in the county in which the property is located. CIVIL RIGHTS ACT 98. RELATING TO SEXUAL VIOLENCE. Extends the period during which a victim of child sexual abuse may bring an otherwise time-barred civil action against the victim’s abuser or an entity with a duty of care. Applies retroactively to April 24, 2012. ACT 110. RELATING TO CIVIL RIGHTS. Prohibits discrimination on the basis of sex, including gender identity or expression, or sexual orientation, in any state educational program or activity, or in any educational program or activity that receives state financial assistance. CONDOMINIUMS AND HOMEOWNERS ASSOCIATIONS ACT 195. RELATING TO CONDOMINIUMS. Clarifies the process, including payment obligations, mediation requirements, and triggers for further default, where a condominium unit owner and association reach a payment plan to resolve a nonjudicial foreclosure. Establishes procedures that provide condominium owners with the right to submit disputed legal fees, penalties or fines, late fees, lien filing fees, etc. ACT 196. RELATING TO CONDOMINIUMS. Expands the scope of the Condominium Education Trust Fund to cover voluntary binding arbitration between interested parties. Amends the conditions that mandate mediation and exceptions to mandatory mediation. Makes conforming amendments. CRIMINAL LAW, TRAFFIC CODE, AND TRAFFIC ISSUES ACT 40. RELATING TO EXTENDED TERMS OF IMPRISONMENT. Authorizes the courts to impose

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an extended term of imprisonment for an offender who is convicted of negligent homicide in the first degree and did not remain at the scene of the crime and render reasonable assistance to an injured person. ACT 47. RELATING TO BICYCLES. Requires the driver of a vehicle passing and overtaking a bicycle proceeding in the same direction to allow at least three feet of separation between the right side of the driver’s vehicle and the left side of the bicyclist. ACT 48. RELATING TO ABANDONED VEHICLES. Requires the counties to take into custody any abandoned vehicle on a public road within ten business days. Amends the conditions that constitute a derelict vehicle. Allows, rather than requires, that abandoned vehicles be disposed of by public auction. ACT 64. RELATING TO AERONAUTICS. Replaces criminal penalties for certain airport offenses addressed in the State’s aeronautics laws or in certain administrative rules or orders issued pursuant thereto with fines. ACT 74. RELATING TO DRIVING WHILE INTOXICATED. Allows requests for permits that authorize the respondent or defendant to operate an employer’s vehicle during the period of license revocation to be supported by the employer’s sworn statement attesting to the period of the specified assigned hours of work that the defendant will drive the vehicle for purposes of employment. ACT 77. RELATING TO MOPEDS. Establishes a fine not to exceed $100 for moped owners who fail to comply with moped registration requirements. ACT 99. RELATING TO MATERIAL WITNESS ORDERS. Authorizes specified courts to issue material witness orders in cases initiated through felony complaint. Includes the family courts in the authorization to issue material witness orders. ACT 100. RELATING TO LESSER INCLUDED OFFENSES. Clarifies that defendants may be convicted of lesser included offenses in cases filed via felony complaint. ACT 101. RELATING TO CONFIDENTIAL PERSONAL INFORMATION. Amends the definition of “confidential personal information” for offenses against property rights to eliminate unconstitutionally vague provisions. Specifies other types of confidential personal information. Clarifies when a password constitutes confidential personal information. ACT 113. RELATING TO SEXUAL ASSAULT. Creates a Hawaii Sexual Assault Response and Training Program to address the manner in which

sexual assault evidence collection kits are processed and tracked, and to ensure that victims of sexual assault are informed of their rights under the law. ACT 114. RELATING TO VIOLATION OF PRIVACY. Amends the offense of violation of privacy in the first degree to prohibit threats or acts to disclose an image or video. Requires that any recording or image made or disclosed be destroyed or sealed and remain confidential. ACT 147. RELATING TO HEALTH CARE WORKERS. Makes intentionally or knowingly causing bodily injury to certain health care workers a Class C felony. FAMILY LAW ACT 213. RELATING TO AUTOMATIC RESTRAINING ORDERS. Automatically imposes a restraining order upon parties filing for annulment, divorce, or separation to preserve the financial assets of the parties and their dependents and maintain the current island of residence and school of enrollment of a minor child of the parties. FIREARMS ACT 157. RELATING TO FIREARMS. Prohibits manufacture, importation, sale, transfer, and possession of bump fire stocks, multiburst trigger activators, and trigger cranks. ACT 158. RELATING TO FIREARMS. Requires voluntary surrender of firearms and ammunition, upon disqualification from ownership, possession, or control, within seven days of disqualification. Shortens the time period after failing to voluntarily surrender or dispose of all firearms and ammunition upon disqualification, after which the chief of police may seize all firearms and ammunition, from thirty days from the date of disqualification.

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HEALTH AND ENVIRONMENT ACT 2. RELATING TO HEALTH. Establishes a regulated process under which an adult resident of the State with a medically confirmed terminal disease and less than six months to live may choose to obtain a prescription for medication to end the patient’s life. Imposes criminal sanctions for tampering with a patient’s request for a prescription or coercing a patient to request a prescription. ACT 15. RELATING TO ENVIRONMENTAL PROTECTION. Renames the Carbon Farming Task Force established by Act 33, Session Laws of Hawaii 2017, as the Greenhouse Gas Sequestration Task Force and makes the task force and Hawaii Climate Change Mitigation and Adaptation Initiative permanent. Aligns the State’s clean energy and carbon sequestration efforts with climate initiative goals. ACT 16. RELATING TO THE ENVIRONMENT. Requires the Office of Planning in partnership with the Greenhouse Gas Sequestration Task Force to establish a framework for a carbon offset program and report to the Legislature. Appropriates funds. ACT 17. RELATING TO ENVIRONMENTAL PROTECTION. Requires the Environmental Council to adopt and maintain rules requiring all environmental assessments and environmental impact statements prepared pursuant to chapter 343, HRS, to include consideration of sea level rise based upon the best available scientific data regarding sea level rise. ACT 104. RELATING TO WATER POLLUTION. Beginning January 1, 2021, bans the sale, offer of sale, or distribution in the State of any sunscreen that contains oxybenzone or octinoxate, or both, without a prescription issued by a licensed healthcare provider to preserve marine ecosystems. ACT 107. RELATING TO WORKERS’ COMPENSATION

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MEDICAL BENEFITS. Improves access for firefighters to comprehensive medical benefits under the Workers’ Compensation Law upon diagnosis of cancer that is presumed to arise out of and in the course of employment. ACT 116. RELATING TO CANNABIS FOR MEDICAL USE. Establishes standards and criteria for reciprocity for qualifying out-of-state medical cannabis patients and caregivers including limitations, and safeguards. Authorizes extension of written certifications of a debilitating condition for up to three years for chronic conditions. ACT 125. RELATING TO HEALTH. Authorizes a health care surrogate to act as a medicaid authorized representative to assist a patient with a medicaid application and eligibility process and in communications with the Department of Human Services. Specifies the duties and obligations of the surrogate. ACT 144. RELATING TO MENTAL HEALTH. Provides designated family members and other interested persons with notice when an individual with a mental health emergency is subject to certain procedures and actions. Provides designated family members and other interested persons with the right to be present for the individual’s hearings and receive a copy of the hearing transcript. ACT 145. RELATING TO EMERGENCY RESCUE DEVICES. Amends Hawaii’s Good Samaritan Law to provide civil liability exemption for persons who in good faith, without remuneration or expectation of remuneration, attempt to rescue a person with a rescue tube and for owners and operators of any premises, property, or facility that is adjacent to navigable waters, and other areas. ACT 146. RELATING TO HEALTH. Authorizes the Department of Health to investigate care facilities reported to be operating without an appropriate certificate or license issued by the Department. Establishes penalties for violations and for knowingly referring or transferring patients to uncertified or unlicensed care facilities, with certain exceptions. Excludes landlords from licensure, under certain conditions ACT. 151. RELATING TO OPIOIDS. Requires the inclusion of a label warning of the risks of addiction and death on the packaging of any opioid drug dispensed by a health care professional or pharmacist. ACT 153. RELATING TO PRESCRIPTION DRUGS. Requires prescribers of certain controlled substances to consult the State’s Electronic Prescription Accountability System before issuing a prescription for the

controlled substance, under certain circumstances. Provides that a violation by a prescriber shall not be subject to criminal penalty provisions but that a violation may be grounds for professional discipline. ACT 160. RELATING TO THE UNIVERSITY OF HAWAII. Prohibits smoking and tobacco use, including the use of electronic smoking devices, by any person on the premises of the University of Hawaii. ACT 217. RELATING TO SERVICE ANIMALS. Establishes a civil penalty for knowingly misrepresenting an animal as a service animal. Conforms Hawaii law with the definition of “service animal” under the Americans with Disabilities Act of 1990. Takes effect on 1/1/2019. HOMELESSNESS ACT 209. RELATING TO HOMELESSNESS. Establishes the Ohana Zones Pilot Program, the Emergency Department Homelessness Assessment Pilot Program, and the Medical Respite Pilot Program. Makes appropriations. INSURANCE ACT 8. RELATING TO INSURANCE. Delays the implementation of the producer licensing requirements amended by Act 152, Session Laws of Hawaii 2017, until January 1, 2020. ACT 111. RELATING TO HEALTH INSURANCE. Ensures certain benefits under the federal Affordable Care Act are preserved under Hawaii law, including: extending dependent coverage for adult children up to 26 years of age; prohibiting health insurance entities from imposing a preexisting condition exclusion; and prohibiting health insurance entities from using an individual’s gender to determine premiums or contributions. ACT 192. RELATING TO INSURANCE. Prohibits an insurer from renewing or re-enrolling an individual in a short-term, limited-duration health insurance policy or contract if the individual was eligible to purchase health insurance through the federal health insurance marketplace during an open enrollment period or special enrollment period in the previous calendar year. LABOR RELATIONS ACT 10. RELATING TO COLLECTIVE BARGAINING. Provides that negotiations over the implementation of management decisions affecting the terms and conditions of employment that are subject to collective bargaining are not precluded from collective bargaining negotiations.

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LANDLORD AND TENANT ACT 194. RELATING TO THE LANDLORD TENANT CODE. Provides a specific exemption to the landlord-tenant code for a seller who occupies the residential real property after the transfer of the sellerâ&#x20AC;&#x2122;s ownership rights. Takes effect 11/1/2018. ROADS, STREETS AND HIGHAYS ACT 9. RELATING TO THE HAWAII COMMUNITY DEVELOPMENT AUTHORITY. Requires certain private streets, highways, or thoroughfares in a development district of the HCDA to conform to county construction and maintenance standards. Makes owners who charge a fee to use private roads responsible for the costs of conforming and maintaining the private roads. Exempts certain private roads. SEXUAL ORENTIATION ACT 13. RELATING TO MINORS. Prohibits specific state-licensed persons who are licensed to provide professional counseling from engaging in, attempting to engage in, or advertising sexual orientation change efforts on minors. Establishes the sexual orientation counseling task force to address the concerns of minors seeking counseling on sexual orientation, gender identity, gender expressions, and related behaviors. TAXATION ACT 11. RELATING TO TAXATION. Extends the period in which a county may adopt a surcharge on state tax, under certain conditions, from 3/31/2018 to 3/31/2019. ACT 41. RELATING TO TAXATION. Provides that a person is engaging in business in the State for the purpose of the general excise tax law if, in the current or immediately preceding calendar year, the person has $100,000

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or more in gross income, or two hundred or more separate transactions, from the sale of tangible personal property used or consumed in the State or intangible property used in State in two hundred or more separate transactions. ACT 66. RELATING TO ELECTRONIC FILING. Authorizes the Department of Taxation to require certain taxpayers to file returns electronically, subject to exceptions for reasonable cause. ACT 122. RELATING TO TAXATION. Amends the taxes withheld on the amount realized by nonresidents from the disposition of Hawaii real property from 5% to 7.25%. Applies to real estate dispositions that occur on or after 9/15/2018. ACT 143. RELATING TO BIOFUELS. Expands the renewable fuel tax credit cap by lowering the production threshold and expanding the types of renewable fuel eligible for the credit. Applies to taxable years after 12/31/2017 ACT 183. RELATING TO TAX ON INTANGIBLE PROPERTY. Clarifies that intangible property shall be exempt from the general excise tax used outside the State. Subjects intangible property acquired from an unlicensed seller and used in the State to the use tax at 4 percent of the value of the property ACT 211. RELATING TO TAXATION. Imposes registration requirements and the transient accommodations tax on transient accommodations brokers, travel agencies, and tour packagers that enter into arrangements to furnish transient accommodations at noncommissioned negotiated contract rates on their share of the proceeds. Applies to taxable years beginning after 12/31/18.

Four Major Hawaiì Judicial Developments in the Last 50 Years Hon. Simeon R. Acoba, Jr. Four major developments have marked the course of the Hawaiì judicial system in the past half century: (i) the adherence to the state constitution in criminal procedure cases rather than to United States Supreme Court precedent for over 50 years; (ii) the expansion of specialty courts over the last twenty years; (iii) the heightened commitment to access to justice for underserved persons over the last decade; and (iv) the emergence of public trust and environmental rights doctrines as dominant influences in the law. Each is highlighted here. The Enduring Jurisprudence of the Hawaiì Constitution Under the federal system, the federal and state governments coexist in each state. In this context, the operation of both the federal constitution and the state constitution in the same jurisdiction may result in contrasting outcomes as between a federal and a state court proceeding, under circumstances arising out of the same or similar facts.1 Where guarantees of individual freedoms are concerned, a state may afford individuals within its boundaries greater or broader rights than the United States Supreme Court extends to individuals in its interpretation of similarly or identically worded provisions in the federal bill of rights,2 unless the state decision would conflict with the federal constitution or a federal statute. See William J. Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L.Rev. 489, 501 (1977). Beginning in the 1960s, Hawai‘i has adhered to a view of state constitutional criminal law procedure that extends wider protection than recognized by the United States Supreme Court in its interpretation of the federal constitution’s

Fourth, Fifth, and Sixth Amendments. Seemingly, this divergence is largely a result of (i) the Hawai`i Supreme Court’s creed that “[w]hen the United States Supreme Court’s interpretation … does not adequately preserve the rights and interests sought to be protected, …[it] will not hesitate to recognize the appropriate protection as a matter of state constitutional law”3 and (ii) the United States Supreme Court’s substantial modification of criminal procedure precedents of the Chief Justice Earl Warren court, by subsequent decisions of the Chief Justice William Rehnquist and current Chief Justice John Roberts courts. While this divide has apparently widened over the past fifty years, the differing paths were noted earlier by Justice William Brennan in his state constitution article in 1977. In referring to United States Supreme Court decisions, Justice Brennan said that it was not “that ultimate constitutional truths invariably come prepackaged in the dissents, including” his own, but that “the decisions of the [U.S. Supreme C]ourt are not and should not be dispositive of questions regarding rights guaranteed by counterpart provisions of state law.” Brennan, State Constitutions, 90 Harv L. Rev. at 502. This is because “state courts no less than federal are and ought to be the guardians of our liberties.” Id. at 491. He hailed Hawai`i as one of the prominent examples of states that resorted to its state constitutions when it found a federal decision on parallel provisions either unconvincing or unpersuasive. See id. at 500. Prime instances of the divergence are noted here in a limited manner. The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall…have the Assistance of Counsel.” The United States Supreme Court has permitted police to interrogate the defendant after formal criminal proceedings have commenced in the absence of his defense counsel if the defendant waives his right to counsel after being

given Fifth Amendment “Miranda warnings.”4 The Hawaiì Constitution contains a parallel provision in Art. I, sec.14, but Hawaiì has held that (i) the police are prohibited from contacting the defendant after formal criminal proceedings have commenced without the consent of defense counsel; (ii) the police may not interrogate the defendant unless the defendant has been advised by the court or by counsel of his parallel Sixth Amendment rights under the Hawaiì Constitution, and (iii) Fifth Amendment Miranda-type warnings do not suffice to provide an advisement of sixth amendment rights as they do under federal law. See State v. Luilama, 9 Haw. App 447, 462463 (1992). Under the Fifth Amendment’s prohibition against a “person be[ing] compelled in any criminal case to be a witness against himself,” the central premise of Miranda is that custodial interrogation by the police is inherently compulsive and thus a constitutional rights advisement to the interrogee was essential to protect that person’s right against self-incrimination. Miranda, 384 U.S. 436, 461 (1966). This premise appears to have been abandoned by the Supreme Court, which now holds that after Miranda warnings are given, (i) interrogation may proceed without any written or express oral waiver of rights, (ii) any statement by the defendant may be deemed an implied waiver of the right to remain silent, and (iii ) the burden is on the defendant to unambiguously assert his rights. See Berghius v. Thomkins, 560 U.S. 370, 381, 385, 387 (2010). Contrastingly, in interpreting Art. I, sec. 10 of the Hawaiì constitution, the Hawaiì Supreme Court has held that the initial solicitation of a statement by the police for the defendant’s “side of the story” must be preceded by the Miranda advisement and a waiver of rights. This is because the initial solicitation is tantamount to asking the defendant to waive the right to be informed of his rights, without first advising the defen-

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dant of the consequences of waiving the right to remain silent. See State v. Eli, 126 Hawai`i 510, 523 (2012). With respect to the Fourth Amendment’s proscription against “unreasonable searches and seizures” the Supreme Court had held in Mapp that evidence obtained through warrantless illegal searches would be excluded or suppressed at trial in order to protect the right of privacy, to uphold the integrity of the courts, and to deter police misconduct. See Mapp v. Ohio, 367 U. S. 643, 657-659 (1961). Subsequently, the Court has held that the sole purpose of the exclusionary rule is to deter police misconduct and thus whether evidence will be suppressed focuses only on whether the benefits of deterring police misconduct outweigh the asserted substantial social costs (allowing the guilty to go free) that will result from suppression. See U.S. v. Leon, 468 U.S. 897, 916 (1984). The Court will only apply the exclusionary rule to police misconduct that is de-

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liberate, reckless, grossly negligent, or in some circumstances in the nature of recurring or systemic negligence, but not to negligent conduct. See Herring v. U.S., 555 U.S. 135, 144 (2009). However, the Hawaiì exclusionary rule does not rest on balancing the benefits of deterring police misconduct as against the potential social cost of letting the guilty go free, but adopts all three original purposes that were set forth in Mapp as a guide to applying the exclusionary rule. State v. Torres, 125 Hawaiì 382, 394 (2011). With respect to searches and seizures, under Art. I, sec. 7 of its constitution, Hawaiì treats warrantless searches and seizures as “unreasonable per se absent a few specifically established and well-delineated exceptions.” State v. Wong, 137 Hawaiì 330, 350 (2015). Unlike the federal decisions, Hawaiì does not adhere to “an indeterminate balancing test for reasonableness.” Id. (quoting State v. Ganal, 81 Hawaiì 358, 368 (1996)).

Construing a constitution requires not only faithful adherence to language, but a discernment of the core values that underlie the text5 because constitutional language is, of necessity and design, general in nature. The Hawaiì Supreme Court’s sustained independent application of such core values in the Hawaiì constitution for the last fifty years is one of the enduring hallmarks of Hawaiì’s jurisprudence. The Functionality of Hawaiì’s Specialty Courts The nation has seen a proliferation of specialty courts, and over the last two decades Hawaiì has been a leader in the pioneering of such courts. A specialty court (as opposed to a general subject matter court) may be defined as a “tribunal[ ]of narrowly focused jurisdiction to which all cases…within that jurisdiction are routed.”6 The specialty courts in Hawaiì fall into three broad categories: treatment courts in the criminal

law area, protective7 courts in the family law area, and the specialized law court, which is vested with jurisdiction over cases in a specific legal field. The Environmental Court, only the second in the nation, is the sole Hawaiì specialty law court and spans both civil and criminal cases that involve environmental law. All of the specialty courts in Hawaiì, except for the Environmental Court, are focused primarily on discrete populations. In the criminal law area, the focus is on treatment of defendants. The Drug Court, Mental Health Court, and Veterans’ Treatment Court are aimed at assisting participants overcome substance abuse, mental illness, and social adjustment problems. Drug Court is the oldest of the specialty courts in Hawaiì and was convened in 1995. The purpose of the drug court program is to promote rehabilitation and prevent recidivism of alleged or convicted offenders.8 The Hawaiì Drug Court has

been recognized as “one of the country’s most comprehensive and diverse, from both a treatment and cultural perspective.”9 After an intensive two-year course of successful treatment, the program leads to graduation and may result in early termination from probation.10 According to Judge Kubo, the Drug Court Judge for the first circuit court, there have been more than 900 graduates of the program in the first circuit since its inception. Over the long term, such treatment has proven to be more successful than incarceration.11 The Mental Health Court12 and the Veterans’ Treatment Court13 are similar in nature to the Drug Court. While not a treatment court, the Hawai`i Opportunity Probation Enforcement (“HOPE”) Court program is designed to obtain compliance by criminal defendants through prompt and certain, but brief, imprisonment for violation of probation conditions, but

may have longer term rehabilitative effects. Initiated in 2004 by former first circuit court Judge Steven Alm,14 HOPE is an ancillary innovation to probationary status that has garnered national attention.15 In the protective court area, the emphasis is on protecting the welfare of youth, women, families, and infants through the Juvenile Drug Court, Family Drug Court,16 Girl’s Court,17 Zero to Three Court,18 Permanency Court,19 Imua Kakou Court,20 and Truancy Court.21 These seven specialty courts operate as divisions of the family court. Judge Browning described the underlying principle of family court as a “place of healing.” These courts monitor the participants and assist them in obtaining specific professional, medical, and social services.22 The Hawai`i treatment and protective courts have been established within the court system by court order. In ef-

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fect, these courts administer programs that address specific matters collateral to the adjudicatory process. The courts, however, retain the power to enter legal binding dispositions if imposed conditions are not met by the participants. Unlike the treatment and protection specialty courts, the Environmental Court was expressly established to develop law (in the judicial interpretive and applicative sense of that term) in the environmental law field. See Act 218, Session Laws of Hawaiì 2014 (Act 218), sec. 1. Divisions of the district courts and circuit courts of the state are designated as environmental courts. See Act 218, sec. 2. The stated purpose of the Act is “ to promote and protect Hawaiì’s natural environment through consistent and uniform application of environmental laws by establishing environmental courts.” Act 218, sec. 1. In this sense, the Environmental Court is a true specialty law court. Because expertise is expected to be developed in these narrowly focused courts, it is assumed that specialty courts should be more efficient and expeditious, uniform and consistent in applications of the subject law, familiar with pertinent agency decisions, and predictable in terms of case disposition,23 than general jurisdiction courts otherwise would be in the subject law area. Nationally, drug courts and mental health courts have been successful in preventing future criminal activity and are cost-effective.24 The keys to success are said to be the positive perception of the programs and the importance of interaction between the judges and the defendants.25 As in the positive national experience, treatment and protective courts in Hawaiì will likely maintain their place as necessary and beneficial adjuncts to the adjudicatory function of the courts. Having proven effective and adaptive to changing circumstances and a source of innovation, these courts have established the validity of their longevity. With the recent establishment of Environmental Courts, Hawaiì for the first time moved into the area of specialty law courts for the express purpose of developing and administering a particular area of the law. Embarking on law specialization in the courts may potentially lead to the creation of other like-specialty courts, such as business or labor courts. The same claims of fostering judicial expertise, developing consistency in the law, and increased efficiency by the prompt resolution of cases can be made in those areas and others. On the other hand, proponents of the general jurisdiction approach advocate for judges skilled in applying broad equity principles and with a universal contextual view of the judicial process.26 The proper apportionment of judicial resources and the choice among effective forums in these circumstances may pose a future challenge for the court system in Hawaiì.

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The Hawaiì Renaissance in Access to Justice The recent decade marked a renaissance in access to justice efforts. The movement was spurred by a 2007 report by the Access to Justice Hui, a group comprised of representatives from the judiciary, the bar, the William S. Richardson School of Law, and spearheaded by legal service organizations. The report found that only one in five low- and moderate-income residents had his or her legal needs met and that legal service providers could assist only one in three persons who contacted them.27 The report recommended ten action steps, the first of which was the establishment of an Access to Justice Commission.28 In response, the Hawaiì Supreme Court adopted Rules of the Supreme Court of Hawaiì Rule 21, establishing the Commission on April 24, 2008. The rule became effective on May 1, 2008, the 50th anniversary of Law Day, and the Commission held its first meeting on July 23, 2008. The purpose of the Commission is to “substantially increase access to justice in civil legal matters for low- and moderate-income “ persons. RSCH Rule 21(b ) (2008). Each of the three branches of government, the Hawaiì State Bar Association (“HSBA”), the legal service providers consortium, the William S. Richardson law school, the Hawaii Justice Foundation (a private fund-granting non-profit corporation), the Hawaiì attorney general, the Hawaiì paralegal association, and the community at large were accorded representatives on the 22-member Commission. See RSCH Rule 21(3), (4) (2008). What is unique about the Commission from other prior attempts in Hawaiì to advance civil legal assistance to those who are underserved is that it formally institutionalized an ideal—that justice must be extended to everyone notwithstanding economic, social, cultural, language, and other barriers to equal access to the civil law system. At its inception, the role of the Commission could not be predicted, but since its establishment many accomplishments29 have marked its existence.30 The Judiciary, under the leadership of Chief Justice Recktenwald, has taken a prominent national leadership role in promoting equal justice. In 2014, the Hawaiì judicial system was ranked fourth in a “Justice Index”31 based on a nationwide survey by the National Center for Access to Justice. The Center’s report based the ranking on four categories: attorney access for low-income litigants; support of self-represented litigants; support for litigants with limited language proficiency; and support for people with disabilities.32 In a press release dated November 13, 2014, Chief Justice Recktenwald noted that “[t]he Justice Index results serve as a testament to how much the Commission, the state judiciary, volunteer attorneys, and our other partners have been able to accomplish with lim-

ited resources.” In 2016, the Justice Index findings by the National Center ranked Hawaiì, “[a]mong the top three states in the country for progress toward making access to justice a reality for all people.”33 In 2015, the National Conference of Chief Justices adopted Resolution 5, which committed the states to extending civil access to justice to 100% of those in need of services.34 In 2016 and in 2018, Hawaiì was one of the states chosen by the National Center for State Courts to receive “Justice for All” (“JFA”) grants for creating and implementing a model plan to achieve the goal of Resolution 5. The HJF, working in collaboration with the Judiciary and the Commission, was awarded the grants, which in total exceeded $200,000. The implementation grant will fund (i) a community navigator project using community leaders and other trusted persons to reach discrete communities that face access barriers because of ethnicity, culture, language, income, age, or geography; and (ii) a health and social services coordinator/roundtable project that seeks to align and to assist the coordination of public and private agency services through a roundtable structure. The HSBA furnishes much of the volunteer assistance by lawyers that supports legal services for those in need. Under the aspirational tenets of the Hawaiì Rules of Professional Conduct (“HRPC”) Rule 6.1, at least 25 hours of legal services without fee or expectation of a fee is recommended on behalf of “(1) persons of limited means; or (2) [needy] charitable, religious, civic, community, governmental and educational organizations.” While mandatory pro bono service is not required, RSCH Rule 17(d)(1)(b) mandates each attorney to annually report his or her “hours of pro bono service and amount of related financial contributions.” It does not appear that pro bono records were kept prior to the mandated reporting, but following adoption of the rule, data posted on the HSBA website during April or May of each licensing year indicate that total pro bono hours contributed by the bar have ranged from 105,000 hours in 2003 to 200,000 in 2017, with an annual average contribution of over 173,000 hours over the 15-year period. As noted in Hawaiì’s December 2017 JFA grant application, there are ten primary legal service providers and five mediation centers that work across the state to provide civil legal services and mediation services.35 These entities have made significant strides in expanding assistance to those who are in need.36 To note two examples, Volunteer Legal Services Hawaii has implemented broader services to reach low-income groups and those who face geographic barriers through the use of technology in the “Hawaiì Online Pro Bono – ABA (American Bar Association) Free Legal Answers” project. In another

groundbreaking example, Hawaiì was one of two states recently selected by the Legal Services Corporation and Microsoft Corporation to develop, through the Legal Aid Society of Hawai‘i and the Judiciary,37 a next-generation internet portal that will use inclusive design principles to help people understand and to resolve their civil legal problems. The project is intended to lay the foundation for portals in other states across the country. The impact of the Commission has been to heighten and to broaden awareness of the need for civil legal assistance for those underserved and to bring access to justice issues to the forefront. Under the Judiciary’s leadership and in collaboration with the Commission, legal service providers, and the bar, access to justice considerations have become an integral part of practically every endeavor involving the law in Hawaiì and have had and continue to have a national impact. The Ascendancy of Hawaiì’s Public Trust Doctrine and the Right to a Clean and Healthy Environment Over the last two decades, the Hawaiì Constitution’s mandate for protection of natural resources and water resources, aligned with the right to a clean and healthy environment, has been of increasing social importance and has resulted in judicial oversight of public and private actions involving the environment that is likely to continue into the future. The Hawaiì Supreme Court has expanded the government’s public trust obligations in two key environmental provisions of the Hawaiì Constitution. Article XI, section 1 states, that “[f]or the benefit of present and future generations, the State and its political subdivisions shall conserve and protect Hawaiì’s natural beauty and all natural resources, including land, water, air, minerals and energy sources and shall promote the development and utilization of these resources in a manner consistent with their conservation and in furtherance of the self-sufficiency of the State . . . . All public natural resources are held in trust by the State for the benefit of the people.” (Emphases added.) Article XI, section 7, focuses on water resources and provides that “[t]he state has an obligation to protect, control and regulate the use of Hawaiì’s water resources for the benefit of its people.” (Emphasis added.) The genesis of a constitutional public trust doctrine was most prominently expounded in In re Water use Permit Applications (Waiahole 1), 94 Hawai‘i 97 (2000), which held that “[a]rticle XI, section 1 and article XI, section 7 adopt the public trust doctrine as a fundamental principle of constitutional law in Hawaiì.” See id. at 132. Accordingly, “the public trust doctrine exists independently of any statutory protections supplied by the legislature.” Id.

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This proposition placed the public trust doctrine squarely within the superintendence of the court and made the court the guardian of the doctrine in its constitutional manifestations. In confirming that the constitutional obligation extended to subdivisions of the state, Kelly v. 1250 Oceanside Partners, 111 Hawai‘i 205 (2006), concluded pursuant to article XI, section 1 that the County of Hawaiì had an affirmative duty to protect coastal waters under the public trust doctrine. Id. at 226. “[T]he County’s argument that it has ‘no attendant obligations’ under the public trust doctrine and that public trust responsibilities arise out of state ownership only is not correct . . . the County has a duty, as a political subdivision of the State, to protect the water located adjacent to the Property.” Id. The court’s view of how public trust duties should be exercised has a substantial impact on the processes administrative agencies must follow when their actions involve regulation of public resources or would impact public resources or the environment. After surveying public trust case law, in Kauai Springs, Inc. v. Planning Comm’n of Cnty. of Kauai, 133 Hawai‘i 141 (2014),38 the court set forth a checklist for the guidance of government agencies whose actions may involve public trust considerations.39 While the checklist involved the issuance of permits for the use of water resources, the factors listed there appeared to be applicable as well to other public trust areas. After Kauai Springs, there would have seemed to be little basis for an agency’s failure to account for those or analogous factors in future agency decisions. That view, however, may have been narrowed later in In re Contested Case Hearing Re Conservation Dist. Use Application HA-3568, N. SCOT-17-0000777, 2018 WL 5623442 at *1 (Oct. 30, 2018). An agency’s role is not limited to fulfilling public trust obligations. In a concurring opinion in Mauna Kea Anaina Hou v. Bd. of Land and Nat. Res., 136 Hawai‘i 376 (2015), three members of the court reconfirmed in Part IV of the concurrence that in addition to its regulatory duties, an agency “must execute its statutory duties in a manner that fulfills the State’s affirmative obligations under the Hawaiì Constitution” Id. at 414. This requires an agency “to uphold and enforce rights guaranteed by the Hawaiì Constitution where such rights are implicated by an agency action or decision.” Id. at 415. In Part IV of the concurrence, the constitutional right posited was that of Native Hawaiians “to exercise traditional and customary … practices” under article XII, section 7, and the agency action posed was the issuance of a permit by the Department of Land and Natural Resources for construction of an observatory on state conservation land. Id. at 414. Subsequently in In re Contested Case, that proposition was determined.

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In In re Contested Case, the majority held that the conservation lands on Mauna Kea on which a thirty-meter telescope (“TMT”) observatory was to be built were public resources held in trust by the government for the people pursuant to article XI, section 1. In re Contested Case, 2018 WL 5623442, at *19. The majority noted that section 1 required “a balancing between . . . conservation and protection of public natural resources . . . and the development and utilization of those resources . . . consistent with their conservation” “and in furtherance of the self-sufficiency of the State.” Id. While acknowledging that “the exercise of Native Hawaiian traditional and customary rights” is “a public trust purpose,” id. at *20, the majority concluded that the TMT project did not violate the trust doctrine because “there was no actual evidence of use of the [TMT]… site by Native Hawaiian practitioners,” that “general astronomy and Native Hawaiian uses…have coexisted for many years and that the TMT project” would “not curtail or restrict Native Hawaiian uses.”40 In arriving at this conclusion , the majority “did not wholesale adopt [its]…precedent setting out public trust principles as applied to the State water resources trust [(citing Waiahole I)]…and its progeny” nor did it respond to the concurrence’s41 “analytical framework for addressing whether an agency is in compliance with its public trust obligations[.]”42 According to the majority, the “dimensions” of “Article XI, Section 1 public trust principles as to conservation lands” “remain to be further demarcated.”43 Congruent with the development of the public trust doctrine, the court has confirmed an individual constitutional right to a private right of action to enforce the Hawai`i Constitution’s guarantee of a clean and healthful environment. In that regard, article XI, section 9 (“section 9”) provides: Each person has the right to a clean and healthful environment, as defined by laws relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources. Any person may enforce this right against any party, public or private, through appropriate legal proceedings. (Emphases added.) In Cty of Haw. v. Ala Loop Homeowners, 123 Hawai‘i 391 (2010), the court held that the right is a substantive constitutional right and that section 9 was self-executing; thus, the legislature was not required to enact a statute to effectuate the right. See id. at 413-415. The court determined that the necessary “law[] relating to environmental quality” was present because factors to be considered by the land use commission in redistricting land under Hawai`i Revised Statutes (HRS) Chapter 205 (relating to the land use commission) included the impact on “natural

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resources.” Id. at 409. Enforcement was available through HRS 607-25, a statute that authorized attorneys’ fees to be recovered against persons engaging in real estate development without necessary permits. See id. at 409, 416. Similarly, in In re Application of Maui Elec. Co., 141 Hawai‘i 249 (2017), the court decided, that petitioners, Sierra Club, a citizen-interest group, and some of its members had a constitutional right under section 9 to legally challenge an order of the public utility commission. The order issued from a proceeding in which a utility, Maui Electric, had sought commission approval of a power purchase agreement with HC&S, the producer of energy from a process employing coal and petroleum. The court noted that HRS Chapter 269 “requiring the express consideration… [of] reduction of greenhouse gas emissions” was the requisite “law relating to environmental quality” that defined the constitutional right to a clean and healthful environment. Id. at 264. Hence, under both Ala Loop and Maui Electric, the requirement of a “law relating to environmental quality” is not a stringent one, as in the nature of an express statute or rule referencing an action under section 9. With respect to the petitioners’ procedural right to a hearing, the court observed that article I, section 5 of the Hawai‘i Constitution protects against the “depriv[ation] of …property without due process of law.” Id. at 260. A property interest is a “legitimate claim of entitlement” stemming from an independent source, such as a state law, that secures certain benefits. Id. at 263-264. The court reasoned that section 9 was a source of state law that granted a benefit—that of the right to a clean and healthy environment to “any party” and that that party “gains a legitimate entitlement to that benefit as defined by state law.” Id. According to the court, then, petitioners’ section 9 right constituted a property interest that was protected by

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the due process right to a hearing that, under the circumstances, was satisfied best by a contested case hearing. Id. at 266. Further, in rejecting the dissent’s view44 that petitioners should have filed a declaratory judgment action to challenge the order, the majority indicated that the due process right to a hearing was a separate, independent basis for intervention in the commission proceedings without regard to other statutory bases that might exist.45 As indicated above in Waiahole I, the application of the public trust doctrine to the constitutionally mandated protections for water resources weighs heavily in favor of the public’s interests and much less so in terms of private commercial ventures or businesses. But the framework applied to water resources was not adopted “wholesale” by the majority of the court in In re Contested Case. Rather the conservation and protection of a public trust resource were balanced against the development and utilization of the resource, perhaps portending a case by case treatment among different natural resources in the future.46 Additionally, the majority’s recognition in Maui Electric of the constitutional right to a clean and healthy environment as a property right encompassed in the constitutional right to due process, whether other statutory process exists or not, strengthens and facilitates the prosecution of section 9 claims through private suits. These decisions recognize the expanded influence of private individuals and groups in affecting public policy outside of the legislative process and in impacting projects of public and private entities. Consequently, these cases may pose policy choices in the judicial arena under the broad aegis of environmental and natural resource protection and place decisions of governmental agencies under court oversight. On the other hand, these cases can be seen as allowing “citizen” intervention where it may have been otherwise excluded or curtailed and as facilitating the full explication of rights and obligations that follow from the broad language in the constitution with respect to these matters. Conclusion These four major developments in the last 50 years reflect the progressive nature of the Hawai`i judicial system and its leading role among other jurisdictions. The developments implicate pathways for the future of the judicial system and the state. __________________ 1

See State v. Walton, 133 Hawai`i 66, Part II at 98 (2014). The United States Supreme Court has stated that “state courts are absolutely free to interpret state constitutional provisions to accord greater protection to individual rights than do similar provisions of the United States Constitution.” Arizona v. Evans, 514 U.S. 1, 8

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(1995). See, e.g., State v Texiera, 50 Haw. 148, 142 n. 2 (1967). State v. Bowe, 77 Haw. 51, 57 (1994) (quoting State v. Lessary, 75 Haw. 446, 453 (1994)). 4 Patterson v. Ill., 487 U. S.285, 290-291, 293 (1988). “Miranda warnings” refer to the advisement of constitutional rights to be given by police before questioning a person in custody as required by Miranda v. Arizona, 384 U.S. 436 (1966). 5 See Walton, Part II at 99. 6 Markus B. Zimmer, “Overview of Specialized Courts,” International Journal for Court Administration, p.2 (August 2009). 7 “Protective” is the author’s term. 8 See State of Hawaiì Judiciary Website (“Judiciary website”), “Hawaiì Drug Court Program,” http://www.courts.state.hi.us/ (visited August 2018). 9 Dr. Roger Peters and Joseph Stelma, “Review of the Drug Court Program in Honolulu, Hawaiì and Recommendations Regarding the Newly Established Weed and Seed and Dually Diagnosed Tracks,” Drug Court Clearinghouse and Technical Assistance Project, June 2000. 10 Judge Edward Kubo, August 20, 2018 email. 11 John Tonaki, Keith Kaneshiro, and Judge Edward Kubo, “State Drug court helps rebuild lives,” Honolulu Star Advertiser, May 27, 2018. 12 The Mental Health Court was developed in 2005 and covers defendants with a history of serious mental illness or an appearance of mental illness. Case managers are assigned to ensure compliance with mental health treatment and many defendants remain with the program through the end of probation. See, Judiciary website “Mental health court,” http://www.courts.state.hi.us/special_projects/mental_health_court_oahu (visited September 28, 2018). 13 The Veterans Treatment Court was instituted in 2013 and “takes a holistic approach to… return[ing participants] to being” “healthy[,]…employed[,]…and law-abiding citizens.” All participants have served in the military service and many face “mental health issues, including post-traumatic stress disorder…and substance abuse.” Judiciary website, “Veterans Treatment Court” http://www.courts.state.hi.us/special_projects/veterans_court (visited September 28, 2018). According to Judge Kubo who also serves as the Veterans Treatment Court judge in the first circuit, none of the thirty graduates over the last five years have recidivated (August 2018). 14 See Judiciary Website, “Hope Probation,” http://www.courts.state.hi.us/special_projects/hope/about_hope_probation (visited September 29, 2018) 15 See Angela Hawken, Ph.D. and Mark Kleiman, Ph.D., “Research Brief: Evaluation of HOPE Probation,” July 2008, https://www.pewtrusts.org/en/research-andanalysis/reports/0001/01/01/evaluation-of-hope-probation (visited September 28, 2018). 16 In Juvenile Drug Court the goal is for children to be drug-free, up-to-date with their education, and healthy in their families. Family Drug Court is concerned with families who are willing to undergo intense court monitoring because of substance abuse problems. 17 According to Judge Robert M. Browning, a former first circuit family court administrative judge, Girls’ Court was one of the first in the nation, if not the first created to deal with social issues uniquely faced by young women. 18 Zero to Three Court protects infants from birth to three years of 3

age and facilitates reunification of mother and infant. 19 Permanency Court assists children 14 to 17 years of age who are transitioning from foster care to independent living to plan for education, housing, and related matters. 20 In collaboration with the Department of Human Services, Imua Kakou is a program created for children that have “aged” out of foster care. According to Chief Justice Mark Recktenwald, the program extends foster care services available to many such former foster youth who need special assistance beyond their 18th birthday. Mark E. Recktenwald, State of the Hawaiì Judiciary Address, January 28, 2015. 21 Truancy Court works with school principals in developing a fasttrack court that immediately addresses the issues of truancy in order to enable students to return to school without unnecessary delay. 22 The description of these programs largely reflects Judge Browning’s rendition of the family court’s specialty functions. 23 See generally, Zimmer, “Overview,” International Journal, pp. 1-7. 24 See Kelly Frailing, “The Achievements of Specialty Courts in the United States,” April 11, 2016, available at https://scholars.org/brief/achievements-specialty-courts-united-states 25 See id. 26 See generally, Zimmer, “Overview,” International Journal, pp. 1-7. 27 See “FAQs about the Commission” at Hawaiì Access to Justice Commission (“Commission”) pages on the Hawaiì Justice Foundation (“HJF”) website at http://www.Hawaiijustice.org/Hawaiì-access-tojustice-commission/faqs-about-the-commission (visited on September 25, 2018). 28 See id. 29 Commission highlights over the last decade are listed in Appendix 2 of the December 2017 “Justice for All” (“JFA”) Report at “News and Reports” on the Judiciary Website at http://www.courts.state.hi.us/news_and_reports/news_and_reports (visited September 27, 2018). 30 On July 21, 2011, pursuant to the three-year review required by RSCH Rule 21(j)(2), the Hawaiì Supreme Court filed its evaluation stating that the commission had made “concrete strides in a very difficult fiscal environment” resulting in “impressive and real progress in providing practical solutions to the ongoing challenge of improving access to the civil justice system.” Appendix B, 2011 annual report of the Commission, pp. 17-18, Commission pages, HJF website http://25shu2g61cw30sjn46t4k87by.wpengine.netdna-cdn.com/wpcontent/uploads/2011/05/Appendix-B-to-annual-report-for-2011.pdf (visited September 25, 2018). 31 Justice Index at https://justiceindex.org/ (visited on September 28, 2018). 32 See “Justice for All Strategic Plan,” Commission pages at HJF http://www.Hawaiijustice.org/hajc/justice-strategic-plan (visited on September 28, 2018). 33 Hawaiì State Judiciary Annual Report 2017, p.6 available at http://www.courts.state.hi.us/wp-content/uploads/2016/03/2017_Judiciary_Annual_Report.pdf (visited on September 28, 2018). 34 See “Justice for All Strategic Plan,” at the Commission pages, HJF website http://www.Hawaiijustice.org/hajc/justice-strategic-plan (visited on September 28, 2018). 35 They include the American Civil Liberties Union of Hawaiì, Business Law Corps, Domestic Violence Action Center, Hawaiì Appleseed Center for Law and Economic Justice, Hawaiì Disability Rights Center, Legal Aid Society of Hawaiì, Native Hawaiian Legal Corporation, the University of Hawaiì Elder Law Project and Medical Legal Partnership for Children, and Volunteer Legal

Services Hawaiì . The mediation centers include the Kauai Economic Opportunity Mediation Program, Kuikahi Mediation Center, Maui Mediation Services, Mediation Center of the Pacific, and West Hawaiì Mediation Center. 36 See Appendix 3 in December 2017 JFA report at “News and Reports” at the Judiciary website at http://www.courts.state.hi.us/newsandreports/(visited on September 28, 2018). 37 See Hawaiì State Judiciary Annual Report 2017, p.9 available at http://www.courts.state.hi.us/wp-content/uploads/2016/03/2017_Judiciary_Annual_Report.pdf (visited on October 29, 2018). 38 The extensive public trust case law is not recounted in this article. 39 The list included the following factors: “[t]he agency [has a] duty and authority [] to maintain the purity and flow of our waters for future generations and to assure that the waters of our land are put to reasonable and beneficial use,” “[t]he agency must determine whether [a] proposed use is consistent with the trust purposes[,]” “[t]he agency is to apply a presumption in favor of public use, access, enjoyment, and resource protection[,]” “the agency should evaluate each proposal for use on a case-by-case basis, recognizing that there can be no vested rights in the use of public water[,]” “if the requested use is private or commercial, the agency should apply a high level of scrutiny[,]” and “[t]he agency should evaluate the proposed use under a ‘reasonable and beneficial use’ standard, which requires examination of the proposed use in relation to other public and private uses.” 133 Hawaiì at 172-173. 40 The dissent argued the majority decision was mistakenly based on “the degradation principle” that, allowed further substantial and adverse impact (here) to cultural resources because the natural resource had already been substantially impacted in the past. In re Contested Case, 2018 WL 5623441 at *41(Wilson, J. dissenting). 41 In re Contested Case, 2018 WL 5623442 at *29 (Pollack, J. concurring). 42 In re Contested Case, 2018 WL 5623442 at *20, n. 26. 43 Id. at *19, n. 25. 44 In re Application of Maui Elec. Co., 141 Hawai‘i 249, 271 (2017) (Recktenwald, C.J., dissenting). 45 See In re Application of Maui Elec. Co., 141 Hawai‘i at 267. 46 On November 29, 2018, the majority granted, in part, and denied, in part, a motion by the petitioners-appellants for reconsideration of the decision and ordered footnote 15 deleted and footnote 17 modified and an amended opinion to be issued thereafter. In re Contested Case, 2018 WL—at *—. Justice Pollack and Justice Wilson separately concurred and dissented, in part, to the majority’s order. The discussion herein is not affected by the order.

This article was written by former Hawai‘i Supreme Court Justice Simeon R. Acoba, Jr. for the King Kamehameha V Judiciary History Center (Center) and is being published with the Center’s permission. This article expresses the personal views of the author and does not reflect his views in any other capacity.

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H SBA HAP PE NIN GS Board Action The HSBA Board took the following actions at its meeting in October and November: • Voted to approve the proposed 2019 HSBA operating budget as recommended by the joint Executive-Finance Committee with a minor amendment; • Voted to accept the Hawaii State Bar Foundation’s policy on the allocation of the Annual Dinner proceeds for future HSBA fundraiser dinners.

HSBA Board Welcomes Comment on Judicial Nominees The HSBA Board welcomes all members who wish to offer confidential comments on judicial nominees to email membercomments@hsba.org or write to the Board immediately after name of nominee becomes public. Since the legislative process requires a swift turnaround time, bar members should submit their comments in a timely manner so that it may be considered in the Board’s deliberations.

Member Benefits Spotlight Casetext Casetext is a legal research platform that saves attorneys time and money through cutting-edge research tools, including artificial intelligence technology and affordable pricing. Recent studies indicate that attorneys researching on Casetext spend 24.5% less time researching, find 20.8% more relevant results, and spend as little as $65 a month on legal research. In addition, HSBA members receive a 40% discount, which amounts to $39 per month. You can find more information and sign up for a 14-day free trial (https://bit.ly/2RXIwoj) and join Casetext for a 40% discount (https://bit.ly/2J8pTtT). See “The Real Impact of Using Ar-

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tificial Intelligence in Legal Research,” a study conducted by the attorneys of the National Legal Research Group (https://bit.ly/2CPhN8W), comparing attorneys using a traditional legal research platform to Casetext to complete actual legal research exercises.

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Q. How do I report the total number of continuing legal education (CLE) credits I have completed for my 2018 CLE requirement to the HSBA? A. Members are required to maintain their own records of completed CLE and self-certify whether or not they are compliant with the CLE requirements on their annual license renewal form. CLE records do not need to be submitted to the HSBA unless otherwise requested to do so by the HSBA. [RSCH 22(d)] Q. How long must I keep my certificates of completion/attendance? A. Members are required maintain their CLE records for a minimum of three years. [RSCH 22(d)]

2019 Attorney License Renewal In case you missed the December deadline, it is not too late to renew and avoid being suspended for nonpayment of dues and fees. The late fee for registration in January is $100. The late fee for registration in February is $200. After February 28, you will need to pay a reinstatement fee of $300 to reinstate your license. Go to the HSBA website at www.hsba.org to renew.

2018 PRO BONO

CELEBRATION

by Tracey S. Wiltgen The Hawai’i Access to Justice Commission (“Commission”) hosted the sixth annual Pro Bono Celebrationi on Thursday, October 25, 2018 at the Hawai’i Supreme Court. The Celebration was supported by the Hawai’i Justice Foundation (“HJF”), the Hawaii State Bar Association, and the Hawai’i State Bar Foundation (“HSBF”). The Program honored nine outstanding attorneys, who volunteer for legal service providers, sixty-six attorneys, law firms and groups who volunteer for the First Circuit District and Family Court Access to Justice Self Help Desks, and the Appellate Pro Bono Program, and six student essay/video contest winners. Hawai’i Supreme Court Associate Justice Simeon Acoba (ret.), Chair of the Commission, said regarding the celebration that: Pro bono celebrations are held across the nation and we in Hawai‘i join in recognizing the work of our lawyers who have given generously of their time and skills for the benefit of our state and our system of justice. Under the lawyers’ code of professional conduct, “a lawyer as a member of the legal profession... has a special responsibility for the quality of justice” in our communities. The exemplary service of the bar has contributed to Hawai‘i being ranked

among the top three states in the nation for extending access to justice to those in need. In addition, we honor students who have participated in our statewide contest and shared their views of the importance of volunteering for themselves and for others. In these ways, the Access to Justice Commission hopes to strengthen our democratic principles and democratic institutions, which in these times, is especially important. Pro Bono Honorees Hawai’i Supreme Court Associate Justice Michael Wilson recognized the pro bono attorneys honored by the legal service providers. Chief Justice Mark Recktenwald presented the honorees with certificates from Governor David Ige’s office. The honorees included: John Egan and Dylan Gentaro Fujitani were honored by the American Civil Liberties Union of Hawaii for their work helping a Yemeni doctor and his family to obtain asylum in the United States in the aftermath of the travel ban. The story of the doctor and his family is truly amazing. Thanks to Egan and Fujitani, the doctor is in the process of being reunified with his wife and four children, who are currently in Jordan. Lance D. Collins was recognized by the Hawaii Appleseed Center for Law and Economic Justice for being lead counsel, pro bono, on the federal court case currently in litigation aimed at requiring the owners of the low-income 142-unit low income affordable housing in Lahaina to keep the com-

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plex affordable. After receiving over $20 million in public funds in return for promising to keep the complex affordable for 51 years, the owners are attempting to end the affordability requirements after only 15 years. If permitted to go forward, the conversion will result in the loss of housing for the 300 tenants who live in the complex while increasing the value of the complex by up to $44 million. Rex Fujichaku was recognized by the Domestic Violence Action Center (“DVAC”) for being a strong ally, exemplary community member, and immediate past President of DVAC. His work and willingness in service to island families and those suffering the harm of relationship violence has been an enormous gift to the community. His commitment to DVAC has been a generous act of personal and professional practice. William B. Heflin was recognized by the Legal Aid Society of Hawaii (“LASH”) for his leadership and commitment to serving the community through his pro bono work at the Hilo Court SelfHelp Center. A collaborative project of the Hawaii State Judiciary, the Hawaii State and Hawaii County Bar Associations, and LASH, the Hilo Self-Help Center was opened in 2012, and since then has served over 5,000 people seeking information to help themselves with their civil and family law legal issues. As the Hawaii County Bar Association’s designated “managing volunteer attorney” for the self-help center, Heflin was instrumental in working with LASH’s AmeriCorps members to recruit other volunteer attorneys, organize trainings, and provide much needed legal information to the public. David Kimo Frankel was recognized by the Native Hawaiian Legal Corporation (“NHLC”) for his pro bono

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work on some of NHLC’s most important cases. Frankel was a former staff attorney of NHLC from 2006 through 2016 and worked on Native Rights cases while employed there. He authored Protecting Paradise: A Citizen’s Guide to Land and Water Use Controls in Hawaii. Thomas J. Mitrano was honored by the Mediation Center of the Pacific (“MCP”) for his dedication to mediation and for helping hundreds of people, particularly in complex domestic matters, to resolve their disputes through mediation. Since January 1, 2016, Mitrano mediated 83 cases involving 124 sessions and 397 hours. In addition to mediating, he is a regular presenter, trainer, and mentor of new mediators for MCP. Mitranos’ generosity in giving of his time and talents pro bono through MCP, has enabled hundreds of people to stop fighting and negotiate customized resolutions without the need for judicial intervention. Kristin Bryant was honored by the University of Hawaii’s Elder Law Program (“UHELP”) for her assistance with the program over the years and especially for her work with the law students in the UHELP clinic. Bryant is well known for her outreach to the elderly community and the assistance she provides to older veterans. In addition to her work with UHELP, she is an Assistant Professor at the William S. Richardson School of Law for the Elder Law Clinic and a Senior Mediator at the Mediation Center of the Pacific. Thomas D. Farrell was honored by Volunteer Legal Services of Hawaii (“VLSH”) as one of VLSH’s most active pro bono attorneys. He volunteers his time on a regular basis at VLSH’s Neighborhood Legal Clinics where he provides advice and counsel to family law clients. He

also takes on full representation cases – all pro bono. VLSH can always count on him to volunteer at VLSH’s Pop Up Clinics in rural areas, from Waianae to Waimanalo, early Saturday mornings. He also served on the VLSH Board providing additional guidance to the organization between the years of 2013 to 2016. Access to Justice Self-Help Volunteers Judge Melanie May and Mark Murakami recognized the individuals, law firms, and groups who volunteered at the Honolulu District Court Access to Justice Room including: Arlette Harada, Miriah Holden, Nathaniel Higa, Bryant Zane, Beverly Sameshima, Leroy Colombe, Cheryl Nakamura, Eileen Zorc, Daniel Kim, Jae Park, Shannon Wack, Stacey Djou, Calvin Pang, Dan O’Meara, Sergio Alcubilla, Megumi Sakae, Chong Nishimoto Sia Nakamura & Goya, Chun Kerr, Hawaii Association for Justice, McCorriston Miller Mukai MacKinnon, Carlsmith Ball, Cades Schutte, Goodsill Anderson Quinn & Stifel, Hawaii Filipino Lawyers Association, Bronster Fujichaku Robbins, Schlack Ito, Starn O’Toole Marcus & Fisher, Hawaii Women Lawyers, Ashford & Wriston, Damon Key Leong Kupchak Hastert, Marr Jones Wang, and Yamamoto Caliboso. These individuals, groups and law firms were presented with legislative certificates provided by Representative Della Au Belatti. Judge Christine Kuriyama recognized the individuals who volunteered at the Family Court Access to Justice Room including: Seth Harris, Ellen Politano, Maria Anita Lopez, Carol Tribbey, Mei Nakamoto, Mari Kishimoto Doi, Dyan K. Mitsuyama, Cheryl Yamaki, Stephen Hioki, Juan Montalbano, Jill Hasegawa, Greg Frey, Tom Tanimoto, Leslie Ching Allen, Jackie Thurston, Ann Isobe, Kim-

Thank you for believing in the importance of providing civil legal help for the most vulnerable in our communities. The Legal Aid Society of Hawaii is launching an online giving campaign through September and needs your help. You can donate, support, volunteer, and help spread the word to family and friends. Join us in the work of Building a Just Society. For pro bono opportunities or to make a donation in lieu of pro bono under HRPC Rule 6.1, please contact Sergio Alcubilla at 527-8063 or at sergio.alcubilla@legalaidhawaii.org. Visit www.legalaidhawaii.org

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berly Van Horn, Erin Kobayashi, Elizabeth Paek-Harris, Noah Gibson, Gemma-Rose Poland Soon, and Kevin Adaniya. Rebecca Copeland recognized the attorneys who volunteered for the Pro Bono Appellate program including: Annie Yi, Louise Ing, Matthew Mannisto, Jamila Jarmon, Daniel Gluck, Katherine Caswell, Bianca Isaki, Lance Collins, Robert Thomas, Mark M. Murakami, Veronica Nordyke, and Ross Uehara-Tilton. The Family Court

Access to Justice Room volunteers and the Pro Bono Appellate program volunteers received certificates from the Commission signed by Chief Justice Recktenwald and the Commission Chair, Justice Simeon Acoba.

The Essay/Video Award Recipients The Commission received 130 essays and videos from public and private high school students in grades 10 through 12 on the theme: “What community service are you interested in, and how would you inspire others in the community to engage in community service?” In addition to the $500 student awards, a $100 award for educational purposes was ATTORNEYS AT LAW Since 1876 given to a teacher named by the stuis pleased to announce that dent awardee. The 2018 essay/video award recipients were: Lauren Albrecht (King Kekaulike High School); Camryn Baptista (Waipahu High School); Katrina Kuo (Kalani High School); Sophia Marvel (Kauai Christian Academy); Maya Reid (St. Andrew’s Priory); and Kainani Reeves-Bachman (Konawaena High School). The preliminary judges for the contest included: Judge Rhonda Loo, has joined our firm as an Associate Attorney. Kelcie Nagata is a graduate of Punahou Schools, Judge Melanie May, Judge Michael where she graduated with honors. She received her Bachelor’s degree from the University of Tanigawa. James Kawashima, Tracy Washington in Political Science and minor in Law, Societies, and Justice. She received her Juris Jones, Joanna Sokolow, Jo Kim, Laurel Doctorate from the William S. Richardson School of Law in 2016 and was also admitted into Loo, Derek Kobayashi, Angela Kuo the Hawaii State Bar Association that same year. While in school Kelcie was a competing memMin, Judge Dyan Mitsuyama, Michael ber and Team Captain of the Manfred Lachs Space Law Moot Court and was a Quarter-Finalist for the 2016 competition. Carroll, Keoni Shultz, Jenny Silbiger, Rebecca Copeland, Alvin Nishimura, Kelcie was a law clerk with the Honorable Glenn J. Kim of the First Circuit Court, 4th Sherri Ann Iha, Judge James McWhinDivision in Honolulu Hawaii. While with the Judge Kim, Kelcie researched and discussed numerous legal issues and performed other duties in court such as called calendar and tended nie, Judge William Domingo, Judge to the jury as the bailiff. Hillary Gangnes, Michelle Comeau, and Steve Hartley She worked as an extern in the Law Office of Mark S. Kawata where she researched, organized, and digested various legal issues and documents to brief attorneys. She also worked as an extern The finalist judges of the essay in the Court of the Honorable Shirley M. Kawamura, First Circuit Court, 6th Division, where contest were Chief Justice Recktenshe researched and provided numerous bench memorandums for pending cases and motions. wald, Judge Darien Nagata, and 2018 Kelcie also worked at the Department of the Prosecuting Attorney, Honolulu, HI, as a legal HSBA President Howard Luke. They intern. While there she conducted critical analysis and provided recommendations of conferrals praised the high school students for to the Sexual Assault and Career Criminal Division, conducted research and also assisted deputy their inspiring essays and for actively prosecuting attorneys with trial preparation. engaging in volunteerism. Each of the students received a cash award of Pacific Guardian Center, Makai Tower $500, donated by Bays Lung Rose 733 Bishop Street, 24th Floor Holma, Cades Schutte LLP, Carlsmith Honolulu, Hawaii 96813-4070 Ball, LLP, Damon Key Leong Kupchak

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Hastert, Schlack Ito LLLC, and Schlueter Kwaiat & Kennedy LLLP. Hawaii’s legal community has a strong commitment to pro bono service. Our attorneys have stepped up in so many ways, such as volunteering with legal services providers and at courthouse Self-Help Centers/Access to Justice Rooms statewide. The Pro Bono Celebration gives us the opportunity to thank the many attorneys who have helped those who might otherwise not have their voices heard.” - Chief Justice Mark E. Recktenwald The Commission is grateful to everyone who supported and participated in the 2018 Pro Bono Celebration, the most well-attended celebration to date. The event serves to inspire Hawaii’s young people to volunteer, and it represents an important gesture of gratitude to the attorneys and individuals who generously donate their time to assist hundreds of people each year. Equally important, the celebration is a reminder to everyone of the importance of pro bono work and helping those in need. The Pro Bono Celebration is coordinated by the Pro Bono Initiatives Task Force comprised of Justice Simeon Acoba (ret.); Judge Brian Costa, CoChair; Tracey S. Wiltgen, Co-Chair; Rex Fujichaku; Jill Hasegawa; Judge Ronald Ibarra (ret.); Regan Iwao; Judge Melanie May; Angela Kuo Min; Mark Murakami; and Associate Justice Michael Wilson. __________________ Tracey S. Wiltgen is the Executive Director of The Mediation Center of the Pacific.

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C O URT BR IEF S Kona Attorneys Honored for Helping Hundreds in West Hawaii

Hawaii Supreme Court Convenes at Kaimuki High School

Front, left: Joanna Sokolow, Kimberly Taniyama, Chief Justice Mark E. Recktenwald, and Donna Payesko. Standing, left: Anmar Alnagem, Claudia Shockley, Judge Margaret Masunaga, Sarah Kelly, Jennifer Heimgartner, John Olson, Matthew Silva, Laura Cushman, Mark Van Pernis, Ann Datta, Frederick Macapinlac, Daniel Mistak, Stephen Frye, Jason Braswell, Peter Olson, Judge Melvin Fujino, Charles McCreary, Frederick Giannini, Lauren Kennedy, and Dawn Henry.

Kaimuki High School students (from left) Sierra Hisatake, Jazmine Nono, Gum Nau, and Lucy Liu with Chief Justice Mark E. Recktenwald following oral argument.

Thirty attorneys were honored during a recognition ceremony for providing free legal information to nearly 600 Hawaii Island residents who sought help at the Kona Courthouse Self-Help Center this past year. Since opening in October 2013, the Kona SelfHelp Center has assisted more than 2,000 people, with volunteer attorneys donating almost 1,000 hours of legal information. The following attorneys were honored: Brit Barker, James Biven, Jason Braswell, Laura Cushman, Katherine DeLeon, Porter DeVries, Stephen Frye, Jerry Garcia, Fred Giannini, Jennifer Heimgartner, R. Hermann Heimgartner, Dawn Henry, Joan Jackson, Kauanoe Jackson, Andrew Kennedy, Susan Kim, Carol Kitaoka, Frederick Macapinlac, Charles McCreary, Charles Murray, Shawn Nakoa, Bob Olson, John Olson, Peter Olson, Donna Payesko, Daniel Peters, Joanna Sokolow, Kimberly Taniyama, Mark Van Pernis, and Georgette Yaindl. Also acknowledged were Sarah Kelly and Bayley Nagy, the AmeriCorps Advocates who, through the Legal Aid Society of Hawaii, run the Self-Help Center. The Chief Justice thanked the West Hawaii Bar Association, the Hawaii State Bar Association, the Legal Aid Society of Hawaii, and the Access to Justice Commission for their support in bringing self-help services to Hawaii residents statewide.

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The Hawaii Supreme Court convened in November at Kaimuki High School, giving 400 Oahu students the opportunity to view an actual oral argument. Students from Kaimuki Christian School, Kaimuki High School, Damien Memorial School, Kalani High School, Mid-Pacific Institute, University Laboratory School, McKinley High School, Henry J. Kaiser High School, Saint Louis School, Honolulu Waldorf School, and Sacred Hearts Academy, participated. “We deeply appreciate the support of the participating schools, the William S. Richardson School of Law, the Hawaii State Bar Association, and the attorneys who volunteer their time,” said Chief Justice Mark E. Recktenwald. “We had 69 attorneys, a record number, volunteer to prepare the students for the event.” “This was the first time the Supreme Court has convened at Kaimuki High School. The attorneys were impressed with the students’ participation and enthusiasm,” said HSBA President Howard Luke. “We received very positive feedback which reflects the importance of the Courts in the Community Program and its overall impact. We would like to thank everyone who made this day possible, the Hawaii Supreme Court, volunteer attorneys, teachers, school administrators, and the students.” The Hawaii State Bar Association and the Hawaii State Bar Foundation generously provided the students with lunches and transportation to and from their schools.

CAS E NOTES Supreme Court

served for dangerous inmates or those with a history of disciplinary problems. After Transcripts that are requested for thirty days of solitary confinement, his beCriminal purposes of appeal and are completed havior was reviewed and, again, he proved after the record has been transmitted Gordon v. Maesaka-Hirata, No. SCWCto the appellate clerk, and findings of to be a model inmate. Nonetheless, his un14-0000914, November 2, 2018, fact and conclusions of law entered blemished history of complying with prior (McKenna, J. with Wilson, J., dissenting). after the record on appeal has been incarcerations and thirty days of solitary Pretrial detainees — individuals who have transmitted to the appellate clerk, confinement did not, in the opinion of been arrested and charged, but remain in shall be transmitted by the clerk of the prison officials, entitle him to a lesser degree jail while awaiting trial — have a due court as a supplemental record withof confinement. Instead he was put back in process right to be free from punishment out further order of the appellate solitary confinement for eight more months. until convicted of a crime. Bell v. Wolfish, court. HRAP 11(b)(1). Nevertheless, The group of prison officials who con441 U.S. 520, 535 (1979). Mukadin Gorif the transcripts or findings of fact signed Gordon to solitary confinement did and conclusions of law are not transdon (“Gordon”) filed suit because he was mitted, the parties may need to file a not do so based on the nature of his held in solitary confinement by state prison motion to supplement the record in charges. They did not know the factual officials for more than nine months followorder to remind the clerk. basis for his charges, nor did they endeavor ing his arrest in August 2010. Gordon reto explain how his charges could indicate a quested monetary damages pursuant to threat to institutional order and security. The purported reasons Title 42, Section 1983 of the United States Code (“U.S.C.”) and given for his relegation to solitary confinement were his failure to state tort law. Following a jury-waived trial, the circuit court encomplete court ordered drug treatment programs, his unpermittered judgment in favor of the defendants on all claims. The ted relocation outside the court jurisdiction while he was on proICA affirmed. The Hawaii Supreme Court held that Gordon’s bation, and, inexplicably, the amount of bail set for the crimes placement in solitary confinement for more than nine months for which he was arrested. No justification cited by the correcconstituted unlawful pretrial punishment in violation of the due tional officials was reasonably related to the security and order of process clauses of the Fourteenth Amendment to the United the Oahu Community Correctional Center where he was incarStates Constitution and Article I, Section 5 of the Constitution cerated. His jailors identified no “legitimate goal” served by his of the State of Hawaii. The Hawaii Supreme Court also held, placement in solitary confinement. Thus, their action was an however, that although the circuit court applied an incorrect “arbitrary and purposeless” imposition of punishment, in violastandard for federal qualified immunity, defendant Petra Cho tion of Gordon’s due process right under the Fourteenth (“Cho”) was not liable for damages under 42 U.S.C. § 1983 for Amendment to the United States Constitution to be free from the federal constitutional violation because the basis of her decipunishment until convicted of a crime. Bell, 441 U.S. 520, 538sion to retain Gordon in pretrial solitary confinement did not vi39 (1979). olate a clearly established constitutional right of which every

Appeal Pointer

reasonable official would have known. The Hawaii Supreme Court also held the circuit court did not err by concluding Cho has no negligence liability based on state qualified immunity principles. In addition, as the State did not waive sovereign immunity for damages claims based on state constitutional violations, the State is not liable for damages for the state constitutional violation. Wilson, J., dissented. Wilson, J. stated that Gordon was arrested for fourteen felony offenses, and, prior to his trial, immediately placed in solitary confinement for nine months. There was ample evidence at the time of his pretrial incarceration that he would be a cooperative inmate because he had previously been incarcerated for other offenses without incident. Nonetheless he was placed in the strictest form of detention, normally re-

Land In the Matter of Contested Case Hearing Re Conservation District Use Application (CDUA) HA-3568 for the Thirty Meter Telescope at the Mauna Kea Science Reserve, Kaohe Mauka, Hamakua, Hi., TMK (3) 404015:009, Case Nos. SCOT-17-0000777, SCOT-170000811, and SCOT-17-0000812, November 9, 2018, (Separate Dissenting Opinion by Wilson, J.). The Board of Land and Natural Resources (“BLNR”) grounded its analysis on the proposition that cultural and natural resources protected by the Constitution of the State of Hawaii and its enabling laws lose legal protection where degradation of the resource is of sufficient severity as to constitute a substantial adverse impact. Because the area affected by the Thirty January 2019

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Meter Telescope Project (“TMT” or “TMT project”) was previously subjected to a substantial adverse impact, the BLNR found that the proposed TMT project could not have a substantial adverse impact on the existing natural resources. In other words, BLNR concluded that the degradation to the summit area was so substantially adverse that the addition of TMT would have no substantial adverse effect. The degradation principle ignores the unequivocal mandate contained in Hawaii Administrative Rules § 13-5-30(c)(4) prohibiting a Conservation District Use Permit (CDUP) for a land use that would cause a substantial adverse impact to existing natural resources. The BLNR substituted a new standard for evaluating the impacts of proposed land uses, a standard that removes the protection to conservation land afforded by Haw. Admin. R. § 13-5-30(c)(4). Using the fact that the resource had already suffered a substantial adverse impact, the BLNR concludes that further land uses could not be the cause of substantial adverse impact. Under this new principle of natural resource law, one of the most sacred resources of the Hawaiian culture loses its protection because it has previously undergone substantial adverse impact from prior development of telescopes. The degradation principle portends environmental and cultural damage to cherished natural and cultural resources. It dilutes or reverses the foundational dual objectives of environmental law—namely, to conserve what exists (or is left) and to repair environmental damage; it perpetuates the concept that the passage of time and the degradation of natural resources can justify unacceptable environmental and cultural damage. Thus, the party that caused the substantial adverse impact is empowered by the degradation principle to increase the damage. The degradation principle renders inconsequential the failure of the State to meet its constitutional duty to protect natural and cultural resources for future generations. It

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renders illusory the public trust duty enshrined in the Constitution of the State of Hawaii and heretofore in the decisions of the Hawaii Supreme Court to protect such resources. And its policy of condoning continued destruction of natural resources once the resource value has been substantially adversely impacted is contrary to accepted norms of the environmental rule of law. The degradation principle ascribes to the legislature the intent that conservation land loses its protection under the Hawaii Constitution and the laws of the State of Hawaii whenever it has been subjected to a substantial adverse impact. Haw. Admin. R. § 13-5-30(c)(4) is a direct refutation of such regressive treatment of conservation land. Instead, the legislature intended, consistent with its constitutional duty to future generations, to conserve, protect, and preserve “the

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important natural and cultural resources of the State through appropriate management and use to promote their long-term sustainability.” Haw. Rev. Stat. § 183C-1. Appellees’ Conservation District Use Application proposes a land use that cannot be permitted if it causes a substantial adverse impact on cultural resources. Haw. Admin. R. § 13-5-30(c)(4). The degradation principle substitutes a contrary standard that relieves the permittee of the burden to prove no substantial adverse impact—if the resource is already substantially adversely impacted. Correctly applied and consistent with the clear intent of Hawaii’s legislature and norms of environmental law, Haw. Admin. R. § 13-5-30(c)(4) requires that the impacts of TMT be assessed with full recognition that the existing resource has already received cumulative impacts that

amount to a substantial adverse impact. In light of the correct standard, whether TMT will have a substantial adverse impact where there already is a substantial adverse impact becomes straightforward. The substantial adverse impacts to cultural resources presently existing in the Astronomy Precinct of Mauna Kea combined with the impacts from TMT—a proposed land use that eclipses all other telescopes in magnitude—would constitute an impact on existing cultural resources that is substantial and adverse. Accordingly, the Conservation District Use Application for TMT must be denied.

Torts Field v. National Collegiate Athletic Assoc., No. SCWC-15-0000663, November 20, 2018, (Pollack, J.). This case arose out of the uncompleted sale of one business to another. The plaintiff alleged that the defendant engaged in an unfair method of competition to terminate the transaction in violation of Hawaii antitrust law. At issue in this case was what a plaintiff must demonstrate to withstand summary judgment on a claim for an unfair method of competition under Haw. Rev. Stat. Chapter 480. In particular, the Hawaii Supreme Court addressed the plaintiff’s requirement of showing that the defendant’s conduct would negatively affect competition or harm fair competition. Consistent with case law, the Hawaii Supreme Court concluded that to raise an issue of material fact as to the nature of competition requirement of an unfair method of competition claim following the close of discovery, a plaintiff must demonstrate that the defendant’s alleged anticompetitive conduct could negatively affect competition but need not prove that the defendant in fact harmed competition. Further, the Hawaii Supreme Court reaffirmed that to withstand summary judgment, a plaintiff may generally describe the relevant market without resort to expert testimony and the plaintiff need not be a competitor of or in competition with the defendant.

ATTORNEY WANTED ASHFORD + WRISTON, LLP seeks an attorney with two or more years of experience in real estate transactions, estate planning, business entity formation, or advising financial institutions on compliance and regulatory matters. Qualified candidates will show an aptitude for communicating clearly with clients and others, take pride in the quality of their written work-product and feel comfortable working independently or as part of a team. Licensed to practice law in Hawaii and 2-7 years transactional experience are required. Please send resumes to Karen Kam, Office Manager, Ashford + Wriston, 999 Bishop St., Suite 1400 Honolulu, HI 96813 IF YOU ARE INTERESTED in exploring opportunities for attorneys and paralegals at Central Pacific Bank, please contact glenn.ching@centralpacificbank.com. HAWAII MEDICAL SERVICE ASSOCIATION (HMSA) is seeking a Strategic Contracts Counsel Manager. This position will be responsible for leading provider and vendor contracting efforts for Legal Affairs (particularly as to major strategic partners), including managing and supporting attorneys, paralegals, and staff involved in those efforts, and promoting strategic alignment between the provider and vendor contracting areas. The major duties will include, among other things, partnering with the business areas as above, drafting and reviewing provider and vendor contracts, and representing HMSA in negotiating contract issues with other parties. The position will also be responsible for providing proactive, easy to understand legal advice and guidance to the company on contracting issues, and finding innovative solutions to provider and vendor contracting. For more information and to apply, go to www.hmsa.com/careers LEGAL SERVICES COORDINATOR: Hawaii Permanente Medical Group is seeking a Legal Services Coordinator to assist the Director of Compliance in managing, developing and maintaining a robust compliance program by investigating compliance concerns, developing training & education on regulatory compliance matters, and preparing & maintaining documentation and reports. Role also involves assisting in management of government relations activities. This opportunity offers industry leading benefits to include 100% company-sponsored offerings. Please submit your resume to HPMGJobs@kp.org. Visit our website at: https://careers.hawaiipermanente.com /hpmg_careers/legal-services-coordinator-regulatory-compliance-government-rel ations/ for more information.

Holma has an opening for an associate with 2-4 years commercial litigation experience. Candidates must have strong research and writing skills. Competitive benefits, including medical insurance; bar association dues; parking; vacation annually; and sick leave. All inquiries will be held in strict confidence. Please submit resume, transcript, and recent writing sample to Hiring Partner. THE STATE OF HAWAII Department of Commerce and Consumer Affairs Insurance Division is seeking Staff Attorneys (Position #101970, #113029). The purpose of this position includes researching and interpreting statutory provisions and case law; drafting legislation, legislative testimonies, administrative rules, and hearing decisions; corresponding with other government agencies, licensees, and the public; bringing actions on behalf of the Insurance Division; advising the Insurance Commissioner, the Insurance Division, and the Department of the Attorney General; act as a hearing officer or counsel to the Authority for administrative or disciplinary proceedings; and perform other related duties as assigned. For more information, please visit cca.hawaii.gov/ins/employment-opportunities. THE STATE OF HAWAII Department of Commerce and Consumer Affairs Insurance Division is seeking a Legal Assistant II (Position #110690). This position performs paralegal and administrative work in support of attorneys and the Legal Branch; provides legal consultation services to line department personnel; performs legal research; prepares drafts, outlines, or summaries of legal subjects, laws, statutes, briefs and other legal documents; and performs other related duties as assigned. For more information, please visit cca.hawaii.gov/ins/employment-opportunities

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