H A W A I I BAR JOURNAL A N O F F I C I A L P U B L I C AT I O N O F T H E H AWA I I S TAT E B A R A S S O C I AT I O N J A N UA RY 2 0 2 3 $ 5 0 0
2023
Inter view with Rhonda Griswold
HSBA President
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EDITOR IN CHIEF
Carol K Muranaka
BOARD OF EDITORS
Christine Daleiden Joseph Dane Susan Gochros Ryan Hamaguchi Cynthia Johiro Edward Kemper Laurel Loo Melvin M M Masuda Eaton O'Neill Lennes Omuro Brett Tobin
HSBA OFFICERS President Rhonda Griswold President-Elect Jesse Souki Vice President Mark M Murakami Secretary Lanson Kupau Treasurer Alika Piper
YLD OFFICERS President Lisa Yang Vice President/President-Elect Kelcie Nagata Secretary Gilber t Doles Treasurer Andria Schumann EXECUTIVE DIRECTOR
Mau-Shimizu
Publisher Brett Pruitt Art Direction Debra Castro Production Beryl Bloom
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A R T I C L E S 4 Interview of the 2023 HSBA President Rhonda Griswold by Ed Kemper
2022 Pro Bono Celebration
HSBA Happenings
Court Briefs 19 Case Notes 39 Classifieds
N O T
Patricia
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by Ed ward Kemper
Rhonda Griswold
1. Please provide your backg round.
I have been mar ried to Jef f Griswold for 41 year s, and we have two boys, Wes (age 34) and Luke (age 28) Jef f is an HSBA member who has been tr ying to retire for several year s Wes is a Boston Univer sity g raduate and computer engineer who lives in Portland, Oregon, with his jour nalist wife,
K aitlin
Luke is a University of Califor nia, San Diego g raduate and an environmental engineer living in the Bay area Both are also Iolani g raduates, and we are ver y proud of them
I followed Jef f to Hawaii in 1980 We had met in Washington, D C where I worked for a cong ressman and Jef f had just g raduated from Georgetown Law School He was a
JAG of ficer stationed at Fort Shafter and, after tr ying a longdistance relationship in the days before iPhones and email, I took a leap of faith and came to Hawaii It was one of the best decisions of my life
As for my childhood, I g rew up in Red Bluf f, Califor nia, a small ranching town in Norther n Califor nia I am the eldest of three children and the only college g raduate in my immediate family My mother worked for the local bank in the days before moms working outside the home was the nor m My father was a salesman who suf fered from alcoholism and financial setbacks and died by suicide at age 47 a few months before I started law school. It was a ver y dif ficult time. I also
4 January 2023 HAWAII BAR JOURNAL
Above: Rhonda with sons Wes and Luke, and husband Jef f
mar ried Jef f during my fir st year of law school My g randfather g ave me away at my wedding It was one of the happiest days of my life and one of the saddest
2. And, of course, let us know your educational histor y.
I attended Shasta College, a community college near my hometown and then went to Califor nia State Univer sity, Chico, where I g raduated with a double major in Eng lish and Social Science. Chico State had a real re putation as a sorority/frater nity party school, but I worked my way through school so no sororities for me (though I did party a bit)! I planned to be a high school teacher and did one semester of student teaching I was a 21-yearold teaching junior s and senior s who were 17 and 18 year s old I will be the fir st to admit that it was difficult for me to control the classroom and it g ave me a tremendous respect for teacher s, a respect that I have to this day In one of my favorite West Wing e pisodes, one of the character s comments that teacher s should live in castles and make six-figure incomes I totally ag ree.
In any event, my college counselor encouraged me to go to law school, but I did not know a sing le lawyer and had no clue as to what lawyer s do And I was tired of school. T he same college counselor then ar ranged an inter nship for me in Washington, D C with our local Cong ressman, Harold T “Bizz” Johnson, who was Chair of the Public Works & Transportation Committee. T hus, I moved to a city where ever yone seemed to be a lawyer (and met the lawyer that I would mar r y)
After moving to Hawaii, I was lucky enough to get acce pted at the William S Richardson School of Law
(which had not yet been named) and am a proud g raduate of the Class of 1984.
I joined Cades Schutte in 1984 I was an associate in the itig ation de partment, working primarily on commercial lender iability cases I made partner in 1990. But, while I had achieved what I had worked so hard towards, I beg an to feel like a failure. I did not feel like I was a good mother (Wes was three or our at the time), or a good wife, or a good attor ney I would cr y ever y mor ning driving over the Pali and ever y evening driving home Sometime during the day, would close my of fice door and have a good cr y It was debilitatng My husband was ver y supportive and just wanted me to be happy But I was overwhelmed with the practice of law and my amily responsibilities I had witnessed my father’s downward spiral and was frightened at the despair that overcame me So, I sought help I saw a psychologist who diagnosed me with de pression and g ave me the tools that I needed to get my life back. Fir st, I reduced my work hour s and negotiated a part-time ar rangement with my fir m (and thereafter worked part-time for about five year s while my children were young)
6 January 2023 HAWAII BAR JOURNAL
3 After law school, describe your legal career and experience in a specific area or areas of practice.
Above: Rhonda with siblings Kevin and Karen, in 1977
Belo w: Rhonda with sister Karen, and parents Ralph and Maril yn Leach
With the equipment in p
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Second, I changed my practice area from commercial litig ation to trusts and estates I had handled a few trust litig ation matter s while in the litig ation department but retur ned to law school and took the Gift & Estate Tax cour se so that I could better lear n the estate planning area In estate planning, I found work that was meaningful to me and a g roup of practitioner s who care dee ply about helping their clients and each other (shout out to the Probate & Estate Planning section of HSBA) T hat is not to say that trusts and estates work is any easier than litig ation In many respects, it is not. We deal with dif ficult family situations and complex and changing tax laws But estate planning suited me better and g ave me more job satisfaction Finally, I lear ned to make exercise a priority for my mental well-being While I had been a runner since college, I found less time to work out as a busy working mother, but I lear ned that daily exercise was critical to my well-being I now run 3-7 miles four times a week, do a bootcamp workout three days a week, and yog a sculpt once a week. It helps me both mentally and physically
I was not sure if I should share this dee ply per sonal infor mation but have decided to do so for two reasons Fir st and foremost, if it helps even one person who is feeling overwhelmed by this profession to seek help, then it is worth it Second, I want employer s and fellow attor neys to be sensitive to the mental health issues that af fect our profession and encourage them to provide support and options to those who may be experiencing de pression, bur n out, or hopelessness In 1991, I was ready to quit the profession, but because my mentor s at Cades Schutte ste pped up to the plate for me, I was able to find a meaningful and sustainable practice area and believe that I have ultimately been a productive partner for our fir m and in a position to help other s I do not know if any of my partner s know how fragile
January 2023 HAWAII BAR JOURNAL 7
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p T
T
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I felt at the time (I do not think my husband even knew how fragile I felt), but I am g rateful
T his is why the Attor neys and Judges Assistance Prog ram, which provides confidential services, is so important And why the work of the HSBA Well-Being Committee, which is continuing to implement the recommendations of the Hawaii Task Force on Lawyer Well-Being, is so critical to the future of our profession Lawyer s must be healthy, both physically and mentally, to provide ef fective services for our clients But according to a 2017 National Re port on lawyer well-being, 28% of lawyer s were strug g ling with de pression; 23% from stress; 19% from anxiety and between 21-36% qualified as problem drinker s Younger lawyer s had the highest rates of problem drinking and de pression
A more recent survey of attor neys re ported in the ABA Jour nal found that 19% had contemplated suicide at some point in their career s T he same survey found that 74% of the respondents thought that their work environment contributed to their mental health issues, including such factor s as always being on call (72%), billable hour pressure (59%), client demands (57%), lack of slee p (55%), and lean staf fing (49.5%). While this survey was directed to national and inter national law fir ms, the factor s generally ref lect those that private practitioner s deal with daily And I suspect that gover nment and inhouse counsel may also be dealing with political pressures that cause stress
While another survey found that lawyer s did not experience mental health issues any more than other professions (though lawyer s had higher rates of alcoholism), that is not the point T he fact of the matter is that law is a demanding profession, but it can also be a kinder profession where there is no shame in taking time to take care of oneself and one ’ s family, and
January 2023 HAWAII BAR JOURNAL 9
where there is no shame in admitting that one may need help We need to be willing to talk with one another about our mental health, just as we might share infor mation about our physical health. I think younger attor neys are more open about the need for “self-care” and maintaining balance in their lives, but I fear that the cur rent business models that we have and the perceived need to be available 24/7 make it dif ficult to maintain a healthy outlook and achieve the balance that is needed for a long fulfilling career in the law
I do not have a magic answer to solve these issues, but at a minimum, we need to support each other through the trajector y of our career s, both the ups and the downs And I do not want to be a “Debbie Downer.” I think the practice of law is such a privilege and provides so many opportunities to lear n, to meet fascinating people, to solve problems, and to help other s Our profession can give us much fulfillment so long as we do not forget to take care of our selves in the process
4. The Bar Director y lists past presidents of the HSBA who are current and for mer Cades Schutte members. How many were there?
I was privileged to have worked with all three Cades partner s who served as HSBA presidents As a law student, I took professional responsibility from Fred Schutte and then worked with him on analyzing an ethical issue after I fir st joined the fir m. As a young litig ator, I worked with Bill F leming on
a case on Maui, and later I worked with Bill on his estate plan I had several cases with Jef f Portnoy as a litig ation associate I also helped Jef f with his “American Idol” fundraiser during his ter m as HSBA president Jef f was, and still is, a force to be reckoned with in any arena.
5. Please describe your various roles and experiences with the HSBA.
As a young lawyer, I was active in the Young Lawyer s Division consumer education committee, writing “ask-alawyer” columns. As a young mother, I served on the fir st-ever HSBA quality of life committee where we promoted more family-friendly policies for law fir ms, which were unheard of at the time. At Cades, I championed our fir m ’ s fir st paid family leave policy and part-time work policy While such polices are the nor m now, they were not the nor m then
Later, I served as Chair of the Probate and Estate Planning Section and of the Elder Law Section of HSBA I f o u n d t h e s e r o l e s t o b e p a r t i c u l a r l y
ulfilling and helpful to my career T he HSBA ections provide a remendous opportunity or lawyer s to share their nowledge, provide input o potential changes in he law, and promote colegiality.
I also had the priviege of serving as an HSBA Director from 2011 to 2018 As a Diector, I saw fir st-hand he broad scope of the work that HSBA does to help our profession, from providing free leg al reearch databases and noar y services, to providing nput on potential changes to the laws that af fect our profession, to interviewing and obtaining confidential input from the leg al community on potential judges, to promoting access to justice and civic education
Over the year s, I have served on the HSBA Awards Committee, the Nominating Committee, the Working Group (which is now known as the Strategic Planning Committee), and the Executive Committee
6 How has the Covid pandemic af fected the HSBA’s functions and what impact will Covid changes have on future HSBA functions and events?
T he silver lining of Covid was forcing us to lear n to work and meet remotely via zoom While zoom meetings sometimes lack the inter per sonal small talk, zoom does provide an ef ficient way for neighbor island Board member s, other Board member s who are traveling, and other invited guests to participate in our monthly Executive Committee and/or Board meetings. I expect that we will continue to hold
10 January 2023 HAWAII BAR JOURNAL
Above: Rhonda with Justice Ruth Bader Ginsburg
most of our meetings via zoom, though I will tr y to have in-per son meetings once a quarter
I also think that zoom has made CLEs accessible to more HSBA member s and more cost-ef fective. We no longer need to f ly in mainland speaker s to present seminar s And neighbor island attor neys can easily attend. I hope that neighbor island attor neys are feeling more connected to the HSBA and its services because of zoom, but if not, I am open to sug gestions as to how we can do better at eng agement with our neighbor island colleagues
Despite the convenience of zoom and remote events, we realize that there are those who would like to see a retur n to in-per son events, such as the annual Bar Convention and the Bench-Bar Conference, and we will explore that possibility However, the budget is tight and in-per son events cost at least twice as much as remote events (rental fees for the conference rooms, food, travel, e t c ) , w h i c h m e a n s a h i g h e r c o s t f o r t h e m e m b e r s
But I under stand the desire to meet in per son and reconnect and talk stor y with our colleagues We were so fortunate to be able to have an in-per son “Together Ag ain” pau hana this past year at the Pacific Club (an event that I ironically missed because I had Covid). It was such a success that we intend to have a similar pau hana this year T hanks to the work of the HSBA staf f and the Hawaii State Bar Foundation, and the incredible support from law fir ms across the state, we raised more funds than prior events, most of which fully funded our Goal Groups
7. W hat do you consider to be the major issues f acing the bar association this year, and what plans do you have regarding those issues?
T hese are my per sonal views, but I believe there is a concer n about attrition
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at all levels of practice. I under stand that law school enrollment nationwide (including at the William S Richardson School of Law) has decreased, which means that there are fewer young lawyer s in the pipeline. I am concer ned about young and mid-career attor neys becoming overwhelmed by the practice of law for the reasons I discussed above and leaving the profession We always face the problem of losing talented lawyer s to the mainland fir ms where they are paid so much more, and the cost of living is generally less. Plus, we have the natural aging of lawyer s (including myself) who need to produce succession plans and g racefully transit i o n o u t o f t h e p r a c t i c e ( e a s i e r s a i d t h a n d o n e ) .
T hat means fewer lawyer s to provide for the leg al needs of the people of Hawaii Under Shannon Sheldon’s leader ship, we have resur rected the HSBA Strategic Planning Committee chaired by Vlad Devens and Mark K Murakami to consider this issue and deter mine how best to recruit future lawyer s and retain our colleagues in the practice here in Hawaii. HSBA already has several incredible prog rams that expose high school students to the leg al profession (such as YLD’s Mock Trials and the Civic Education Committee’s Courts in the Community). HSBA is also exploring ways to help local law students pre pare for the bar examination and perhaps could explore other prog rams to help the transition from law school to actual practice. Per sonally, I have always supported the idea of a mandator y residency for g raduating law students where they would inter n for one to two year s with a qualified mentor who can help them appreciate the many nuances of being a competent and successful lawyer
We also need to explore ways the HSBA can help lawyer s at all levels remain connected, eng aged, and supported in their career s I know that I extolled the economic virtues of zoom
12 January 2023 HAWAII BAR JOURNAL
previously, but human connection is important and priceless In addition to the numerous substantive CLEs that HSBA provides, I would like to see more CLEs that focus on time management and how to achieve that elusive work-life balance, how to handle emails ef ficiently, how to handle dif ficult clients, how to handle dif ficult opposing counsel, how to handle dif ficult ethical issues, the types of issues that kee p us up at night (or is it just me?) I would like to see more events where lawyer s can vent and share their frustrations and share their practice tips I would like to see more mentoring events.
T hat said, I per sonally think that the Sections can and do serve a vital function in this area. T he Sections provide a forum where colleagues can share infor mation about their practice areas, discuss strategies, create resources f o r t h e i r m e m b e r s , a n d d e v e l o p
relationships with their colleagues across all generations HSBA intends to reach out to the Section Chair s this year to lear n more about their Section activities and brainstor m ways that they can have even a g reater impact.
T he budget is always top of mind as well T he HSBA staf f and Board worked ver y hard this year to provide the same (or better) level of services with no increase in dues in the 2023 budget T hat said, expenses have risen due to inf lation and other economic factor s, and there will come a time when a modest increase in dues will be war ranted.
We also need to continue the work of promoting and achieving diver sity amongst our member s. T he leg al profession and the judiciar y should ref lect the diver sity of the people we are serving, whether it be race, gender, or sexuality T hat is not the work of the
Committee on Diver sity, Equality, and the Law alone It is up to each and ever y one of us and our fir ms to support those who have been historically under re presented in our profession
T his can include encouraging high school and college students in underre presented g roups to pur sue law school, providing scholar ships and inter nships, providing job opportunities, and mentoring.
Finally, I am always concer ned about access to justice While Volunteer Leg al Services of Hawaii and Leg al Aid Society of Hawaii do an admirable job addressing the leg al needs of low-income individuals, there are a vast number of those in the middleclass who cannot af ford our services. Many of us do “low-bono” work for those who cannot af ford our standard rates, but we need to explore ways to provide more economical services
January 2023 HAWAII BAR JOURNAL 13
8. A r e t h e r e a n y s p e c i a l prog rams or features of the HSBA that you want to modify, work on, or highlight?
T here are two cur rent HSBA prog rams that I would like to highlight. Fir st, I think the HSBA plays a critical role and provides a tremendous service to its member s in connection with the judicial selection process T he appointment of intelligent, compassionate, and inde pendent judges is essential to our system of justice and to our profession I commend all of those who are willing to apply and go through the rigorous judicial selection process. We have three major appointments to be made in 2023 at the appellate level, one Intermediate Court of A ppeals Judge (for the new position recently approved by the Legislature) and two Hawaii Supreme Court Justices (due to the retirement of Justices Michael Wilson and Paula Nakayama). T here will be other District Court and Circuit Court appointments as well
As for the HSBA’s role, when the Gover nor or Chief Justice name their nominee, the HSBA gets to work. Fir st, we send an email blast to all HSBA member s, and they are given an opportunity to provide confidential feedback on the nominee We also appoint a threemember panel from the HSBA Board to interview all the references listed in the Judicial Selection Committee application and in the HSBA questionnaire T he HSBA also checks the nominee’s record with the ODC. If there are negative comments, then the Panel Chair discretely reaches out to the commenting member to g ain more insight into the comments and to see whether the member is willing to have his or her name shared T he Panel Chair does not disclose the name to anyone unless express consent is obtained T he Panel Chair then pre pares a re port to the Board summarizing all the comments and references T he Panel is merely a
fact-finding committee; it does not make a recommendation
A few days before the nominee’s scheduled interview with the HSBA Board, the HSBA President and Executive Director meet with the nominee to pre pare the nominee for the HSBA interview Our goal is to help them succeed. We provide them with a general summar y of the comments With respect to any neg ative comments, if we do not have authority to disclose the commenter’s name, then we provide a general overview of the comment with suf ficient details so that the nominee can address the issues raised in the comment but not in a manner that would reveal the commenter’s identity T his can be ver y delicate, but we do our best We also give them a preview of the types of questions that the legislator s typically ask judicial nominees
T he nominee then meets with the full Board, presents an opening statement, and answer s the Board’s questions We encourage the nominee to treat our interview as a trial run for their testimony before the legislature After the interview, the Board votes by secret ballot as to whether the nominee is qualified or not qualified No one is told the final vote tally If the nominee is found not qualified (which only happens rarely), then the HSBA Board meets further to articulate the reasons why the candidate was in its estimation not qualified After the vote, the HSBA President relays the results of the vote to the nominee and provides feedback as to how the nominee might improve their
presentation. T hen, our Legislative Guru/Executive Director Pat MauShimizu and the HSBA President prepare the testimony to submit to the legislature T his testimony usually has a quick tur naround time because often the hearing is scheduled for the ver y next day At the hearing, the HSBA President presents the HSBA testimony. As a matter of policy, the HSBA President does not share the details of the Board’s deliberation but, if asked, describes the HSBA process as described above.
Countless hour s go into this process, but it is not perfect While I believe strong ly that member s ’ comments should be ke pt confidential, I also appreciate the need for the nominee to be able to ef fectively address any neg ative criticisms To make sure that the process is fair to both HSBA member s and the nominees, we have a comm i t t e e c h a i r e d by B o a r d M e m b e r M a rk Va l e n c i a c u r r e n t l y r e v i e w i n g t h e p ro c e s s a n d w e e x p e c t i t t o m a k e r e co m m e n d a t i o n s t o t h e f u l l B o a r d t h i s ye a r
T he second prog ram I would like to highlight is the Leader ship Institute Fellowship Prog ram (“LI”), the brainchild of Judge Ricki Mae Amano, now in its 15th year LI is designed to train young lawyer s to be leader s in their
14 January 2023 HAWAII BAR JOURNAL
Above: Rhonda and famil y at the wedding of her son Wes
field and beyond. LI provides a fabulous opportunity for younger lawyer s to g ain insights into the attributes of an effective leader, to lear n more about all aspects of the profession (from the corporate of fice to the political realm to “speed-dating” with judges), and to enhance their own leader ship style Plus, it is a g reat venue for networking with other s who strive to be lawyer-leader s LI g raduates include for mer HSBA Presidents, Levi Hookano and Shannon Sheldon, next year ’ s HSBA President, Jesse Souki, and HSBA Director s Jocelyn Chong, Jessica Domingo, and Mark Valencia.
LI is an eight-month prog ram that meets monthly Topics range from “Community Leader ship” to “Doing the Right T hing” to “Equal Justice for All” and more. Unfortunately, LI did not exist when I was a young lawyer, but I did have the opportunity to sit in on a few sessions last year and they were nothing short of inspirational Exemplar y speaker s with various points of view challenged participants to consider how their various life experiences, their priorities, and even their biases might af fect one ’ s ability to lead and how best to har ness all of that to become good leader s
Whether you want to be a leader in the HSBA or elsewhere, I highly recommend the Leader ship Institute
9. A r e t h e r e a n y l o n g - t e r m projects or prog rams that the bar association is working on that might be implemented during your administration?
T he newly reactivated Strategic Planning Committee has been working for the past couple of year s as the “Working Group ” T his Working Group (ag ain chaired by Vlad and Mark and with member s Summer K aiawe, Carol Kitaoka, Erin Kobayashi, Paul Naso, Shannon, and me) has been evaluating survey results received from
HSBA Member s and analyzing which HSBA services meet or exceed Member expectations and which services can be improved upon. We have worked to improve communications with our member s, and I hope that folks have noticed targeted, regular e-mail communications We (especially Executive Director Pat Mau-Shimizu and Assistant Executive Director Iris Ito) have also worked hard to increase member benefits Please check out the “Benefits” page on the HSBA website where you will find discounts on ever ything from rental car s to insurance to on-line research to movie tickets to restaurants and more I had no idea HSBA member s could get so many discounts until I joined the Working Group.
As discussed above, the Strategic Planning Committee will be focusing on issues that are of concer n, such as lawyer attrition and enhancing eng agement with our member s.
10 . A s a l l t h e c o u r t s n o w h a v e e l e c t r o n i c c o u r t f i l i n g s d o e s t h e H S B A o r y o u h a v e a n y c o m m e n t s o n t h e e l e c t r o n i c c o u r t f i l i n g s y s t e m ?
I do not speak for the Board on this issue, but per sonally the electronic court filing system is ef ficient and fabulous While there may be an occasional g litch, I am not aware of any major issues or criticism reg arding e-filing Of cour se, if there are any such issues, then I encourage our member s to let us know so that we can address any concer ns.
11. Does the HSBA have any plans to require bar members to perform additional pro bono services?
Requiring more pro bono hour s is not on the cur rent HSBA agenda I expect that each of us provide pro bono in our own way, whether it is volunteering for VLSH or the Access to Justice Room or working on various committees to improve our laws and justice system or
making monetar y contributions to org anizations that promote justice and help the under re presented I would encourage all HSBA member s to provide pro bono services It is truly rewarding to help someone in need or to work to improve the laws that gover n us all
12. Is the HSBA planning to provide more prog rams or ser vices to the neighbor island attor neys a n d / o r h a v e n e i g h b o r i s l a n d attor neys become more involved in the HSBA?
Fir st, I think zoom has really enhanced our ability to connect with our neighbor island colleagues, and I sure hope that they feel that too
Second, we have incredible neighbor island Board member s Geri Haseg awa for East Hawaii, Carol Kitaoka for West Hawaii, Jacob Lowenthal for Maui, and Emiko Meyer for K auai. Trust me, they are lobbying for
January 2023 HAWAII BAR JOURNAL 15 Judge Daniel R. Foley (ret.) wMediation wArbitration wMoot court wMock trial Dispute Prevention and Resolution 1003 Bishop Street Suite 1155 Honolulu, H I 96813 Phone: 808.523-1234 judgefoley2000@hotmail com www dprhawaii com
the needs of the neighbor islands ever y ste p of the way Please let them know how the HSBA can better serve the neighbor islands, and I promise you that we will consider it
13. Are there any other thoughts that you would like to share with the HSBA members?
Despite my discussion of my personal mental health issues, my g randmother always called me the “family optimist ” And I am I am a g lass-halffull optimist I want to see the best in people I want the HSBA to provide resources and tools to help our member s be the best ver sions of themselves.
I am a true believer in the power of kindness. One of my favorite expressions (from a sign at K ailua Inter mediate School) is “Spread Kindness Like Confetti ” While we are often advocates and certainly need to be tough in the positions that we take, we can still be kind, even to our adver saries
I realize that some of the issues I have raised are seen through my prism as someone who has spent her entire career in private practice and at a relatively large law fir m T he concer ns of gover nment and in-house counsel may be ver y dif ferent and, as HSBA President, my job is to listen to all member s and address the concer ns that they have, not just my singular views. The entire HSBA Board is here to serve you. So please, reach out, connect with us, let us know your views, let us know what you need to be the best version of yourself, let us know what you need to have a long, meaningful, and sustainable career I cannot promise you we will do everything you ask (we cannot), but we will listen and give due consideration.
It is truly a privilege to serve as HSBA President I will do my best
16 January 2023 HAWAII BAR JOURNAL
E M P O W E R YO U R AT TO R N E YS & S TA F F W O R K I N G R E M O T E LY Learn more at AccessCorp.com/Hawaii Or call now: 808.673.3200* *Mention this ad for a Free Consultation and Quote Scan-on-Demand: Digital Mailroom: AC C E SS D I G I T I Z AT I O N & S C A N N I N G S E R V I C E S I N C LU D E : S O Y T A YL OY TA S C S A UL AccessCo 808.673.3200 orp.com/Hawaii p
C O U R T B R I E F S
Rock for Justice Returns
reason behind its enduring legacy, but it is the fans, of numbers unknown, who sing every word that make Judicat gigs so special.
Songs were played with the Artistry Kakaako house lights way down, giving the show the feel of an arena rock show rather than a very big house party
“The Judicats have still got it,” one concertgoer exclaimed after the show “Not just vocally and acoustically, but athletically.”
William S Richardson School of Law
Early estimates indicated the event raised between $10,000 -$12,000 to support APIL summer stipends
Akitake and Wright Reappointed
More than three years since the A pril 2019 “Rock for Justice III,” timeless rock ‘ n ’ roll band the Judicats retur ned to “Rock for Justice,” delighting a packed house with a perfor mance that w a s a s e f f o r t l e s s - l o o k i n g a s i t w a s e n e r g e t i c
Slaying the strings were Inter mediate Court of A ppeals Judge Keith Hiraoka on bass, Hawaii Supreme Court Justice Sabrina McKenna, First Circuit District Court Judge William Domingo, and Administrative Director of the Courts Rodney Maile on guitar Attorney and for mer Supreme Court Law Clerk Chase Livingston rocked the keyboards, and Georg Beck-Millan whaled on the drums.
That the band still sounds as tight and engaged as ever may be the primary
The show was an incredible hookheavy rock celebration, and it is a marvel that a band could produce such a perfor mance that is both in line with their previous work but also a reimagining of it The setlist (with vocalists) included Office of the Administrative Director of the Courts Secretary Kanani Kawika, attor ney Crystal “Tootie” Glendon, William S. Richardson Law students Tammy Kim and Erika Elona First Circuit Court Judge Gary Chang, Inter mediate Court of A ppeals Staff Attor ney Natalie Younoszai, attor ney Marissa Machida, and Hawaii Supreme Court Justice Sabrina McKenna
The Judicats were the third of eight acts in the lineup for Rock for Justice 2022 on November 10, a fun-raiser and fundraiser for the Advocates for Public Interest Law (APIL), a student-run organization at the University of Hawaii’s
Lauren Mei-Siang Akitake and Douglas R Wright were recently reappointed per diem judges of the District Court of the Second Circuit Both will serve ter ms from Nov. 23, 2022 to Nov. 22, 2023
Seeking Applicants for Third Circuit Independent Grand Jury Counsel
The Circuit Court of the Third Circuit is seeking applicants for Independent Grand Jury Counsel for Hilo and Kona The compensation shall be as provided by law.
To be considered for a one-year appointment to either Hilo or Kona, please submit a letter of interest and resume by Januar y 31, 2023 to:
Chief Judge Robert D S Kim Keahuolu Courthouse 74-5451 Kamakaeha Avenue Kailua-Kona, Hawaii 96740
Fax a copy to: Dawn West Chief Court Administrator Fax: 808-961-7577
January 2023 HAWAII BAR JOURNAL 17
H S B A H A P P E N I N G S
2023 HSBA Officers and Directors
The following members will serve on the 2023 HSBA Board: President Rhonda L Griswold, President-elect Jesse K Souki, Vice President Mark M Murakami, Treasurer Alika L. Piper, Secretary Lanson K Kupau; and Directors Jocelyn W C Chong, Steven J T Chow, Vladimir Devens, Jessica R. Domingo, Geraldine N Hasegawa (East Hawaii), Kristin E. Izumi-Nitao, Ronette M Kawakami, Carol S Kitaoka (West Hawaii), Erin M Kobayashi, Jacob K Lowenthal (Maui), Emiko Meyers (Kauai), Mark K Murakami, Paul W Naso, Zale T. Okazaki, Mark G. Valencia, and Lisa M Yang (YLD)
2023 HSBA SCD Officers and Directors
The following members will serve on the 2023 HSBA Senior Counsel Division Board: President Scott Makuakane, Vice President Scott Spallina, Treasurer Gregory Lui-Kwan, Secretary Gilbert C Doles; and Directors Michelle Alarcon, Harvey Demetrakopoulus, Jonathan J Chun (Kauai), Sue Hansen, Charlene Iboshi (Big Island), Jean Malia Orque, David Raatz (Maui), Ian L Sandison, and Michael J.Y. Wong.
2023 HSBA YLD Officers and Directors
The following members will serve on the 2023 HSBA Young Lawyers Division Board: President Lisa Yang, Vice President Kelcie Nagata, Treasurer Andria Schumann, Secretary Danica Swenson; and Directors Chad Au, Georgia Anton (Kauai), Asia Howe (West Hawaii), Lansen Leu, Jarrett Dempsey, Ilayda Ossanna, Raven Sevilleja, Jacob Tokunaga, Jill Uehara (Maui), Lauren Watanabe, and Ian Wesley-Smith (East Hawaii).
Board Vacancies on LASH Board
The Legal Aid Society of Hawaii will have four positions expiring on its Board, each with a three-year ter m beginning July 1, 2023. Qualifications include being knowledgeable about and supportive of delivery of quality legal services to the poor; willing and able to devote time to perfor m necessary duties; and conscientious, studious, thorough, and diligent in lear ning methods and problems of the organization.
Duties include gover ning the Society, whose primary pur pose is to secure justice for and protect the rights of the needy and promote measures for their assistance. Anyone interested in serving in this capacity should submit the following by February 28, 2023, to the HSBA Nominating Committee at nominations@hsba org: a resume, reason for wanting to serve, and area of law practice concentration Please note that these positions are uncompensated, and that applicants need to disclose all public disciplinary sanctions If there have been none, then state that such is the case A ppointments will be made at the HSBA Board meeting in May or June 2023.
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 the name of the nominee becomes public. Since the legislative process does not provide for an extended comment period, it is incumbent upon bar members to submit their comments in a timely manner so that it may be considered in the Board’s deliberations
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Hawaii Business Ma gazine
Hawaii Business Magazine is offering a free two-year digital magazine subscription (a $49 98 value) Hawaii Business has been serving the Hawaii business community for over 65 years, providing coverage that is unique, useful and interesting To take advantage of this HSBA-exclusive offer, simply visit their website at https://bit.ly/3XdBjSI.
HP
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HSBA Conference Rooms
HSBA conference rooms are available at the Hawaii State Bar Association offices at 1100 Alakea Street, Suite 1000, for HSBA members at $25 per hour (small) and $50 per hour (large), including telephone and wireless service Call (808) 537-1868 for availability and see our guidelines at https://bit ly/3TRtRtf
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CASE NOTES
Appeal Pointer
A circuit court order g ranting summary judgment or dismissing claims is not appealable unless it is reduced to a separate judgment HRCP 58; Jenkins v Cades Schutte Fleming & Wright, 76 Hawai‘i 115, 869 P.2d 1334 (1994)
Supreme Court Criminal
State v. Hirata, No. SCWC-200000689, October 31, 2022, (Eddins, J , and Rectenwald, C.J., dissenting with whom Nakayama, J , joins) A jury found Chanse Hirata guilty of violating Haw. Rev. Stat. § 707-733.6 (2014), continuous sexual assault of a minor under the age of fourteen years Hirata argued two of the deputy prosecuting attor ney ’ s closing argument remarks prejudiced his right to a fair trial: (1) Hirata had “ a motive to lie”; and (2) the complaining witness (CW) testified “consistent with a child who is traumatized ” The Hawaii Supreme Court held that each of these remarks constitute misconduct, and that neither was har mless beyond a reasonable doubt
Recktenwald, C.J., joined by Nakayama, J , dissented Recktenwald, C J , ag reed with the majority that the Deputy Prosecuting Attor ney (DPA) engaged in prosecutorial misconduct when she characterized the defense witnesses, including defendant Chanse Hirata, as “hav[ing] a motive to lie ” However, Recktenwald, C J respectfully disag reed about the impact of that single reference on the outcome of the trial Unlike State v Austin, where the prosecuting attor ney referred to the defendant as a liar twenty times in closing argument, the DPA here used the ter m once, and moved on without even arguing what the motive to lie was Moreover, suggesting that someone has a “motive to lie” – as opposed to accusing them of being a “liar” - implicates less strongly the concer ns that
motivated our decision in Austin. See, e g , id at 51 (prosecutor’s argument that the defendant “lied to you ” ref lects a “personal, judgmental evaluation” that likely leads the jury to conclude it ref lects the prosecutor’s personal opinion) Indeed, other jurisdictions that prohibit prosecutors from referring to defendants as “liars” have found that arguments about a defendant’s motive to lie are proper State v King, 288 Kan 333, 352–53, 204 P 3d 585, 598 (Kan 2009)
Recktenwald, C.J. also disag reed with the majority’s conclusion that the DPA’s comment that the complaining witness’s (CW) testimony was “consistent with a child who is traumatized” was improper
The prosecution’s expert witness on child sex abuse, Dr. Alexander Bivens, testified about phenomena consistent with the CW’s behavior including delayed reporting by victims of child sex abuse, failure of victims to fully disclose when reports are made, and failure to recall surrounding details and the exact number of instances of abuse (“tunnel memory”) Dr Bivens noted that “[t]unnel memory refers to a phenomenon we observe when children are recalling traumatic events ” Dr Bivens’s testimony provided a fair basis for the DPA’s argument While the evidence in this case was not overwhelming, nevertheless there was significant evidence that corroborated the CW’s testimony Her account of what happened was consistent, despite the memory and disclosure issues commonly associated with child victims of sex abuse There was also testimony establishing that Hirata displayed unusual interest in having CW come to his house, where he had ample opportunity to be alone with her Considering that evidence in light of the isolated nature of the misconduct, the misconduct was har mless beyond a reasonable doubt. Recktenwald, C.J. also disag reed with the majority’s direction to the trial courts to excise from the Hawaii Supreme Court’s patter n jury instructions any reference to a witness’s “interest, if any, in the result of this case ” when the defendant testifies. The H a w a i i S u p r e m e C o u r t ’ s c u r r e n t
January 2023 HAWAII BAR JOURNAL 19
instructions are completely neutral and allow the jury to consider the defendant’s interest on the same ter ms as any other witness.
State v Van Bl yenburg, No SCWC-200000714, November 23, 2022, (Eddins, J , and Wilson, J dissenting, with whom McKenna, J joins) While driving on Aiea Heights Road, George Van Blyenburg hit a man who was weed whacking next to the street Van Blyenburg kept driving, but several motorists stopped and tried to help the man Shortly after Van Blyenburg hit him, the man died Van Blyenburg did not retur n to the scene of the collision Instead, he drove to his friend’s house nearby and parked in his friend’s garage. He covered the damaged front end of his Honda CRV with blankets and boxes Then, he went with his friend, in his friend’s car, to Turtle Bay The State indicted Van Blyenburg for two crimes: (1) leaving the scene of an accident involving death or serious bodily injury, Haw Rev Stat § 291C-12 (2007 & Supp 2015) (Count 1); and (2) negligent homicide in the second deg ree, Haw Rev Stat § 707-703(1)(b) (2014) (Count 2)
At trial, Van Blyenburg testified to “blacking out ” He remembers driving and then “just nothing” before being “jerk[ed]” awake by a “kind of metal bang ” Van Blyenburg said that he looked in his rearview mirror but did not see the man He thought he’d hit a metal sign And he drove off because he didn’t want to get stuck with paying to fix it The jury found Van Blyenburg guilty on both Count 1 and Count 2 After the verdict, but before sentencing, Van Blyenburg moved to dismiss both counts. The circuit court was not persuaded by Van Blyenburg’s arguments It denied Van Blyenburg’s motion to dismiss as to both Counts 1 and 2 Van Blyenburg appealed The ICA affir med Because the ICA held that the State’s requested jury instructions apprised Van Blyenburg of the charges against him, it did not decide whether the indictment,
January 2023 HAWAII BAR JOURNAL 21
standing alone, sufficiently infor med Van Blyenburg of the crimes the State alleged he committed The Hawaii Supreme Court held that both Count 1 and Count 2 of the indictment gave Van Blyenburg adequate notice of what he had to defend against Wilson, J dissented, with whom McKenna, J. joined. Wilson, J. dissented to the Majority’s holding that Count 1 of the indictment, charging Van Blyenburg with leaving the scene of an accident involving death or serious bodily injury in violation of Haw. Rev. Stat. § 291C-12 (2008), adequately infor med Van Blyenburg of the class B felony for which he was indicted As a person accused of a criminal offense, Van Blyenburg is constitutionally entitled to be adequately infor med of the nature and cause of the accusation against him Haw Const art I, §§ 5, 14 Wilson, J stated that this is a fundamental right ensuring that a defendant is alerted “of precisely what they need[] to defend against to avoid a conviction ” State v Nesmith, 127 Hawaii 48, 56, 276 P 3d 617, 625 (2012) Because Count 1 of the indictment omitted an attendant circumstance element of the offense, Van Blyenburg was not sufficiently infor med of what he must defend against. See State v Shaw, 150 Hawaii 56, 63, 497 P 3d 71, 78 (2021) The Majority’s inter pretation of HRS § 291C-12(a) deprives Van Blyenburg of his right to have the attendant circumstance element (that “[e]very stop shall be made without obstructing traffic more than is necessary”) proven beyond a reasonable doubt Therefore, his conviction for leaving the scene of an accident involving death or serious bodily injury should be vacated
Criminal Procedure
Deangelo v Souza, No SCWC-220000607, November 17, 2022, (Eddins, J ) This petition for an extraordinary writ challenged the constitutionality of Hawaii Rules of Penal Procedure Rule
12(g). Rule 12(g) allows a judge who dismisses a case based on a “defect in the institution of the prosecution or in the charge” to order the defendant held for a “specified time” while the State re-files charges Up until recently, courts have rarely invoked Rule 12(g) But the present wave of dismissals in cases where the State did not obtain an indictment from a grand jury has prompted a surge in the rule’s use Scott Deangelo was the defendant in one such case After the court dismissed charges against him, it ordered under Rule 12(g) that Deangelo remain in custody for ninety days, while the State sought a grand jury indictment. Deangelo argued that Rule 12(g) violates the Fourth Amendment of the United States Constitution, which protects against unreasonable seizures, and Haw Rev Stat § 803-9(5) (Supp 2021), which requires an “arrested person ” to be taken “before a qualified magistrate for examination” within 48 hours of arrest. While Deangelo’s case was mooted by his indictment eleven days later, his challenge to Rule 12(g) presents an issue of public importance The Hawaii Supreme Court held that, when probable cause has been found after a preliminary hearing but the case is dismissed without prejudice due to a defect in the institution of the prosecution, Rule 12(g) per mits a court to hold a defendant in custody or continue bail for a specified time that is reasonable under the circumstances
Suitt v. State, No. SCWC-20-0000370, November 22, 2022, (Eddins, J ) The ICA dismissed post-conviction relief petitioner Bryan Suitt’s appeal for lack of jurisdiction The Hawaii Supreme Court agreed with the ICA that Suitt’s appeal was not properly taken from a final order. However, because the appeal’s procedural defects stemmed from ineffective assistance of counsel, the Hawaii Supreme Court held that the ICA had jurisdiction to review the merits of Suitt’s appeal
Health
Nitta v De partment of Human Ser vs , No SCWC-17-0000432, November 4, 2022, (McKenna, J ) This case arose out of the State of Hawaii Department of Human Services’ (DHS) attempt to recover payments made to Frederick Nitta, M D (Dr Nitta) from its Medicaid Primary Care Physician Prog ram (the Prog ram) The Prog ram was established by a federal statute within the Affordable Care Act, specifically 42 U S C § 1396a(a)(13)(C) (the Statute). The Statute enabled physicians “with a primary specialty designation of family medicine, general inter nal medicine, or p e d i a t r i c m e d i c i n e ” t o t e m p o r a r i l y receive increased payments for primary care services provided to Medicaid patients in 2013 and 2014 DHS, through its Med-QUEST division, administers the Prog ram in the State of Hawaii. Dr. Nitta, who has been board-certified in obstetrics and g ynecolog y since the early 1990’s, but who has been serving as a primary care physician to Medicare and Medicaid patients in East Hawaii for many years, became a participant in the Prog ram when a staff member signed him up on-line at the suggestion of an AlohaCare representative In 2015, h o w e v e r, D H S t o l d D r N i t t a h e w a s i n e l i g i b l e b e c a u s e h e d i d n o t m e e t specialty requirements for Prog ram participants as set forth in a federal administrative rule, 42 C F R § 447 40 (the Rule) DHS then demanded repayment of more than $200,000 in enhanced payments received by Dr Nitta through the Prog ram Dr Nitta requested an administrative hearing and an administrative appeal at DHS. He later filed for a judicial appeal by the Circuit Court All deemed Dr Nitta ineligible Dr Nitta then brought a secondary appeal to the ICA. While the ICA appeal was pending, the Court of A ppeals for the Sixth Circuit issued an opinion invalidating
22 January 2023 HAWAII BAR JOURNAL
the Rule. Averett v. United States De p’t of Health & Hum Ser vs , 943 F 3d 313, 319 (6th Cir 2019) In a published opinion, the ICA adopted the Sixth Circuit’s analysis in Averett. Nitta v. De p’t of Hum. Ser vs , 151 Hawaii 123, 128, 508 P 3d 1209, 1214 (A pp 2022) Because DHS and the circuit court had relied on the invalidated Rule to order repayment by Dr Nitta, the ICA ordered a remand to DHS for further proceedings as may be necessary Nitta, 151 Hawaii at 129, 508 P.3d at 1215. On certiorari, DHS did not contest the Sixth Circuit and ICA’s invalidation of the Rule Instead, DHS argued the ICA erred because (1) Dr Nitta was still ineligible for the Prog ram under the Statute; (2) the circuit court had also relied on the Statute in deeming Dr Nitta ineligible; and (3) DHS is required to recoup the over payment because there was never money appropriated to pay Dr Nitta With respect to the first issue, the ICA did not address whether Dr. Nitta would in any event be precluded from enhanced payments based on the Statute In Averett, the Sixth Circuit held the Statute’s phrase, “physician with a primary specialty designation,” to mean “ a physician who has himself designated, as his primary specialty, one of the specialties recited in [the Statute] ” Averett, 943 F 3d at 319. The ICA adopted this holding, Nitta, 151 Hawaii at 128, 508 P 3d at 1214, but did not address whether Dr Nitta qualified The Hawaii Supreme Court ag reed with DHS that Dr. Nitta’s eligibility for the Prog ram under the Statute can and should be addressed The Hawaii Supreme Court also ag reed with the Sixth Circuit and the ICA that the Rule is invalid as it contravened the Statute Contrary to DHS’s position, however, the Hawaii Supreme Court held Dr. Nitta was entitled to enhanced payments under the Statute based on the reasoning below This holding resolved
DHS’s second issue on certiorari, that the circuit court had also relied on the Statute to hold Dr Nitta ineligible If the circuit court had so held, it would have been wrong. But, in any event, the circuit court (and DHS) relied solely on the invalidated Rule in deeming Dr Nitta ineligible and did not rely on the Statute. Finally, the Hawaii Supreme Court also rejected DHS’s third issue on certiorari, that DHS was required to recoup the over payment because there was never money appropriated to pay Dr. Nitta This was a new argument never raised below and was therefore waived
Intermediate Court of Appeals Administrative Law
Hawaiian Dredging Constr uction Co., Inc. v. Nan, Inc., No CAAP-21-0000533, October 31, 2022, (Wadsworth, J ) In 2021, Respondent-A ppellee-A ppellee Board of Water Supply (BWS) invited bids for a project to construct a concrete reservoir (Project) After receiving a bid from Petitioner-A ppellee-A ppellant Nan, Inc. (Nan), BWS deter mined that Nan was a “nonresponsible” bidder for the Project (i e , not capable of fully perfor ming the contract requirements) and that BWS would not consider Nan’s bid BWS awarded the contract to Intervenor-A ppellant-A ppellee Hawaiian Dredging Construction Company, Inc (Hawaiian Dredging) Nan submitted a request for administrative review (Request for Review) of BWS’s decision to the Office of Administrative Hearings (OAH), Department of Commerce and Consumer Affairs. After briefing and a hearing, the Hearings Officer vacated BWS’s deter mination of Nan’s “ nonresponsibility” and ordered that BWS’s contract award to Hawaiian Dredging be ter minated Hawaiian Dredging appealed the Hearings Officer’s decision to
the Circuit Court and BWS joined the appeal After further briefing and a hearing, the Circuit Court directed the Hearings Officer to set aside her decision and to enter an order containing a directive reinstating the contract award to Hawaiian Dredging On appeal, Nan contended that the Circuit Court erred: (1) in finding that Nan’s Request for Review was based on the content of the bid solicitation (Solicitation), such that the Hearings Officer lacked jurisdiction to consider Nan’s request; (2) in ignoring the Hearings Officer’s finding that she “ can find no language, nor can [BWS] or [Hawaiian Dredging] point to any part of the Solicitation that clearly requires bidders to provide specific [Horizontal Directional Drilling (HDD)] experience”; and (3) in g ranting deference to BWS and failing to deter mine whether BWS’s actions were consistent with the Hawaii Procurement Code
The ICA held that the Circuit Court did not err: (1) in ruling that the Hearings Officer lacked jurisdiction to consider Nan’s Request for Review to the extent the request challenged the validity and appropriateness of the experience requirements set forth in the Solicitation; and (2) in exercising jurisdiction over that part of Nan’s Request for Review that was not based on the contents of the Solicitation, i e , Nan’s claim that BWS improperly deter mined that Nan was a nonresponsible bidder based on an HDD experience requirement that was not stated in the Solicitation The ICA further held that the Circuit Court correctly concluded that: (1) the Solicitation required bidders to submit their HDD experience or its equivalent; and (2) BWS did not act arbitrarily or capriciously in deter mining that Nan was a nonresponsible bidder.
January 2023 HAWAII BAR JOURNAL 23
CELEBRATION
24 January 2023 HAWAII BAR JOURNAL
“T he pursuit of equal justice for all is tr ul y a noble endeavor.”
Inter mediate Court of A ppeals Associate Judge Daniel R Fole y (ret ) for mer Chair of the Hawai‘i Access to Justice Commission
Chief Justice Mark Recktenwald, Mihoko Ito, Gar y Slovin for Hawaii Justice Foundation, Justice Michael Wilson
Chief Justice Mark Recktenwald, Shannon Sheldon for HSBA, William Dar rah, Justice Michael Wilson
Chief Justice Mark Recktenwald, Caroline Belsom, Katie Me yer for Le gal Aid Society of Hawaii, Justice Michael Wilson
Chief Justice Mark Recktenwald, Richard Norton, Makalika Naholo waa for Native Hawaiian Le gal Corporation, Justice Michael Wilson
Chief Justice Mark Recktenwald, Janna Ahu, Louis Erteschik for Hawaii Disability Rights Center, Justice Michael Wilson
Chief Justice Mark Reckenwald, Caitl yn Moon, Rachel Figueroa for Volunteer Le gal Ser vices Hawaii, Justice Michael Wilson
Chief Justice Mark Recktenwald, Cl yde Namuo, Trace y Wiltgen for T he Mediation Center of the Pacific, Justice Michael Wilson
The Hawai‘i Access to Justice Commission (“Commission”) again organized the Pro Bono Celebration in the Hawai‘i Supreme Court in celebration of National Pro Bono Week in October 2022 With support from the Hawaii Justice Foundation (“HJF”), Hawaii State Bar Foundation, and the Hawaii State Bar Association (“HSBA”), the Commission coordinates a high school essay contest as part of the event as well as a celebration of the volunteer attor neys who assist the state’s low- and moderate-income individuals.
Second Circuit Chief Judge Joseph Cardoza (ret.), Chair of the Commission, opened the event by noting the “ severe imbalance between the demand for civil legal services and the supply of the civil legal services required to meet the needs of those with low- and moderate-income ” He remarked that for the past four decades there has been a steady decline in the number of persons represented by an attor ney in civil proceedings and today, the civil legal system relies on certain interventions to address the problem of the imbalance. These interventions include self-help centers and pro bono legal services. “While these interventions may not be sufficient to address the magnitude and the urgency of the problem, they are nevertheless of critical importance ”
Judge Cardoza noted that it has been reported that every licensed attor ney in the entire United States would have to provide 180 hours of pro bono services every year in order to provide just one hour of service to every household with an unmet civil legal need. He acknowledged that each person at the celebration makes a real difference in the lives of those in need of essential legal services.
Hawai‘i Supreme Court Chief Justice Mark Recktenwald described that the self-help centers are places where attorneys may volunteer their time to provide limited advice or infor mation about what the unrepresented individuals will experience and what the court will expect of them, how they might be able to best present the evidence they have or present their evidence to the court and this is invaluable to someone who is coming into the system without any knowledge as to
what the system expects of them. He further reported that the six self-help centers from Hilo to Lihue have served almost 35,000 people since they were started at almost no cost to the state; just space in the courthouses and the support of Judiciary’s partners volunteer attor neys, HSBA, Legal Aid Society of Hawai‘i (“Legal Aid”) and others that made the centers a reality
The honorees for 2022 who were selected by the legal services providers were as follows:
Mihoko Ito
HJF honored Mihoko Ito for her efforts in significantly contributing to the establishing of the Indigent Legal Assistance Fund (“ILAF”) through legislation and its maintenance over the years since its adoption A brief description of her work follows:
While Mihoko’s work for ILAF is her most visible work and is, perhaps the major basis for this award, it does not fully reflect Mihoko’s community contributions or her character or her dedication From Mihoko’s earliest time as a practicing lawyer, she has contributed to the community in innumerable ways While many of her efforts have directly helped indigent residents in legal predicaments, she has contributed in many other ways to Hawaiian causes and community needs. For Mihoko, helping in the community is like breathing For her, contributing to the community is not an accomplishment to be celebrated Rather her community efforts spring from seeing a wrong, perceiving a need and doing something about it.
Mihoko currently serves on the HJF Board, and she is HJF’s representative to the Access to Justice Commission She is also serves as the (unpaid) lobbyist for both HJF and the ATJ Commission Her advice and consultation for the legal service providers is invaluable in achieving essential funding to assist those in legal need
William C. Darrah
The HSBA honored William C. Darrah, who is a divorce practitioner and editor of the Hawai‘i Divorce Manual since 1990. The publication is used by pro se
litigants as well as family law practitioners and judges His activities were described as follows:
Since 1979, Mr. Darrah has taught many Family Court educational divorce programs offered to attor neys, judges, and parties to court proceedings. These programs include: The Divorce Experience, Kids First II, and most recently in conjunction with the Mediation Center of the Pacific Divorce Law in Hawaii, a monthly program to help litigants deal with money issues in divorce.
Mr. Darrah devotes countless hours as a Family Court volunteer settlement master, a member of the Hawaii Supreme Court’s Committee on Statewide Divorce Practice Refor m and Per manent Committee on Hawaii Family Court Rules, and the First Circuit Family Court’s Procedures Improvement Group Participation in these programs and committees help to improve and streamline court procedures in furtherance of access to justice objectives
Caroline Belsom
Legal Aid honored Caroline Belsom, who volunteered for over 60 shifts at the Maui Self-Help Center, more than any other volunteer during this period She has consistently volunteered at the center for years and volunteers at least once a week Legal Aid described her activities as follows:
Caroline enjoys her volunteer work at the center in part because she is able to empower others to see they can do something about their situations.
Growing up in Kalihi, Oahu, Caroline was taught at a young age the importance of giving back to the community “God gives us gifts and talents and expects us to use them in ways that sustain and grow our community,” she said “I believe in equal access to the system, and in finding ways to allow people to participate in the justice system to the fullest extent possible The Self-Help Center is one way to do that.” One might assume that Caroline had a calling to become an attor ney from a young age, but her path to where she is today has been anything but ordinary.
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“Life should be exciting,” she exclaimed, when asked about how she found law. At Kamehameha Schools, Caroline easily excelled in mathematics and physics. Her family did not have the money to send her to France to study French over the summer, so instead she accepted an offer to study physics and found she was fascinated to lear n “how things work ” She pursued physics in college and graduate school (magna cum laude) and found she enjoyed teaching because of the people aspect it brought to her discipline During her time teaching physics, she lear ned that a number of her friends and colleagues were experiencing legal issues as well as issues with their attor neys. These legal issues piqued her interest, but she did not understand enough about the law to think of alter native solutions, so she decided to attend law school.
Caroline loved law school. After law school, she eventually found herself back on Oahu, and then on Maui, where she has worked as partner, as well as Vice President, in multiple fir ms and then as a solo practitioner for over a decade. Caroline has volunteered with the Maui Self-Help Center since it first opened ten years ago, and although the work is much different than her past research in quarks and high energy physics, she still brings with her some lifelong skills she developed from her research and teaching days “When the callers have someone to listen as they pour everything out, their story is not always logical It’s our job to help them put it in order; like a puzzle,” she said “When the light bulb goes on, it just makes me smile ”
Richard Norton
Native Hawaiian Legal Cor poration (NHLC) honored Richard Norton, who for merly practiced land use matters in Califor nia Native Hawaiian Legal Corporation described his activities as follows:
As an NHLC volunteer, Richard is a valued legal consultant and mentor. For two years, he has served with our team weekly and can be relied upon to generously share expertise ranging from trial strategy to legal leadership to legal business management Richard will take a flight before dawn and retur n after dark so he can visit a sacred site and spend time with a hui of traditional practitioners
PANEL MEMBERS WANTED Medical Inquiry and Conciliation Panels Design Claims Conciliation Panels
The Hawaii Department of Commerce & Consumer Affairs, is seeking qualified, licensed attorneys to serve on its Medical Inquiry and Conciliation Panel and Design Claims Conciliation Panel. The MICP process is designed to help patients and their families obtain information regarding adverse events they associate with medical treatment and is intended to provide a non-adversarial meeting to facilitate the conveying of information. No decisions are rendered. Instead, the Panel, consisting of a Chair/Attorney and a physician, focus their efforts on providing the parties with a better understanding of their inquiry/defenses and the opportunity to discuss and possibly resolve these inquiries. The Panel in the DCCP process, consisting of 2 attorneys and a design professional, presides over a hearing and renders an informal, non-binding, advisory opinion on the issues of liability and damages in tort claims against licensed design professionals. By statute, Panel members are entitled to compensation of $300.00 and $450.00 for participation on the DCCP and MICP, respectively. Please send resume and questions to:
Department of Commerce & Consumer Affairs
Office of Administrative Hearings 335 Merchant Street, Room 100 Honolulu, Hawaii 96813 E-Mail: micp@dcca.hawaii.gov Tel: (808) 586-2828
January 2023 HAWAII BAR JOURNAL 27
He is growing knowledge of ‘olelo Hawai’i to better understand the people, law, and culture of his new home He’s frequently asking questions about local and Native Hawaiian history and culture to infor m creative thinking about legal solutions that are practical, just, and pono
Dentons U.S. LLP’s team
The Hawai‘i Disability Rights Center (“HDRC”) honored Dentons U.S. LLP’s team of Erika Amatore, Janna Ahu, Nicholas Reyes, Cassandra Crawford, Kristin Holland, and Paul Alston for their work in the E R K class action Their activities are described below:
E.R.K. involved a class of 495 former special-education students who were improperly aged out of Hawai‘i high schools by the state Department of Education (DOE). The case has spanned almost ten years through initial filing, trial, appeal, and settlement administration The Class members made over one thousand claims for compensatory education, totaling over $5.3 million. Disbursements from the settlement fund paid for assistive technology, adaptive vehicles, physical therapy, speech therapy, vocational training and vocational equipment that have greatly enhanced the lives of the Class members Settlement Administrator James E Duffy helmed a staff of four contractors, supervised by the Dentons team HDRC partnered with Dentons throughout this litigation, which concluded in 2022
In court filings, the judge assigned to this case recognized the team’s work as highly labor intensive, due in part to the complex structure of the settlement Each Class member had unique challenges and needs that had to be assessed on an individual basis. Class members often required guidance in locating appropriate services for their individualized needs, especially on neighbor islands. To make disbursements, the team engaged with each Class member, often numerous times, to match them with compensable, educationrelated goods and services. This task grew even more challenging with the March 2020 COVID-19 pandemic, when many services became unavailable to class members. The team renegotiated the settlement agreement t o e x t e n d t h e t i m e av a i l a b l e t o
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disburse funds by one year, with an additional year for Class members to receive services under individualized treatment plans
The court in this case noted, however, that even with the one-year extension, the disbursement process was not smooth sailing In particular, the DOE frequently opposed disbursements, resulting in numerous conferences, negotiations, and briefing before the court The team’s hard work resulted in court approval for disbursements related to adaptive vehicles and mobility services, educational travel, data plan expenses, and occupational tools and equipment This work came with great rewards when Class members sent photos and videos to the team, showcasing their successes. In one case Nicholas Reyes recalled, the opportunity to help a Class member gain independence was a source of particular pride. He added that he felt most rewarded when the team was able to help Class members retur n to school or gain tutoring services
Clyde Namuo
The Mediation Center of the Pacific (“MCP”) honored Clyde Namuo who, after retiring from his job as executive director of the Office of Hawaiian Affairs in 2012, began mediating for MCP Since that time, he has brought “his equanimity and practical empathy to 353 cases, comprised of 376 sessions and over 596 hours ” A further description of Namuo’s works is below:
From the beginning, Clyde has always been dedicated to helping meet the community’s needs for dispute resolution. Over the years he has mediated hundreds of small claims, TRO, and regular claims disputes both on-site at court and remotely when the pandemic necessitated the switch to remote mediation He has also mentored apprentice mediators for the District Court mediation prog ram, developing the next generations of mediators Over the last couple of years, Clyde expanded his skillset to mediating domestic cases, helping couples ag ree on time-sharing and co-parenting plans that best
meet the needs of their children. In addition to mediating, Clyde assists w i t h M C P ’ s m a ny t r a i n i n g s c o nd u c t e d f o r t h e p u b l i c , a s w e l l a s other private and non-profit organizations, such as Catholic Charities Hawaii and the Hawaii State Teachers Association
Clyde has truly been a stalwart volunteer for MCP and is always willing to be involved with initiatives to make mediation more accessible Not only did he adapt quickly to mediating via videoconference, but he also assisted with the testing and analysis of MCP’s inter nal textbased online mediation prog ram, as well as the Judiciary’s pilot Online Dispute Resolution prog ram.
Caitlin Moon
Volunteer Legal Services of Hawaii (“VLSH”) honored Caitlin Moon, who is currently an associate in the Trusts and Estates Department at Cades Schutte VLSH describes her work as follows:
C a i t l i n i s o n e o f V L S H ’ s s t e a d y
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volunteer attor neys, regularly assisting individuals with Estate Planning and Adult Guardianship matters. She is currently one of only two volunteers who assist with Adult Guardianships, which is vital to our prog rams. As of today, Ms. Moon has helped approximately 30 VLSH clients and has logged over 80 pro bono hours since she started volunteering with VLSH in 2020 Ms Moon volunteers for VLSH’s remote/telephonic Neighborhood legal clinics multiple times a month and has perfor med many pro bono brief services for VLSH clients Caitlin also volunteers for the American Bar Association Free Legal Answers Hawaii online prog ram (otherwise known as Hawaii Online Pro Bono) where she has answered numerous questions from vulnerable Hawaii residents during the course of the pandemic.
Access to Justice Rooms Volunteers
The volunteer attor neys who staffed the Access to Justice Rooms at the Honolulu District Court and the Ronald T Y Moon Judiciary Complex in Kapolei were also recognized Since the centers opened in 2012, attor neys have provided nearly 8,500 consultations, at no charge, to people seeking legal assistance
The law fir ms and offices who staffed the Honolulu Access to Justice Room in particular months in 2022 were: Office of Disciplinary Counsel, Chun Kerr, Goodsill Anderson Quinn & Stifel, Cades Schutte, Hawaii Association for Justice, Carlsmith Ball, Bronster Fujichaku Robbins, Hawaii Filipino Lawyer Association, Dentons U S LLP, Schlack Ito, Star n O’Toole Marcus & Fisher, Hawaii Women Lawyers, Case Lombardi & Pettit, Damon Key Leong Kupchak Hastert, Marr Jones & Wang, and Yamamoto Caliboso Heatherington
The individual attor neys who volunteered were Sergio Alcubilla, Thomas Berger, Justin Brackett, Pohai Nuuhiwa Campbell, Matthew A Cohen, Tred Eyerly, Mike Goodman, Sue Vo Hansen, Arlette Harada, Kauanoe Jackson, Eric T Kawatani, Lloyd Lim, Andrea Lux Miyashita, Scott George Morita, Steve Nichols, Christine Nowland, Laura Ozak, Erika Strawn, Lynne T T Toyofuku, Shannon Wack, and Sarah Wang
The individual attor neys who volun-
teered at the Kapolei Access to Justice Room were Kevin Adaniya, Marrionnette Andrews, Cheryl Arakaki, Sara Jo Buehler, Mari Kishimoto Doi, Shelby Ferrer, Gregory Frey, Noah Gibson, Andrea Graf, Donna Green, Shannon Hackett, Seth Harris, Stephen Hioki, Ann Isobe, Curtis Kam, Lynnae Lee, Elsa McGehee, Dyan Mitsuyama, Ellen Politano, Gregory Ryan, Gemma-Rose Poland Soon, Tom Tanimoto, Jacqueline Thurston, and Carol Tribbey
Other Volunteers Honored
The A ppellate Pro Bono Prog ram Volunteers recognized were Sean Aronson, Lance Collins, and David HaradaStone.
The Oahu Family Court Volunteer Settlement Masters were recognized by First Circuit Deputy Chief Judge and Senior Family Court Judge Matthew Viola: Kevin Adaniya, Marrionette Andrews, Cheryl Arakaki, Sara Jo Buehler, Jennifer Chan, Bradley Chong, Tom Crowley, Nicole Cummings, Everett Cuskaden, William Darrah, Richard Diehl, Gavin Doi, Huilin Dong, Tom Farrell, Shelby Ferrer, Greg Frey, Stacey Fukuhara-Barclay, Noah Gibson, Christian (Christy) Gray, Donna Davis Green, Geoff Hamilton, Seth Harris, Steve Hartley, Jill Hasegawa, Denise Havicon, Stephen Hioki, Ann Isobe, Debbie Jew, Judith Schevtchuck, Curtis Kam, Kevin Kimura, Charles Kleintop, Erin Kobayashi, Jackie Kong, Lynnae Lee, Kendal Luke, Katherine Lukela, Tim Luria, Elsa McGehee, Lynne McGiver n, Dyan Mitsuyama, Naoko Miyamoto, Juan Montalbano, Blake Okimoto, Maria Penn, Anthony Perrault, Karl Phillips, Ellen Politano, Pablo Quiban, Alethea Rebman, Stephanie Rezents, Gregg Ryan, John Schmidtke, Scott Schmidtke, Isaac Smith, Gemma-Rose Poland Soon, Justin Sturdivant, Jo-Ann Takara, Tom Tanimoto, Christopher Thomas, Paul Tomar, Carol Tribbey, Molly Tur pin, Sheila Vierra, Mitchell Wong, and Craig Yim.
The A ppellate Mediator volunteers were recognized for their service in a segment led by the Hawaii State Judiciary Center for Alter native Dispute Resolu-
tion’s A ppellate Mediation Prog ram Administrator Anne Marie Smoke They included Justice Simeon R Acoba , Jr (ret ), Judge Riki May Amano (ret ), George B A pter, Judge Joel E August (ret.), Robin K. Campaniano, Corlis J. Chang, Louis L C Chang, Charles W Crumpton, Justice James E. Duffy (ret.), Jacqueline L S Earle, David H Franzel, Judge Max W J Graham (ret ), Judge Eden Elizabeth Hifo (ret.), Kenneth B. Hipp, Judge Douglas H Ige (ret ), Elizabeth Kent, Judge Walter S. Kirimitsu (ret ), Judge Robert G Klein (ret ), Ralph R La Fountaine, Rosalyn Loomis, Stanley Majka, Judge Victoria S Marks (ret ), Judge E John McConnel (ret ), Georgia K. McMillen, Judge Douglas S. McNish (ret ), Judge Marie N Milks (ret ), Richard C. Mosher, Judge Gail C. Nakatani (ret ), Judge Rhonda A Nishimura (ret ), Judge Maura M Okamoto (ret.), Patricia Kim Park, Esq., Judge Shackley F Raffetto (ret ), Judge Nancy Ryan (ret.), Judge Karl K. Sakamoto (ret ), Judge Sandra A Simms (ret ), Judge Leland H Spender (ret ), Thomas L Stirling, Judge Allene K Suemori (ret ), Owen K Tamamoto, Judge Michael A. Town (ret.), Ar ne Werchick, Judge Andrew P Wilson (ret ), and Judge Patrick K.S.L. Yim (ret.).
The five winners of the Commission’s statewide high school essay contest were additionally recognized Hawai‘i Supreme Court Associate Justice Michael Wilson, 2022 HSBA bar president Shannon Sheldon, Representative Della Au Belatti, and Department of Education Deputy Superintendent Heidi Ar mstrong also participated in the celebration The law fir ms acknowledged for providing the cash awards for the students were Cades Schutte, Davis Levin Livingston, Law Offices of Alen M K Kaneshiro, Lowenthal & Lowenthal, and Lukela Kobayashi
This annual event honors those dedicated individuals who inspire others through their self less provision of critical civil legal services to those who would otherwise go unrepresented
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January 2023 HAWAII BAR JOURNAL 31