Hawaii Bar Journal - January 2024

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BAR JOURNAL

A N O FFICIAL P UBLICATION OF THE H AWAII S TATE BAR A SSOCIATION JANUARY 2024 $5.00

Interview with

Jesse Souki 2024 HSBA President

TABLE O F C ON TE NTS VO LUM E 28 , N U M B E R 1

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

ARTICLES 44

Interview of 2024 President Jesse K. Souki

15

2023 Pro Bono Celebration

23 19

American Judicature Society Supports Protections for Hawaii’s Judges

by Steven K. Uejio

24

OF NOTE

HSBA OFFICERS

26

HSBA Happenings

President Jesse Souki

27

2024 Hawaii Access to Justice Conference

28

Court Briefs

29

Courtroom Attire

29 20 30 22 31 28

2023 Directory Errata

President-Elect Mark M. Murakami Vice President Mark K. Murakami Secretary Mark M. Murakami Treasurer Lanson Kupau YLD OFFICERS President Kelcie Nagata Vice President/President-Elect Chad Au Secretary Danica Swenson Treasurer Amberlynn Alualu

Case Notes Classifieds

30 31

INTERIM EXECUTIVE DIRECTOR Lyn Flanigan 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.

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Advertising inquiries should be directed to: Grass Shack Productions (808)521-1929 FAX: (808)521-6931 brett@grassshack.net

On the Cover: Photo by Brett Pruitt of Grass Shack Productions.

Notices and articles should be sent to Edward C. Kemper at edracers@aol.com, Cynthia M. Johiro at cynthia.m.johiro@hawaii.gov, or Carol K. Muranaka at carol.k.muranaka@gmail.com. All submitted articles should be of significance to and of interest or concern to members of the Hawaii legal community. The Hawaii Bar Journal reserves the right to edit or not publish submitted material. Statements or expressions of opinion appearing herein are those of the authors and not necessarily the views of the publisher, editorial staff, or officials of the Hawaii State Bar Association. Publication of advertising herein does not imply endorsement of any product, service, or opinion advertised. The HSBA and the publisher disclaim any liability arising from reliance upon information contained herein. This publication is designed to provide general information only, with regard to the subject matter covered. It is not a substitute for legal, accounting, or other professional services or advice. This publication is intended for educational and informational purposes only. Nothing contained in this publication is to be considered as the rendering of legal advice.

Interview of 2024 HSBA President

Souki Jesse K.

by Edward Kemper 1. Please give us an update on the status of the HSBA. First, some data—I love the story it can show us and the needs it reveals. AccordJesse, Elliott and Jeannine in Kaka‘ako ing to the HSBA’s annual bar statistics and summary, as of 2023, the HSBA is 8,291 members strong with 4,944 active attorneys.1 Many of our members are solo practitioners or work in small firms with up to 14 attorneys (2,332). The rest of our members practice in firms larger than 15 or more attorneys (769), as in-house counsel (433), judges (99), non-legal entities (129), or government (975)—a small number of attorneys do not fall under these categories (207).

Less than half of our 4,944 active attorneys are women (1,929). Our members come from various ethnic backgrounds, as shown below.

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The HSBA is a mandatory bar, which means attorneys who want to practice law in the State of Hawai‘i must be a member and pay dues.

According to the U.S. Supreme Court, this means that HSBA’s spending on mandatory dues must be limited to the regulation or improvement of legal practice.2 As incoming bar president, my primary objective is to ensure that the HSBA serves its members. According to HSBA’s constitution and bylaws, the president is one voice in the organization’s governance, which includes its officers (i.e., the President, the President-Elect, the Vice President, the Secretary, and the Treasurer) and its Board.3 Each of these positions is accountable to the membership who elected them.

Another essential element of HSBA’s governance structure under its constitution and bylaws is its committees and sections.

As with our officers and board members, these unpaid volunteer positions require a lawyer’s time and attention. Many of our members will tell you that practicing law is an honor and privilege. It is consummately a service profession. It is also a business.

Running a business, spending time with family, and participating in the community they serve can be challenging, especially for solo and small firm practitioners. When a member of the HSBA volunteers for committee or section work, it is with a full understanding of that commitment that I am grateful for their efforts and time. Their work matters to the profession, our members, and the communities we serve.

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A critical part of a smoothly operating HSBA is (1) the position of executive director, who is hired by the Board, and (2) the staff hired by the executive director. A big challenge the HSBA is facing, as I write this, is finding a new executive director with the untimely passing of our recent executive director, Patricia Mau-Shimizu. Her loss is keenly felt by many of our members—directly and indirectly, through her work. HSBA officers have started the recruitment process and will work with the Board on hiring a new executive director as soon as possible.

In the meantime, we are lucky to have Lyn Flanigan step in during the interim. Lyn is a former executive director of the HSBA and comes with a deep understanding of the organization. I appreciate her stepping forward and out of retirement, where she has, I am sure, higher priorities, such as spending time with her grandchildren. We are also lucky to have incredible staff at the HSBA, some of whom have been with the HSBA for years. The HSBA staff have gone above and beyond to keep the organization going strong.

As I write this, we enter a season of reflection, gift-giving, and thanks. I am humbled when I reflect on what our members give to the profession and their communities. I hope I can contribute in a way that supports our members and allows them to focus on their practice.

2. Please describe your background.

I live with my wife Jeannine, son Elliott, and cat Francisco on O‘ahu. I am the oldest of four boys. I was born and raised on Maui. My grandparents were farmers. This was mainly to supplement their incomes. On one side of my family, my grandma was a nurse, and my grandpa was an ambulance driver; that is how they met. On the other side, both grandparents worked at the pineapple cannery. They were all good providers for large families.

I learned a lot from my grandparents and parents, including the value of sacrifice and hard work. I remember my dad waking up before the sun. We would drive him to work from Kahului to Upcountry Maui at the cattle ranch where cows were milked for the local dairy, Haleakala Dairy. He worked his way up at Haleakala Dairy so that when he left, he was a distribution manager with several clients on Maui. I remember him taking me on a ride to a small, locally owned store on Vineyard Street just off of Wailuku Town to hand deliver a few products personally to the nice old lady who ran the store. She was very kind.

Here was my dad’s example of customer service at its best.

I learned to play the ukulele from my grandpa, who lived in Paukukalo and grew up on Hawai‘i Island. He was left-handed and had to tune my ukulele in reverse. I am told he used to play in a band back in the days when the bass was a washtub basin (imagine a wide metal bucket upside down with a broomstick and a rope). I learned about politics from my grandpa, who lived

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in Kahului and grew up in Pu‘unene. He grew up in the old plantation camps. I absorbed the debates he had when he held an audience with family and friends out on the stoop. Both of my grandmas were kind, hardworking, and stern when needed.

They kept the family together under great economic challenges.

My mom was an incredible provider. She was a sales clerk—remember Woolworths and Shirokiya—but later was a teacher’s aide and a nurse’s assistant. She made sure my brothers and I did well in school, had food on the table, and stuck with Cub Scouts and Boy Scouts until we made Eagle. She drove us to sports and meetings and made sure that the house and yard were decorated for Halloween, Thanksgiving, and Christmas. It was quite the display. During my first year of college when my dad had a massive stroke when he turned 40, she kept the family together. She is my hero.

I was lucky to have known my great-grandparents. My great-grandfather, who grew up in the Philippines, taught me to catch tako, mend a fishing net, and make a whip out of cowhide (from scratch). My great-grandmother grew up in Puerto Rico; she always had a cookie for us when we visited. She inspired me to cook some of the ono foods she prepared, like arroz con gandules and pasteles de masa. They lived right near the ocean in Waihe‘e. My great-grandma lived near ‘Iao Valley. She had an incredible smile and great stories about growing up on Maui, including the trips to and from Lahaina on the old unpaved pali road.

It takes a village to raise a child, and my brothers and I benefited from that village on Maui. It is a network where almost everybody knows everybody—good, bad, and the ugly. A place where knowing and understanding the community matters.

Something every successful lawyer on Maui knows well.

3. And, of course, let us know your educational history.

I am the first in my family to attend law school, and the first in my household to earn a four-year degree. That was sometimes a lonely and challenging path. It often felt like I was leaving something behind.

The work ethic instilled by my family certainly helped. Public school in Maui also prepared me in important ways. On the one hand, public schools back then did not prioritize college prep. I had no understanding of the college application process aside from it being something I should do, and it required an application and test. I only chose the University of Hawai‘i at Manoa because I did not think to look beyond Hawai‘i. Lucky for me, it was a good choice. On the other hand, public school exposes a person to a diversity of humanity unlike any other setting. Whatever demographic you choose, whether race, ethnicity, class or other, public school on Maui during my time was as diverse as the community. The experience provided a greater

Solutions Start Here understanding of what need looks like (no slippers, same clothes every day, skipping lunch) and privilege (having new clothes, going away on trips during breaks). These insights help me better understand the human condition, our community, and how we can help individually and collectively make our society better for everyone.

While earning my bachelor’s degree in economics and master’s degree in political science from the University of Hawai‘i at Manoa, I always had a job to pay for tuition, rent, and food. Sometimes, I had two part-time jobs. In retrospect, those were hard times. I ate a lot of saimin and tuna sandwiches. I figured out I could buy a plate lunch and portion it for two meals. My folks were able to help some before my dad had his stroke—every dollar counts. At one point, the math did not work out, and I did not know how I would cover my tuition. Out of nowhere, my Kahului grandma sent me an $800 check. It was the most money I had ever seen or held. I was so grateful. I am sure she had no idea how much I needed that money and what a difference it made.

Thankfully, I figured out I could apply for a tuition waiver in graduate school. What a relief.

4. After law school describe your legal career and experience and, if you have a specific area or areas of practice.

Two experiences planted the seeds to become a lawyer. The first was when the HSBA Young Lawyers Division sent two attorneys to our class at ‘Iao Intermediate School. Before that, I had no thoughts about lawyers. I did not know any growing up, as far as I know. We did not have cable, so I do not recall seeing any on TV. I had not seen anyone from my community who was a lawyer. But in my classroom, seeing two attorneys sitting across from me, discussing the courts and law, broadened my understanding of what was possible. The second experience was

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while working in Washington, D.C. I was surrounded by lawyers, and I quickly came to understand that there was so much more to learn about government and how it can better serve the needs of its citizens.

I took an odd path to D.C. Around graduate school, I was working part-time in the chief clerk’s office in the State House of Representatives. That is where I first met Pat Mau-Shimizu, future executive director of the HSBA. She was a force. Deadlines govern the chief clerk’s office. The clerk’s business is no small feat when adding in the politics and personalities of the legislature. Shortly after graduation, I was in the office holding an audience, not unlike my grandfather before me, about all Jesse and Elliott at the Great Aloha Run the problems with politics in what she meant was that I should do Hawai‘i. Passing by, Pat said, “Why don’t something different. Leave the state. The you leave then?” I was taken aback, but

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thought of leaving the state never crossed my mind. However, I took her advice and applied to work for the four Congressional delegates.

U.S. Senator Daniel K. Akaka picked me up, and I was off to D.C. within a few months.

I had never been on my own so far away from home. I can count the number of times I left Maui to visit O‘ahu—with the school band, to visit my grandpa in Queens, and one other time. During the summer before my sophomore year, I worked at the Boy Scout office in Wailuku to earn a ticket and uniform to join a group of boys heading to the National Scout Jamboree at Fort A.P. Hill, Virginia. This time, however, I was on my own. I arrived in D.C. with a suitcase and a couple of filing boxes with all my worldly possessions.

Millie Akaka, a.k.a. “Auntie Millie,”

was piqued. I wanted to be more involved Senator Akaka’s wife, had two questions Washington, D.C., opened my worldin that process. Since I was surrounded for me when I met her in D.C., “Do you view even wider. I spent every hour not by lawyers—you can’t throw a rock in have a rice pot,” and “Did you buy groworking, wandering the halls of Congress, ceries?” She solved the first problem by visiting historic sites, hiking and biking his- D.C. without hitting a historic site or lawyer—I thought I might go to giving me a pot from her colleclaw school. tion. I then did my best to keep But before law school, another up with her as I followed her thing happened without which around D.C.’s Chinatown for law school would not have been groceries. She made sure I only possible. I met my future wife, paid for the best deals. I found a Jeannine Aguon. Jeannine row house, not too far from the worked for Guam’s Congressional Hart Senate Office Building, Delegate, Congressman Robert from which I could walk to work.

Underwood. Unlike states, as a I lived with three roommates: one U.S. territory, Guam gets one delwas staff for then Speaker of the egate who sits in the legislature— House, Dennis Hastert; one was no senators. The delegate is staff for the judiciary committee allowed to vote in committees but investigating then-President Bill Adoption of the Hawaii Ocean Resources Managment Plan Office of not on the floor. Still, even with Clinton; and the other worked for Planning Team and Gov. Abercrombie those significant procedural limitations, toric trails, and I started reading about a trucking association on the Hill. I think watching the Congressman and his staff U.S. history. History was tangible in D.C. having staff from a democratic Senator’s and the surrounding areas of Virginia and work to improve the lives of their conoffice in the basement was a novelty, but Maryland. My interest in how governstituents back home was inspiring. Jeanthe rent was good and we still could share ment works and how it might work better nine continues to be an inspiration in the a beer every now and then.

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work she does and the projects she takes on.

After two years in D.C., I decided to try law school. I took the LSAT. While filling out the application, there is a section where the applicant lists the names of four law schools to where they want their results sent (I was in no position to pay to list additional schools). Being the first to attend law school, I was pragmatic about it. I was not ready to return to Hawai‘i, so I listed three law schools in the D.C. metro area. I turned to Jeannine for the fourth, who said her family lives in Seattle. So, I put down the Seattle University School of Law, which I attended.

Seattle University was a great experience. The Pacific Northwest trails and great outdoors are fantastic. I hiked and biked as many trails as I could. I also became interested in its cities compared to Hawai‘i and out east. The people put great value in accessible transit and preserving green spaces and parks, and yet, the economy in Seattle was booming. I thought about how, in Maui, our special places were being developed and how it impacted the community with no apparent economic return for the community.

One summer, we were at a beach in Kihei. Our family had been going there since before there were hotels in most of the area. A tourist swam by and scolded my youngest brother for fishing because she was swimming. I will never forget that look of confusion on his face; he was about nine or so. I was thereafter consumed with the idea of how we can develop the built environment we need while avoiding community impacts.

At Seattle University, I joined the moot court team. We placed regionally in Jessup and argued in another moot court before the D.C. District Court. I also joined the law journal, where we edited articles for publication. After taking the courses all 1Ls and 2Ls need to take, I took as many land use and environmental law courses as possible.

I used all my savings, took out loans,

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and worked to pay for law school. I ensured that my work had something to do with my interests. My first job developing websites was to pay the rent in a group house. Later, I applied what I was learning in law school during a clerkship with the Washington State Office of the Attorney General, where our section advised the state’s Department of Transportation.

This was hands-on work where I wrote a brief related to CERCLA liability issues, led a brown bag discussion for clients on contract indemnification, and worked on notices and pleadings for eminent domain for right-of-way acquisition. I also worked for a time at the Washington Municipal Research Services Center (MRSC).

Washington has hundreds of cities, counties, and municipalities. Some are small, with one attorney serving their needs, while others are much larger. The MRSC provides legal research, white papers, guidance, and model codes for these governments. Many municipal issues are

land use related, but I also helped revise MRSC’s public disclosure manual (i.e., their sunshine law). My experiences in Washington greatly influenced my legal career and focus on land use.

After law school, I passed the Hawai‘i bar exam and moved back to Hawai‘i. I was sworn in before the court in November 2004. My life, sometimes to my detriment, has been with my nose to the grindstone and not looking up. People like Pat reminded me, through her thoughtful actions, to make time for people. After the swearing-in ceremony, I headed home. My family was on Maui, and my wife was still in D.C., so I did not expect anyone to show up. Later that day, I got a call from Pat, “Eh,” she said, “where you, I have a lei for you!” A reminder to look past the tip of my nose.

My first job out of law school was a clerkship with Judge Shackley Raffetto in the Circuit Court of the Second Circuit.

My clerkship with Judge Raffetto was

invaluable. My work included reviewing the criminal and civil dockets, preparing bench briefs, drafting post-conviction responses, developing jury instructions, and assisting with all facets of running a motions calendar, trials, and a courtroom.

But the most valuable part of that experience was watching seasoned attorneys (prosecutors, defense attorneys, corporation counsel, private practice lawyers) argue for their clients before the court. I expect that, like me, new attorneys have some trepidation about practicing before the court. After watching hundreds of cases over a year in a bustling court with Judge Raffetto and other judges who sat in for him, like Rhonda Loo and Raenette Cooper, I realized I could do this too.

Law school and experience prepared me for it.

After my clerkship, I have taken on different roles, but my focus has always been land use for persons or organizations proposing projects. I have worked as a

lawyer and a non-lawyer on land use projects in the public and private sectors. In the private sector, I have had the privilege of working with accomplished land use attorneys. In the public sector, I had the privilege of serving as a deputy corporation counsel for the County of Maui and then the City and County of Honolulu, where, in both cases, I primarily advised departments and boards related to land use matters. Under the Abercrombie Administration, I had the opportunity to serve as the director of the State Office of Planning and the deputy director of the Department of Land and Natural Resources. Among other things, we were able to pass Hawaii’s first climate change adaptation policy, support the creation of the He‘eia National Estuarine Research Reserve, and bring the IUCN World Conservation Congress to Hawai‘i.

After my appointments with Governor Abercrombie, I was a bit adrift. The administration ended in four instead of

eight years. I served as the executive director of the Hawai‘i Community Development Authority for a while, where I had the pleasure of working with excellent staff on making a few affordable housing projects possible. I went back to private practice for a time, but in late 2017, an opportunity to work at my alma mater opened up. I am currently an associate general counsel at the University of Hawai‘i, advising clients on land use matters. It is rewarding to serve a public institution that provided me with a path that allowed me to provide for my family and serve the community.

5. Have you had various roles and experiences with the HSBA? If so, please describe them.

I started volunteering with the HSBA as Treasurer of the Natural Resources Section in 2010. I subsequently served as its chair and program chair. That experience gave me an understanding of the

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budgeting and functions of the HSBA. As program chair, I enjoyed working with a committee on providing continuing legal education opportunities relevant to our members throughout the year. In 2012, I was asked to co-chair HSBA’s Continuing Legal Education Committee, where we worked on providing meaningful continuing legal education opportunities for HSBA members.

I also served on the HSBA’s Nominating Committee, where we recommend nominations for various committees and boards to the Board. None of the work these committees and sections do is possible without the time and dedication of volunteer members. If members are interested, HSBA is always looking for members willing to put in the time.

6. Unfortunately, the executive director of the HSBA Pat Mau-Shimizu passed away recently. Who is the new executive director and what might we expect from her if you have any comments in that regard?

Pat was a great loss to the HSBA and the legal community.

Filling her shoes will not be easy under any circumstance. In consultation with the Board, the Officers have started a selection process, which is being run by Inkinen, who previously assisted the HSBA. As I write this, the position is being posted. Applications must be received by December 29, before this article is posted (unless extended). We hope to start reviewing applications in January.

7. What are the major issues facing the bar association this coming year, and what plans do you have regarding those issues?

A major issue for the HSBA is hiring an executive director.

That should be done early in the year. That person will need to hit the ground running. We expect that the new executive director will have the support of the Board, which must approve the selection. The staff will likely remain in place. They are very capable. Support from the Board, existing staff, and HSBA members will ensure a smooth transition.

The HSBA is in the process of dusting off its strategic plan.

It has been a few years since the Board and HSBA members have been engaged in a planning process to guide the organization and its future. A planning committee is securing a consultant to guide us through the process. As a former director of a state planning office, there are a few things I hope to see in our plan. First, the plan must align with HSBA’s purpose, which is articulated under Rules of the Supreme Court of the State of Hawai‘i Rule 17(b),

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“The purposes of the Hawai‘i State Bar shall be to aid the courts in regulating, maintaining and improving the legal profession, administration of justice and advancements in jurisprudence, in improving relations between the legal profession, the public and the various branches and instrumentalities of government in this State, and in promoting the interests of the profession in this State.”

Second, the plan must identify goals and objectives that are Specific, Measurable, Achievable, Relevant, and Time-Bound (SMART). Third, the plan must have buy-in from members, the Board, and the executive director. Fourth, planning is iterative, so there should be a mechanism to revisit long-range goals (e.g., over five years) and short-range goals (e.g., two to five years).

These elements are important to any organizational plan, but particularly to the HSBA, where its governance structure under its bylaws and constitution requires continuity in leadership.

8. Are there any special programs or features of the HSBA that you want to modify or work on or highlight?

So much good work is happening in and around the HSBA by our HSBA members. These are all worthy programs and initiatives worth supporting. There are two programs that I support because these ensure the sustainability of our profession and build leadership capacity.

First, we should all support our Young Lawyers Division, whose programs take attorneys into public schools and communities to expand the notion of what’s possible and how the third branch of government serves everyone’s interest in a well-run democracy. These programs include the High School Mock Trial Program and Junior Judges.

In 2008, I participated in the Junior Judges program, where I visited a classroom at Kaluwela Elementary School. The program has volunteer attorneys visit third-, fourth-, and fifth-grade classrooms statewide and help students think about the challenges they face each day and how they can make ethical decisions when “feeling the pressure.” They watch a few scenarios, analyze the facts, and decide how to handle each situation best.

A few weeks after volunteering, I received handwritten notes, some with drawings, from each student telling me what they learned and thanking me for showing up. The students clearly understood the material. They were insightful and thoughtful. No two notes were alike.

I am sure at least one student (possibly more) in this elementary class will be the first in their house to become a lawyer like I did. I keep their notes in my desk drawer and read them from time to time.

It provides hope for the future. If they choose to become lawyers, these students will keep the practice strong and relevant.

Second, the HSBA Leadership Institute is designed to foster professional growth and enhance the leadership skills of future leaders. Pat Mau-Shimizu was one of the founders of the Leadership Institute. The Hawai‘i State Bar Foundation set up a fund in her name: Pat MauShimizu Leadership Institute Fund at https://hsbfhi.org/donate/. The program is open to HSBA members in good standing who have been practicing for three to fifteen years. Fellows spend time interacting with prominent leaders of the legal profession and the greater community. Each fellow develops and undertakes an approved project, putting what they learned into action. Dozens of HSBA members have gone through the program and serve in leadership positions in the HSBA, their firms, and the community. Read more at https://hsba.org/leadershipinstitute.

9. Does the HSBA or you have any comments on the electronic court filing system?

Speaking personally, there will be growing pains like with any electronic system. Even well-known word processing programs and operating systems that wellknown companies distribute have a bug or two every so often that benefits from an upgrade or patch. On the whole, electronic court filings have been a success. It makes accessing the courts easier, particularly in rural areas and communities

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outside O‘ahu. I appreciate the convenience of filing from my desk rather than rushing to court. Some jurisdictions adopted electronic filing and video court appearances years ago. It is good to see that it is being implemented here in Hawai‘i.

11. Is the HSBA planning to provide more programs or services to the neighbor island attorneys and/or have neighbor island attorneys become more involved in the HSBA? Attorneys who do not live and work on O‘ahu have ac10. Does the HSBA have cess issues to HSBA activities any plans to have the bar conducted on O‘ahu. But that members perform more is not to say that county bar or additional pro bono associations, created under the services? bylaws and constitution of the I am not aware of any HSBA, are not vibrant organiplans to have HSBA memzations in their own right that bers perform more or addiprovide support and services to Talking Climate Policy with Harrison Ford tional pro bono services. The their members and the comHawai‘i Rules of Professional Conduct Rule 6.1 provides that a munity. The HSBA can and has supported their efforts when the “lawyer should aspire to provide at least 50 hours of pro bono Board adopts the annual budget. I understand firsthand the services per year.” It is not mandatory. challenges that members who live outside of O‘ahu face. HSBA Comment 1 of Rule 6.1 provides, “Every lawyer, regardless supports all of its members, regardless of where they live or pracof professional prominence or professional work load, has a retice in the State of Hawai‘i. sponsibility to provide legal services to those unable to pay, and Technology has helped break down some barriers to access personal involvement in the problems of the disadvantaged can faced by rural communities. The rise and acceptance of video be one of the most rewarding experiences in the life of a lawyer.” meeting technology during the COVID pandemic has provided Under the rule, pro bono services can include, for example, legal lawyers with additional opportunities to participate in HSBA acservices without fee or expectation of fee, legal services at a subtivities on O‘ahu, such as meetings and continuing legal educastantially reduced fee, or participation in activities for improving tion opportunities. In addition, I intend to keep the tradition of the law, the legal system or the legal profession. In the alternaholding a Board meeting in person in other counties so we can tive, the rule also provides that a lawyer may contribute at least interact with members outside O‘ahu face-to-face. $500 each year to the Hawai’i Justice Foundation, or an entity that provides legal services at no fee or a significantly reduced fee.

12. Are there any other words of wisdom or thoughts As shown in the figure on page 12, the number of reported that you would like to give to HSBA members? pro bono hours has been going down over the past three years Volunteer members run the HSBA for its members. An orfrom 169,780 (2021) to 142,907 (2023). However, I expect an inganization like the HSBA is at its best when members volunteer crease in reported pro bono in 2024 and 2025, given that many and put the time in to help run the organization. By focusing on members of HSBA reached out to assist victims of the Maui the HSBA’s purpose and planning for its future, we can ensure wildfires. I know firsthand that legal aid organizations and attorthat the HSBA supports its members in service to their clients. neys on Maui and statewide were on the ground offering pro _________________ bono and legal information assistance to Maui wildfire victims.

1 2023 BAR STATISTICS & SUMMARIES, Haw. State Bar Assn., available at Although lawyers’ time spent raising funds or collecting food https://hsba.org/images/hsba/Misc/2023%20Bar%20Statistics%20and%20Sumitems may not count as pro bono services, those efforts should maries.pdf. All figures and bar statistics in this article are from the 2023 Bar not go uncounted. The health of a community is critical to a Statistics & Summaries.

2 well-functioning judicial system. Lawyers are in a unique posiKeller v. State Bar of California, 496 U.S. 1 (1990).

3 HAWAII STATE BAR ASS’N CONST. AND BYLAWS, at tion to provide aid in times of need since lawyers tend to have https://hsba.org/images/hsba/HSBA/HSBA%20Constitution%20and%20Bylaws.p networks in the community that can lead to the quick mobilizadf (as amended at the HSBA Annual Meeting on October 14, 2022). tion of resources. Being from Maui, I am grateful to the lawyers who contributed their time, effort, and resources. Thank you; your service matters.

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CELEBRATION

by Carol K. Muranaka The Hawai‘i Access to Justice Commission (“Commission”) again organized the Pro Bono Celebration in the Hawai‘i Supreme Court in celebration of the National Pro Bono Week in October 2023.1 With support from the Hawaii Justice Foundation (“HJF”), Hawaii State Bar Foundation, and the Hawaii State Bar Association (“HSBA”), the Commission coordinated a high school essay contest as part of the event as well as a celebration of the volunteer attorneys who assist the state’s low- and moderate-income individuals.

Second Circuit Chief Judge Joseph Cardoza (ret.), Chair of the Commission, provided opening remarks via Zoom. Hawai‘i Supreme Court Chief Justice Mark Recktenwald described the self-help centers as the signature project of the Hawai‘i Access to Justice Commission. He noted that 36,000 people have been helped across the state. Chief Justice Recktenwald acknowledged the legal services providers who stepped up after the Maui wildfires in August. He described how the Maui public defender’s office and the prosecuting attorney’s office came together to help; the HSBA hotline developed quickly; and the attorneys on Maui provided necessary counsel to those affected by the disaster.

Former Commission Chair, Hawai‘i Supreme Court Justice Simeon Acoba (ret.) mentioned that the Preamble to the Hawai‘i Rules of Professional Conduct states that a lawyer as a member of the legal profession is a representative of clients, an officer of the legal system, and a public citizen having special responsibility for the quality of justice. Justice Acoba described the attorneys being honored as individuals “whose commitment and contributions have reached extraordinary heights in meeting the principles of the Code.” He explained that the legal service providers “are at the core of equal justice efforts in our community. The awardees have been chosen from their ranks or from their volunteers who exemplify the commitment to equal access.”

The honorees for 2023 who were selected by the legal services providers were as follows: Jim Davy The ACLU of Hawai‘i honored Jim Davy and described his work as follows: Davy is the founder of All Rise Trial & Appellate, which represents individuals, nonprofit organizations, unions, and other groups in public interest impact cases involving prisoners’ rights, law enforcement misconduct, criminal justice reform, labor rights, racial justice, gender equity, gun safety, digital privacy, and other issues involving civil liberties. Davy has been a volunteer attorney supporting the ACLU of

Hawai‘i’s work since 2020. Among other work, Davy has authored multiple amicus briefs on behalf of the ACLU of Hawai‘i in cases involving police misconduct. Davy has also provided invaluable trial and appellate advice in those cases.

With his contributions, the ACLU of Hawai‘i has been able to more effectively advance its work to reimagine policing in Hawai‘i. The ACLU of Hawai‘i appreciates and celebrates Davy’s commitment to using the law to support people fighting back against more powerful interests.

Above: Chief Justice Mark Recktenwald, Maile Osika, Madisson Heinze, Louis Erteschik

Maile Osika, Madisson Heinz, Kristin Holland, and Paul Alston The Hawai`i Disability Rights Center honored Maile Osika, Madisson Heinz, Kristin Holland, and Paul Alston for their work on a federal case. The Center described their activities as follows: The Dentons US LLP’s team of Maile Osika, Madisson Heinze, Kristi Holland, and Paul Alston were honored for their work on a federal lawsuit against the State of Hawai`i Departments of Education (DOE) and Human Services to secure access to Applied Behavior Analysis (ABA) therapy for students with Autism in public schools. This case was filed in 2018 and challenged, among other things, the DOE’s longstanding policy not to allow privately funded ABA providers onto public school campuses to provide medically necessary ABA therapy to students. The lawsuit also challenged that the DOE’s determination whether a child needs ABA therapy for educational purposes cannot replace a medical determination of need for ABA therapy, and for Medicaid eligible children who are entitled to the Early and Periodic Screening, Diagnostic, and Treatment (EPSDT) benefit, that the DHS failed to ensure that prescribed medically necessary ABA treatment is provided during school. The Dentons team assembled experts to educate the court on why ABA therapy is so critical for a child with autism in key developmental windows and

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why it is so important for ABA to be provided across settings (i.e., in school, home, and elsewhere). To date, the court has not reached the merits of the case.

In 2020, the State prevailed in the trial court on a summary judgment motion on a procedural basis, and it took nearly two years for the judge to issue a final written order. This team of Dentons lawyers persisted. They appealed and continued to work with the State in an attempt to resolve the case directly. The case is currently pending before the Ninth Circuit Court of Appeals. The issues on appeal now turn on critical legal questions such as whether a federal and state designated protection and advocacy agency such as Hawaii Disability Rights Center, can bring a claim challenging a systemic DOE policy on behalf of its constituents without first ensuring those constituents have exhausted their administrative remedies under the Individuals with Disabilities Education Act (IDEA). Another question is whether claims that seek relief not available under IDEA, but relate to services needed in school, must be exhausted through the administrative process. The Dentons team assembled thoughtful and persuasive briefings on these issues. They also garnered support from several national organizations who submitted amicus briefing including, The National Health Law Program, The National Disability Rights Network, National Autism Law Center, Autism Legal Resource Center, LLC, and Council of Autism Service Providers.

The Hawaii Disability Rights Center would not otherwise have the resources to pursue such years-long litigation, seeking to secure critical services for Hawaii’s children with autism, without the hard work and support of this relentless Dentons team.

Gary Slovin Hawaii Justice Foundation honored Gary Slovin and described his activities as follows: Gary Slovin has had a phenomenal impact on funding for access to justice in Hawaii and has been dubbed a true “access to justice warrior.” He is an attorney and professional lobbyist

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Above left: Chief Justice Mark Recktenwald, Gary Slovin, Mihoko Ito. Above right: Chief Justice Mark Recktenwald, Jacky Mena, Rhonda Griswold

who has always been willing to donate his time and expertise to supporting causes he believes in. Throughout the many decades of his career, he has devoted himself to supporting numerous social and non-profit causes as part of his work. He has served on the boards of Goodwill Hawaii, Honolulu Theatre for Youth and Helping Hands Hawaii, to name a few. In the mid1990s, he was the driving force behind the creation of the statutory Indigent Legal Assistance Fund (ILAF), which utilizes surcharges on select court filings to provide funding for legal service providers. ILAF is administered by the Hawaii Justice Foundation (HJF) on behalf of the Judiciary. The Program originally provided $300,000 per year to qualifying grantees, but in 2011, Gary and his lobbying partner Mihoko Ito worked on successfully increasing the surcharge amounts. This has enabled yearly funding of $1,000,000 to the participating organizations. Additionally, Gary has served for many years on the HJF Board and on the Hawaii Access to Justice Commission, where he has given wise counsel and provided pro bono lobbying services for HJF and Hawaii’s legal service providers.

Gary embodies the positive results that can be achieved when members of the private bar are willing to give freely of their time and expertise to expand access to justice. All of us involved in HJF are proud to call him our great friend and mentor.

Aurora Jaqueline Nevarez Mena The HSBA honored Jacky Mena, an attorney in the Third Circuit, who tirelessly volunteers her time. Her activities were described as follows: Jacky has represented members of the Hawaii island community in resolving legal issues during some of the most difficult times of their lives.

She has also dedicated much of her free time to providing pro bono services, assisting more than 300 people on a pro bono basis, and volunteering at various legal clinics in the third circuit.

When the Judiciary and the HSBA were embarking on the enormous task of updating the Third Circuit Court online forms, Jacky was the perfect person to serve on the committee. After months and months of meetings and tireless work, the committee submitted new and updated forms which will be made available on the Judiciary’s website to assist litigants and attorneys. Jacky’s diligent efforts were critical to the committee’s success, as she painstakingly revised each

form not only for content, but formatting as well. Thereafter, Jacky was asked to consider serving as the volunteer managing attorney of the Hilo Self-Help Center. Managing the SelfHelp Center is no easy task, and despite the many challenges, including a global pandemic, Jacky and the team have always found a way to keep the Center running and available to the community, even when it means staffing the center herself in addition to all of her other duties.

The special thing about Jacky is that, not only has she given so much of her time and energy to the community, but she does it quietly, humbly, and without the need for recognition.

She is focused, tireless, reliable, and always has a smile on her face. She cares deeply about Hawaii’s community and is continuously working to better the lives of the people in it.

HSBA congratulates Jacky on all of her amazing work.

Sean Hartlieb The Legal Society of Hawaii honored Sean Hartlieb, an attorney who resides on the island of Kaua‘i, where he currently practices general civil litigation and criminal law. Legal Aid described his activities as follows: Sean graduated from the William S. Boyd School of Law in May 2017 and became licensed to practice in the State of Hawaii in June 2018. His career ambition is to become the best attorney that he can be, which includes serving the Above: Chief Justice Mark Recktenwald, Sean Hartlieb, David Kopper

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Above left: Chief Justice Mark Recktenwald, Zachary McNish, Makalika Naholowaa. Above right: Chief Justice Mark Recktenwald, Bruce McEwan, Tracey Wiltgen

Kaua‘i community. His long-term dream is to develop himself in cyberlaw and partake in legislative discussions surrounding the legal and ethical ramifications of artificial intelligence and brain-computer interfaces.

Sean began volunteering at the Kauai Self-Help Center in 2020. The Kauai Self-Help Center provides legal information to approximately 400 patrons a year. Through his volunteer work at the center, Sean assists approximately 72% of those patrons. He enjoys providing pro bono services to the people of Kauai and helping his community. He is thankful that his current schedule allows him the freedom to provide pro bono services when he is able.

utility scale solar in Hawaii, Legal Counsel of RevoluSun LLC, one of Hawaii’s largest residential photovoltaic solar contractors, and Associate Corporate Counsel at Hoku Scientific. Zach also spent several years as an associate attorney at the law firm Alston Hunt Floyd & Ing and began his legal career by clerking for Magistrate Judge Barry M. Kurren in the United States District Court for the District of Hawaii.

Prior to attending law school, Zach served in the Peace Corps in Panama and subsequently founded the nonprofit organization Native Future to support efforts for Panamanian indigenous communities to gain legal title to their lands.

Zachary McNish The Native Hawaiian Legal Corporation honored Zachary McNish who founded McNish Law in 2016. The Native Hawaiian Legal Corporation described Zachary’s activities as follows:

Bruce McEwan The Mediation Center of the Pacific, Inc. honored Bruce McEwan and described his activities as follows: Bruce McEwan exemplifies the heart of the pro bono celebration in

With over ten years of legal and business management experience, Zach offers efficient services and strategic perspective for clients. Prior to forming McNish Law, Zach held numerous in-house legal positions in Hawaii, including Executive Vice President and General Counsel of Distributed Energy Partners, a Honolulu-based photovoltaic solar company that has installed over Above: Chief Justice Mark Recktenwald, Lily Ling, Marie Laderta, 20MW of commercial and Daniel Kawamoto, Rachel Figueroa

his service over many years, mediating disputes and improving the conflict resolution skills of the people of Oahu. Bruce has been involved with The Mediation Center of the Pacific (MCP) since 1981. In that time, he mediated thousands of cases, from pet disputes to workplace conflicts to separating couples to civil rights issues.

From 2016 to 2022 alone, he mediated in 486 sessions for a total of 1,316 hours. Bruce is always ready to mediate at the last-minute when another mediator is sick or unavailable, so the clients can complete their mediation in time, especially when they have a court hearing scheduled.

He also mentors incoming MCP mediator apprentices and assists with public and in-house training to ensure that mediation continues to be a high-quality and affordable option for people to resolve their disputes. He educates the public on mediation at more fairs, presentations, and workshops than can be counted, as well.

In addition to providing direct services and mediation education, he also served on the Board of Directors of MCP for approximately 30 years, taking on the responsibilities of President on three different occasions, the last time in 2015 – 2017.

He has demonstrated a steadfast dedication to improving people’s lives by providing them with the ability to resolve their own disputes quickly and cost-effectively. MCP is grateful to Bruce for his many years of service and congratulates him for this well-deserved recognition.

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Lily Ling, Marie Laderta, and Daniel Kawamoto Volunteer Legal Services Hawaii (VLSH) honored Lily Ling, Marie Laderta, and Daniel Kawamoto for regularly assisting individuals with VLSH’s driver’s license reinstatement programs. VLSH described their activities as follows: Lily Ling retired in 2021, after working as a staff attorney and later as the Executive Officer of the Labor and Industrial Relations Appeals Board. She earned her Juris Doctorate in Law from the William S. Richardson School of Law, University of Hawai‘i and she obtained her Bachelor’s degree in Political Science at the University of Hawai‘i, at Manoa. As of today, Lily has helped approximately 28 VLSH clients and has logged over 140 pro bono hours since she started volunteering with VLSH in 2019.

Marie Laderta is currently working as a board member at the Labor and Industrial Relations Appeals Board. She earned her Juris Doctorate in Law from The John Marshall Law School, Chicago, Illinois Prior to that she obtained her Bachelor’s degree from Marquette University, Milwaukee, Wisconsin. Marie has helped approximately 13 VLSH clients and has logged over 65 pro bono hours since she started volunteering with VLSH in 2021.

Daniel Kawamoto currently runs his own office, The Law Office of Daniel Kawamoto, specializing in criminal defense. He earned his Juris Doctorate in Law from the University of Law in San Diego, California.

Prior to that, he obtained his Bachelor’s degree from the University of California at Berkeley. Daniel has helped approximately 22 VLSH clients and has logged over 110 pro bono hours since he started volunteering with VLSH in 2019.

All three volunteers continued assisting Hawaii’s most vulnerable residents throughout the pandemic when relief was needed the most.

Access to Justice Rooms Volunteers The volunteer attorneys who staffed the Access to Justice Rooms at the Honolulu District Court and the Ronald T.Y.

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Moon Judiciary Complex in Kapolei were also recognized. In her acknowledgments of the volunteers, Judge Melanie May remarked: One million dollars. What could you do with one million dollars? One million dollars would cover the monthly food costs for approximately 700 families.2 One million dollars would cover the monthly rent for an average twobedroom apartment in West Oahu for 445 approximately families.3 One million dollars would cover legal fees for court-appointed counsel for approximately 666 misdemeanor cases in District Court.4 One million dollars is also the estimated value of pro bono legal servR ices provided at the Honolulu Access to Justice Room since its inception, if calculated at a modest billable rate of $180/hour.

In its ten-year history, volunteer attorneys have contributed approximately 5,800 pro bono hours assisting self-represented litigants at the Honolulu Access to Justice Room.

These attorneys have helped people from all walks of life with a range of civil issues, including landlord-tenant disputes, temporary restraining orders, and small claims. Individually, they assisted individual clients with individual cases. But collectively, they have done so much more. Collectively, they have educated the public about the judicial system.

Collectively, they have elevated the legal profession by dispelling the negative stereotypes about lawyers.

Collectively, they have strengthened communities by increasing access to justice.

Today, we thank and recognize the firms and organizations who generously shared their time and talent with the Access to Justice Room, as well as individual attorneys who volunteered independent of their affiliation with any firm.

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The law firms and offices who staffed the Honolulu Access to Justice Room in particular months in 2022 were: Case Lombardi, Damon Key Leong Kupchak Hastert, Marr Jones & Wang, Yamamoto

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Caliboso Heatherington, Office of Disciplinary Counsel, Chun Kerr, McCorriston Miller Mukai MacKinnon, Roeca Luria Shin, Schlack Ito, Carlsmith Ball, Cades Schutte, Goodsill Anderson Quinn & Stifel, Bronster Fujichaku Robbins, Hawaii Filipino Lawyers Association, Starn O’Toole Marcus & Fisher, and Hawaii Women Lawyers.

The individual attorneys who volunteered were Lloyd Lim, Matthew A. Cohen, Mike Goodman, Thomas Berger, and Steve Nichols.

The individual attorneys who volunteered at the Kapolei Access to Justice Room were Alan Okamoto, Amberlynn Otara Alualu, Andrea L.G. Graf, Carol Akemi Tribbey, Curtis M. Kam, Richard Diehl, Donna David Green, Dyan K. Mitsuyama, Ellen B. Politano, Elsa Fay Menor McGehee, Gemma Rose Poland Soon, Jacqueline Elizabeth Thurston, Kevin S. Adaniya, Lynnae Lai Lan Lee, Mari Lei Kishimoto Doi, P. Gregory Frey, Sara Jo Buehler, Seth Raymond Harris, Shannon Kim Hackett, Stephen T. Hioki, and Tom S. Tanimoto.

Other Volunteers Honored The Appellate Pro Bono Program Volunteers recognized were Troy Young, Eitan Arom, Sharla Manley, and Daniel Gluck.

The Divorce Volunteer Settlement Masters recognized were Marrionnette L.S. Andrews, Cheryl Y. Arakaki, Jennifer L. Chan, Bradley R. Chong, Everett Cuskaden, William C. Darrah, Richard J. Diehl, Gavin K. Doi, Huilin Dong, Thomas D. Farrell, Shelby N. Ferrer, P. Gregory Frey, Noah H. Gibson, Donna D. Green, Geoffrey Hamilton, Seth R. Harris, Denise M. Havicon, Stephen T. Hioki, Debbie A. Jew, Curtis M. Kam, Kevin S. Kimura, Charles T. Kleintop, Erin M.C.L. Kobayashi, and Jacqueline Y.M. Kong.

The Volunteer Settlement Masters for Divorce and Paternity recognized were Judge John C. Bryant (ret.), Sara Jo Buehler, Christian P. Gray, Steven L. Hartley, Ann S. Isobe, Katherine M. M. Lukela, Timothy Luria, Justin L. Sturdivant, Carol A. Tribbey, Lynnae L. L. Lee, Kendal A. Luke, Elsa F. M. McGehee, Lynne Jenkins McGivern, Dyan K. Mitsuyama, Naoko Cordeiro Miyamoto, Blake T. Okimoto, Anthony Allan Perrault, Alethea K. Rebman, Stephanie A. Rezents, Gregory L. Ryan, Judith A. Schevtchuck, John W. Schmidtke, Scott Sullivan, Gemma-Rose P. Soon, Jo-Ann Kaoru, Paul A. Tomar, Molly S. Turpin, Mitchell S. Wong, Sheila Vierra, and Craig G. H. Yim. Additional Volunteer Settlement Masters for paternity recognized were Kevin S. Adaniya, Nicole K. Cummings, Stacy Fukuhara-Barclay, Karl Eric Phillips, Pablo P. Quiban, and Isaac K. Smith.

The Appellate Mediator volunteers were recognized for their service in a segment led by the Hawaii State Judiciary Center for Alternative Dispute Resolution’s Appellate Mediation Program Administrator Anne Marie Smoke. They included Justice Simeon R. Acoba , Jr. (ret.), Judge Riki May Amano (ret.), George B. Apter,

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Judge Joel E. August (ret.), J. William Busch, Robin K. Campaniano, Thomas W. Cestare, 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.), Jerry M. Hiatt, Judge Mahilani E.K. Hiatt, 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, Judge Rosalyn Loomis (ret.), Stanley Majka, 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, Justice Richard W. Pollack (ret.), Judge Shackley F. Raffetto (ret.), Judge Karl K. Sakamoto (ret.), Judge Sandra A. Simms (ret.), Judge Leland H. Spencer (ret.), Thomas L. Stirling, Judge Allene K. Suemori (ret.), Owen K. Tamamoto, Judge Michael A. Town (ret.), Arne Werchick, and Judge Andrew P. Wilson (ret.).

Pamela LaVarre and Diane Sueno, Volunteer Court Navigators on Maui, were also honored.

The five winners of the Commission’s statewide high school essay contest were additionally recognized for the essays on “A day in my life as a volunteer, a lifetime of lessons learned.” Chief Justice Recktenwald, 2023 HSBA bar president Rhonda Griswold, and Intermediate Court of Appeals Chief Judge Lisa Ginoza identified the students: Maiyah Panis-Vuong from Waiakea High School, Arianna Rector from Haleakala Waldorf School, Rafael Firme from Campbell High School, Satomi Lakin from Iolani School, and Esther Lim from Leilehua High School. The law firms acknowledged for providing the cash awards for the students were Gilbert C. Doles, Attorney at Law, Law Offices of Alen M.K. Kaneshiro, Lukela & Kobayashi, Tamashiro Sogi & Bonner, and Schlueter, Kwiat & Kennedy.

This annual event honors those dedicated individuals who inspire others through their selfless provision of critical civil legal services to those who would otherwise go unrepresented. _________________ 1 The Commission’s Committee on Increasing Pro Bono Legal Services worked on the Pro Bono Celebration. Its members are Christine Daleiden, Chair, Angela Kuo Min, Jennifer Chin, Derek Kobayashi, Judge Rebecca A. Copeland, State Representative Linda Ichiyama, Rachel Figueroa, and includes those on the Pro Bono Celebration subcommittee besides those members already mentioned: Judge Brian A. Costa, Co-Chair, Tracey Wiltgen, Co-Chair, Associate Justice Simeon R. Acoba (Ret.), Shawn L.M. Benton, Judge Jill Hasegawa, Regan Iwao, Judge Melanie May, Judge Trish K. Morikawa, and Trisha Y. Nakamura.

2 Average food costs for a family of four: $1426.90. (Source: USDA Food and Nutrition Service, U.S. Department of Agriculture, Official USDA Thrifty Food Plan Costs: Alaska and Hawaii, September 2023.)

3

Average monthly rent for 2-bedroom apartment on West Oahu: $2,246 (Source: Hawaii Business Magazine, “Rents Soar Across Hawaii, with no End in Sight” (July 11, 2023).)

4

Court appointed counsel fees for jury-waived misdemeanors: $1,500. See Haw. Rev. Stat. § 802-5(b)(5).

American Judicature Society Supports Protections for Hawaii’s Judges

According to U.S. Circuit Judge Richard Sullivan, chair of the Judicial Conference Committee on Judicial Security, “threats against judges fulfilling their constitutional responsibilities strike at the very core of our democracy.”

by Steven K. Uejio Late last year, the American Judicature Society’s (AJS) board of directors approved a report encouraging the Hawai‘i State Legislature to enact legislation protecting the personal information of Hawaii’s judges. Both the federal government and a growing number of state governments already have enacted similar protections for their judges.

The AJS report includes draft legislation that would allow federal and state judges in Hawai‘i to request that government agencies, persons, or other organizations not publicly post or display their personal information. Lawrence S. Okinaga, the chair of the AJS board, stated that, “as the federal government and other states have already recognized, our system of government depends upon our judges being able to administer justice fairly without fear of harm and reprisal. To preserve a fair and independent judicial system, Hawai‘i should join the growing list of states that protect personal information of their judges.”

Threats to Judges In his latest year-end report on the federal judiciary, Chief Justice John Roberts noted that a “judicial system cannot and should not live in fear.” In recent years, however, federal and state court judges across the country have faced a growing number of inappropriate communications and threats.

The U.S. Marshals Service has reported that the number of threats and other inappropriate communications directed toward federal judges and other protected persons (including federal prosecutors and court officials) rose from 592 in 2003, to 4,511 in 2021.

In Hawai‘i, the number of threats and inappropriate communications reported by state court judges more than quadrupled between 2017 and 2022. Since 2012, the number of such communications has increased tenfold.

One episode involving U.S. District Judge Susan Oki Mollway illustrates threats that Hawaii’s judges face. More than ten years after Judge Mollway sentenced a man to twentyseven months’ imprisonment, the man called Judge Mollway and left a message saying that he was returning to Hawai‘i from the mainland United States. The next month, the man left another message for Judge Mollway. This time, the man threatened to assault Judge Mollway and to “blow [her] God [damn] brains out.”

Targeted Attacks on Judges In addition to such reported threats, federal and state court judges face additional dangers because of their work.

Recently, these potential threats have materialized as targeted attacks against judges. The attacks have resulted in the deaths of both judges and their family members.

In July 2020, a man opened fire at the home of U.S. District Judge Esther Salas. During the attack, Judge Salas’ husband was critically wounded and her son, Daniel Anderl, was fatally shot. The suspected shooter, a self-described “anti-feminist” lawyer, had appeared before Judge Salas months earlier in a lawsuit challenging the male-only Selective Service System. He acquired Judge Salas’ address, photos of her home, and her vehicle information from the Internet.

In June 2022, a retired state court judge in Wisconsin, John Roemer, was zip-tied to a chair and shot dead in his home. Authorities identified the shooter as a man that Judge Roemer had sentenced to six years’ imprisonment more than fifteen years earlier. The Wisconsin Department of Justice described the incident as a “targeted attack” against Judge Roemer.

Also in June 2022, authorities arrested an armed gunman outside the home of Justice Brett Kavanaugh. The man had traveled from California to Maryland intending to kill the justice and then himself. The man was upset that the Supreme Court could undo the constitutional right to abortion and roll back gun control laws. The man decided to kill the justice after finding his address online.

Finally, on October 19, 2023, a state court judge in Maryland, Andrew Wilkinson, was fatally shot outside his home in what authorities have described as a “targeted attack.” Hours before the shooting, Judge Wilkinson had awarded custody of the suspected shooter’s four children to his estranged wife.

Judge Wilkinson had also ordered the suspected shooter to not contact his children.

Congress Acts to Protect Federal Judges In December 2022, President Biden signed the Daniel Anderl Judicial Security and Privacy Act of 2022. The new law, named after Judge Salas’ son, prohibits federal government agencies from publicly posting the personal information of federal judges and their families, and it requires agencies to remove any such information upon receiving a written request

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from a judge. The law also prohibits data brokers from selling, transferring, or purchasing personal information of judges or their families.

In response to the law’s passage, Judge Salas stated that, “Judges, and their families, should not live in fear for doing the job they are sworn to do. As a

nation and as a people, we cannot accept this. This legislation will make it harder for violent individuals to find judges’ addresses and other personal information online. By better protecting judges, the bill also helps safeguard the judicial independence guaranteed by the Constitution.”

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States Move to Protect Their Judges While the new federal law seeks to protect the personal information of federal judges, a growing number of states have enacted laws protecting the personal information of their judges. These states include Delaware, Illinois, New Jersey, and West Virginia, to name a few.

In Illinois, for example, the personal information of both federal and state judges has been protected since the passage of the Michael Lefkow and Donna Humphrey Judicial Privacy Improvement Act of 2012. That act was named after the husband and mother of U.S. District Judge Joan Lefkow, who were murdered in 2005, apparently in retaliation for Judge Lefkow’s handling of a man’s medical malpractice lawsuit. The act allows judges to request that government agencies, persons, businesses, and associations refrain from publicly posting or displaying their personal information.

Protections for Hawaii’s Judges Hawai‘i law does not yet provide any specific protections for the personal information of judges.

In 2022, however, Governor David Ige signed into law Act 46 creating, for a limited time, a judicial security task force. In Act 46, the Legislature recognized that, “given the availability of personal information of judges . . . on the Internet, additional measures are needed to ensure the safety of judges and judiciary personnel.” Act 46 charged the task force with identifying appropriate measures to enhance the security of judges and judiciary personnel.

The task force issued a written report stating that during the 2023 legislative session the Hawai‘i State Judiciary intended to introduce legislation aimed at protecting judges. Thus, earlier this year, a bill was simultaneously intro-

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duced in the House of Representatives and the Senate that would have prevented certain disclosures of judges’ personal information. Although the House passed the bill with minor amendments and referred it to the Senate, the bill did not make it out of committee in that chamber.

Proposed Legislation The AJS report encourages the Legislature to regain the momentum of the last legislative session to enact legislation protecting the personal information of Hawaii’s judges. The draft bill attached to the AJS report would allow judges to request that government agencies, persons, and organizations refrain from publicly posting or displaying their personal information. To enforce these protections, the judge could bring an action seeking injunctive or declaratory relief.

The judge could also seek costs and fees from a person or organization who violates the law. Much like the new federal law, the draft bill would not apply to personal information included in a news story or other speech on a matter of public concern.

According to Okinaga, “Rather than waiting for a tragic incident to occur in our islands, similar to the incidents seen, for example, just last October in Maryland, and fairly recently in New Jersey, Wisconsin, and elsewhere across the country, we should embrace this opportunity to protect our judges, our judicial system, and our democracy.”

The AJS report is available at https://americanjudicaturesociety.org/. __________________ Steven K. Uejio is a staff attorney with the federal district court.

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H SBA HAP PE NIN GS 2024 HSBA Officers and Directors The following members will serve on the 2024 HSBA Board: President Jesse K. Souki, President-elect Mark M. Murakami, Vice President Mark K. Murakami, Treasurer Lanson K. Kupau, Secretary Kristin E. Izumi-Nitao; Directors Jocelyn W.C. Chong, Steven J.T. Chow, Vladimir Devens, Jessica R. Domingo, Geraldine N. Hasegawa (East Hawaii), Amanda M. Jones, Ronette M. Kawakami, Carol S. Kitaoka (West Hawaii), Erin M. Kobayashi, Jacob K. Lowenthal (Maui), Simeona L.L.A. Mariano, Emiko Meyers (Kauai), Robert S. Miyashita, Kelcie K. Nagata (YLD) Paul W. Naso, and Zale T. Okazaki; and HSBA/ABA Delegate, the Honorable Leslie A. Hayashi.

2024 HSBA SCD Officers and Directors The following members will serve on the 2024 HSBA Senior Counsel Division Board: President Scott Spallina, Vice President Ian Sandison, Treasurer Gregory Lui-Kwan, Secretary Scott Makuakane; and Directors Harvey Demetrakopoulus, Gilbert Doles, Jonathan J. Chun (Kauai), Sue Hansen, Charlene Iboshi (Big Island), Dawn Nekoba, Jean Malia Orque, David Raatz (Maui), Ian L. Sandison, Michael J.Y. Wong.

2024 HSBA YLD Officers and Directors The following members will serve on the 2024 HSBA Young Lawyers Division Board: President Kelcie Nagata, Vice President Chad Au, Treasurer Amberlynn Alualu, Secretary Danica Swenson; and Directors Georgia Anton (Kauai), Lucy Brown, Jarrett Dempsey, Christopher Han, Lansen Leu, Raven Sevilleja, Kylie Takafuji, Jacob Toku-

26 January 2024

HAWAII BAR JOURNAL

naga, Lauren Watanabe, and Ian Wesley-Smith (East Hawaii).

Board Actions The HSBA Board took the following actions at its meeting in October: • Approved the recommendation of the Executive Committee to adopt a policy for specialty bar associations who wish to be recognized on the HSBA website, through the HSBA attorney renewal process, and other HSBA communications; and • Approved the recommendation of the joint Executive-Finance Committee in adopting the proposed 2024 HSBA operating budget.

The HSBA Board took the following actions at its meeting in November: • Approved a proposed Banking Resolution which authorizes the 2024 HSBA officers, the Interim Executive Director, and the Director of Operations (in the absence of the Executive Director) to execute monetary transactions on behalf of the HSBA; • Approved the recommendation of the Nominating Committee to appoint the following individuals to the Hawaii State Bar Foundation Board for a threeyear term beginning January 1, 2024: Jan Boivin, Lance Collins, Kimi IdeFoster, and W. Keoni-Shultz; and • Voted to approve a funding request from the Delivery of Legal Services to the Public Committee for up to $600 for two events planned for next month that will recognize and thank the attorney volunteers at the Access to Justice Rooms in Kapolei and Honolulu.

Lawyer Referral and Information Service (LRIS) At the start of the new year, we

wanted to remind you of the LRIS Program. For over 49 years, bar members have found the service to be helpful in meeting new clients, as well as endless opportunities for growing their business.

LRIS members choose from over 14 major categories and over 85 subcategories to determine the types of referrals they wish to receive. Inquiries to our office are screened and, when appropriate, referred to either LRIS Panel members or social or government agencies. Once a referral of a potential client is made, LRIS members receive an email notifying them that a potential client has been referred and to expect a call.

To try the service for three months, the pro-rated fee is just $106.25. To join the service for referrals through June 30, 2024, the end of the LRIS fiscal year, the fee is just $187.50. For a LRIS Registration form, you may email the administrator at LRIS@HSBA.org or call the direct line at (808) 792-7350.

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.

Board Vacancies on LASH Board The Legal Aid Society of Hawaii will have five positions expiring on its Board with three-year terms beginning July 1, 2024. Qualifications include

being knowledgeable about and supportive of delivery of quality legal services to the poor; willing and able to devote time to perform necessary duties; and conscientious, studious, thorough, and diligent in learning methods and problems of the organization.

Duties include governing the LASH, whose primary purpose 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 to the HSBA Nominating Committee at nominations@hsba.org by February 29, 2024: 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. Appointment will be made at the HSBA Board meeting in May or June 2024.

Member Benefits Spotlight Cintas Cintas contracts can save up to 65% off uniforms, safety and facility services.

Plus, get a free one-time UltraClean service and free installation of hygiene dispensers. Enroll with NPP today and save on Cintas. Please visit their website at https://mynpp.com/association/hsba/.

Hawaii Business Magazine As a HSBA member benefit, the 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 Everyday savings on the hottest PCs, printers and more. Enroll with NPP

at https://mynpp.com/association/hsba/ for up to 35% off with free shipping. Perfect for home or small office needs.

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 located on our website accessible via this link at https://bit.ly/3TRtRtf. ODP With more than 16,000 in-stock office supply products, ODP products and services meet the needs of NPP members nationwide. Visit https://mynpp.com/association/hsba/ to receive premiere ODP pricing through NPP. Ruby Receptionists Ruby’s live, virtual receptionists create meaningful connections with callers and build trust with each interaction— increasing the likelihood that you have secured a client for life.

Ruby Receptionists answer with your custom greeting in English and Spanish, transfer calls through to you live when you’re available, takes messages or offer voicemail when you are not, collect intake, answer FAQs, make outbound calls and more. Their app gives you flexibility and information at your fingertips.

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2024 Hawaii Access to Justice Conference Save the date: Friday, June 21, 2024. The Hawai‘i Access to Justice Conference, sponsored by the Hawai‘i Access to Justice Commission, will be an all-day event, currently scheduled to be held in person at the Law School. Please plan to attend for a provocative discussion and varied workshops that seek justice for the underserved and include extensive audience participation about pressing current issues.

The two co-keynote speakers will be Nikole Nelson, executive director, Alaska Legal Services, and Rebecca L. Sandefur, professor and director of the Sanford School of Social and Family Dynamics at Arizona State University. Hawai‘i Supreme Court Chief Justice Mark Recktenwald and Second Circuit Judge (ret.) Joseph Cardoza, chair of the Commission, will offer opening remarks.

As usual, free lunch and refreshments and six low cost continuing legal education (“CLE”) credits are expected to be available.

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27

C O URT BR IEF S Ginoza and Devens Confirmed

Judiciary Team Honored with 2023 HJF Spirit of Justice Award

Intermediate Court of Appeals Chief Judge Lisa M. Ginoza and Vladimir P. Devens were confirmed on November 21 by the Hawaii State Senate as Associate Justices of the Supreme Court. Chief Justice Mark E. Recktenwald congratulated both following the Senate’s special session. Judge Ginoza and Devens will be sworn in on a date to be determined.

The Hawaii Justice Foundation (HJF) honored six from the Hawaii State Judiciary with its prestigious Spirit of Justice Award, for the work they do with HJF to administer Hawaii’s Indigent Legal Assistance Fund (ILAF).

“The Spirit of Justice Award is given to individuals who have shown consistent and meaningful contributions to expanding access to justice in civil cases for Hawaii’s people,” said HJF President William S. Hunt at HJF‘s annual meeting on October 25 in the Hawaii Supreme Court courtroom. “The six members of the Judiciary receiving this year’s award have demonstrated a true commitment to the ideals and implementation of justice.

They have worked closely with the Hawaii Justice Foundation to manage the Indigent Legal Assistance Program, which has been awarding approximately $1 million each year to nine eligible legal service providers in Hawaii.”

The Judiciary recipients are Special Projects Coordinator Karen Takahashi, and Legislative Coordinating Office Assistant Lori Rutherford, Budget Administrator and Deputy Department Head Gary Teramae, Policy and Planning Department Head Tom Mick, Deputy Administrative Director of the Courts Brandon Kimura, and Administrative Director of the Courts Rodney Maile.

Ashley Ching, who works with HJF Executive Director Robert J. LeClair through HJF, also received the Spirit of Justice Award for her contributions to the administration of the ILAF. The ILAF was created by the Legislature in 1996 and has played a critical role in providing funding to address the unmet civil legal needs of low- and moderate-income people throughout the state. Since its inception, the ILAF has distributed nearly $18 million to legal service providers assisting Hawaii residents who cannot afford a lawyer in their civil cases.

Chief Judge Kim Honored by Hawaii County Bar Association

Third Circuit Chief Judge Robert D.S. Kim was honored by the Hawaii County Bar Association with a Meritorious Service Award for a lifetime of service to the community. He received this recognition at the 18th Annual Kuikahi Mediation Center Recognition Dinner, which was held in conjunction with the Hawaii County Bar Association on November 12.

On hand to congratulate Chief Judge Kim were Judge Kanani Laubach, Judge Jeffrey Hawk, Judge Mahilani Hiatt (ret.), Judge Darien Ching Nagata, Judge Jill Hasegawa, Judge Jeffrey Ng, Judge Bruce Larson (per diem), and Judge Peter Kubota.

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HSBA Directory Errata Due to a computer error Mr. Smith’s listing was omitted.

Smith, David Eugene

Tulane U Attorney at Law, LLLC PO Box 390364 Keauhou, HI 96739 Ph: (808) 322-4766 Fax: (866) 372-0361 dave@lawsmith.Group JD5112 1989

Courtroom Attire Section 12, Trials and Hearings, of the Guidelines of Professional Courtesy and Civility for Hawai‘i Lawyers was amended on August 22, 2023, as noted below and to make the rules gender-neutral.

Section 12, in its prefatory paragraph, states: A lawyer should act in trial and hearings in a manner that promotes a positive image of the profession, assists the court in properly reviewing the case, and displays appropriate respect for the justice system.

A lawyer manifests professional courtesy and civility by being punctual and prepared for all court appearances and the following language was added to subsection (a) “including remote hearings where a lawyer shall appear with the video camera on and be clearly visible, unless otherwise excused by the court.”

A new subsection (b) was added as follows: (b) Dresses in appropriate courtroom attire, unless exceptional circumstances dictate otherwise for all court appearances, including remote hearings. º Subsection (c) was amended to state: “Engages in appropriate conduct for all court appearances, including remote hearings, and deals with parties, counsel, witnesses, jurors or prospective jurors, court personnel and the judge with courtesy and respect.”

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CAS E NOTES Supreme Court Certified Question St. Paul Fire and Marine Ins. Co. v. Bodell Construction Co., No. SCCQ-22-0000658, November 14, 2023, (Eddins, J.). The United States District Court for the District of Hawaii certified two questions to the Hawaii Supreme Court. The federal court’s order framed the issue: “[W]hether the State of Hawaii authorizes the equitable reimbursement of defense fees and costs incurred by an insurer in litigating on behalf of its insured.” The court asked: (1) Under Hawaii law, may an insurer seek equitable reimbursement from an insured for defense fees and costs when the applicable insurance policy contains no express provision for such reimbursement, but the insurer agrees to defend the insured subject to a reservation of rights, including reimbursement of defense fees and costs? (2) If an insurer may seek equitable reimbursement of defense fees and costs under Hawaii law, (A) for what specific fees and costs may the insurer obtain reimbursement, (B) which party carries the burden of proof, and (C) what is the burden of proof ?

The Hawaii Supreme Court answered question 1: No. It did not answer question 2. The Hawaii Supreme Court held that an insurer may not recover defense costs for defended claims unless the insurance policy contains an express reimbursement provision. A reservation of rights letter will not do.

Real Property Rivera v. Cataldo, No. SCPW-230000571, October 26, 2023, (Eddins, J.).

For decades, thousands of Native Hawaiians waited to lease land pledged to them under the federal government’s 1920 Hawaiian Homes Commission Act. First the Territory of Hawaii, then the State of Hawaii, held homestead land in trust for Native Hawaiian beneficiaries. Both breached their fiduciary duties from the start. See Kalima v. State, 111 Hawaii 84, 88, 137 P.3d 990, 994 (2006) (Kalima I). Now Native Hawaiians will receive compensation for the State’s failure, as a result of the settlement of a class action brought against 30 January 2024

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Appeal Pointer HRAP Rule 32(b), which governs quality and style of print for documents filed with the appellate court, provides that the print must be standard 12 point pica or equivalent and yield no more than14 characters per inch. No attempt shall be made to reduce or condense the print in a manner that would increase the content of the document. the State by trust beneficiaries alleging that the State had breached its trustee responsibilities. After the Circuit Court approved the settlement, Petitioner Rickey T. Rivera, Jr. sent a letter to the Circuit Court expressing a wish to appeal, on the basis that he had been wrongly excluded from the settlement. Rivera also sent a letter to the Hawaii Supreme Court, which the Court treated as a petition for a writ of mandamus. The Hawaii Supreme Court held that Rivera had no right to compensation.

He was born beyond the statutory period to receive a payout from the settlement.

The Hawaii Supreme Court’s decision ended Rivera’s appeal; it directed the ICA to dismiss CAAP-23-0000572.

Torts City and County of Honolulu v. Sunoco LP, No. SCAP-22-0000429, October 31, 2023, (Recktenwald, C.J. with Eddins, J., concurring). The City and County of Honolulu and the Honolulu Board of Water Supply (collectively, Plaintiffs) brought suit against a number of oil and gas producers (collectively, Defendants) alleging five counts: public nuisance, private nuisance, strict liability failure to warn, negligent failure to warn, and trespass.

Defendants appealed the circuit court’s denial of their motions to dismiss for both lack of jurisdiction and failure to state a claim. The Hawaii Supreme Court agreed with Plaintiffs that this suit did not seek to regulate emissions and did not seek damages for interstate emissions. Rather, Plaintiffs’ complaint “clearly seeks to challenge the promotion and sale of fossil-fuel products without warning and abetted by a sophisticated disinformation campaign.”

Mayor & City Council of Baltimore v. BP P.L.C., 31 F.4th 178, 233 (4th Cir. 2022), cert. denied, 143 S. Ct. 1795 (2023) (characterizing a complaint brought against many of the same Defendants in this case alleging broadly the same counts, theory of liability, and injuries). This case concerned torts committed in Hawaii that caused alleged injuries in Hawaii.

Eddins, J. concurred. Eddins, J. stated that because the principles that govern personal jurisdiction arose after 1868, he wrote separately.

Intermediate Court of Appeals Real Property Campos v. Planning Commission of the County of Kauai, No. CAAP-17-0000540, October 31, 2023, (McCullen, J.). Plaintiff-Appellant/Appellant Rene O. Campos appealed from the circuit court’s (1) June 13, 2017 Final Judgment, and (2) April 19, 2017 Findings of Fact and Conclusions of Law, in favor of DefendantsAppellees/Appellees the County of Kauai, the County of Kauai Planning Department, and the Planning Commission of the County of Kauai. Campos owns real property on Kauai used as a single-family transient vacation rental (Guest House) pursuant to a Provisional Nonconforming Use Certificate issued by the Planning Department. This secondary appeal arose from the Planning Commission’s revocation of the Provisional Nonconforming Use Certificate. On appeal, Campos asserted that the revocation violated Kauai County’s Comprehensive Zoning Ordinance, his grandfather rights under the United States and Hawaii Constitutions, his due process rights, and its own rules.

The ICA affirmed the revocation because use of the Guest House, as originally built, violated the zoning permit obtained by the prior owner, and consequently there was no prior legal use to be grandfathered.

The ICA also held that Campos was afforded due process and waived the argument that the Planning Commission violated its own rules.

ATTORNEY WANTED ASSOCIATE ATTORNEY (Civil Litigation) Established downtown law firm is seeking a litigation associate attorney. 2-4 years experience preferred but will consider well-qualified entry level candidate. Admission to Hawaii Bar or awaiting results required. Competitive salary commensurate with experience and qualifications and excellent benefits. Please email cover letter, resume, and writing sample to: info@macdonaldrudy.com. No phone calls please. All submissions will be held in strict confidence.

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