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TABLE O F C ON TE NTS VO LUM E 25 , N U M B E R 7

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

ARTICLES 44

Connecting Some Dots: The Legal History of the Civil Rights Movement and Theatre as a Tool for Social Justice by Ron Heller

19 16

Girls Court – A Nationwide Success Story in our Family Courts by Laurel Loo

22 24

Of Counsel—What Does it Mean? by Lennes N. Omuro

HSBA OFFICERS President Levi Hookano President-Elect Shannon Sheldon Vice President Rhonda Griswold Secretary Russ Awakuni Treasurer Alika Piper YLD OFFICERS President Christopher St. Sure Vice President/President-Elect Jasmine Wong Secretary Nelisa Asato Treasurer Leo Shimizu

OF NOTE 18

HSBA Happenings

Court Briefs

26 20 27 22 29 28

Case Notes

Conflict Management Institute Announces a Free Public Service Project in Matters Involving Public Interest or Policy

31 30

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The civil rights movement in the United States has a long and complicated history. Running in parallel, theatre addressing racial issues and social justice has its own

Company presented its own version of Tom and Jerry – a play originally produced in England – with a strong anti-slavery message added in. In the African Grove version (but not the original English play) there was a scene where a white actor appeared and proceeded to “auction off ” the rest the cast.2 This was clearly theatre as social commentary, and not meant as light entertainment. The African Grove Company followed up in 1823 with The Drama of King Shotaway, written by William Henry Brown and generally regarded as the first play by an African-American playwright to be produced in the United States.3 The story dealt with the 1795 Carib uprising against the complicated British government on the island of history. Legislation, court decisions, St. Vincent.4 Again, it was theatre and theatre are all alike in that they with a very pointed message. By can reflect existing social and politithat time, the mission of the African cal conditions or they can help to Grove Company had evolved from change those conditions. This artientertainment to political and social cle will discuss some of the ways activism. that legislation or court decisions A different William Brown, have affected, or been affected by, William Wells Brown, was born as a the theatre of their time, and how slave in Kentucky, but escaped to all three have contributed to the Ohio in 1834. He became an antiby Ron Heller civil rights movement and the cause slavery lecturer, and wrote Narrative of social justice. of William While most Americans probably think of “the civil rights W. Brown, A Fugitive Slave in 1847. In movement” as something that started after World War II, the 1858, he became the first pubroots of the movement can be traced to back to pre-Civil-War lished African-American playabolitionism. Similarly, theatre as a tool of social justice in wright, with the publication of America can be traced back at least as far as the 1820s. The The Escape; or, A Leap for FreeAfrican Grove Company was formed in New York City in 1820 dom.5 (The Drama of King as an all-Black theatre company, producing Shotaway had been produced shows at the African Grove on stage earlier, but the script Theatre, primawas not published – in fact, rily for Black authere are no diences.1 known existAlthough at first ing copies the shows consisted of the acof singing and tual script.) dancing, by 1823, Although the African Grove

Connecting Some Dots:

The Legal History of the Civil Rights Movement and Theatre as a Tool for Social Justice

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The Escape; or, A Leap for Freedom was not the Scott decision a “self-inflicted wound” produced in a fully-staged form until the and a major blow to the reputation and 1970s, during the 1850s and esteem of the Court. 1860s Brown would read it As a direct result of aloud at abolitionist ralthese legal developments, lies,6 openly and purWilliam Wells Brown spent most of 1850 to posefully using the play 1854 in England. He to win converts to the was able to return to cause of abolition. the U.S. and resume Brown’s ability to public speaking in 1854 present his writings only because funds were and speak to crowds in raised to purchase his the U.S., however, was freedom from his former directly affected by two Wi l l i a m We l l s B rown owner.9 Ironically, Brown’s remajor legal developments in the 1850s. turn was at about the same time In 1850, the Fugitive Slave Act was that Dred Scott lost his federal case at the passed by Congress,7 as part of a comprotrial court level. Thus, although legally free, Brown did not have the rights and mise with southern politicians intended to end the talk of southern secession. The privileges that the Constitution provided Act provided for the capture, in northern to citizens of the United States. States, of “runaway” slaves, and the While the 13th Amendment to the forced return of those persons to the Constitution theoretically ended slavery States they had escaped from. The Act and involuntary servitude in the United States (“except as a punishment for included penalties for residents of northcrime”),10 southern states responded by ern States who interfered with the capture 8 and return process. enacting “Black Codes” that criminalized At roughly the same time, the Dred “loitering,” “vagrancy” and other looselyScott case was making its way through the defined offenses. These codes deliberately courts. Scott had been born a slave in imposed fines that most working-class Virginia, but his owner took him to Illinois people would be unable to pay, combined and then Wisconsin, both states that did with forced labor for those convicted and not recognize slavery. After moving back unable to pay the fine. Thus, a Black to Missouri, Scott sought a legal declaraman, though legally free, could be contion that his slave status had been legally victed of “loitering” for standing in a public place, and then sentenced to hard terminated by residing in “free” states. Scott filed his initial suit in 1846, in a Mislabor. Often, the government would then souri state court. After an appeal and resell the right to control and use that forced trial, the Missouri Supreme Court finally labor, putting former slaves back into a sitruled against Scott in 1852. In 1853, uation that was slavery in all but name.11 Scott tried again in federal court, pursuing In many states, the Black Codes also included laws against educating Black peothe case to the Supreme Court of the ple, laws against selling or leasing land to United States. In an infamous decision, the Supreme Court said that Black people, Black people, and other measures designed to prevent Black people from gainas the descendants of slaves, “are not included, and were not intended to be ining any political or economic power.12 To counteract these efforts, the Fourcluded, under the word ‘citizens’ in the teenth Amendment to the Constitution Constitution, and can therefore claim was adopted and became effective in none of the rights and privileges which that instrument provides for and secures to 1868. In Strauder v. West Virginia, 100 U.S. 303 (1879), the Supreme Court stated that citizens of the United States.” 60 U.S. 393 the purpose of the Fourteenth Amendat 404 (1857). Later, Charles Evans ment was to give “the privileges of citizenHughes, who served as Chief Justice of ship to persons of color.” Id. at 306. This the Court from 1930 to 1941, would call

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was followed by the 15th Amendment in 1870, which stated that the right to vote “shall not be denied … on account of race, color, or previous condition of servitude.” After the 14th and 15th Amendments, southern states started passing “Jim Crow” laws. The name came from the popular theatre of the time: Sometime around 1828 to 1830, an itinerant actor, Thomas Dartmouth Rice, happened to see a performance by “Jim Crow.”13 Although the details of that original Jim Crow – including whether or not that was his real name – are unknown, Rice took up the name Jim Crow for himself, and created (or appropriated) a blackface song and dance show. That show proved tremendously popular, creating a theatre tradition that would persist for century or more – the blackface singer-dancer-comedian.14 In November 1832, Rice brought his Jim Crow act to the Bowery Theatre in New York, where its success began to attract imitators.15 Joseph Norton Ireland, in his history of the New York stage, wrote in 1867 that Rice “attained a popularity unequalled by anything of the kind before or since.”16 Although the first use of the phrase “Jim Crow law” has not been documented, by 1884 the phrase was sufficiently well-recognized to be used in newspapers. It appeared, for example, in the Sioux City (Iowa) Journal in an article reporting on a reference to “the Jim Crow law of Georgia” in the proceedings of the U.S.

House of RepresentaW. E . B. D uBo i s tives,17 thus demonstrating that both the U.S. Congress and the news media of the day were using the term. From the 1870s into the early 1900s, the progress of civil rights was generally

Solutions Start Here slow. The period from the end of Reconstruction to World War I has also been described as the “nadir” of Black American cultural history.18 During that period, the great majority of Black performers were employed by touring minstrel shows – shows designed to please white audiences, with ubiquitous use of burnt-cork blackface, even by Black performers. Bert Williams (1874-1922), who has been called “the greatest of Black minstrel performers,”19 was a light-skinned Black man who wore blackface and performed a highly stereotyped caricature based on white expectations. With his partner George Walker, he created the first Black musical to play in a major Broadway theater, In Dahomey, in 1903. Although financially successful, the show was regarded as a novelty rather than a serious artistic endeavor. When the show went on to London after its Broadway run, the Pall Mall Gazette said: “There is no particular reason why the work should be called a musical comedy, because, though there is plenty of music, there is no sort of coherence or development of incident which justifies the name of comedy. A far more suitable phrase would have been ‘a negro musical medley.’” 20 The end of the 19th century and beginning of the 20th was a nadir in the struggle for civil rights as well. In 1896, the Supreme Court made the second of the two most infamous decisions in the Court’s history: Plessy v. Ferguson, 163 U.S. 537. (The first was the Dred Scott case, discussed above.) In Plessy, the Court upheld “separate but equal” racially segregated public facilities as constitutionally permissible. That mistake would not be remedied until 1954, in Brown v. Board of Education, 347 U.S. 483. In the years following World War I, there was a surge in Black cultural expression that became known as the Harlem Renaissance. By the 1920s, W. E. B. DuBois had already achieved prominence, while Langston Hughes and other writers were just becoming known. The renaissance included music, with Eubie Blake, Duke Ellington, and Louis Armstrong, among others, becoming successful. Josephine Baker became a famous dancer, and in

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1927, was the first Black woman to star in a well-known movie, Siren of the Tropics. In the theatre, Eubie Blake and Noble Sissie wrote Shuffle Along, one of the first Broadway musicals to be written and directed by African Americans.21 Actor /singer Paul Robeson rose to international fame, playing roles in New York and London including Eugene O’Neill’s The Emperor Jones and the London premiere of Show Boat. Robeson became a strong and vocal supporter of civil rights (and eventually a target in the McCarthy era). Although the period is generally called the Harlem Renaissance, the growth in African American cultural expression was also evident in Chicago, Cleveland, Pittsburgh, and other urban centers across the northern U.S., as the “Great Migration” of southern Blacks changed the demographics of urban America. Notably, the Playhouse Settlement in Cleveland (founded in 1915) established the Gilpin Players, named for Charles Gilpin, a Black actor, and became one of the first American theatre companies to do serious theater with interracial casts. The Gilpin Players established a long-lasting connection with Langston Hughes, presenting premieres of some of his work. Eventually, the group’s name was changed to Karamu, a Swahili word for “joyful meeting.” Karamu exists today as one of the oldest African-American theatres in the United States. The Harlem Renaissance was a political as well as a cultural renaissance. Alain Locke described it as a “spiritual coming of age” in which African Americans transformed “social disillusionment to race pride.”22 Locke was the first AfricanAmerican Rhodes Scholar (in 1907). In 1925, he edited The New Negro, a collection of work by Black writers, and he became known as the “Dean” of the Harlem Renaissance. Locke believed that Black pride and civil rights were inextricability tied together – that progress would be made on civil rights when Black people were politically and culturally educated, took pride in their heritage, and insisted on true equality. One symbol of this was the creation, in 1926, of “Negro History Week”

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– later expanded to Black History Month. In 1927, the Supreme Court of Colorado decided Jones v. Newlon, 81 Colo. 25, an early and important symbol of things to come. Mildred Jones was a Black junior high school student, denied the use of the school swimming pool and the right to Alain Locke participate in swimming classes, as well as the right to participate in school dances and other social functions, solely because of her race. The court noted that the Colorado State Constitution expressly mandated that no “distinction or classification of [public school] pupils be made on account of race or color,” and held that “the attempted classification is clearly prohibited by the [State] Constitution.” Although limited to the State of Colorado, that decision, in 1927, stands out as a symbol of progress. Politically, the changing landscape of the 1920s resulted in the election, in 1929, of Oscar DePriest as the first African American elected to the U.S. Congress since Reconstruction, and the first to be elected from a northern state (Illinois). In 1929, a Black newspaper in Chicago started a “Don’t Buy Where You Can’t Work” boycott to fight racial discrimination in employment. That tactic was quickly adopted in other La n gston Hugh es cities and repeated many times. The African American community realized that acting collectively, they could exercise significant economic power. This became an important tool of the civil rights movement, most famously in the Montgomery bus boycott of 1955-56. In the 1930s, the economic struggle faced by the entire nation slowed the pace of progress in both artistic and legal efforts to promote civil rights. Nevertheless, there were some important achievements. One was the 1936 decision in Pearson v. Murray, 169 Md. 478, noteworthy in part because the case was argued by a 27-year-old recent law school graduate named Thurgood Marshall. Raymond Pearson was a Black student seeking admission to the law school at the University of Maryland. He had been born and raised in Maryland, was a graduate of Amherst College, and “met the standards for admission to the law school in all other respects, but was denied admission on the sole ground of his color.” The court noted that “separate but equal” law schools might be constitutional (in 1936), but the State of Maryland had no law school for Black students. The State claimed that it made $200 annual scholarships available, to enable Black students to attend

other universities outside the State, and that satisfied the requirement of providing an “equal” education to those students. (At the time, annual tuition at the University of Maryland law school was $203.) The court ruled that “the state has undertaken the function of education in the law, but has omitted students of one race from the only adequate provision made for it, and omitted them solely because of their color. If those students are to be offered equal treatment in the performance of the function, they must, at present, be admitted to the one school provided.” 169 Md. at 594. Given the economic problems of the 1930s, there was an emphasis on the economic side of civil rights. Langston Hughes’ play, Don’t you Want to Be Free? was first staged at the Harlem Suitcase Theatre in 1937. Its central message was that all workers, black and white, should unite and organize to change the economic conditions that made all workers victims of the capitalist system. Unfortunately, his views on the flaws of capitalism eventually led Hughes to be labeled a “communist” and called before the Senate Permanent Subcommittee on Investigations by Senator Joseph McCarthy. In the 1940s, the Supreme Court was called upon to deal with, in the Court’s own words, “a shocking and revolting episode in law enforcement.” Screws v. United States, 325 U.S. 91 (1945). Claude Screws was the Sheriff in Baker County, Georgia. Along with two other law enforcement officers, Screws arrested Robert Hall, a Black man. The arrest was made at Hall’s home, late at night, based on a warrant charging Hall with theft of a car tire. After Hall was handcuffed, the three law-enforcement officials beat him with their fists and with a “solid-bar blackjack.” The beating continued after Hall fell to the ground. They dragged him into the jail before calling for medical assistance. Hall died without regaining consciousness. Screws and the other two officers were charged under federal statutes with willfully depriving Hall of his rights by reason of his race or color. They were convicted, by a jury, in Georgia. (The fact that a jury actually convicted law-enforcement officials for killing a Black man, in the 1940s, in Georgia, would be enough to make this case noteworthy.) However, Screws and his co-defendants appealed, saying that the instructions given to the jury were not specific enough regarding the definition of “willfull” conduct. The Supreme Court noted that “no exception was taken to the trial court’s charge, and added “Normally we would under those

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circumstances not take note of the error.” Nevertheless, the Court said that “Even those guilty of the most heinous offenses are entitled to a fair trial,” and reversed the conviction, ordering a new trial. As the national economy recovered in the 1940s, opportunities for all workers expanded, but the effect was particularly noticeable for Black Americans and for women. As large numbers of white men went off to fight the wars in Europe and the Pacific, employers were effectively forced to hire replacements who were not white and male. “Rosie the Riveter” became a cultural icon, but many Black workers were also hired – for the first time – into jobs that had previously been held only by white men. In theatre, the American Negro Theatre (ANT) was established in 1940 and functioned as effectively three or“ Ro ” ganizations in one: r e s i e t h e R i ve t first, ANT produced actual stage plays including On Striver’s Row, by Abram Hill, a comedy encouraging working-class audiences to laugh at Harlem’s elite. In the words of playwright Hill, “When a race reaches a point when it can laugh at its own foibles, it has really become civilized.”23 Second, ANT operated a training program for African American stage artists, launching or contributing to the careers of Sidney Poitier, Harry Belafonte, Ossie Davis and actress/playwright Alice Childress, among others. Third, ANT produced a weekly radio show addressing political and racial topics as well as offering drama and entertainment. The 1940s also saw a collaboration between Langston Hughes as lyricist and Kurt Weill as composer in Street Scene, an attempt to combine American urban culture and European opera traditions. Commercially, the show enjoyed only modest success24 – opening in 1947, it faced competition from Finian’s Rainbow and Brigadoon – but with Black and Jewish co-creators, and a large multi-ethnic cast, the show was ground-breaking for Broadway in the 1940s. It has been restaged many times, though generally by opera companies rather than theatre companies. In the minds of most Americans, the civil rights movement really began in the 1950s. Probably the best-known of all civil rights cases, Brown v. Board of Education, 347 U.S. 483, was decided in 1954. Brown expressly rejected the previous ruling in Plessy v. Ferguson, and held that “Separate educational facilities are inherently unequal.” In Brown, Racial Change, and the Civil Rights Movement,25

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University of Virginia professor Michael Klarman argues that the Brown decision led to highly publicized opposition to integration by southern politicians, and that in turn led to the “the brutal suppression of civil rights demonstrations.” In his view, the resulting television coverage helped to overcome the “apathy” of “previously indifferent northern whites” and create the political climate that pushed Presidents Kennedy and Johnson to act on civil rights. Another 1954 Supreme Court decision is less well known, but also important in the history of civil rights. Hernandez v. State of Texas, 347 U.S. 475, involved a Mexican American convicted of murder. Both the grand jury that indicted him and the trial jury that convicted him were made up of jurors from a panel that had no members of Mexican or Mexican-American descent. The State of Texas argued that there was no violation of the Fourteenth Amendment, noting that the jury panel included Black persons. The Supreme Court said “The State of Texas would have us hold that there are only two classes – white and Negro – within the contemplation of the Fourteenth Amendment. The decisions of this Court do not support that view.” The Court held that Hernandez was entitled to have his case heard by a grand jury and a trial jury “selected from among all qualified persons regardless of national origin or descent.” Of course, the civil rights victories of the 1950s were not all in the courts. One of the biggest victories was the 1955-56 bus boycott in Montgomery, Alabama, sparked by the conviction of Rosa Parks. That conviction was itself a bit of theatre – Black leaders in Montgomery made an effort to publicize Parks’ arrest and trial, knowing that Parks would be the symbol they wanted. In fact, earlier that year, another Black woman, Claudette Colvin, had been arrested and prosecuted for violation of the same ordinance. At that time community leaders chose not to make Colvin their symbol – she was unmarried and pregnant, not the image they wanted. Later, however, Colvin would become one of the plaintiffs in the federal case challenging segregation on city buses. The Montgomery bus boyClau cott also demonstrated ways that dett e Colv in the law could be used against the civil rights movement. Black leaders, including Martin Luther King, Jr., knew that many Black workers depended on buses to get to their jobs, and could not afford to miss work. They knew the boycott would fail if economic pressures forced people to continue riding the bus. Therefore, they organized carpools, jitney services, ten-cent taxi rides provided to African American riders by African American drivers, and other alternatives for those who needed transportation. White city officials realized that the strike was succeeding, putting substantial economic pressure on the municipal bus system, and looked for ways to fight back.

They employed several tactics, starting with arresting volunteers and carpool drivers for minor – and often imaginary – traffic violations.26 That alone was unsuccessful, so they began making arrests and pursuing criminal cases under a state antiboycott law. King and many others – over 80 individuals – were indicted under a 1921 statute outlawing boycotts against businesses. Most of them went voluntarily to the sheriff ’s office to turn themselves in, and some community members who went to see if they were “on the list” were actually disappointed that they had not been indicted. King was convicted and sentenced to pay a fine of $500 or serve 386 days in jail. After an appeal failed, King ultimately paid the fine, writing later that “I was a convicted criminal, but I was proud of my crime.”27 In 1959, Lorraine Hansberry became the first African-American woman playwright to have a play produced on Broadway. A Raisin in the Sun was loosely based on the experience of her own family. Her father, Carl Hansberry, was the petitioner in Hansberry v. Lee, 311 U.S. 92 (1940). A restrictive covenant barred Black persons from purchasing homes in the Washington Park area of Chicago. Carl Hansberry attempted to buy a house in Washington Park, and white homeowners sought an injunction against the transaction. The case went to the Supreme Court on a procedural issue: the racially restrictive covenant had been upheld in a previous case, but Hansberry had not been a party in that case. The question was whether res judicata could be applied against Hansberry, who had had no previous opportunity to litigate the validity of the covenant. The Supreme Court held that the prior decision was not binding on persons who were not parties to the prior case, and that Hansberry could challenge the legal validity of the racial covenant. The Court did not, in Hansberry, make a substantive ruling striking down the covenant – that came eight years later, in Shelley v. Kraemer, 334 U.S. 1 (1948). Thus, by 1959, in Lorraine Hansberry’s play, the Younger family was able to buy a home in the (fictional) white suburb of Clybourne Park. The play was nominated for four

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Tony Awards, including Best Play, and Hansberry, at 28, became the youngest playwright to win a New York Drama Critics’ Circle Award. The 1960s started with spirit of optimism. Significant progress on civil rights had been made in the 1950s, and civil rights leaders believed that a Kennedy presidency would be good for the movement. They were right. Although it was Lyndon Johnson who signed the Civil Rights Act in 1964, it was John Kennedy who proposed it in 1963. His sense of timing was quite theatrical. In 1963, African American students attempted to enroll at the University of Alabama, and Alabama Governor George Wallace literally blocked the doors to stop them. On June 11, 1963, the National Guard, acting on Kennedy’s orders, forced Wallace to stand aside and let the students enter. That same day, Kennedy gave a speech, live on national television, called the “Report to the American People on Civil Rights.” In that speech,

Kennedy went beyond the legal and constitutional basis of equal rights, and declared that it was our collective moral duty as Americans to provide equal rights for all: “this Nation, for all its hopes and all its boasts, will not be fully free until all its citizens are free.” There is a debate about whether the connection between the musical Camelot and the Kennedy administration was anything more than a legend, but it is at least an enduring legend. Camelot, by Alan Lerner (book and lyrics) and Frederick Loewe (music) tells the story of King Arthur and the Knights of the Round Table, focusing on Arthur’s quest for justice and fairness. Legend has it that that the show was John Kennedy’s favorite, and the theme of using power for the sake of social justice (“might for right, not might is right”) inspired Kennedy. Life Magazine, in December 1963, featured an “epilogue” for the Kennedy presidency, in which Jacqueline Kennedy quoted the title song of the show, saying: “Don’t let it be

forgot, that once there was a spot, for one brief, shining moment that was known as Camelot. There’ll be great presidents again … but there will never be another Camelot.”28 The best example of the link between theatre and political action in the 1960s is the Free Southern Theatre (FST). The FST’s very existence can be directly linked to the political activism of the Student Nonviolent Coordinating Committee (SNCC). The SNCC was well aware that progress on civil rights depended on engaging the attention of the public, and was always focused on ways to dramatize the struggle. The SNCC worked with the Congress of Racial Equality in organizing and publicizing the Freedom Rides of 1961 – groups of civil rights advocates, both Black and white, travelling through the South on interstate bus lines, refusing to sit in segregated seats, deliberately trying to use “whites only” waiting rooms, restrooms and lunch counters, and intentionally drawing national attention. More

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than 60 of these “rolling socio-dramas” took place in 1961 alone.29 The SNCC brought together the founders of the FST, John O’Neal and Doris Derby, who were both working as SNCC field directors when they met. They shared an interest in theatre, and together with Gilbert Moses, a writer working for the Mississippi Free Press, they concluded that what the movement needed was a theatre arm. They felt that theatre could provide the emotional base that would lead people into active participation in the movement. Their goal was to merge art and politics to help Blacks in the struggle for true freedom and equality. They “envisioned a new Black dramaturgy, operating on the principle that stage performance could spill over into the audience … moving the audience to critical thought and grassroots community action…” 30 The SNCC used the term “cultural organizing” to describe what the FST was doing,31 and included FST shows in its 1964 Summer Project.

The SNCC itself had been started in by Lorraine Hansberry. 1960 by a group of “young rebels”32 who The 1964 Summer Project was were “not fighting for the freedom designed, in part, to put of the Negro alone, but for the pressure on the U.S. freedom of the human spirit, Congress to pass the a larger freedom that enCivil Rights Act. compasses all mankind.”33 The House of Representatives had The SNCC organized passed the bill in voter registration camFebruary 1964, but paigns across the southern opponents led a filistates in the early 1960s,34 buster in the Senate ran “Freedom Schools” and that lasted into June. other educational programs, Ma J r. The political pressure and became an important , rt in g Lut her Ki n from both advocates and source of both current news in the opponents was tremendous. 1960s and historical records for later Among other things, the effort to end the study. The SNCC organized photograSenate filibuster and get the bill passed phers to capture the story of protest and brought about the one and only meeting resistance, to document police brutality, between Malcom X and Martin Luther and to bring the civil rights movement King, Jr., which took place at the U.S. into the newspapers of the day, thus pushing civil rights issues to a center-stage posi- Capitol during the filibuster. The name “Free Southern Theatre” tion in American consciousness.35 Inter deliberately invoked both an association alia, SNCC members provided photos for with the Freedom Schools and Freedom The Movement, a 1964 photo-documentary

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Rides, and an implication that admission to FST performances was open to all, regardless of ability to pay. While the FST certainly welcomed donations – and depended on support from donors – access to performances was not limited those who could pay. Moreover, the FST organized tours through the South, taking its plays into churches, dance halls, community centers, or whatever space could be found. Although whites were admitted, the avowed mission of the FST was to reach and motivate the Black community. Plays were generally followed by discussion sessions, and sometimes scheduled in conjunction with workshops on civil rights issues. Even prior to the enactment of the Civil Rights Act of 1964 and the Voting Rights Act of 1965, these efforts helped to raise political awareness – and more importantly, voting rates – among southern Blacks.36 Loving v. Virginia, 388 U.S. 1, decided in 1967, is perhaps the best-known symbol of changing social attitudes regarding race in the 1960s. Mildred Jeter, an African American woman, and Richard Loving, a white man, both from Virginia, were lawfully married in Washington D.C. in 1958. They established their home in Virginia, where they were charged with violating Virginia statutes against interracial marriage. There were two relevant statutes: the first made interracial marriage a felony in Virginia, and the second made it an equal crime for a Virginia resident to go outside of the state to be married in order to avoid the state’s ban on interracial marriage. The Lovings pleaded guilty, conceding that if the statutes were valid and enforceable, they were in violation. A Virginia trial judge sentenced them each to one year in jail, offering to suspend their sentences for 25 years if they agreed to leave Virginia and not return together within that period. In a written opinion, the trial judge expressly stated his view that “Almighty God … did not intend for the races to mix.” The State of Virginia tried to defend the statutes by saying that there was no discriminatory or unequal treatment – each participant in an interracial marriage, whether white or Black, was guilty of the same crime and subject to the same punishment. The Supreme Court acknowledged that some older cases might support that argument, but held that racial classifications must be subjected to strict scrutiny. The Court ruled that the Virginia statutes violated the central meaning of the Equal Protection Clause. The latter part of the 1960s was an era of change within

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the civil rights movement. In the early 1960s, Stokely Carmichael had been one of the original leaders of the SNCC, and one of the Freedom Riders. Later in the decade, however, he became an advocate of Black separatism and Black Power, and his more militant views made him a target of investigation by the FBI. At the same time, a similar shift was playing out in the theatre of the movement. Douglas Turner Ward was an African American actor and playwright. He wrote a pair of one-act plays, Happy Ending and Day of Absence, that were produced together in 196566. The production was a financial success and earned Ward the 1965 Drama Desk Award for Best Playwright. That success led the New York Times to print Ward’s 1966 essay entitled “American Theatre: For Whites Only?” Ward argued that American theatre in general was dominated by white producers, directors and playwrights, who were preoccupied with the concerns of the upper-middle-class white people who made up the majority of audience members. Ward wrote that “the stage establishment … consigns even the most innocuous Negro subject matter to an ogre-category of problem drama.”37 In his view, there was a “screaming need” for Black theatre audiences, and for Black playwrights to write plays for those audiences. If white people chose to attend, that was fine, but Ward called for plays written and produced primarily for Black audiences. That challenge was taken up by Amiri Baraka (previously known as LeRoi Jones, Baraka changed his name after the assassination of Malcom X). Baraka believed that the arts were important to the Black Power movement, and he wrote Slave Ship as a deliberate attempt to support Black pride. The play portrays the pain and degradation of slavery, then ends with the white oppressor being killed. This is shown as a triumphant ending, with singing and dancing. The stage directions instruct that the house lights should come up, and the actors should enter the audience and get member of the audience to join in the dancing.38 The message was not subtle – the white/black struggle was reduced to black and white ideology, with no shades of gray to complicate the picture. In 1969, the FST created a touring production of Slave Ship. The production was well-received in Louisiana and Mississippi, and eventually moved on to New York City. Gil Moses, the director, claimed that in cities where the production played, there was a surge in black voter registration, although he did not offer actual numbers. For the FST, the production was the next logical step. The FST had started with the goal of “cultural activism,” and with Slave Ship the FST moved from a focus on cultural education to a more direct use of the arts to support Black pride and Black activism. Of course, there were many other important moments in theatre related to the civil rights movement, and many other legal and political developments that influenced, or were influenced by, those theatrical moments. This article could not possibly connect all of the dots; even a full-length book probably would not be sufficient. The hope is that enough dots

have been connected to hint at the overall picture. _________________ 1

Dewberry, Jonathan. The African Grove Theatre and Company, Black American Literature Forum, Vol. 16, No. 4, Black Theatre Issue (Winter, 1982), pp. 128-131, at 128.

85. www.jstor.org/stable/24585032. Accessed 12 May 2021. 20

Pall Mall Gazette, 18 May 1903, at 11.

Das, Joanna Dee. "Choreographic Ghosts: Dance and the Revival of Shuffle Along." Dance Research Journal, vol. 51 no. 3, 2019, p. 84-96. Project MUSE muse.jhu.edu/article/745426

2 Id. at 129; McAllister, Marvin Edward. “‘White people do not know how to behave at entertainments designed for ladies and gentlemen of colour’: A History of New York’s African Grove/African Theatre.” Diss. Northwestern University, 1997, at 281.

National Museum of African-American History & Culture, https://nmaahc.si.edu/blog-post/new-african-american-identityharlem-renaissance.

23 Leonard, Claire. “The American Negro Theatre.” Theatre Arts 28.7 (July 1944): 421-23 at 423.

Pawley, Thomas D. “The First Black Playwrights,” Black World, April 1972, at 16.

Hill, A. African Company / African Grove Theatre. BlackPast.org. (2007, February 11). https://www.blackpast.org/african-american-history/african-company-african-grove-theatre/ 5 Shine, Ted, and James Vernon Hatch. Black Theatre USA: Plays by African Americans. Rev. and expanded ed. New York: Free Press, 1996, at 35. 6 Brown, William Wells. The Escape, or, A Leap for Freedom. Edited and Introduction by John Ernest. Univ. of Tennessee Press, 2001, Introduction at x. 7 Cobb, James C. “One of American History’s Worst Laws Was Passed 165 Years Ago”. Time. Retrieved May 9, 2021. https://time.com/4039140/fugitive-slace-act-165/. 8 American Battlefield Trust, Retrieved May 9, 2021. https://www.battlefields.org/learn/primary-sources/fugitive-slave-act. 9

Brown, supra, Introduction at xxxvi.

24 Looker, Benjamin. “MICROCOSMS OF DEMOCRACY: IMAGINING THE CITY NEIGHBORHOOD IN WORLD WAR II-ERA AMERICA.” Journal of Social History, vol. 44, no. 2, 2010, pp. 351–378, at 368. JSTOR, www.jstor.org/stable/25790362. Accessed 12 May 2021. 25 Klarman, Michael J. “Brown, Racial Change, and the Civil Rights Movement.” Virginia Law Review, vol. 80, no. 1, 1994, pp. 7–150. JSTOR, www.jstor.org/stable/1073592. Accessed 13 May 2021. 26 King, Martin L. The Autobiography of Martin Luther King, Jr., Ed. by Clayborne Carson, Grand Central Publishing, 2001, at p. 73. 27

Id. at 87.

White, Theodore H. For President Kennedy: An Epilogue. Life Magazine, December 6, 1963.

29 Isaac, Larry. “Movement of Movements: Culture Moves in the Long Civil Rights Struggle.” Social Forces, vol. 87, no. 1, 2008, pp. 33–63, at 37. JSTOR, www.jstor.org/stable/20430849. Accessed 11 May 2021.

“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” 13th Amendment to the U.S. Constitution, ratified in 1865.

Street, Joe. The Culture War in the Civil Rights Movement, University Press of Florida, 2007.

Nittle, Nadra Kareem. How the Black Codes Limited African American Progress After the Civil War. History.com, retrieved May 9, 2021, https://www.history.com/news/black-codes-reconstruction-slavery

Isaac, supra at 41.

Zinn, Howard. SNCC The New Abolitionists, South End Press, 2002, at p. 1.

Zinn, supra, at 103.

Fleischman, Richard, et al. “THE U.S. FREEDMEN’S BUREAU IN POST-CIVIL WAR RECONSTRUCTION.” The Accounting Historians Journal, vol. 41, no. 2, 2014, pp. 75–109, at 82. JSTOR, www.jstor.org/stable/43487011. Accessed 10 May 2021.

13 Anne Grimes. “Possible Relationship between ‘Jump Jim Crow’ and Shaker Songs.” Midwest Folklore, vol. 3, no. 1, 1953, pp. 47–57. JSTOR, www.jstor.org/stable/4317366. Accessed 10 May 2021. 14

Dorman, James H. “The Strange Career of Jim Crow Rice (With Apologies to Professor Woodward).” Journal of Social History, vol. 3, no. 2, 1969, pp. 109–122, at 110. JSTOR, www.jstor.org/stable/3786238. Accessed 10 May 2021.

Id. at 112.

Ireland, Joseph Norton. Records of the New York Stage, Morrell 1867, pp. 55-56.

Sioux City Journal (Iowa) 18 December 1884, at p. 2.

Shor, Francis. “Utopian Aspirations in the Black Freedom Movement: SNCC and the Struggle for Civil Rights, 1960-1965.” Utopian Studies, vol. 15, no. 2, 2004, pp. 173–189, at 179. JSTOR, www.jstor.org/stable/20718673. Accessed 11 May 2021. 35

Raiford, Leigh. “‘Come Let Us Build a New World Together’: SNCC and Photography of the Civil Rights Movement.” American Quarterly, vol. 59, no. 4, 2007, pp. 1129–1157, at 1130. JSTOR, www.jstor.org/stable/40068483. Accessed 11 May 2021. 36

Isaac, supra at 47.

Ward, Douglas T. Reprinted in American Theatre, November 1986.

Werner, Craig. “BRER RABBIT MEETS THE UNDERGROUND MAN: SIMPLIFICATION OF CONSCIOUSNESS IN BARAKA’S ‘DUTCHMAN’ AND ‘SLAVE SHIP.’” Obsidian (1975-1982), vol. 5, no. 1/2, 1979, pp. 35–40, at 38. JSTOR, www.jstor.org/stable/44491032. Accessed 16 May 2021.

Daigle, Jonathan. “Paul Laurence Dunbar and the Marshall Circle: Racial Representation from Blackface to Black Naturalism.” African American Review, vol. 43, no. 4, 2009, pp. 633–654, at 633. JSTOR, www.jstor.org/stable/41328662. Accessed 11 May 2021.

Ron Heller is still practicing law, while enrolled as graduate student in the theatre program at UH Manoa.

Post, Tina. “Williams, Walker, and Shine: Blackbody Blackface, or the Importance of Being Surface.” TDR, vol. 59, no. 4, 2015, pp. 83–100, at

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Girls Court –

A Nationwide Success Story in our Family Courts by Laurel Loo Cassie1, who was 15 at the time, was raped by her biological father and bore his child. Later, he pursued visitation rights to his and Cassie’s child. Cassie dropped out of school, began abusing alcohol, and had nowhere safe to live. Jane,2 16, lived in a household where alcohol and illegal drugs were constants. She, too, dropped out of school, suffered from lack of self-esteem and depression, and eventually started a relationship with a pimp who would give her as many drugs as she wanted. These are not stories from some large city on the mainland. They are themes commonly known to social workers, probation officers and others involved in our juvenile judicial system, here in our islands. “We were noticing more and more girls showing up [on the juvenile Family Court calendar]” in 2003, said retired Judge Karen Radius. This was starting to be a radical change from her days as a Waianae Legal Aid lawyer prior to taking a bench. “Back then Legal Aid represented juveniles and all my juvenile clients were boys. Once in blue moon, I had a girl client,” Radius remembers. So in 2004, the First Circuit, at the urging of Judge Radius, started “Girls Court”– one of the first in the nation – if not the first — a gender-specific court created in response to the peculiar issues facing girls in juvenile court. Often, the problems facing girls are the result of sexual assault, early pregnancy or ensuing mental health or self-esteem issues. Today, as a result of Hawaii’s model, there are dozens of Girls Courts across the country — in counties in Texas, Florida, New Mexico, Arizona, California, New York, Minnesota, and more each year. Naturally, some of these issues are also faced by boys, but it has been noted: Girls Court works with the girls to help resolve the issues that brought them to the court in the first place. Girls’ lawbreaking and other delinquent behavior is often directly tied to histories of abuse, neglect, and family dysfunction. It is not that boys do not also have these problems. Rather, the problems are more salient to girls’ problems than boys. The traditional juvenile court model has been based upon a male model of delinquency, one generally thought to be ineffective in dealing with girls unique problems.3 (Continued on page 20) 16 July 2021

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A new day is dawning in Hawaii

As more of us get vaccinated... In-person depositions and arbitrations will be starting up again. Until that day comes, we are providing the smoothest oral depositions and arbitrations. On any given day, we are monitoring a number of ZOOM conferences simultaneously. Our talented court reporters conduct these video depositions seemlessly. All parties receive an invitation link to log into the conference. Exhibits are viewed on the screen, when needed. The process could not be more simple for the attorneys and participants.

Records Depositions: The Records Department continues to follow up regarding the status of subpoenaed business and medical records. Our team is out there picking up records and preparing transcripts for attorneys and their staffs. While we all face changes during this time, one thing stays the same: our commitment to our clients and their needs. Regardless of the challenges this pandemic presents, we’ll be there for you. We are your local reporting firm and have been since 1975!

RALPH ROSENBERG COURT REPORTERS, INC. A Full-Service Court Reporting Firm 1001 Bishop Street, Suite 2460, Honolulu HI 96813 Tel: 808-524-2090 • Web:

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H SBA HAP PE NIN GS Board Actions The HSBA Board took the following actions at its meeting in April: • Approved the joint Executive-Finance Committee’s recommendation to utilize 100% of the PPP loan for eligible payroll expenses for simplicity and certainty rather than splitting the costs among other items; • Approved the joint Executive-Finance Committee’s recommendation to open a new checking account at First Hawaiian Bank for the purpose of handling the Real Property and Financial Services Section’s e-book revenues and expenses, and keeping it separate from other Sections’ general accounts; and • Approved the joint Executive-Finance Committee’s recommendation to upgrade the iMIS membership database in the amount of approximately $225,000 by funding it through the budgeted line item for technology under Special Reserves, the savings from payroll expenses by using the PPP loan, and if necessary, excess funds from General Reserves.

2022 HSBA Board Nominees In accordance with Article VII, Section 3, of the HSBA Constitution and Bylaws, a committee has made nominations for officer and director positions of the HSBA Board and publishes its list of nominees below. Ballots will be distributed in early-mid September, and the election results announced in mid-October. HSBA members of active status may also be nominated by written petition signed by at least 20 regular members and submitted to the HSBA Board Secretary

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at 1100 Alakea Street, Suite 1000, Honolulu, HI 96813, or elections@hsba.org, within fifteen days of the publication date (i.e., the date this issue is received at the HSBA office). Vice President Jesse Souki Secretary Lanson Kupau Treasurer Michael Cashman Alika Piper Director: Kauai Justin Kollar Director: West Hawaii Carol Kitaoka Director: Oahu Tristan Andres Jocelyn Chong Jessica Domingo Kristin Izumi-Nitao Simeona Mariano Casey Miyashiro Mark K. Murakami Mark Valencia HSBA ABA Delegate Leslie Hayashi Congratulations 2021 Leadership Institute Fellows Malia I. Alexander, Maximum Legal Services Corporation Tristan S. D. Andres, Deeley King Pang & Van Etten Matthew S. Dvonch, Department of the Prosecuting Attorney, City and County of Honolulu

Kaliko‘onalani D. Fernandes, Department of the Attorney General, State of Hawaii Robert (Rob) W. Miller, United States Army, Judge Advocate General Corps, Civilian Ashley K. Obrey, Native Hawaiian Legal Corporation Maile Osika, Dentons US LLP Gabriele (Gabe) V. Provenza, Department of the Corporation Council, City and County of Honolulu Danica L. Swenson, Department of the Prosecuting Attorney, City and County of Honolulu Kimberly A. Torigoe, Office of the Prosecuting Attorney, County of Kauai Jessica Christen (Jaycee) M. Uchida, Legal Aid Society of Hawaii Kourtney H. L. M. Wong, Hosoda & Bonner, LLLC Sommerset K. M. Wong, Kamehameha Schools Laurie Ann S. G. Wong-Nowinski, Honolulu Ethics Commission Jason S. Woo, Jason Woo, Attorney at Law, LLC Lisa M. Yang, Watanabe Ing LLP

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work without the other—this trifecta is essential for their workout, and essential for you. This is what makes them stand out among the rest. Orangetheory is a science-backed, technology-tracked, coach-inspired group workout designed to produce results from the inside out. They make it simple to push yourself to be your personal best and give you more. For more information, please visit their website at https://www.orangetheory.com/en-us/. HSBA members will receive $10 off of monthly membership rates for the life of their membership, $20 off of heart rate monitors, complimentary sweat towel, reusable water bottle and gym cinch bag. Offer valid at their Kakaako, Kapiolani and Waikiki locations. Reformer Pilates HSBA Members receive 10% off reformer pilates classes and packages. This particular class helps build a strong core from which one can transition into new positions and exercises. This flow centers around control and precision, with a diversity of exercises and modifications to suit a wide range of levels from beginner to advanced. With this class, you will learn and practice the tools needed to lead a healthy and fit lifestyle, while also remaining mindful in every act you perform. Visit https://hsba.org/memberbenefits to get more information on the more than 70 member benefits available.

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(Continued from page 16) Today, Girls Court is under the leadership of First Circuit Judge Dyan Medeiros, who is shepherding half a dozen girls, ages 15-17, through Girls’ Court during Covid-19 restrictions. This year’s “cohort” of girls has had to meet by Zoom, and inperson activities with therapists, probation officers and others are limited. Nevertheless, Judge Medeiros has had to have individual meetings with the girls. “My first goal was to get them to talk to me!” Now that they have, Judge Medeiros says she realizes how significant the problems are that face the girls’ families: drugs, dysfunctional families, no sense of self-worth, sex trafficking. Still, there are success stories. “We’ve had girls going to college, and moving forward. We can’t fix the first 15 years of their lives, but we can put them on a better path.” This better path includes targeted therapies for each family, intensive meetings and help with school problems, foster family problems, drug dependencies, and more. To give the girls good role models, it is typical in Girls Court that all providers —from judge to bailiff to probation officers to therapists – are female. But it didn’t start out that way – it started out with Judge Radius struggling with how to deal with a growing number of girls exhibiting severe behaviors. She noticed an explosion in the number of girls on her juvenile docket, so she began looking for answers. Frances Wong, then the senior Family Court judge in the First Circuit, gave Judge Radius the use of some staff. “We met on Friday afternoons and looked for some kind of model [program]. There were lots of articles about girl’s behaviors , articles describing runaway problems, self-harm, mental health – but they were all about the problem, not how to address them. So, with no budget, Judge Radius started these Friday afternoon meetings, chose “the ten hardest girls” from her juvenile docket, and called in favors. She got free tickets from thenjudge Sabrina Mackenna for women’s basketball, a professor in Hawaiian Studies sponsored a paddle out, there were art museum activities, visits to taro lo’i, Kahoolawe, Haleakala. “We didn’t have a curriculum,” but they found ways to empower the girls and keep them interested by challenging their minds and bodies. The current cohort is the sixteenth Girls’ Court cohort in the First Circuit, says First Circuit program coordinator Valerie Lazo. On Kauai, Girls Court started in 2015 under the leadership of Judge Randal Valenciano and Trudy Senda, who sat as the Fifth Circuit’s first Girls Court judge. In 2020, Kauai celebrated its fifth Girls Court cohort. Lazo has seen ups and downs during the sixteen years, but also success stories. “We’ve seen [our Girls Court clients

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achieve] high school graduations, full-time college, good jobs,” she said. And these are girls who have experienced “multiple levels of trauma – child abuse, sexual abuse, sex trafficking.” Today, Covid-19 has caused staff to pivot, and now a virtual curriculum is offered. There are weekly Zoom activities with a probation officer or a community provider as a featured speaker. The girls are learning how to cook, financial literacy, how to be physically active, take music lessons, and have

healthy relationships. “How to make healthy choices,” says Lazo. They have given the girls virtual tours of local colleges. Many of the girls may not have had a mother, so Girls Court “brings that extra level of care,” says Lazo. Even something as simple as teaching a girl to braid her hair. According to the Girls Court website: It is our intention that empowering and building on our girls’ strength now will also stop them from becoming involved in the criminal justice system as adult women, appearing as victims in domestic abuse cases and restraining order proceedings, or as mothers in child protective services later in their lives. These goals are echoed in the national literature. In an American Bar Association article it was noted: The unique nature of [girls’ criminal behavioral] incidents and lack of appropriate training and resources make many juvenile justice system stakeholders feel frustrated and unequipped to properly and consistently manage these cases. . . . [t]he end result is often a quick dismissal or inadequate managing of these cases, leaving the core issues unresolved. Unfortunately, this results in the same girls coming back to court time and again for similar and escalating offenses, both as juveniles and as adult women. . . . Without the proper resources, many get swept up in a lifestyle that puts them in danger of becoming a crime victim or domestic violence victim in the future. . . . Ideally, we need to

provide them with a fresh outlook and a skill set to deal with life’s issues, and a clean record to facilitate obtaining an education and gainful employment in the future. . . .Obviously, violent, assaultive behavior is serious no matter the gender of the defendant; no one is advocating for the courts to go easy on violent females. What is really needed is a new approach to juvenile justice that accounts for females’ different paths to violence. The two most important factors that separate violent female offenders from their male counterparts are (1) females’ higher rates of mental health issues, such as anger, depression, and suicidal thinking; and (2) the fact that female offenders more often have histories of victimization, violence, and abuse than males. Thus, if we want to understand and effectively treat females who have been arrested or convicted of assaultive and violent behavior, we need to adequately address these issues. . . . Fortunately, some districts in states such as Hawaii and California have begun to create “girls’ courts” designed to address these systemic inadequacies.4 And so Hawaii has become a leader in this quest to address the plight of some of our girls, who become our women. As Judge Radius describes it: “A way to empower our kids.” Today, as a retired Family Court judge who began this nationwide trend, she spends many days fielding calls from judges and other leaders from all over the country on how to build their Girls Courts in faraway counties and Indian reservations. _________________ 1

Not her real name. Not her real name. 3 Janet T. Davidson, Ph.D., First Circuit Girls’ Court Evaluation Summary, July 2011 Bulletin. 4 Sarah Klein, Girls in the Juvenile Justice System: The Case for Girls’ Courts, American Bar Association, citing Margaret A. Zahn et al., “Causes and Correlates of Girls’ Delinquency, “Dept. of Just., Off. of Juv. Just. and Delinq. Prevention (2010). 2

Laurel Loo, a per diem judge on Kauai, has been the Fifth Circuit’s Girls Court judge since 2016.

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Of Counsel – What Does It Mean? by Lennes N. Omuro Traditionally, the term “of counsel” was used to describe a retired or semi-retired partner who was no longer involved in daily practice but remained involved in firm affairs. The use of the term then expanded in scope over the years and there is often confusion over how the term is or should be used. Moreover, “counsel,” “tax (or other specialty) counsel,” “senior counsel” or other similar terms are also being used by many firms today and such terms share central characteristics with the relationship denoted by the term “of counsel.” The distinction between these terms and the term “of counsel” is rather blurred. In Hawaii, the Disciplinary Board of the Hawaii Supreme has issued Formal Opinion No. 43 (dated April 29, 2010 and updated March 19, 2015) concerning the use of the title “of counsel.” In particular this opinion provides as follows: As used in this opinion, the term “of counsel” refers to an actively licensed lawyer who, or a law firm that, has a continuing, close, and regular relationship with another lawyer or law firm. Any jurisdictional limitations on the practice of the “of counsel” lawyer or law firm must be stated on the affiliated firm’s letterhead and other communications in which the name of the “of counsel” lawyer or law firm is included. This opinion applies to any of the types of relationships described herein, including, but not limited to, designations as “counsel,”

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“special counsel,” “tax [or other specialty] counsel,” or “senior counsel.” The use of the title “of counsel” in identifying the relationship of a lawyer or law firm with another lawyer or law firm is permissible as long as the relationship between the two is a continuing, close, and regular relationship and the use of the title is not false or misleading. This opinion is based upon the prohibitions against misleading representations found in Hawaii Rules of Professional Conduct (“HRPC”), Rules 7.1 and 7.5. The opinion is also generally consistent with ABA Formal Opinion 90-357 (May 10, 1990) to the extent that the ABA Opinion defines the core characteristics of the “of counsel” relationship as a “close, regular and personal relationship” between the lawyer and the firm other than that of a partner or associate. The ABA opinion lists four common arrangements considered appropriate for “of counsel” designation: (1) part-time lawyer; (2) retired partner; (3) a lateral attorney brought in on a probationary basis before being made a partner; and (4) a permanent attorney with a status somewhere between associate and partner. The ABA opinion also states that the term “of counsel” should not be used to describe: (1) a relationship involving only an individual case; (2) a relationship of forwarder or receiver of legal business (basically making or receiving referrals); (3) a relationship involving only occasional collaboration among otherwise unrelated lawyers or firms; and (4) the

relationship of outside counsel. ABA Formal Opinion 90-357 does not address all situations in which law firms may be using the term “of counsel” or similar terms such as “counsel” or “tax counsel” or the like. When using such terms, Hawaii firms should heed Formal Opinion No. 43 and avoid using such terms if the relationship is other than one that is continuing, close and regular. In addition to the issue of avoiding misrepresentation of the lawyer’s relationship with the firm, the other principal ethical issue that arises out of the “of counsel” relationship is the imputation of conflicts of interest. Most authorities have held that lawyers with an “of counsel” relationship to a firm should be treated like partners and associates of the firm for imputation of conflict purposes.1 On the other hand, in Hempstead Video, Inc. v. Inc. Vill. of Valley Stream, the Second Circuit rejected per se disqualification of a law firm because of an of counsel conflict and instead adopted a functional approach based on evaluating the substance of the relationship and the procedures in place including an assessment of the closeness of the of counsel relationship and the isolation of nonshared matters.2 Although there does not appear to be Hawaii case law directly on point, Hawaii law firms should be cautious about relying on decisions like Hempstead Video when evaluating of counsel imputed conflict situations. The general view is that conflicts involving of counsel lawyers would typically be subject to the same analysis as conflicts involving partners or associates. Moreover, in a smaller geographic market, like Hawaii where firms typically do not have branch offices or affiliated attorneys spread out across the county, it is unlikely that there

would be the level of procedures in place or the isolation of non-shared matters considered by the Second Circuit to be meaningful factors that may possibly warrant avoiding disqualification. Additionally, HRPC Rule 1.10(a) provides that while lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so. Comment 2 to Rule 1.10(a) also provides that this rule of imputed disqualification gives effect to the principle of loyalty to the client as it applies to lawyers who practice in a law firm. Also keep in mind Formal Opinion No. 43’s statement that the “of counsel” relationship must be continuing, close, and regular. Law firms in Hawaii should therefore be mindful that the conflicts of “of counsel” attorneys may be imputed to the firm and conflict checks and business intake procedures should be handled accordingly. __________________ 1 See e.g. Restatement Third, The Law Governing Lawyers, Section 123, comment c(ii) (2000). 2 See 409 F.3d 127, 135-36 (2d Cir. 2005).

Lennes N. Omuro is a partner at Goodsill Anderson Quinn & Stifel and a member of its litigation section. He has also served as his firm’s Professional Responsibility Committee Chairperson and as in-firm Counsel. NOTE: This article was previously published in the August 2016 issue of the Hawaii Bar Journal.

Robert B.

FRIJA For Early Case Evaluation, Arbitration and Mediation Areas of Expertise: General Civil, Injury Torts, Insurance/Personal, Product Liability, Premises Liability With a reputation for detailed analysis, professionalism and early case resolution based on fair case evaluation

DISPUTE PREVENTION AND RESOLUTION 808.523.1234 or 542-5422 • dprhawaii.com

DEPUTY PROSECUTING ATTORNEY

The County of Maui, Department of the Prosecuting Attorney, seeks to fill position(s) at the entry to high experience level(s) as a Deputy Prosecuting Attorney. Applicants must have an active Hawaii State Bar license and be in good standing before the Hawaii Supreme Court, have strong oral and written communication skills, and legal research abilities. Applicants should possess excellent analytical ability, good judgment, and the ability to work in a supportive and professional manner with other attorneys, support staff, outside agencies and community. Competitive salary commensurate with years of experience ranging from $66,000 to $130,000. Excellent benefit package and work environment. Please send letter of interest, resume, application form (website listed below), waiver form, writing sample, and three references to: Andrew H. Martin, Prosecuting Attorney Department of the Prosecuting Attorney County of Maui 150 South High Street Wailuku, Maui, Hawaii 96793 E-mail: Prosecuting.Attorney@co.maui.hi.us Website: https://www.mauicounty.gov/123/Prosecuting-Attorney The County of Maui is an Equal Opportunity Employer July 2021

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C O URT BR IEF S Courts in the Community Returns: Konawaena, Lahainaluna, and Waipahu High Schools Participate Remotely

for a spirited question-and-answer session with the students following the court proceedings. For online availability check the websites of Olelo Community Media (https://olelo.org), Akaku Maui Community Media (https://www.akaku.org), and Hoike – Kauai Community Television (https://hoike.org).

Jeffrey Ng Sworn In as District Family Judge of the Third Circuit

The Hawaii Supreme Court convened May 7, by Zoom, giving more than 110 students on three islands the opportunity to view oral argument in an actual case. Participating schools were Konawaena High School on Hawaii island, Lahainaluna High School on Maui, and Waipahu High School on Oahu. This event marked the return of the Hawaii State Judiciary’s Courts in the Community outreach program, which was suspended in April 2020 due to the COVID-19 pandemic. Since 2012, more than 5,000 students have participated in this educational initiative to enhance their understanding of the Judiciary’s role in government, and see first-hand how it resolves disputes in our democracy. The court heard SCOT-20-0000309; In the Matter of Hawaiian Electric Company, Inc. The case involves a wind farm facility located on 706.7 acres of land in Kahuku, Oahu. Oral argument was followed by two question-and-answer sessions for the students – one with the attorneys and another with the justices. To prepare for the case, students studied a curriculum developed by the Kamehameha V Judiciary History Center. Attorneys from the West Hawaii Bar Association, Maui County Bar Association, and Hawaii State Bar Association volunteered their time and facilitated a moot court activity where students had an opportunity to argue the case themselves. “The Hawaii State Bar Association would like to thank and congratulate the many dedicated teachers, volunteer attorneys, school and court administrators, and especially the students, who together made this first virtual Courts in the Community event such a success,” said HSBA President Levi Hookano. “The attorneys arguing each side of the many unique, challenging issues presented in this case set the stage

24 July 2021

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A virtual crowd of dozens of family, friends, and colleagues tuned in to watch Jeffrey W. Ng be sworn-in as District Family Court Judge of the Third Circuit on May 5. Chief Justice Mark E. Recktenwald presided over the ceremony, which was livestreamed on the Judiciary’s YouTube Channel. Guest speakers were: Hawaii County Bar Association President Michelle S.K. Oishi, West Hawaii Bar Association President Stephen Lawrence Frye, Hawaii State Bar Association President Levi K. Hookano, Hawaii State Trial Judges Association Vice-President Judge Mahilani E.K. Hiatt, Judicial Selection Commission Chair Nadine Y. Ando, and Senate President Ronald D. Kouchi. Ng will serve a six-year term from May 5, 2021 to May 4, 2027.

Per Diem Judge Announcements Gale L.F. Ching was reappointed per diem judge of the District Court of the First Circuit and designated as per diem district family judge. Her term is May 21, 2021 to November 26, 2024. Michael A. Marr was reappointed per diem judge of the District Court of the First Circuit. His term is July18, 2021 to December 3, 2022.

CAS E NOTES Supreme Court Labor In the Matter of the Arb. Between United Pub. Workers and St. of Haw., Dep’t of Transp., No. SCWC-16-0000666, May 21, 2021, (McKenna, J.). The Hawaii Supreme Court addressed whether the State of Hawaii (“State”) “incurred” attorney’s fees under Hawaii Revised Statutes § 658A-25 (2011) in a grievance arbitration when it was represented by an attorney employed by the State’s Department of Attorney General. The State sought $20,044.49 in appellate attorney’s fees and $35.20 in costs under Haw. Rev. Stat. § 658A-25 as the “prevailing party” in an appeal of a grievance arbitration with the United Public Workers, AFSCME, Local 646, AFL-

26 July 2021

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Appeal Pointer

Utilities

A withdrawal and substitution of appellate counsel will not be approved by the appellate court unless the withdrawal and substitution complies with the requirements of HRAP 50(b).

In the Matter of Hawaiian Electric Light Co., Inc., No. SCOT-20-0000569, May 24, 2021 (Eddins, J., with Wilson, J. concurring). Appellant Hu Honua Bioenergy, LLC (“Hu Honua”) appealed the Public Utilities Commission’s (“PUC”) Order No. 37205, that denied a competitive bidding waiver to Hawaii Electric Light Company, Inc. (“HELCO”). Hu Honua also appealed the PUC’s Order No. 37306, that denied Hu Honua’s request for reconsideration of Order No. 37205. Because both Order No. 37205 and Order No. 37306 sprang from a misreading of the holding in Matter of Hawai‘i Elec. Light Co., Inc., 145 Hawaii 1, 445 P.3d 673 (2019) (“HELCO I”), the Hawaii Supreme Court vacated them and remanded the case to the PUC for

CIO. The ICA awarded costs but no attorney’s fees, on the grounds the State “failed to demonstrate that it incurred, as an expense, liability, or legal obligation to pay, appellate attorney’s fees[.]” The Hawaii Supreme Court held that the State “incurred” attorney’s fees for the purposes of Haw. Rev. Stat. § 658A25 and therefore, granted the State’s request for attorney’s fees in the amount of $16,197.50.

further proceedings consistent with this opinion and the Hawaii Supreme Court’s instructions in HELCO I. Wilson, J., concurred with the Majority’s decision to remand to the Public Utilities Commission (“PUC”), and wrote to clarify that the Majority’s decision gives discretion to the PUC to determine again whether a waiver of competitive bidding should be granted to Hawai‘i Electric Light Company, Inc. (“HELCO”). Just as “the legislature is presumed not to intend an absurd result, and inconsistency, contradiction, and illogicality[,]” so too should supreme court case law. Specifically, the Hawaii Supreme Court’s decision in Matter of Hawaii Elec. Light Co., 145 Hawaii 1, 445 P.3d 673 (2019) (“HELCO I”)—must be construed to avoid absurd and illogical results. State v. Tsujimura, 140 Hawaii 299, 307, 400 P.3d 500, 508 (2017) (quoting State v. Arceo, 84 Hawaii 1, 19, 928 P.2d 843, 861 (1996)).

WALTER S. KIRIMITSU Mediator & Arbitrator

• Education Law & Disputes • Insurance/Personal Injury • Commercial/Business • Labor/Employment • Construction/Real Property

• Former Judge, Hawaii Intermediate Court of Appeals • General Counsel/VP Legal Affairs, University of Hawaii • President/Head of School, Saint Louis School • President, HI State Bar Association • Fellow, American Board of Trial Advocates, American College of Trial Lawyers • Certified Trial Counsel, U.S. Air Force Judge Advocate Corps • Certified Completion of Mediation Course (Pepperdine U. School of Law) • Fluent in Japanese Language

DISPUTE PREVENTION AND RESOLUTION, INC. 1003 Bishop Street, Honolulu, HI 96813 | Phone: 523-1234

Notice Transfer to Interim Inactive Status On May 24, 2021, the Hawai‘i Supreme Court transferred attorney Keoni K. Agard (Hawai‘i bar number 2649) to inactive status, effective immediately, due to incapacity pursuant to the Rules of the Supreme Court of Hawai‘i , Rule 2.19(b) and (c). As a result, Agard is no longer able to act as an attorney for any of his clients, and those clients must seek legal advice elsewhere. Agard, age 66, was admitted to the Hawai‘i bar in 1980 and is a graduate of the University of Hawai‘i , William S. Richardson School of Law. Citation: ODC v. Keoni K. Agard, SCAD-21-0000338.

July 2021

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Conflict Management Institute Announces a Free Public Service Project in Matters Involving Public Interest or Policy The Conflict Management Institute (CMI), affiliated with the William S. Richardson School of Law, helps legal, business, and community leaders maximize the use of collaborative conflict management strategies. CMI is pleased to announce a free Public Service Project for members of the community who are seeking mediation or other neutral assistance in matters involving public interest or policy. This project was created in response to needs identified by community members and is available statewide. How the service works: upon receipt of a request for assistance from community members engaged in a public policy dispute, a CMI member will work with the community members to identify the criteria they are looking for in a mediator or other neutral. Once the criteria are clear, the CMI member will help the parties identify a process to find the mediator or neutral. Note: -the participating CMI member is prohibited from taking the case in any capacity or receiving any compensation for assisting with the identification of a neutral, -CMI does not maintain a list of mediators or neutrals, -the persons identified as meeting the desired criteria are not limited to traditional mediators or neutrals and may include people from a broad variety of backgrounds, and -although there is no cost for CMI’s assistance, that does not mean the selected person will provide services at no cost to the parties. For more information contact Peter Adler (padleraccord@gmail.com), Jim Duffy (jamesduffyl567@gmail.com), or Elizabeth Kent (meetingexpectationshawaii@gmail.com).

Mediator, Arbitrator,

Receiver, and Special Master Services, Employment Investigations

Jerry M. Hiatt • Creative and highly focused mediations in all areas through persistent follow up with all parties. Successful in high stakes mediations for clients of most of Hawaii’s major law firms. • 43 years of practice in complex civil litigation. Listed in Best Lawyers in 8 areas, including Mediation and Arbitration. Hawaii Lawyer of the Year for Mediation, 2014, Employment Law-Individuals, 2017, Arbitration, 2018, and Mediation, 2021. • Mr. Hiatt has also performed detailed neutral employment investigations and fact finding for some of Hawaii’s largest companies. • Mr. Hiatt has also served as a court appointed Receiver in complex commercial matters. For ADR work, please contact

Dispute Prevention & Resolution (808) 523-1234; dprhawaii.com For employment investigations, please contact jh@hiattlaw.com or at (808) 937-4179. Resume and references at www.hiattlaw.com. July 2021

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ATTORNEY WANTED ASSOCIATE LEGAL COUNSEL. The Honolulu Ethics Commission is seeking experienced attorneys for an Associate Legal Counsel. The Commission advances the standards of ethical conduct in city government to improve and maintain public confidence in city officials and employees. Litigation, policy, government experience preferred; admission to Hawaii Bar required. Email cover letter with salary requirement, resume, and at least three references to:ethics@honolulu.gov. For more information, go to www.honolulu.gov/ethics. FARRELL & PERRAULT LLLC has a full-time family law attorney position open for immediate hire. Benefits include: 1) Monthly Bonus, 2) Health Insurance, 3) Life Insurance, and 4) 401(K). Our practice includes divorce, paternity, restraining orders, child guardianships, child welfare, and family criminal matters. If you are the successful applicant, you will jump into a fast-paced litigation and trial-oriented practice. You will appear regularly in Family Court and be expected to present evidence, cross-examine witnesses, and make legal arguments. You will have the autonomy of managing your own cases with the support of a team of experienced trial lawyers and non-lawyer staff. We provide on-the-job training. Most of our cases are on Oahu, but a substantial number of our cases are on the Big Island, Kauai, and Maui. Compensation is aggressive and based on productivity. Contact Attorney Tony Perrault at tony@farrell-hawaii .com or at (808) 535-8468. MACDONALD RUDY O’NEILL & YAMAUCHI LLP seeks talented, conscientious litigation associate. Remote and in-person practice due to intensive use of cloud applications. Must be comfortable with computer applications. Practice areas include maritime defense and insurance, insurance coverage, construction, commercial, products liability, and insurance defense litigation. Candidates must have strong academic credentials and well- developed research and writing skills. License to practice in the State of Hawaii required. Competitive salary commensurate with experience and excellent benefits that include: Medical/Dental/Vision insurance, parking, vacation and sick leave, ten holidays per year, and enrollment in company retirement/401(k) plan after one year. Please reply to this ad by emailing your cover letter, resume, and writing sample to info@macdonaldrudy.com. No phone calls please. All submissions will be held in strict confidence.

MULTI-SERVICE LAW FIRM seeking experienced estate planning attorney to complement and support existing practice. Must be licensed to practice law in Hawaii. Salary commensurate with experience; competitive benefits. Interested candidates should email their resume and cover letter to recruiting@ carlsmith.com. SETTLE MEYER LAW is in search of a transactional associate attorney with at least 2-4 years’ business and/or real estate legal experience, and a commercial litigation/intellectual property associate with 2-4 years’ experience. This is an exciting opportunity to work at a firm tackling a number of pressing issues facing Hawaii, including affordable housing and high-tech/IP business development. Qualified candidates must have distinguished academic credentials, strong research, writing and analytical skills, and be self-starters with a commitment to excellence. Please submit resume, writing sample and salary requirement to info@settlemeyerlaw.com. THE LEGAL CLINIC, a non-profit legal services provider, is seeking a full-time immigration attorney to begin in September 2021. The attorney, with a senior staff attorney, will be responsible for representing low-income immigrant clients in a variety of areas, including petitions for asylum and Temporary Protected Status; removal defense; applications for naturalization, residency, humanitarian visas, and DACA. Two years of legal practice, knowledge of immigration law, and a commitment to public interest legal service, along with strong lawyering skills, are required. Hawai‘i State Bar membership is desired but not required. Salary is in the range of $60,000$70,000, with a generous benefit package. For more information and to apply go to https://thelegalclinichawaii.org/jobs/.

EXPERT WITNESS CONSTRUCTION, 30 yrs; P.E., MS/BS Civil Eng’g, CCM, CEP; excellent written/oral comm; utilities, road, bridge, treatment plant, pump station, transit, multi-story; claims, scheduling, estimating; sj@sjcivil.com, 808-271-5150. COLLISION RECONSTRUCTION EXPERT, serving all the Islands: 40 years experience, qualified as expert in state and federal courts. John H. Meserve, CRS. (808) 450-5555 jhmeserve@gmail.com CONSTRUCTION DEFECTS, contractor issues, premises liability, real estate disclosure. AOAO, Landlord/Tenant and mold disputes

National Building Expert. Best Selling Author. www.expertwitness.now.site 808-422-2132 PPREMISES SECURITY EXPERT Case Evaluation • Expert Witness • 45 Expert Retentions • Court-Qualified in Hawaii 1st, 2nd & 5th Circuits • Consulting (surveys, documents, procedures, design) Albert B. “Spike” Denis, CPP, CFE. Pacific Security Group LLC. 1050 Bishop Street, Suite 303, Hono, HI 96813. Spike@psghawaii.rr.com Tel:808.224.4559 REAL ESTATE: Over 45-years as a Developer, Broker, Builder and Realty Advisor. HI Broker’s License, MBA/USC, extensive development and brokerage background. Seasoned real estate veteran with substantial “Real-World” experience and proven Trial testimony. Web: www.castlelyonshawaii.net. Watch 1-minute video. Call Michael K. Ryan, President, CastleLyons Corp. -- 808.282.4059. REAL ESTATE/PROPERTY MGMT/AOAO expert. See www.jurispro.com. Search for “Griswold”. Robert S. Griswold, CRE, CPM, CCIM, PCAM, CCAM, GRI, ARM. www.griswoldremgmt.com (858) 597-6100

LEGAL CONSULTING LEGAL NURSE CONSULTING Assistance in managing the medical aspects of your case. Legal Nurse Consulting, Life Care Planning, & Workers’ Compensation Nurse Case Management. Cynthia L. Fricke, RN, BSN, CCM, CLCP. (808) 253-0232. www.islandlegalnurse.com frickec001@hawaii.rr.com

OFFICE SPACE OFFICE SPACE in the Historic Hawaii Times Bldg 928 Nu’uanu Ave. 290 sq ft furnished, Available now. Call or email 808-534-1040 jslawsky@1stallied.com AVAILABLE -Immediately. Located in Waterfront Plaza, Executive Suite. Two window offices (1 or both). 2 secretary carrels, storage closet available too. Includes use of conference room, kitchen, reception area. Shared law/CPA office. Ample parking. Call Scott @ 295-9577. Hawaii Kai Office Space to Share. Fully equipped and furnished. Two window offices , two secretarial work stations ,reception, storage and parking and Referral opportunities . 808-741-6205

RECRUITING / TEMP STAFFING HiEmployment is Hawaii's best choice for finding top legal talent. Professional recruiting and temp staffing services available. 695-3974. email: info@hi-employment.com