Hawaii Bar Journal - June 2019

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ARTICLES 44

by Honorable Simeon R. Acoba, Jr.

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OF NOTE

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Privacy in the Constitutions, Carpenter and Walton: Confluence and Divergence

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Privacy in the Constitutions, Carpenter and Walton:

Confluence and Divergence

by Honorable Simeon R. Acoba, Jr. Introduction The United States Supreme Court and the Hawai‘i Supreme Court recently have grappled with technology-related incursions on the right of privacy. The United States Supreme Court continues to shape the privacy contours of the United States Constitution’s Fourth Amendment1 in light of technological advances. See Carpenter v. United States, 138 S. Ct. 2206 (2018). On the other hand, the Hawai`i Supreme Court is situated to apply the state’s counterpart provision in article I, section 7 of the Hawai‘i Constitution to changes brought about by technology, 2 In Carpenter, the United States Supreme Court held that a cell-phone user had a constitutional right of privacy in certain cell phone information that had tracked his physical movements when he used his phone. In doing so, the Court rejected the application of the “third-party doctrine” to cell phone tracking data that had been stored by cell phone service providers. The third-party doctrine provides that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Carpenter, 138 S. Ct. at 2216 (quoting Smith v. Maryland, 442 U.S. 735, 743-44 (1979)).

Prior to the Carpenter decision, the Hawai‘i Supreme Court addressed the issue of privacy in light of technological impacts in State v. Walton, 133 Hawai’i 66, 91-102 (2014) [hereinafter, Walton].3 Walton was among the cases cited in support of Carpenter’s position on certiorari.4 Additionally, modification of the third-party doctrine in the context of stored cell phone information had been proposed with the suggestion that “[a] good example for the [U.S. Supreme] Court to follow is the Hawaii Supreme Court’s decision in State v. Walton.” See Carlos Aquilar, Privacy or Private: A New Age Look at Old School Privacy Laws, 53 Cal. W. L. Rev. 85, 117 (Fall 2016). The “factors [in Walton] regarding whether a person is entitled to reasonable privacy expectations under the thirdparty doctrine . . . allow for a flexible third-party doctrine where electronic in-

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formation is stored on equipment owned by a private service provider.”5 The following discussion is divided into six major parts: (A) the tenets of the Carpenter decision, (B) the precedential course of Carpenter, (C) an alternative formulation of the third-party doctrine, (D) the future of the Carpenter decision, (E) the interrelationship of the Carpenter and Walton decisions, and (F) the conclusion. Parts (B) and (E) each discuss four topics: (1) the state of the third-party doctrine, (2) the extension of an individual’s privacy protection in third-party property, (3) the expansion of privacy protection to subpoenas duces tecum and compulsory process in criminal and civil proceedings, and (4) the competing views of the “warrant clause” and “reasonable search” clause in the Fourth Amendment.

A. The Tenets of the Carpenter Decision In Carpenter, the United States Supreme Court held that a cell-phone user had a legitimate expectation of privacy in certain information contained in business records of his cell phone service providers. See Carpenter, 138 S. Ct. at 2223.

The information disclosed the location and duration of calls made to him and by him (referred to as cell-site location information, or “CSLI”) over a period of approximately four months. See id. at 2212. The records were introduced at trial to establish the user’s proximity in distance and time to the sites of federal

Exceptional Experience, crimes for which the user was eventually convicted. The government obtained the records under a court order authorized by the Stored Communications Act (“SCA”), 18 U.S.C. § 2703 (2012). The order was based on “‘specific and articulable facts showing that there are reasonable grounds to believe’ that the records sought ‘are relevant and material to an ongoing criminal investigation.’” Carpenter, 138 S. Ct. at 2212 (quoting 18 U.S.C. § 2703(d)).

The SCA also authorized a court to issue a warrant for the records based on probable cause. See 18 U.S.C. § 2703(c)(1)(A).6 Apparently a warrant was required to access records stored for 180 days or less, and a court order sufficed for records stored for more than 180 days. See § 2703(a). The SCA indicated that the states could follow their own court procedures for issuance of a comparable state court order or of a state warrant. See § 2703 (c)(1)(A).

A majority of the Supreme Court held that the third-party doctrine did not extend to the CSLI data. Rather, the Court applied the probable cause warrant requirement under the Fourth Amendment to the records of the service providers, invalidating the reasonable grounds basis as insufficient to justify the search of CSLI data. See Carpenter, 138 S Ct. at 2221. The warrant requirement would also apply to privacy material sought to be obtained through compulsory process because such process was analogous to the SCA court order issued in Carpenter.

1. The Sixth Circuit Court of Appeals Decision Carpenter appealed to the Sixth Circuit Court of Appeals following his conviction, contending that his pretrial motion to suppress use of the CSLI records at trial was wrongfully denied. See United States v.

Carpenter, 819 F.3d 880, 884 (6th Cir. 2016).7 The Sixth Circuit focused on whether the government’s acquisition of cell-site data from business records of defendants’ wireless carriers under the “rea-

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sonable grounds” court order should have proceeded instead under a Fourth Amendment search warrant based on probable cause. Id. at 886.

At the outset, the Sixth Circuit recognized that “the Supreme Court [had] moved beyond a property-based understanding of the Fourth Amendment, to protect certain expectations of privacy . . . [that] satisfy ‘a twofold requirement’: first, the person asserting it must ‘have exhibited an actual (subjective) expectation of privacy’; and second, that expectation must ‘be one that society is prepared to recognize as ‘reasonable.’” Id. at 866. (quoting Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring)). When this two-fold requirement is satisfied, “government action that ‘invade[s]’ the expectation normally counts as a search.”

Carpenter, 819 F.3d at 886 (quoting Smith v.

Maryland, 442 U.S. 735, 740 (1979)).

The Sixth Circuit declared that the “Fourth Amendment protects the content of the modern day letter, the email” but not “the internet analogue to envelope markings, . . . used to route internet communications like . . . addresses on an email, or IP addresses.” Carpenter, 819 F.3d at 887. Cell-site data, like mailing or IP addresses, “facilitate personal communications” but are not “part of the content of those communications themselves,” and thus collection of the data was “not a search” subject to the warrant clause of the Fourth Amendment. Id. The Sixth Circuit relied heavily on Smith v. Maryland, 442 U.S. 735 (1979).

Smith had upheld the government’s warrantless use of pen registers to monitor phone numbers of calls made by the defendant. A telephone user was “charged . . . with knowledge that ‘the [third-party] phone company does in fact record this information for . . . legitimate business purposes.’” Carpenter, 819 F.3d at 888 (quoting Smith, 442 U.S. at 743). Under this “thirdparty doctrine,” see United States v. Miller, 425 U.S. 435, 443 (1976), the user was said to have “voluntarily conveyed” these numbers to a third party—the phone com-

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pany—and thus had forfeited the privacy protection of the Fourth Amendment. Carpenter, 819 F.3d at 888 (quoting Smith, 442 U.S. at 744). Similarly, here the information collected only related to the “means of establishing communication,” recorded when “the defendants’ cellphones signaled the nearest cell towers.” Carpenter, 819 F.3d at 888. Further support was derived from Miller, for the proposition that “business records obtained from a third party . . . can only diminish the defendants’ expectation of privacy in the information.” Carpenter, 819 F.3d at 889 (citing Miller, 425 U.S. at 443).

The Sixth Circuit distinguished United States v. Jones, 565 U.S. 400 (2012). In Jones, the government’s warrantless attachment of a GPS device to the defendant’s vehicle to record his movements was held a trespass violative of the warrant requirement.

See Carpenter, 819 F.3d at 888-89; see also Jones, 565 U.S. at 404. The GPS device was perceived as much more precise than the cell-phone tracking system of cell phone towers. See Carpenter, 819 F.3d at 889. The Sixth Circuit also distinguished Riley v. California, 134 S. Ct. 2473 (2014), which had held that the contents of a defendant’s cell phone could not be accessed without a warrant. See id. at 2485. Riley was inapposite because the amount of data collected was said to be voluminous in comparison to that in the instant case. See Carpenter, 819 F.3d at 889; see also Riley, 134 S. Ct. at 2485.

Alluding to the expectation formula in Katz v. United States, 389 U.S. 347 (1967), the Sixth Circuit opined that Congress, as representative of society, might have determined that the “reasonable grounds” standard under the SCA was a “middle ground” between probable cause and no standard at all, and thus “reasonable.” Carpenter, 819 F.3d at 889-90 (citing Smith, 442 U.S. at 740, and Katz, 389 U.S. at 361).

Further, leaving the SCA intact was favored because Congress was “better equipped” than the courts “to answer empirical questions” raised by new technologies. Carpenter, 819 F.3d at 890.

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The concurrence in the Sixth Circuit decision posed the question, not mentioned by the majority, of “whether [the collection of CSLI data] should have been sought through provisions of the SCA directing the government to obtain a warrant with a probable cause showing [under] 18 U.S.C. § 2703(c)(1)(A), or a court order based on the specified reasonable grounds [under] 18 U.S.C. § 2703(c)(1)(B), (d).” Carpenter, 819 F.3d at 894 (Stranch, J., concurring) (internal quotations omitted). Assuming there was a Fourth Amendment violation, the concurrence would apply a good-faith exception8 to the warrantless search absent intentional police misconduct, in CSLI-type cases. See id. at 896.

2. The Majority Opinion in Carpenter on Certiorari On certiorari to the United States Supreme Court, Chief Justice Roberts, writing for the five-justice majority, reversed the Sixth Circuit Court of Appeals.

See Carpenter, 138 S. Ct. 2206. The majority held that under the Fourth Amendment, a warrant supported by probable cause is required to obtain information from a third party’s business records that tracked an individual’s movements. See id. at 2220-23. This mandate applied except in situations of exigent circumstances. See id. In footnote three of the majority decision, the Court said that it was “sufficient for [its] purposes today . . . that accessing seven days of CSLI constitutes a Fourth Amendment search” that would require a warrant. Id. at 2217 n.3.

The Chief Justice reasoned that under Katz, certain expectations of privacy were protected by the Fourth Amendment, see id. at 2213 (citing Katz, 389 U.S. at 351), and government intrusion into a “sphere” of privacy was a search requiring a warrant. See Carpenter, 138 S. Ct. at 2213 (citing Smith, 442 U.S. at 740). The majority of the Court had already recognized an individual’s expectation of privacy in his physical movements, see Carpenter, 138 S. Ct. at 2217 (citing Jones,

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565 U.S. at 415 (Sotomayor, J., concurring); id. at 430 (Alito, J., concurring)). Society’s reasonable expectation was that the police could not monitor such movements for a long period of time even if “disclosed to the public at large,” that 127 days of mapping such movements would contravene the expectation of privacy in physical movements, and that such impermissable monitoring would reveal a person’s “familial, political, professional, religious, and sexual associations.” See Carpenter 138 S. Ct. at 2215, 2217 (quoting Jones, 565 U.S. at 415) (Sotomayor, J., concurring).

The third-party doctrine “notion” was that there was no reasonable expectation of privacy in information that was voluntarily shared, even if the information was assumed to be shared for a limited purpose. See Carpenter, 138 S. Ct. at 2216 (citing Miller, 425 U.S. at 443). Thus, the government could obtain such information without any Fourth Amendment restrictions. Similarly, Smith had held that the defendant had voluntarily conveyed the numbers of telephone calls to the telephone company and thus assumed the risk the company would divulge the numbers to the police. See Carpenter, 138 S. Ct. at 2216 (citing Smith, 442 U.S. at 745).

Because Carpenter’s cell phone locations were revealed to the carriers during his use of his cell phone, Smith and Miller were implicated. See Carpenter 138 S. Ct. at 2216.

The “root” of the third-party doctrine was traceable to Miller, in which a subpoena duces tecum for bank records had withstood a privacy objection under the Fourth Amendment.

See Carpenter, 138 S. Ct. at 2216 (citing Miller, 425 U.S. at 440). The Court also noted, however, that Miller was an exception to the proposition that the Court had never held that compulsory process for documents was not subject to the Fourth Amendment. See Carpenter, 138 S. Ct. at 2221-22.

Inferentially, then, the Fourth Amendment would apply to “subpoenas to third parties for records in which the suspect has a reasonable expectation of privacy.” Id. Notably, the CSLI provided “near perfect surveillance” similar to an ankle monitor, the storage of the past data allowed retrospective collection of information, and unlike in Jones, the target of the surveillance did not have to be known in advance. Carpenter 138 S. Ct. at 2218.

Further the technology was “approaching GPS-level” accuracy. Id. at 2219.

CSLI allowed the government to invade the individual’s expectation of privacy in “the whole of his physical movements.” Id. In light of

this “unique nature” of CSLI, the majority held the thirdparty doctrine of Smith and Miller would not be “extended” to such data. See id. at 2217. Moreover, the fact that the information was possessed by a third party would not overcome an individual’s expectation of privacy in the record of physical movements captured. See id.

Applying Katz, the Chief Justice posited that objectively, the expectation that law officers would be capable of conducting surveillance to the extent indicated in the CSLI records would not be accepted by society as reasonable. See id. Thus, the extensive collection of such data outside of that expectation was an intrusion into Carpenter’s sphere of privacy that amounted to a search under the Fourth Amendment.

Inasmuch as the “acquisition of Carpenter’s CSLI was a search . . . the Government must generally obtain a warrant supported by probable cause before acquiring such records.” Id. at 2221. Although “reasonableness” is the “ultimate measure of . . . a governmental search,” the Chief Justice declared that “warrantless searches are typically unreasonable,” id. (internal quotations omitted) (quoting Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 652-53 (1995)), and “[i]n the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement.” Carpenter, 138 S. Ct. at 2221 (alteration in original) (quoting Riley, 134 S. Ct. at 2482).

One such exception is “the exigencies of the situation,” Carpenter, 138 S. Ct. at 2222 (quoting Kentucky v. King, 563 U.S. 452, 460 (2011) (quoting Mincey v. Arizona, 437 U.S. 385, 394 (1978))). Nevertheless, ‘[i]n light of the deeply revealing nature of CSLI” that “such information is gathered by a third party does not make it any less deserving of Fourth Amendment protection.” Carpenter, 138 S. Ct. at 2223.

3.

The Dissents Justice Kennedy maintained that the majority “holds for the first time that by using compulsory process [(in the form of the SCA court order)] to obtain records of a business entity, the Government . . . has conducted a search of the business’s customer[;] the search . . . was unreasonable and the Government needed to get a warrant to obtain more than six days of cell-site records.” Id. at 2224 (Kennedy, J., dissenting). For Justice Kennedy, “the only question to

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decide is whether the Government searched anything of Carpenter’s,” id. at 2226, because “the [Fourth Amendment] text . . . protects only a person’s own” matters. Id. at 2227. He would have the case decided on “accepted property principles as the baseline for reasonable expectations of privacy” such as whether the Government searched “anything over which Carpenter could assert ownership or control.”

Id. at 2235. Further, assuming a search took place, “the proper resolution [would have been] to determine. . . whether the search was reasonable.” Id. Justice Thomas similarly asserted that the case “should turn on whose property was searched.” Id. (Thomas, J., dissenting) (emphasis in original). He pointed out that the “Government did not search Carpenter’s property[;] [t]he records belong to [the service providers] MetroPCS and Sprint.” Id. Nevertheless, he found “[t]he more fundamental problem . . . is [the majority’s] use of the ‘reasonable expectation of privacy’ test” from Katz. Id. at 2236 (citing Katz, 389 U.S. at 360-61 (concurring opinion). According to Justice Thomas, “the Katz test departs . . . from the text of the Fourth Amendment [and] also has proved unworkable in practice.” Carpenter, 138 S. Ct. at 2244 (Thomas, J., dissenting).

Justice Alito maintained that the majority had ruled contrary to the precedent in Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186 (1946). Oklahoma had held that in the compulsory production of documents, “a showing of probable cause [under the Fourth Amendment] was not necessary so long as” the inquiry was “authorized by law” and “relevant.” See Carpenter, 138 S. Ct. at 2255 (quoting Oklahoma, 327 U.S. at 209). For Justice Alito, “[t]reating [the SCA court] order to produce like an actual search … is revolutionary.” Carpenter, 138 S. Ct. at 2247 (Alito, J., dissenting). He questioned whether as a result, “every grand jury subpoena duces tecum [must] be supported by probable cause” and whether “investigations of . . . many . . . offenses . . . will be stymied” and “subpoenas and other docu-

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ment-production orders issued by administrative agencies” affected. Id. Second, Justice Alito noted that the “the Court allows a defendant to object to the search of a third party’s property,” and “[t]his also is revolutionary.” Id. Simply, the “Fourth Amendment does not apply to the compulsory production of documents, a practice that involves neither any physical intrusion into private space nor any taking of property by agents of the state.”

Id. at 2251. He agreed with Justice Kennedy that “Miller and Smith are thus best understood as placing ‘necessary limits on the ability of individuals to assert Fourth Amendment interests in property to which they lack a “requisite connection.”’” Id. at 2260 (quoting id. at 2227 (Kennedy, J., dissenting)). Justice Alito concluded, that “Carpenter indisputably lacks any meaningful property-based connection to the cell-site records owned by his provider.” Id. at 2260 (Alito, J., dissenting).

Relying on the text of the Fourth Amendment, Justice Alito emphasized that the majority “never explains how its decision can be squared with the fact that the Fourth Amendment protects only ‘[t]he right of the people to be secure in their persons, houses, papers, and effects.’” Id. (alteration and emphasis in original). He declared that Carpenter’s impact may be that “[a]ll subpoenas duces tecum and all other orders compelling the production of documents will require a demonstration of probable cause, and individuals will be able to claim a protected Fourth Amendment interest in any sensitive personal information about them that is collected and owned by third parties.” Id. at 2260-61.

Justice Alito offered that “[t]he other possibility is that [the] Court will [have to] explain in case after case that [Carpenter is] subject to all sorts of qualifications and limitations that have not yet been discovered.” Id. at 2261. This alternative “will inevitably end up ‘mak[ing] a crazy quilt of the Fourth Amendment.’” Id. (quoting Smith, 442 U.S. at 745).

Justice Gorsuch read the majority opinion as “suggest[ing] that Smith and

Miller distinguish between kinds of information disclosed to third parties and require courts to decide whether to ‘extend’ those decisions to particular classes of information, depending on their sensitivity.” Carpenter, 138 S. Ct. at 2262 (Gorsuch, J., dissenting) (emphasis in original). Smith and Miller did not set forth a balancing test but “a categorical rule” that once information is disclosed to third parties, “any reasonable expectation of privacy you might have had in it” is forfeited. Id. Acknowledging that sometimes people do reasonably expect that information entrusted to third persons will be kept “secret,” id., Justice Gorsuch would nevertheless “look to a more traditional [property-based] Fourth Amendment approach” because “Katz . . . has never been the only way” “to prove a Fourth Amendment interest,” id. at 2272.

B. The Precedential Course of Carpenter 1. The State of the ThirdParty Doctrine The majority did not overrule the third-party doctrine or Smith and Miller.

See id. at 2220 (“We do not disturb the application of Smith and Miller.”). Although Carpenter was apparently analogous to those two cases, the majority’s refusal to “extend” the third-party doctrine seemingly limited the scope of the doctrine. Consequently, the decision left uncertainty as to how practitioners and the courts are to determine whether Smith and Miller or Carpenter should apply in any given situation.

The dissenters viewed the doctrine as designating who could assert the Fourth Amendment’s protection as evidenced by the Amendment’s reference to “their person, home, papers, and effects,” (emphasis added). The Amendment’s text established a property-related baseline to qualify an individual for protection, the question being, as Justice Thomas declared, “whose property was being searched?” Id. at 2235 (Thomas, J., dissenting). Because Carpenter had no property interest in the CSLI records he was not entitled to claim coverage under the Fourth Amendment. By

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All forms should be submitted no later than 4:30 p.m., June 30, 2019, to receive full consideration for the above-stated period. Late submittals that meet all applicable criteria will be accepted, but will only be available for consultant selections conducted after the submittals have been reviewed and the service category qualification(s) determined.

severing the “connectedness” between the person asserting the Fourth Amendment claim and a property interest in the CSLI records, the majority, in Justice Alito’s view, had failed “to square” its decision with the language of the Amendment.

In Justice Gorsuch’s assessment, the doctrine is now on “life support,” id. at 2272 (Gorsuch, J., dissenting). A close reading of the majority opinion may not necessarily yield that conclusion. Taken at face value, the Chief Justice preserved the precedential standing of Smith and Miller but did not apply it to CSLI records because the records’ “unique” “detailed chronicl[ing] of a person’s physical presence” that might be “compiled every moment . . . over several years,” “implicate[d] privacy concerns far beyond” those present in Smith and Miller. Id. at 2220. The reformulation of the thirdparty doctrine, then, may extend only to information that is of a CSLI-like nature. In much the same vein, Justice Gorsuch believed the task of the courts after Carpenter is to route cases either to a Smith and Miller or Carpenter analysis based on the characteristics of the information involved. See id. at 2262 (Gorsuch, J., dissenting).

tion,” and Miller involved “checks that were not confidential communications [but] were used in commercial transactions.” Id. at 2219.

While the foregoing indicia offer some clues for future cases, the indicia are not definitive guideposts for practitioners or courts and may invite yet unforeseen qualifications, as noted by Justice Alito. Such indicia may also bear on whether information sought by subpoenas duces tecum or other compulsory process would qualify for warrant protection. In apparent response to Justice Alito’s claim that the decision will broadly affect all compulsory process, the Chief Justice pledged that Carpenter would apply only, “in the rare case where the suspect has a legitimate privacy interest in the records.” Id. at 2222.

No further explanation is offered, however, for why an individual’s legitimate privacy concerns would be encountered only rarely in subpoena or compulsory document processes. One inference to draw is that despite the broad statement that the Fourth Amendment would apply to compulsory document production, the uniqueness of CSLI-like material would be pivotal in determining whether the Amendment applied.

Thus, aside from the characteristics of CSLI, the Chief Justice left few clues as to the precedential reach of Carpenter, except that the decision was a “narrow one.” Id. at 2220.

The Chief Justice also maintained that the “‘nature of the particular documents sought’” was an additional determining factor.

a. The Nature of the Carpenter Privacy Interest The Chief Justice attempted to limit the scope of the decision by tailoring it to the distinct characteristics of CSLI. Expressly excluded from the decision’s coverage were “conventional surveillance techniques and tools, such as security cameras,” “business records that might incidentally reveal location information,” and “other collection techniques involving foreign affairs or national security.” Id. at 2220.

As indicated before, CSLI was described as “unique” in its detailed chronicling of an individual’s movements. Id. CSLI data was “deeply revealing” by virtue of its “depth, breadth, and comprehensive reach,” and characterized by “the inescapable and automatic nature of its collection.” Id. at 2223. Differentiating CSLI from other data, the Chief Justice contended that CSLI is “an entirely different species of business record that implicates concerns about arbitrary Government power.” Id. at 2222.

The Chief Justice also maintained that the ‘“nature of the particular documents sought”’ was an additional determining factor. Unlike the location data in Carpenter which “had no comparable limitations,” Smith involved “telephone logs [that] reveal[ed] little in the way of identifying informa-

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b. The Seven-Day Warrant Threshold The Court acknowledged the parties’ alternative suggestions for limiting the period in which the government might acquire CSLI without being subject to “Fourth Amendment scrutiny” (24 hours for Carpenter and seven days for the United States). In response to the suggestions and to Justice Kennedy’s dissent, the Chief Justice answered that the majority “need not decide whether there is a limited period… and if so, how long that period might be.” Id. at 2217 n.3. Nonetheless he did declare, that it “is sufficient . . . to hold that accessing seven days of CSLI constitutes a Fourth Amendment search.” Id. This was interpreted by the dissenters as permitting six days of surveillance or accumulation of data free of a probable cause determination. See, e.g., id. at 2234 (Kennedy, J., dissenting). It is difficult to rebut Justice Kennedy’s observation that “the [majority] does not explain why that is so, and nothing in its opinion even alludes to the considerations that

should determine whether greater or lesser thresholds should apply to information like IP addresses or website browsing history.” Id. In seemingly drawing the government’s free acquisition line at six days before a warrant must be obtained, the Court may be establishing the length of time society would reasonably expect that law enforcement agents would be capable of conducting surveillance of an individual. Although the Court did not say so, this would answer the question posed by Justice Sotomayor and Justice Alito in Jones. See Jones 565 U. S. at 415 (Sotomayor, J., concurring) (stating that the “longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy”) 430 (Alito, J,. concurring) (the court need not identify at what point GPS tracking of defendant’s vehicle became a search, except that four weeks exceeded society’s expectation of

the time police could secretly conduct surveillance). While this would settle the issue as to similar case facts involving CSLI in the future, the seven-day threshold fails to provide guidance for other instances in which similar data may be collected or obtained, as Justice Kennedy points out. See Carpenter, 138 S. Ct. at 2234. (Kennedy, J., dissenting).

Additionally, accepting the majority’s premise that such data would disclose the privacies of life, it would be difficult to justify a particular time period during which warrantless surveillance may take place.

Arguably, such privacies could be revealed in a day’s monitoring. See Jones, 565 U. S. at 415 (Sotomayor, J., concurring) (observing that “even short-term...GPS surveillance” may record “trips [of an] indisputably private nature”).

Finally, in the past, the Court has simply drawn arbitrary temporal limits in the absence of any guidance in the United

States Constitution. See, e.g., United States v. Banks, 540 U. S. 31, 39 (2003) (15 to 20 seconds is a reasonable amount of time for police to wait for a response before forcible entry to execute a warrant); Maryland v.

Shatzer, 559 U. S. 98, 110 (2010) (a twoweek break in custody between defendant’s invocation of his right to counsel and a request for re-interrogation by the police is sufficient to validate a waiver of counsel at a subsequent interrogation).

Until the underlying basis for the seven-day threshold is explained, practitioners and courts will be bereft of guidance from the Court in non-CSLI cases, except for the threshold. Of course, the seeming reciprocal effect of the ruling in future cases is that under Carpenter, CSLI data and conceivably, CSLI-like data, collected over a period of not more than six days, may be acquired by the government without a warrant.

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2. The Extension of an Individual’s Privacy Protection in Third-Party Property Carpenter held that the government generally will need a warrant to access an individual’s private information “in records held by a third party” (although according to the Chief Justice, this will be a rare occurrence). Carpenter, 138 S. Ct. at 2222. The Chief Justice did maintain that “property rights are not the sole measure of Fourth Amendment violations.” Id. at 2213 (citing Soldal v. Cook County, 506 U.S. 56, 64 (1992)). Indeed, the Court had “expanded [its] conception of the [Fourth] Amendment to protect certain expectations of privacy as well.” Carpenter, 138 S. Ct. at 2213 (citing Katz, 389 U. S. at 351). Despite that, as recounted supra, Carpenter’s lack of a property-related connection to the cell service providers’ records greatly animated the dissenters against this aspect of the Court’s holding.

For the majority, the intrusive nature of the surveillance apparently was paramount. Much as the third-party doctrine would not overcome Carpenter’s expectation of privacy in the extensive cell-site records, apparently neither would Carpenter’s lack of a property interest in the providers’ records. See Carpenter, 138 S. Ct. at 2221.

Plainly, the Chief Justice treated the legitimate expectation of privacy in the information as pivotal, overriding both the third-party doctrine and the subpoena doctrine, with respect to CSLI, and inferentially, CSLI- like matters in the future.

3. The Expansion of Privacy Protection to Compulsory Process in Criminal and Civil Proceedings The “subpoena doctrine” issue as stated by Justice Alito is that the SCA court order in Carpenter “was the functional equivalent of a subpoena for documents, and there is no evidence that these writs were regarded as ‘searches’ at the time of the founding [of the nation].”

Carpenter, 138 S. Ct. at 2247 (Alito, J., dissenting). Justice Alito contended that subpoenas duces tecum have not been and should not be subject to Fourth Amendment scrutiny because they do not involve “the many incidental invasions of privacy that necessarily accompany any actual search.” Id. at 2252.

As noted, the Chief Justice responded with what appears to be a principal corollary of the Carpenter decision; that except for Miller, the “Court has never held that the Government may subpoena third parties for records in which the suspect has a reasonable expectation of privacy.” Id. at 2221-22. According to the Chief Justice, Justice Alito’s opposing position would deprive individuals of

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Fourth Amendment protection for “any personal information reduced to document form,” thus allowing collection of such information “for no reason other than ‘official curiosity.’” Id. at 2222 (citing United States v. Morton Salt Co., 338 U.S. 632, 652 (1958)). The general premise adopted in Carpenter, then, is that government subpoenas duces tecum or compulsory process must satisfy a probable cause standard under the Fourth Amendment, if an expectation of privacy attaches to the material involved.

The initial scope of Fourth Amendment protection as laid out by the Chief Justice ostensibly is a broad one: coverage extends to any personal information in document form that manifests a legitimate expectation of privacy. In response to Justice Alito, the Chief Justice endorsed the premise implicit in Justice Kennedy’s query of “whether the warrant requirement applies ‘when the Government obtains the modern-day equivalents of an individual’s own “papers” or “effects,” even when . . . held by a third party.’” Carpenter, 138 S. Ct. at 2222. In favoring this principle as “a sensible exception” to the “subpoena doctrine,” the Chief Justice posited that if the third-party doctrine does not apply to “‘modern-day equivalents . . . of “papers” and “effects,”’ then the clear implication is that the documents should receive full Fourth Amendment protection.” Id. (emphasis added). That proposition presages that for the majority Justices, contemporary analogues of the Fourth Amendment’s “papers” and “effects” would receive warrant protection, even if obtained by way of a documents subpoena issued to third parties.

Justice Alito had also asserted that “holding the compulsory production of documents to the same standard as actual searches and seizures would cripple the work of courts in civil and criminal cases alike.” Id. at 2252 (Alito, J., dissenting). It seems incontrovertible that subjecting subpoenas duces tecum to Fourth Amendment scrutiny may affect the viability of subpoenas issued by grand juries and by government agencies in criminal and civil proceedings, as Justice Alito maintains.

Subpoenas for documents involving an individual’s personal or private information could be held to the higher constitutional burden of probable cause and be challenged for any perceived failure to meet that quantum of proof. For example, government subpoenas or compulsory process in civil proceedings would be subject to the Fourth Amendment. Thus, persons whose personal data are subpoenaed from third parties may have a potential Fourth Amendment objection or defense. See Soldal, 506 U.S. at 71 (stating that the Fourth Amendment applies to civil, non-criminal proceedings, subject in each case to a “reasonableness . . . standard” that reflects a “careful

balancing of governmental and private interests”).

Recipients of such subpoenas or process may include private companies or parties, such as the thirdparty cell phone service providers in Carpenter. These third parties could become entangled in administrative or judicial proceedings brought by individuals or parties, or convened by an agency or a court to determine whether the subpoenaed material should be disclosed.

Further, Justice Kennedy cautioned that the “imposition of the warrant requirement obscures important and difficult issues, such as . . . how the Fourth Amendment’s reasonableness requirement should apply when the Government uses compulsory process instead of engaging in an actual, physical search.”

Carpenter, 138 S. Ct. at 2235 (Kennedy, J., dissenting).

In the absence of any definitive procedure set forth by the Court, a search warrant could issue in place of a subpoena duces tecum or as noted before, such a subpoena may be held to a probable cause standard.

In that regard, it is likely that the warrant and the requisite probable cause standards in non-criminal proceedings would not be the same as in criminal investigations or cases. Compare Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 538-39 (1967) (holding that in an administrative agency search of private premises by municipal health and safety inspectors, probable cause under the Fourth Amendment is determined by the search’s constitutional reasonableness). In this context, the application of the “reasonableness” standard would “balanc[e] the need to search against the invasion which the search entails.” Id. at 536-37. Accordingly, “[i]f a valid public interest justifies the intrusion contemplated, then there is probable cause to issue a suitably restricted search warrant.” Id. at 539.

With respect to the foregoing considerations, the Chief Justice did describe Carpenter as a narrow decision, emphasizing the nature of CSLI. In future cases, then, it would be consistent with the decision to compare the unique characteristics of CSLI to the material subpoenaed or sought to be subpoenaed. The similarities between the two may be determinative of whether, as in Carpenter, a warrant must be issued to obtain access to such material (although such characteristics are unsatisfactorily indefinite to the dissenters). Accordingly, if courts and parties hew to the CSLI indicia laid out in Carpenter, presumably, challengers of such subpoenas may have to demonstrate that the subpoenaed information shared substantially similar characteristics and thus justified warrant protection.

Such limits may not apply if CSLI characteristics are not controlling.

CONTINUED IN THE NEXT ISSUE __________________ 1

The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. CONST. art. IV. 2

Article I, section 7 of the Hawai‘i Constitution provides as follows: The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches, seizures and invasions of privacy shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized or the communications sought to be intercepted.

HAW. CONST. art. I, § 7.

3

“Walton” as referred to herein is limited to that part of the State v. Walton Opinion that is Part II, Motion to Suppress, Opinion of the Court

by Acoba, J., with whom McKenna, J., and Pollack, J., joined. (2014).

133 Haw. at 91 et seq.

4

See Brief for Petitioner at 44, Carpenter v. United States, No. 16-402 (U.S. Aug.7, 2017) (citing Walton, at 91).

5

Id.; compare Brief for the Ass’n of the Bar of the City of New York at 21 n.21, Am. Civil Liberties Union v. Clapper, No. 14-42 (2d Cir. Mar. 13, 2014) (citing Walton as repudiating the third-party doctrine).

6

18 U.S.C. § 2703(c)(1)(A) provides, in pertinent part: A government entity may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or a customer of such service (not including the contents of communications) only when the government entity . . . obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures) by a court of competent jurisdiction.

7

Timothy Ivory Carpenter and Timothy Michael Sanders were the defendants who appealed. See Carpenter, 819 F.3d at 884.

8

See United States v. Leon, 468 U.S. 897, 905-26 (1984) (holding that federal courts should not apply the exclusionary rule to evidence obtained by police officers whose reliance on a search warrant was objectively reasonable, even if the warrant was ultimately found to be defective).

Associate Justice Simeon R. Acoba, Jr. (retired) was appointed to the Hawai‘i Supreme Court in May 2000 and retired in March 2014 as mandated by law. The author thanks Audrey Stanley, Matthew Ezer, Micah Acoba, and the Hawaii Bar Journal volunteer editors for their help on this article.

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INTRODUCTION On behalf of the Hawai‘i State Judiciary, I would like to thank the attorneys and judges who participated in the 2018 Civil and Criminal Law Forums. I would also like to thank the Hawai‘i State Bar Association (“HSBA”) Committee on Judicial Administration, and, in particular, cochairs Associate Justice Simeon R. Acoba, Jr. (ret.) and Steven J.T. Chow for organizing the Forums and preparing the resulting reports.

Over 140 members of the bar, bench, and Judiciary administration attended the Forums, which were held in Fall 2018. As with the comments and suggestions from previous bench-bar conferences and forums, the reports of the 2018 Civil and Criminal Law Forums were reviewed and considered by me, our Chief Judges, and the Administrative Director of the Courts. The reports have also been provided to all of our judges.

CRIMINAL LAW FORUM The 2018 Criminal Law Forum featured panel discussions on various court issues affecting the administration of justice.

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Topics covered included Hawai‘i Rules of Penal Procedure Rule 48 dismissals, discovery issues, witness availability, court inclinations on motions, sentencing reforms, use of the risk assessment tools in evaluating defendants for sentencing and release purposes, and many others.

There was also discussion about trial setting on the neighbor islands. First Circuit attorneys noted that trials in neighbor island circuits often are not held on consecutive days, which the panelists explained is because, unlike court calendars in the First Circuit, neighbor island calendars are a mix of criminal, civil, and other matters, such as motions calendars. Because certain days of the week may be busy with non-trial matters, trials in neighbor island circuits cannot always be held on successive days. One participant suggested temporarily using judges from another circuit, or even from the civil calendar, to increase the number of days when criminal trials can be held.

Judges can be temporarily reassigned to fill needs within a circuit, and even to sitin other island circuits, when the situation requires. However, as one panelist noted

during the panel discussion, there are other considerations, such as the availability of support staff for the judge, that make it challenging to consistently use temporarily reassigned judges from other circuits in this fashion.

Additionally, guest speakers and experts from the Department of Health, including the Hawai‘i State Hospital and Adult Mental Health Division, and attorneys from the Department of the Attorney General and Office of the Public Defender led informative sessions on mental health issues that are impacting the courts. There were several recommendations shared for how the courts can assist the mental health assessment process under Chapter 704 of the Hawai‘i Revised Statutes, including a suggestion to standardize court orders from the district, family, and circuit courts.

In response, we have shared the recommendations with the chief judges of each circuit. Leadership from the Office of the Administrative Director of the Courts, the First Circuit, and the Department of Health have been meeting to discuss ways to improve and streamline

THE JUDICIARY-STATE OF HAWAI'I Notice to Attorneys Interested in Providing Legal Counsel Services to the Family Court of the First Circuit for Parents in the Hawai'i Revised Statutes ("HRS") Chapter 587A Proceedings Request for Qualifications (RFQ) No. J20014

The Judiciary, State of Hawai 'i hereby invites licensed attorneys to submit a letter of interest and statement of qualifications to provide legal services on a contract basis as the need arises for the fiscal year commencing July l, 2019. The objective is to provide the Judiciary with legal counsel services for indigent parties that court deems in need of court appointed counsel, who are involved with HRS Chapter 587A proceedings that are heard in the Family Court of the First Circuit. Attorneys will provide Legal Counsel Services for the Family Court of the First Circuit during the period July 1, 2019 through June 30, 2020.

Length of contract The contract term will be for one (I) year from July 1, 2019 to June 30, 2020. Contracts may be extended for an additional two twelve (12) month periods, subject to appropriation and availability of funds, satisfactory performance of services by provider, and as deemed to be in the best interest of the Judiciary.

Compensation Compensation shall be at the rate of One Hundred Forty-Five and 00/100 Dollars ($145.00) per case per month beginning with the date of the attorney's appointment order. Compensation shall not exceed One Thousand Seven Hundred Forty and 00/100 Dollars ($1,740.00) per case annually.

Distribution of cases The Judiciary reserves the right to distribute case assignments based on needs of the court and is not guaranteeing any number of cases to attorneys. The Judiciary will make every effort to distribute cases in a manner in which all attorneys are provided opportunities based on self- imposed maximum limits, total number of cases, and expected number of monthly cases. Court Officers will have full discretion to distribute opportunities ad hoc to serve the court in its best interest.

Maximum number of cases Counsel must state the maximum number of cases they are willing to accept/serve. This maximum number will be considered when evaluating the statements of qualifications and when distributing cases to counsel. At any time counsel may request in writing to Program Specialist, an increase or decrease in the maximum number of cases they will accept/serve.

Statement of qualifications Attorneys interested in and capable of providing these services should submit a letter of interest, together with a statement of qualifications to: The Judiciary-State of Hawaii: Fiscal and Support Services Office: 1111 Alakea Street, Kauikeaouli Hale, Sixth Floor: Honolulu, Hawai'i 96813-2807, Attn: Kelly Kimura. Interested persons may obtain the list of qualifications at the following website: https://www.courts.state.hi.us/fiscal/IFB RFP/FY 2015%20IFB%20RFP. Qualified persons will be added to the Family Court's list of legal counsel for HRS Chapter 587A proceedings.

The Judiciary’s Court Appointed Special Advocates (CASA) Program

is seeking attorneys to provide legal services, including filing/answering motions and representing the program at contested/ dispositional hearings, in cases involving child abuse and neglect. Attorneys will be appointed by the court to represent the program on specific cases and compensation shall be pursuant to HRS § 571-87 at $60/$90 per hour. The CASA program represents the best interest of children who have been abused or neglected and legal representation is sometimes necessary to assure that the children’s best interest and rights are being protected. If you are interested, please email your resume to: amphay.m.champathong@courts.hawaii.gov or contact Amphay Champathong, CASA program manager, at 954-8151.

the mental health examination process.

We have also referred the recommendations to them for consideration.

In addition, in May 2019, a contingent of representatives from the Judiciary and Department of Health attended the 2019 Western Region Summit of the Conference of the Chief Justices and the Conference of State Court Administrators, which was entitled, “Improving the Court and Community Response to Those with Mental Illness.” We look forward to considering ideas suggested by that conference and continuing to work with the Department of Health to find ways to address the mental health challenges facing the state and the justice system. We appreciate the opportunity to collaborate on possible solutions to issues that arise in the future.

The 2018 Criminal Law Forum also included an update on the work of the Criminal Pretrial Task Force. Following the recommendations from the 2016

Judge Daniel R. Foley (ret.) has joined Dispute Prevention & Resolution as a mediator and arbitrator.

Dispute Prevention and Resolution 1003 Bishop Street Suite 1155 Honolulu, HI 96813

Phone: 808.523-1234 www.dprhawaii.com 18 June 2019

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Criminal Law Forum and with support from the Judiciary, the State Legislature passed House Concurrent Resolution 134 (2017), which requested a task force be formed to examine and make recommendations regarding criminal pretrial practices and procedures so as to maximize public safety, court appearances, and pretrial release of accused individuals. The Task Force was chaired by former Circuit Court Judge Rom A. Trader with Judge Shirley M. Kawamura as the reporter. In addition, Task Force membership included a diverse cross section of criminal stakeholders from across the state, including representatives from the Prosecuting Attorney’s Office of each county, Office of the Public Defender, police departments of each county, Department of the Attorney General, Office of Hawaiian Affairs, Department of Health, Department of Public Safety, Hawai‘i Association of Criminal Defense Lawyers, Legislature, and Judiciary. Task Force members met

for more than one year to examine the strengths and weaknesses of the current system and to consider recommendations on ways the system could be improved.

The Criminal Pretrial Task Force completed its report in December 2018 and transmitted it to the Legislature. The final report can be viewed on the Judiciary’s website: https://tinyurl.com/y5s99wge. As a result of the Task Force’s efforts, several pretrial bills were introduced during the 2019 legislative session, and the Judiciary testified in support of each bill that reflected the recommendations of the Task Force. In addition, the Judiciary has taken significant strides to incorporate into its practices several key recommendations of the Task Force that do not require statutory revisions. Since December 2018, this includes: 1) Developing and implementing an electronic text message hearing reminder

system for criminal defendants in district court in the First Circuit, and district and circuit courts in the Second, Third, and Fifth Circuits. The Judiciary is also working with police departments, local public defenders’ offices, and attorneys to increase opportunities for defendants to voluntarily register to receive hearing reminders. Initial results are showing a reduction in the issuance of bench warrants due to non-appearance.

2) Addressing whether a defendant should be detained or released pending trial at a defendant’s initial appearance or at a bail hearing held soon thereafter. This determination also includes an individualized review of each defendant’s financial circumstances and other information that may impact a reasonable amount of bail and appropriate individualized conditions of bail.

3) Revisions to Hawai‘i Electronic Filing

and Service Rule 4.1 and Rule 1 by the Hawai‘i Supreme Court. These revisions allow the Department of Public Safety to expedite transmission of risk assessments and bail reports to the court and counsel through electronic filing.

The Judiciary strongly supports continued improvements in the criminal justice system, including the pretrial process, and welcomes continued collaboration with all criminal justice partners and stakeholders.

CIVIL LAW FORUM The 2018 Civil Law Forum included an in-depth discussion with members of the Civil Justice Improvement Task Force, which is assessing ways to improve the administration of civil justice in Hawaii’s circuit courts.

A 2008 national survey of several thousand members of the American College of Trial Lawyers concluded that

America’s civil justice system “is in serious need of repair . . . it takes too long and costs too much[.]” In response to these concerns, prominent organizations such as the American College of Trial Lawyers, the Institute for the Advancement of the American Legal System, the National Center for State Courts, and the Conference of Chief Justices conducted exhaustive studies on the civil justice system and developed key recommendations for ways it can be improved.

In June 2018, we established Hawaii’s own Civil Justice Improvement Task Force, whose purpose is to develop recommendations, including rule amendments, on ways to reduce the costs of and delays in civil litigation, and to streamline the litigation process in Hawaii’s circuit courts.

The Task Force is chaired by retired Chief Judge of the Intermediate Court of Appeals Craig H. Nakamura with Clare E. Connors and David M. Louie serving as Continued on page 21

Job Opportunities: JOIN THE CITY AND COUNTY OF HONOLULU

The Department of the Corporation Counsel (COR), City and County of Honolulu, is seeking applications from experienced attorneys. COR is the chief legal adviser to and legal representative of the City, thus providing opportunities for a diverse and unique practice.

Applicants must be licensed in Hawaii.

COR represents the City in municipal transportation systems, labor and employment matters, land use and zoning administration and enforcement; complex real estate transactions (negotiated and through eminent domain, real estate leasing and property management); civil litigation; and environmental law and public finance matters.

In particular, COR seeks applications from attorneys with experience in the following areas: • Labor and employment including mediation and arbitration under collective bargaining agreements, grievances, workers’ compensation, and employment litigation.

• Construction contracts and claims.

Submit letter of interest, resume and references to:

Department of the Corporation Counsel City and County of Honolulu Email: cmaki@honolulu.gov Attn: Catherine Maki June 2019

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19

H SBA HAP PE NIN GS HSBA Awards: Nominate a Colleague Nominate a colleague for an HSBA Award that will be presented at the Bar Convention Luncheon on October 11. Please submit nominations to the Awards Committee at nominations@hsba. org no later than July 10. Visit https://bit.ly/2KVw60s for more details.

Openings on HSBF Board and Access to Justice Commission The Hawaii State Bar Foundation (“HSBF”) and the Hawaii Access to Justice Commission (“ATJC”) will have positions expiring in December. General qualifications for these positions include: affirmative interest in the organization; willing and able to devote time to perform necessary duties; conscientious, studious, thorough and diligent in learning methods and problems of the organization. Applicants for the ATJC must also be an active HSBA member who has demonstrated a commitment to and familiarity with access to justice issues in Hawaii.

Duties of an HSBF Board member include setting short-term and long-term strategic goals and directions for the HSBF; fundraising and developing sufficient resources to carry out goals and directions; providing oversight of the HSBF’s finances, grants, programs, and operations; and serving as an emissary in the legal community and beyond for the HSBF and its mission. There are five openings each with a three-year term beginning January 1, 2020.

The ATJC’s primary purpose is to substantially increase access to justice in civil legal matters for low- and moderateincome residents of Hawaii. There are two HSBA representative openings, each with a three-year term beginning January 1, 2020. Neighbor island attorneys and attorneys from law firms with 10 or more attorneys are encouraged to apply. For more details on the Commission’s work, see http://www.hawaiijustice.org/hawaii-access-to-justice-commission.

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Anyone interested in serving in these capacities should submit the following to the HSBA Nominating Committee (nominations@hsba.org) by July 31: a resume, reason for wanting to serve, and area of concentration. Please note that these positions are uncompensated, and that applicants need to disclose all public disciplinary sanctions (or state that there have been no public disciplinary sanctions if such is the case). Appointment will be made at the HSBA Board meeting in November 2019.

Check Your Bar Directory Information for 2019 – 2020 Preparations are being made for information compilation to be sent to the Bar Directory publisher. Between April 1 and June 1, please go to the Online Member Directory at www.hsba.org to review your profile information. If you need to make changes, sign in to your account, scroll down to the “Business Address” section and make the necessary changes.

Please follow these instructions to access your account: Username is JD# and last name.

Example: 1111Smith Password is first three letters of last name (case sensitive) and last four digits of SSN. Example: Smi4321 *Capitalize the first letter of your last name when entering it into your password.

If you are still having trouble accessing your HSBA Account, please use the “forgot my password” or “forgot my username” link and an email with instructions on how to login will be sent to your communications email address.

You can also email webinfo@hsba.org for assistance.

Bar Directory Photo If you want to update your Bar Directory photo or replace the blank gray

box next to your name with a photo, submit your headshot to Adrienne Hayashi at ahayashi@hsba.org.

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Continued from page 19 vice-chairs, and retired Judge Rhonda A. Nishimura serving as the reporter. The 27 members of the Task Force, which include 8 current and retired judges and 19 civil attorneys, were organized into several committees to assess and develop proposals on the following topics: (1) case triage/tiering and other case differentiation measures; (2) case management; (3) discovery; and (4) expedited trials and other innovations.

In addition, reports from prior Civil Law Forums and Bench-Bar Conferences were provided to the Task Force for its review and consideration.

The 2018 Civil Law Forum was held at an opportune time because the Task Force was still in the process of gathering information and in the early stages of formulating recommendations. At the Forum, the Task Force committees were able to present their preliminary proposals, speak to some of the issues being considered, and obtain valuable feedback from Forum participants. A lively, insightful, and productive discussion with the Forum participants ensued. The Task Force had not reached any final decisions on what it would recommend, and Task Force members welcomed suggestions from the Forum participants. During the Forum, the Task Force also passed out a survey which solicited Forum participants to provide their views on Hawaii’s current civil justice system in circuit court and suggestions for possible improvements. The survey was also emailed to all members of the bar after the Forum concluded.

Thank you to everyone who participated in the Forum, completed the survey, or otherwise shared your experiences and thoughts with the Task Force. The Task Force will use the feedback it received in formulating its final recommendations, and it expects to submit its final report later this year.

CONCLUSION In conclusion, I thank all the Forum participants for their commitment to improving the administration of justice in Hawai‘i. The Judiciary looks forward to continued collaboration with the bar on these and other important issues in the years to come.

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The Clerk of Court is appointed by the judges of the District Court for the District of Hawaii. The position is a high-level management position that functions under the direction of the Chief Judge and is responsible for managing the administrative activities of the Clerk’s Office and overseeing the performance of the statutory duties of the office. Currently, the Clerk’s Office employs 42 employees.

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C O URT BR IEF S Chief Judge Ginoza on Island Focus

Chief Judge Lisa M. Ginoza talked about the role of the Intermediate Court of Appeals in the justice system on the April 17 episode of ‘Olelo Community Television’s Island Focus program.

The interview is available on ‘Olelo’s YouTube channel at: https://youtu.be/j4L5q-870OA.

Hawaii Supreme Court Convenes at Kauai Community College

The Hawaii Supreme Court convened at Kauai Community College on April 10 giving more than 300 students the opportunity to observe oral argument in an actual case.

Students from Kula Aupuni Niihau A Kahelelani Aloha (KANAKA) Public Charter School, Kanuikapono Public Charter School, Island School, Kauai High School, Waimea High School, Kapaa High School, and Kauai Community College attended as part of the Judiciary’s Courts in the Community outreach program.

Since 2012, nearly 5,000 students have participated in

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this educational initiative to enhance their understanding of the Judiciary’s role in government.

The court heard SCWC-14-0001135 – In the Matter of BCI Coca-Cola Bottling Company of Los Angeles, Inc. Oral argument was followed by two question-and-answer sessions for the students – one with the attorneys and another with the five justices.

Students studied a curriculum developed by the Kamehameha V Judiciary History Center and the Students for Public Outreach and Civic Education of the University of Hawaii’s William S. Richardson School of Law. Attorneys from the Kauai Bar Association volunteered their time and facilitated a moot court activity where students could argue the case themselves.

The Hawaii State Bar Association (“HSBA”) and the Hawaii State Bar Foundation generously provided the students with lunches and transportation.

“I’ve thoroughly enjoyed participating as a volunteer attorney in the Courts in the Community program, and it was an honor and a privilege to represent the HSBA and attend the oral argument on Kauai,” said HSBA President Derek R. Kobayashi. “Nothing can compare to meeting with the attorneys and teachers, and especially the students, who have diligently prepared to observe this real-life Hawaii Supreme Court argument, and to participate in the program following the argument. The location in Lihue has made this year’s program very special. On behalf of the HSBA, thank you to the volunteer attorneys, teachers, school and court administrators and the students for a successful program. Mahalo nui loa for the gift of warm hospitality and aloha you have given to our Supreme Court and the Hawaii State Bar Association.”

“The Kauai Bar Association appreciates this opportunity to work with our island teachers and students,” said Kauai Bar Association President Emiko L. Meyers. “As attorneys, one of the most beneficial things we can do for our community is share information on how the justice system works. Through the Courts in the Community Program, students gain knowledge and experience that they will use as leaders of tomorrow. The Kauai Bar Association would like to thank everyone who made this day possible, especially the Hawaii Supreme Court, our Kauai Bar Association attorneys, the teachers, school administrators, and the students themselves for being such enthusiastic participants.”

CAS E NOTES Supreme Court Consumer Protection Goran Pleho, LLC v. Lacy, No. SCWC-12-0000025, April 10, 2019, (Recktenwald, C.J. except for the unfair and deceptive trade practices claim, Pollock, J., Recktenwald, C.J. dissenting with whom Nakayama, J., joins). This case required the Hawaii Supreme Court to consider a series of rulings by the trial court in a complex commercial dispute involving the sale of a limousine service. Goran and Ana Maria Pleho purchased Resorts Limousine Services (“RLS”), a Kona-based business, from their acquaintance, Dragan Rnic, in 2005. David W. Lacy, Esq., of the firm Lacy & Jackson LLLC (collectively, “Lacy Parties”), represented Goran and Maria in the transaction. At Lacy’s recommendation, Goran and Maria formed a corporation, Goran Pleho, LLC (“GPLLC”), and the transaction was completed in GPLLC’s name.

Goran and Maria discovered problems with the business several months after the purchase. Goran and Maria, and GPLLC (collectively, “Pleho Parties”), brought the present action in the circuit court, alleging that Rnic and Lacy Parties intentionally misrepresented the value of RLS. Pleho Parties asserted numerous claims against the defendants, including fraud and legal malpractice, and they asked the court to rescind or reform the sale of RLS and award compensatory and punitive damages. Rnic counterclaimed for breach of contract and other counts related to Pleho Parties’ failure to make payments on the purchase price, and cross-claimed against Lacy Parties. After extensive pretrial motions and discovery, Rnic settled all claims with Lacy Parties and

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Appeal Pointer A judgment certified under HRCP 54(b) is not appealable unless the certification language is included in the judgment. Jenkins v. Cades Schutte Fleming & Wright, 76 Hawai`i 115, 119-20, 869 P.2d 1334, 1338-39 (1994).

Pleho Parties. Additionally, the circuit court dismissed or granted summary judgment on most of Pleho Parties’ claims against Lacy Parties prior to trial.

Meanwhile, Goran and Maria filed for bankruptcy in Nevada, which led to a stay of the action in the circuit court for eleven months. Lacy Parties filed a motion in limine requesting that Pleho Parties be barred from presenting any evidence regarding their assets that conflicted with Goran and Maria’s submissions in the bankruptcy proceeding, which the circuit court denied. At trial, the circuit court granted judgment as a matter of law (“JMOL”) against Pleho Parties on most remaining claims, and only their legal malpractice claim based on Lacy’s representation of GPLLC went to the jury. The jury found Lacy Parties not liable by special verdict. The circuit court entered judgment against Pleho Parties on all counts, awarding attorney’s fees and costs to Lacy Parties.

On appeal, the ICA partially vacated the circuit court’s judgment, finding that the circuit court had erroneously dismissed or granted summary judgment on Goran and Maria’s claims as individuals for fraud, legal malpractice, and punitive damages. The ICA also vacated the circuit court’s denial of the motion in limine, finding that Lacy Parties had demonstrated all of the elements of judicial estoppel. The ICA affirmed the circuit court’s judgment in

all other respects. In their application for writ of certiorari, Pleho Parties argued that the ICA erred in failing to revive their remaining claims against Lacy Parties. These included claims by Goran and Maria, as individuals, for conspiracy to commit fraud, intentional infliction of emotional distress (“IIED”), negligent infliction of emotional distress (“NIED”), and unfair and deceptive trade practices; and claims by GPLLC for fraud and punitive damages. Pleho Parties also argued that the ICA erred when it vacated the trial court’s order denying Lacy Parties’ motion in limine.

The Hawaii Supreme Court concluded that the dismissal of Goran and Maria’s claims for IIED and NIED was in error, as they stated colorable claims on both counts. The Hawaii Supreme Court also concluded that the grant of JMOL on GPLLC’s claims for fraud and punitive damages was in error. Viewing the evidence in the light most favorable to the nonmoving party, a reasonable jury could have returned a verdict in favor of Pleho Parties on these counts. The Hawaii Supreme Court also concluded that the ICA erred in vacating the trial court’s order denying Lacy Parties’ motion in limine. Finally, a majority of the Hawaii Supreme Court concluded that the grant of summary judgment as to Goran and Maria Pleho’s UDAP claim was in error. The Hawaii Supreme Court affirmed the ICA on all remaining issues.

Recktenwald, C.J. joined by Nakayama, J., dissented as to the UDAP claim. Whether a client may bring a UDAP action against his or her lawyer under Hawaii Revised Statutes § 480-2 was a question of first impression.

Recktenwald, C.J. concluded that under Haw. Rev. Stat. § 480-2, UDAP liability

did not apply to the actual practice of law. Recktenwald, C.J. further concluded that Lacy’s alleged misconduct fell within the actual practice of law, rather than the business or entrepreneurial aspects of the legal profession.

Therefore, he respectfully dissented from the Majority’s ruling vacating the circuit court’s grant of summary judgment on Goran and Maria’s UDAP claim and remanding the claim for further proceedings.

Calipjo v. Purdy, No. SCWC-140001305, April 23, 2019, (Wilson, J.).

The Hawaii Supreme Court considered only one issue from the application for writ of certiorari filed by Petitioner Elesther Calipjo (“Calipjo”): whether there was no evidence to support the jury’s verdict that (1) Respondent Jack Purdy (“Purdy”) was the alter ego of Respondents Regal Capital Corporation (“Regal Corp.”) and Regal Capital Company, LLC (“Regal LLC”) (collectively, “Respondents”), (2) Regal Corp. breached the contracts it entered into with Calipjo, and (3) Regal LLC committed unfair and deceptive acts or practices.

In a jury trial before the circuit court, the jury found that Regal Corp. violated the agreements of sale for two parcels of land on the island of Kauai and breached the covenant of good faith and fair dealing implied in the agreements.

The jury determined that Regal Corp. and Regal LLC committed unfair and deceptive acts or practices in their dealings with Calipjo. Furthermore, the jury concluded that Purdy was the alter ego of Regal Corp. and Regal LLC. Based on the alter ego finding, the jury determined that Purdy, too, violated the agreements of sale for the two properties, breached the covenant of good faith and fair dealing implied in the agreements, and committed unfair and deceptive acts or practices. The Hawaii

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Supreme Court held that there was evidence to support the jury’s verdict that Regal Corp. violated the terms of the agreements, Regal LLC engaged in unfair and deceptive acts or practices, and Purdy was the alter ego of Regal Corp. and Regal LLC. Therefore, the ICA erred when it found that no evidence was introduced at trial to support these findings. Calipjo v. Purdy, No. CAAP-140001305, 2017 WL 6547461, at *4-*7 (App. Dec. 22, 2017) (SDO). Additionally, the ICA erred when it reversed the circuit court’s final judgment against Purdy on the breach of contract, breach of the implied covenant of good faith and fair dealing, and unfair and deceptive acts or practices claims.

Criminal State v. Pasene, No. SCWC-150000156, April 22, 2019, (Recktenwald, C.J.). In the instant case, the Hawaii Supreme Court was called upon to determine whether multiple instances of improper prosecutorial conduct cumulatively jeopardized the defendant’s right to a fair trial. Appellant was charged with Murder in the Second Degree and Carrying or Use of Firearm in the Commission of a Separate Felony. After two prior trials resulted in mistrials due to hung juries, Appellant was convicted of both offenses in a third jury trial held by the circuit court. The ICA affirmed.

On certiorari, Appellant challenged the circuit court’s rulings: (1) denying his pre-trial Moriwake motion to dismiss; (2) permitting a Honolulu Police Department (“HPD”) detective to testify as to why another suspect was ruled out; (3) admitting cell phone site records into evidence; (4) admitting evidence of his meetings and transactions with an undercover HPD officer; (5) denying his request to excuse a juror; and (6) denying his motions for mistrial and motion for a new trial due to prosecutorial miscon-

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duct. Although the first five issues were without merit, the Hawaii Supreme Court held that the cumulative effect of the prosecutor’s improper conduct was so prejudicial as to jeopardize Appellant’s right to a fair trial.

State v. Torres, No. SCWC-160000673, April 10, 2019, (Pollack, J.).

Under Hawaii Supreme Court precedents, a defendant in a criminal case relinquishes fundamental constitutional rights only when the rights are knowingly, intelligently, and voluntarily waived. To protect against the wrongful deprivation of these important rights, the Hawaii Supreme Court requires trial courts to conduct on-the-record colloquies prior to accepting such waivers, thereby ensuring that defendants understand the nature and consequences of their decisions and make their choices freely. The Hawaii Supreme Court reaffirmed that the colloquy must be conducted so as to demonstrate that the waiver is a product of the defendant’s free will, undertaken in the absence of duress or other undue influence. The Hawaii Supreme Court precedents also firmly establish that a defendant’s right to testify is of equal constitutional stature to the defendant’s corresponding right to refrain from testifying. Despite the Hawaii Supreme Court’s recognition of this symmetry, Hawaii Supreme Court current procedures require that a trial court engage a defendant in an on-therecord colloquy only when the defendant waives the right to testify—and not when the defendant waives the reciprocal right not to testify. The Hawaii Supreme Court held that, because the two constitutional rights are of equal importance, they should be afforded equal levels of protection. Accordingly, trial courts must engage the defendant in an on-therecord colloquy regarding the right to testify and to not testify when either

right is waived, effectively making such a colloquy necessary in every trial. Because the Hawaii Supreme Court applied its holding only prospectively, however, and because the circumstances and strength of the evidence in this case render any error on the part of the trial court harmless beyond a reasonable doubt, it affirmed the defendant’s convictions.

Intermediate Court of Appeals Family Lapeter v. Lapeter, No. CAAP-140000991, March 29, 2019, (Chan, J.).

These appeals arose out of divorce proceedings that involved the division of real property assets acquired during the marriage. Among the parties’ significant assets was Centennial Square shopping center (“Centennial”) that the parties jointly owned through a limited liability company. On appeal, Husband contended that: (1) the family court erred in granting Wife’s requests for post-decree relief because the family court was not permitted to reopen the valuation of Centennial from the date of the conclusion of the evidentiary part of trial and modify the Decree based on evidence of post-trial changes in value; (2) the family court abused its discretion in imposing sanctions against Husband because the sanctions were based on an erroneous premise, there was insufficient evidence to support the sanctions, and it failed to notify Husband of the legal basis for the sanctions; and (3) the family court abused its discretion in awarding Wife her attorney’s fees and costs. Husband’s counsel also appealed, contending that the family court erred in reopening its valuation of Centennial and in concluding that Husband’s counsel had engaged in acts of professional misconduct, ruling that she may be jointly and severally

liable with Husband for sanctions and fees, and referring her conduct to the Office of Disciplinary Counsel for investigation. The ICA affirmed: (1) the family court’s reopening and revising of its valuation of Centennial pursuant to Hawaii Family Court Rules Rule 60(b)(2) based on the post-trial, pre-decree evidence of the agreements to sell Centennial and the LLC; (2) the orders for immediate payment of an equalization payment awarded in the Amended Decree and one-half of the Centennial escrow; (3) reversed the sanctions imposed on Husband’s counsel and her referral to ODC; and (4) vacated the sanctions imposed on Husband and the award of attorney’s fees to Wife.

Land Sandomire v. Brown, No. CAAP-170000199, March 29, 2019, (Leonard, J.).

This case arose out of a dispute between neighbors over whether a proposed home addition violated certain restrictive covenants that apply to their neighborhood. The ICA held that the trial court erred in failing to first make a legal determination whether the express language of the height restriction was ambiguous. If, as a matter of law, the express language of the restrictive covenant was unambiguous, then there was no basis for a factual inquiry into the “reasonableness” of the restriction, as the trial court did in this case. In addition, the ICA held that the trial court erred in adopting an interpretation of the height restriction that would effectively add a requirement not expressly stated in the restrictive covenants. However, the ICA concluded that the trial court did not err in applying the lot coverage area restriction. Finally, the ICA concluded that the trial court’s permanent injunctions were flawed and the attorneys’ fees awards were vacated.

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The American Judicature Society’s Annual Sidebar Program The American Judicature Society (“AJS”) invites summer associates and young lawyers to participate in their Annual Sidebar Program on Monday, July 15, 2019, 4:00 to 6:00 p.m. at the Hawai‘i Supreme Court, Ali‘iolani Hale (second floor courtroom), 417 South King Street. The program offers a unique opportunity to observe a moderated panel discussion with some of Hawai‘i’s distinguished judges, engage in small group discussions with these jurists, and socialize with them and each other during the reception that follows.

Headed by our moderator, Chief Justice of the Supreme Court of Hawaii, Mark Recktenwald, AJS looks forward to this year’s Sidebar panel featuring U.S. District Court Judge Leslie E. Kobayashi, Hawaii Intermediate Court of Appeals Associate Judge Katherine G. Leonard, Circuit Court Judges of the First Circuit of Hawaii Gary W.B. Chang and Jeffrey P. Crabtree, and District Court Judge of the First Circuit of Hawaii James S. Kawashima.

Originally founded in 1913, the American Judicature Society is an independent, non-partisan, membership organization that has worked to protect the integrity and independence of the American justice system. AJS continues in Hawai‘i as a diverse and broadly based group – including judges, lawyers, and members of the public – aiming to promote fair and impartial courts through research, publications, education, and advocacy for judicial reform.

The work of AJS focuses primarily on judicial ethics, judicial selection, access to justice, criminal justice reform, diversity in the judiciary, and the jury system.

For more information, contact Ms. Kimberly Rodriguez at 521-9275, or krodriguez@cades.com.

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