Hawaii Bar Journal - March 2020 by Hawaii Bar Journal

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EDITOR IN CHIEF Carol K. Muranaka BOARD OF EDITORS Christine Daleiden David Farmer Susan Gochros Ryan Hamaguchi Cynthia Johiro Edward Kemper Laurel Loo Melvin M.M. Masuda Melissa Miyashiro Eaton O'Neill Lennes Omuro Brett Tobin HSBA OFFICERS President P. Gregory Frey President-Elect Karin Holma Vice President Levi Hookano Secretary Russ Awakuni

ARTICLES 44

OF NOTE 24 18

HSBA Happenings

Notices of Discipline

Court Briefs

Case Notes

Off the Record

Classifieds

Treasurer Paul Naso

YLD OFFICERS

President Addison Dale Bonner Vice President/President-Elect Christopher St. Sure Secretary Kyleigh Nakasone Treasurer Tiffany Kaeo

The Deliberative Process Privilege and Hawaii’s Open Records Law by Cheryl Kakazu Park

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On the cover: Bowl of oranges by Louis Pohl (1915 - 1999). Considered by many an artist's artist, Louis Pohl through his craft reflected brilliance. Painter, illustrator, art teacher, mentor, printmaker, and cartoonist were all venues in which Louis Pohl had achieved outstanding recognition being designated a “Living Treasure of Hawaii” by the 1994 Hawaii State Legislature. Please visit Louis Pohl Gallery at 1142 Bethel St. in Honolulu’s Art District. Notices and articles should be sent to Edward C. Kemper at edracers@aol.com, Cynthia M. Johiro at cynthia.m.johiro@hawaii.gov, or Carol K. Muranaka at carol.k.muranaka@gmail.com. All submitted articles should be of significance to and of interest or concern to members of the Hawaii legal community. The Hawaii Bar Journal reserves the right to edit or not publish submitted material. Statements or expressions of opinion appearing herein are those of the authors and not necessarily the views of the publisher, editorial staff, or officials of the Hawaii State Bar Association. Publication of advertising herein does not imply endorsement of any product, service, or opinion advertised. The HSBA and the publisher disclaim any liability arising from reliance upon information contained herein. This publication is designed to provide general information only, with regard to the subject matter covered. It is not a substitute for legal, accounting, or other professional services or advice. This publication is intended for educational and informational purposes only. Nothing contained in this publication is to be considered as the rendering of legal advice.

e Deliberative Process Privilege and Hawaii’s Open Records Law by Cheryl Kakazu Park

For nearly 30 years, Hawaii’s Office of Information Practices (“OIP”)1 had rendered opinions recognizing the deliberative process privilege (“DPP”) as a limited form of a statutory exception to the disclosure of public records under Hawaii’s open records law. In a December 2018 decision, the Hawaii Supreme Court, in a 3 to 2 decision,2 abruptly rejected this practice, reversed a decision of the First Circuit Court, and held that government agencies could no longer use the DPP to justify withholding certain internal records and that “decision-making” was not a government function falling within the frustration exception of the Uniform Information Practices Act (“UIPA”), chapter 92F, Hawaii Revised Statutes (“HRS”). In Peer News LLC v. City and County of Honolulu, 143 Haw. 472, 431 P.3d 1245 (2018), Peer News (“Appellant”) challenged a decision by the City and County of Honolulu and its Department of Budget and Fiscal Services (“BFS”) (together, “Appellees”) that withheld certain internal government documents generated during the process of establishing the City’s annual operating budget. Neither party sought OIP’s opinion, and instead Appellant directly initiated a lawsuit in the First Circuit Court pursuant to HRS § 92F-15(a) (2012). Although Appellees filed a third-party complaint

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against OIP, they stipulated to dismiss their complaint after OIP argued that it had never been asked to opine on the records at issue and was not responsible for Appellees’ application of OIP’s precedents. The Circuit Court subsequently ruled in favor of the Appellees’ application of the DPP to the records being sought, and the case was appealed to the Hawaii Supreme Court. Given OIP’s longstanding line of cases recognizing and interpreting the DPP, and the UIPA’s clear instruction that courts must consider OIP’s opinions and rulings “as precedent unless found to be palpably erroneous,”3 OIP let its prior opinions speak for themselves and left it to the Court to ultimately decide the DPP’s legal effect.4 Since the Peer News decision, OIP has been advising agencies not to use the DPP or the decision-making function to justify nondisclosure under the frustration exception. In May 2019, OIP rejected the use of the DPP in OIP Opinion Letter No. F19-05, which has been appealed to the First Circuit Court in S.P. No. 19-1-0191. OIP prepared an extensive analysis of the Peer News decision and preserved important legislative history and pre-UIPA court decisions, which are posted on the Opinions page at oip.hawaii.gov. OIP’s online analysis (1) traces the UIPA’s legislative history regarding internal

agency communications and describes the evolution of the DPP, its purposes and limitations, (2) contrasts the Court’s majority and dissenting opinions, (3) preserves key facts and arguments not presented to the Court and discusses the 2019 legislative proposals addressing the DPP, and (4) interprets the Court’s guidance as to how to apply the UIPA’s frustration exception without the DPP. Because the detailed discussions, citations, and supporting documents are in OIP’s analysis or posted on OIP’s website, they will generally not be provided in this article. Instead, this article first briefly summarizes the DPP and contrasts the opinions of the majority and dissent. Next, it discusses key facts presented to the 1988 Legislature but not to the Peer News Court, which might have resulted in a different judicial conclusion had they been known. Absent any change by the Court or the current Legislature, however, agencies can no longer use the DPP to justify withholding their internal deliberative records. The Deliberative Process Privilege (DPP) Based on the parties’ representations in Peer News, the majority and dissent characterized the DPP adopted by OIP as a simple two-part test that shields records any time they are “predecisional” and “deliberative,” citing OIP Opinion Letter Nos. 90-3 and 04-15. The full body of OIP opinions on the DPP, however, is much more nuanced and contains many significant limitations. OIP issued at least 38 DPP opinions before Peer News and concluded in at least ten opinions not cited by the Court that the DPP was not applicable, had been waived, or could not be used to shield portions of the record. Moreover, OIP has issued opinions applying the DPP to the Judiciary’s administrative functions, as well as

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to the Legislature.5 OIP first recognized the DPP in OIP Opinion Letter No. 89-9, based on the UIPA’s statutory exception for “[g]overnment records that, by their nature, must be confidential in order for the government to avoid the frustration of a legitimate government function[.]” HRS § 92F-13(3). After closely examining this statutory exception and its legislative history, which suggested that case law under the federal Freedom of Information Act, 5 U.S.C. § 552(b)(5) (“FOIA”) be consulted, OIP recognized the DPP in order to encourage the candid and free exchange of ideas and opinions within and among agencies. This candid exchange is essential to agency decision-making and is less likely to occur when predecisional and deliberative internal documents are subject to public disclosure. Over the following decades, OIP imposed limitations on the DPP, such as requiring the reasonable segregation of deliberative material from factual information and recognizing that the DPP may be waived if protected records are expressly adopted or incorporated by reference into an agency’s final decision. Moreover, while OIP’s early decisions did not depend on a balancing test, OIP later evidenced an inclination to

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balance competing interests to avoid having the DPP exception “swallow” the UIPA’s disclosure requirements. OIP Opinion Letter No. 95-24 at 21-22. Thus, OIP narrowly construed the DPP to be consistent with the need for efficient government operations while preventing the privilege from overwhelming the UIPA’s requirement to form and implement public policy as openly as possible, and it concluded in OIP Opinion Letter No. 95-24 that the DPP only protected those portions of deliberative material that could stifle the frank exchange of ideas and opinions and injure the quality of the decision-making process. Although the Appellant in Peer News cited OIP Opinion Letter No. 95-24 and argued as an alternative that “OIP also has indicated support for the deliberative process privilege as a ‘qualified privilege’ that requires balancing against the public interest in disclosure” and that “the need to balance the public interest in disclosure falls squarely within the Legislature’s intent,” the Court did not recognize the DPP as a qualified privilege and the majority rejected the dissent’s suggestion to adopt a balancing approach.

Resolving your most challenging civil cases A Comparison of the Majority and Dissenting Opinions Based on their interpretations of the DPP as a simple two-part test, both the majority and dissent agreed that the DPP created an overly-broad exception to the UIPA’s general rule requiring public access to government records. The majority and dissent disagreed, however, as to whether OIP’s recognition of that privilege under HRS § 92F-13(3) was palpably erroneous and not supported by the language or legislative history of the UIPA. After examining the UIPA’s language and legislative history, the majority concluded that OIP had palpably erred in adopting the DPP, while the dissent disagreed with this “extreme” position rejecting any DPP. Instead, the dissent suggested a “middle ground approach that would require more detailed justification by the agency asserting the privilege and require a court to balance the government’s interest in confidentiality with the public’s interest in disclosure.” While recognizing that “the dissent’s approach may well represent sound policy,” the majority rejected it and stated that “[t]he determination as to whether and to what extent deliberative documents should be shielded from disclosure must be made by the legislature and not by judicial fiat” as “no such exception exists in the UIPA.” A. “Plain Language” of the Law Both opinions looked to the UIPA’s policy in HRS § 92F-2, which states in relevant part: In a democracy, the people are vested with the ultimate decisionmaking power. Government agencies exist to aid the people in the formation and conduct of public policy. Opening up the government processes to public scrutiny and participation is the only viable and reasonable method of protecting the public’s interest. Therefore the

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legislature declares that it is the policy of this State that the formation and conduct of public policy—the discussions, deliberations, decisions, and action of government agencies—shall be conducted as openly as possible. Majority at 15 (emphasizing italicized language not bolded); Dissent at 9 (emphasizing bolded language). Both opinions also recognized that the UIPA expressly states in HRS § 92F-11(a) that “[a]ll government records are open to public inspection unless access is restricted or closed by law.” Majority at 16; Dissent at 9 (emphasizing bolded language). Although both opinions looked to the same “plain language” of the UIPA, they disagreed on how to interpret it. The majority strictly construed the UIPA’s policy to require “‘the formation . . . of public policy,’ including ‘discussions’ and ‘deliberations,’ ‘shall be conducted as openly as possible’” and concluded that “[c]ommunications between decision-makers and their subordinates regarding adopting available courses of action prior to the making of a decision is the very definition of deliberations in common usage, case law, and the OIP’s own precedents.” Accepting Appellees’ interpretation of the DPP as protecting all predecisional, deliberative records without a determination that disclosure would frustrate a legitimate government function, the majority stated that the DPP would render much of the UIPA’s policy “a dead letter” because it would protect from public scrutiny the very deliberations comprising part of a process by which

government decision and policies are formulated. The majority thus concluded that “because the deliberative process privilege attempts to uniformly shield records from disclosure without a determination that disclosure would frustrate a legitimate government function, it is inconsistent with the plain language of HRS § 92F- 13(3).” The dissent emphasized the statutory language in bold above: “as possible” and “unless access is restricted or closed by law.” The dissent stated that “the inclusion of such qualifying language in the UIPA supports that the Legislature may have intended for certain ‘discussions, deliberations, decisions, and action[s] of government agencies,’ HRS § 92F-2, to remain confidential” and that “the recognition of a privilege that limits the disclosure of certain types of internal memoranda and communications relating to an agency’s deliberative process in the course of decision-making and policy formation is consistent with such legislative intent.” While agreeing that “the UIPA favors ensuring the transparency of and public access to our government’s decision making and policy-development processes,” the dissent found that “the plain language of several provisions in the UIPA indicates that the Legislature did not intend for such transparency and accessibility to be absolute” and viewed the DPP, as properly applied, to exempt some but not all government deliberations. Thus, the dissent’s “plain language” interpretation directly contradicted the majority’s “plain language” interpretation. The dissent, moreover, recognized that the Legislature delegated authority to interpret the UIPA to OIP under HRS § 92F42. Thus, in contrast to the majority, the dissent disagreed that OIP’s adoption of the DPP is palpably

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erroneous under the plain language of the statute. Legislative Intent Besides disagreeing on the meaning of the “plain language” of the statute, both opinions disagreed as to whether the Legislature intended to omit the DPP as an exception to the general policy of disclosure. While examining the same legislative history, the majority and dissent again came to completely opposite conclusions. The majority first looked at the report by the Ad Hoc Committee on Public Records and Privacy Laws, which had been convened by then Governor John Waihee (“Governor’s Committee”). After public hearings, the Governor’s Committee produced the four-volume Report of the Governor’s Committee on Public Records and Privacy (Dec. 1987) (“Governor’s Committee Report”), which the Legislature considered during the 1988 session. The majority recognized that the Governor’s Committee had cited the testimony of Honolulu’s Managing Director to state that internal agency correspondence and memoranda “are not currently viewed as public records by government officials under chapter 92, HRS, though there are records which the courts have opened up on an individual basis.” The majority, however, concluded that “this view was inaccurate” after reviewing statutes and caselaw that existed prior to the enactment of the UIPA. In support of its view that deliberative, predecisional agency records were open to public inspection under HRS Chapter 92, the majority reviewed two Circuit Court orders and concluded, “[i]t is therefore unsurprising that both available court decisions on the subject resulted in an order that the government agency disclose the deliberative materials sought,” citing Pauoa-Pacific Heights Community Group v. Building Dep’t, 79 HLR 790543 (Jan. 9, 1980) (“Pauoa-Pacific Heights”) and Honolulu Advertiser, Inc. v. Yuen, 79 HLR 790117 (Oct. 10, 1979) (“Honolulu Advertiser”). The dissent disagreed that the Managing Director’s testimony was inaccurate, noting that “it is possible that certain internal agency memoranda and communications, including those generated during an agency’s decisionmaking and policy development processes, did not constitute ‘public records’ within the meaning of [the pre-UIPA law,] HRS § 92-50, and therefore, were not available to the public prior to the enactment of the UIPA.” Even after taking into account testimony that had contradicted the Managing Director’s testimony, the dissent stated, “it appears that the record remains ambiguous as to whether inter- or intra-agency deliberative communications

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generated during an agency’s decision-making process were publicly available prior to the UIPA’s enactment.” Besides disagreeing over the state of the pre-UIPA law, both opinions also disagreed as to the Legislature’s intent in adopting the UIPA in 1988. The majority recounted the House Draft’s incorporation of twelve exceptions to disclosure, specifically including an exemption for deliberative agency records. It noted that the Senate heard testimony from a number of parties critical of this exemption. The Senate Draft removed the House Draft’s twelve exemptions and instead added four more general exemptions, and in its accompanying committee report SSCR 2580, the Senate cited nine of the twelve exemptions as examples of records for which disclosure would frustrate a legitimate government function. The majority noted that two of the excluded exemptions, relating to non-discoverable litigation materials and individually identifiable records, were encompassed in other provisions of the Senate Draft, but the exemption for deliberative agency records was not reinstated. The Senate examples in SSCR 2580 were later referenced in the Conference Committee’s report, which further stated, “The records which will not be required to be disclosed under [this section] are records which are currently unavailable. It is not the intent of the Legislature that this section be used to close currently available records, even though these records might fit within one of the categories in this section.” The majority concluded that this legislative history “indicates that the legislature made a conscious choice not to include a deliberative process privilege in the UIPA because it would close off records that were historically available to the public under Hawaii law.” Examining the same legislative history, the dissent concluded “that the legislative history underlying the UIPA does not actually indicate that the Legislature clearly intended to omit the deliberative process privilege from the UIPA.” The dissent pointed to the same Senate committee report accompanying the Senate Draft, which stated: 4. A new Section 92-53 is added to create four categorical exceptions to the general rule. Rather than list specific records in the statute, at the risk of being overor under-inclusive, your Committee prefers to categorize and rely on the developing common law. The common law is ideally suited to the task of balancing competing interest in the grey areas and unanticipated cases, under the guidance of legislative policy. To assist the Judiciary in understanding the legislative intent, the following examples are provided.

The dissent then examined the same Conference Committee report previously cited by the majority, but focused on the first sentence which states: “The records which will not be required to be disclosed under Section -13 are records which are currently unavailable.” Based on its reading, the dissent gave three reasons for concluding “that the legislative history of the UIPA does not evince a clear legislative intent to discard the deliberative process privilege.” First, the dissent noted that although the DPP was not included in the Senate’s list of examples, “the Senate did not suggest that this list was exhaustive or exclusive” and the omission of the privilege from the list “illustrates, at most, an ambiguous intent.” The dissent stated that while the Senate may have intended to reject the privilege, “it is equally possible that, based on the Senate’s intent to ‘rely on

the developing common law . . . in grey areas and unanticipated cases,’ the Senate omitted the deliberative process privilege from its list of examples to allow common law principles to determine whether such documents could fall within HRS § 92F-13(3).” Second, the dissent noted that “in other instances where the Senate rejected a rule encompassed in a provision in the House version of H.B. 2002, the Senate expressly stated its intent to do so.” Instead, the dissent asserted “the Senate did not include such express language suggesting an intent to reject the deliberative process privilege.” Third, the dissent concluded that the Legislature did not reject the DPP, as the Senate had expressly intended ambiguities under the broadly worded exceptions to disclosure to be interpreted by the common law. The dissent reasoned that

the Senate explicitly expressed an intent to adopt a few categorical exceptions “[r]ather than list specific records in the statute, at the risk of being over- or under-inclusive.” . . . The Senate explained that its categorical approach, supplemented by application of common law principles, was preferable because the common law was available and “ideally suited to the task of balancing competing interest[sic] in the grey areas and unanticipated cases, under the guidance of the legislative policy.” . . . In this context, the Senate’s statement regarding the common law illustrated an intent to adopt broader categorical exceptions to the general rule requiring access, reject the House’s proposed laundry list of more specific exceptions, and utilize the common law to clarify the ambiguities that might arise when applying the exceptions in new and

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unforeseen circumstances. In my view, this statement does not suggest that the Legislature intended to reject the deliberative process privilege[.] (Citations omitted.) The dissent further rejected as inapplicable Appellant’s argument, which the majority accepted, that the Legislature had rejected the DPP as an evidentiary privilege when it had earlier adopted the Hawaii Rules of Evidence (HRE) and in particular, HRE Rule 501. The dissent also rejected as inapplicable the Appellant’s additional argument concerning the Legislature’s actions subsequent to the UIPA’s enactment that removed language recognizing the DPP from a bill relating to the Employees’ Retirement System (ERS). Instead, the dissent took the contrary view that the Senate’s initial inclusion of the language “subject to the deliberative process privilege under section 92F13(3)” in S.B. 1208 during the 2015 session “arguably implies that the Senate had acknowledged and accepted the deliberative process privilege under the UIPA, insofar as the Senate attempted to import the doctrine from the UIPA into the ERS.” Finally, the dissent concluded that “the plain language of the UIPA, the legislative history underlying the UIPA, and the Legislature’s actions prior and subsequent to the UIPA’s enactment do not suggest to me that the Legislature clearly intended to reject the deliberative process privilege as an exception to the UIPA’s general rule requiring public access to government records.” Thus, contrary to the majority, the dissent did not view OIP’s recognition of the DPP under HRS § 92F-13(3) to be palpably erroneous in light of the legislative history. III. Key Missing Facts Neither the majority nor the dissent appear to have been presented with key facts, known to the Legislature when the UIPA was adopted in 1988, which might have resulted in a different conclusion by the Court 30 years later in Peer News. First, there was substantial additional evidence, not cited in either opinion, to support the Governor’s Committee Report’s statement that internal agency correspondence and memoranda “are not currently viewed as public records by government officials under Chapter 92, HRS, though there are records which the courts have opened up on an individual basis.” The majority had considered this view to be “inaccurate” and noted that it was “based on testimony from the Honolulu Managing Director.” The

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majority, however, did not cite to any of the Exhibits to Managing Director Jeremy Harris’s testimony, which included City rules and legal memoranda supporting his contention that internal documents were not public records. These Exhibits are in Volume III of the Governor’s Committee Report, and it appears neither the Court, nor the parties’ briefs, cited to material contained beyond Volume I of the Report. In Volume III, Exhibit A of Harris’ testimony consisted of the Managing Director’s “Rules and Regulations Governing the Accessibility, Maintenance and Storage of Public and Confidential Records of All City Agencies” (MD’s Rules), which were adopted on October 18, 1978. In the section defining confidential records, the rules clearly exempted from public access and deemed confidential records “related solely to the internal personnel, rules and procedures of an agency,” “[i]nteragency or intraagency memorandums or letters which would not be available by law to a party other than one in litigation with the agency,” and “[a]ny record which falls within a common law privilege of confidentiality.” These City rules directly supported Harris’s testimony that “[t]he current laws prevent public disclosure of various government records, including, but not limited to, . . . inter- and intraagency correspondence or memoranda” and that “[t]he City is of the opinion that these records must continue to be confidential.” Also included with Harris’s testimony as Exhibit B was a December 1983 memo by Deputy Corporation Counsel Kathleen A. Callaghan, which opined that the MD’s Rules continued to apply to non-personal records, even though the rules adopted by the State would supersede the MD’s Rules with respect to personal records. This memo supported Harris’s testimony that then existing laws, in the form of the MD’s Rules, allowed agency withholding of inter- and intra-agency correspondence or memoranda, and further demonstrates that Callaghan, who was to become OIP’s first Director, obviously knew of these City rules and their legal import. Another Deputy Corporation Counsel’s memorandum (dated October 13, 1983) was included as Exhibit D and supported Harris’s testimony by advising that building permit plans, prior to issuance of the permit, were not “public records” under HRS § 92-50 and distinguished the Pauoa-Pacific Heights case that was later cited by the Peer News majority. Contrary to the majority’s argument that the Circuit Court’s decision in Pauoa-Pacific Heights showed that the pre-UIPA public records law required disclosure

of deliberative materials, the Exhibit D memo noted that the basis for the order was unclear because it did not mention the term “public records” or section 92-50. Notwithstanding the Pauoa-Pacific Heights order, the Exhibit D memo opined that “the plans and specifications that accompany applications for building permits are not classified as ‘public records,’ subject to disclosure, until after the issuance of the permit.” Despite the importance of these exhibits supporting Harris’s view that interand intra-agency documents were not public records, they were not discussed in Peer News when the majority dismissed Harris’s view as “inaccurate.” Second, although the issue in Peer News concerned internal predecisional and deliberative documents exchanged between the City’s budget office and the Mayor’s office, the majority did not dis-

cuss testimony in Volume III of the Governor’s Committee Report that considered similar internal deliberative material from the State Budget and Finance Department to the Office of the Governor to be “privileged” and confidential. Immediately following Harris’s exhibits in Volume III was testimony by Yukio Takemoto, then Director of the State Department of Budget and Finance. Consistent with Harris’s testimony, Takemoto provided written testimony to the Governor’s Committee describing an exception from disclosure for “‘staff work’ which may be considered ‘privileged information.’ These documents include working documents, correspondence, internal references and other staff work for the Office of the Governor.” Thus, consistent with the City’s assertions, the State Budget and Finance Department considered certain internal documents to the

Governor to be “privileged” and not subject to public disclosure. Third, the Peer News opinions did not refer to the August 14, 1987 testimony by Senate President Richard Wong that was also included in Volume III of the Governor’s Committee Report, wherein the Senate, like the City and a key State Executive branch department, considered certain internal budget documents to not be subject to public disclosure. In his written testimony, Wong opposed a suggestion to include as “public records” the Senate’s unfiled committee reports and budget worksheets prepared by the Senate Ways and Means Committee staff for use by the Senate conferees in their negotiations with the House. Wong’s testimony referred to a Circuit Court decision holding that “the worksheets were not public records” and stated his “position that such documents are

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confidential internal working papers of the Senate and are not public records.” Fourth, the Court in Peer News apparently was unaware of the court decision referenced in Wong’s testimony, Abercrombie v. The Senate, S.P. No. 6126 (1st Cir. 1983), in which internal predecisional, deliberative documents of a Senate conference committee, namely operating budget worksheets, were expressly held to not be public records open to inspection under HRS §§ 92-51 and 92-52, the precursors to the UIPA. In that 1983 case, six state Senators—Neil Abercrombie, Dante Carpenter, Benjamin Cayetano, Lehua Fernandes Salling, Duke Kawasaki, and Charles Toguchi—along with Ian Lind, a private citizen who was then the Executive Director of Common Cause, filed an Application for an Order Allowing Inspection of Certain Public Records Relating to the State Budget, which named as defendants the Senate (1983 session), Senate President Wong, and Senator Mamoru Yamasaki, who was the Senate’s Ways and Means Committee Chairman and the Chairman of the Senate Conferees on the operating budget bill. Circuit Court Judge Toshimi Sodetani held an expedited hearing, which included testimony by Senators Yamasaki and Carpenter, argument by Senator Cayetano, and a Supplemental Memorandum filed by Senators Cayetano and Fernandes Salling asserting violations of the pre-UIPA public record law. On May 18, 1983, Judge Sodetani filed a four-page Findings of Fact, Conclusions of Law, and Order Denying the Application in Abercrombie v. The Senate, which included the following factual findings: 2. The worksheets are merely internal, preliminary work papers prepared by the conferees or their staff to assist the conferees, and to be used only in their discussion and negotiations during the conference sessions. .... 7. The worksheets are no more than informal reference or working papers. Based on the factual findings, Judge Sodetani entered the following conclusions of law: 1. The worksheets do not constitute a “public record” within the meaning and contemplation of H.R.S. § 92-50. 2. The worksheets are not official or public records of the Senate of the State of Hawaii. 3. The worksheets are not subject to public inspection

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pursuant to H.R.S. § 92-51. 4. The Application is without merit or legal basis, and accordingly, should be denied. Thus, only five years before the adoption of the UIPA, the First Circuit Court had expressly ruled that Senate conference committee budget worksheets were not public records subject to public disclosure under the public records law existing at that time. Judge Sodetani’s order was unsuccessfully appealed to the Hawaii Supreme Court, which dismissed it as moot. Abercrombie v. The Senate, 67 Haw. 671 (1984) (memo opinion). Therefore, the only court decision directly addressing the public records law that existed prior to adoption of the UIPA had held that the Senate’s internal budget worksheets were not public records open to inspection. Fifth, instead of Judge Sodetani’s public records decision, the majority in Peer News cited two Circuit Court decisions whose facts were distinguishable and did not show clear violations of the pre-UIPA public records law. The first order cited was the 1980 Pauoa-Pacific Heights decision, which, as previously discussed, was distinguished in Exhibit D of Managing Director Jeremy Harris’s testimony to the Governor’s Committee. OIP has examined the available records in the Hawaii Legal Reporter, which show that the plaintiffs had argued (1) that the materials were public records under HRS § 92-50 and HRS § 9251, and (2) the equities of the case in which the plaintiffs owned properties adjoining a proposed high rise condominium development and were not able to obtain the information needed to protect their interests until after the permit was issued when it would become more expensive and risky for them to contest the development. While Judge Arthur S. K. Fong’s two-page order required the disclosure of “the building applications, building plans, specifications, supporting documentation and inter and intra office memorandum, reports and recommendations requested by Plaintiffs,” the order is silent as to the basis for the decision, as Harris’s Exhibit D had noted. There was no specific determination that the City’s internal documents were public records required by law to be disclosed, or, alternatively, that the facts and equities of the case justified disclosure. Because the basis for the order was not stated, Judge Fong’s decision in Pauoa-Pacific Heights does not clearly support the proposition that predecisional and deliberative agency records were open to public inspection under the public records law preceding the UIPA. The other Circuit Court decision cited by the

majority was also written by Judge Fong and unsurprisingly ordered disclosure of all records sought by a reporter because they had already been given to a rival newspaper. Given this clear waiver in the 1979 Honolulu Advertiser case, Judge Fong’s order allowing inspection determined that the agency’s refusal to make the requested records available “was without good cause and in derogation of HRS 92-50.” The order continued, “the State of Hawaii has no discretion to withhold the requested records contained in its files from the public unless the records requested are specifically exempted from public inspection by constitution, statute, properly enacted regulation, or court rule[.]” The italicized words were handwritten, and Judge Fong apparently crossed out at the end of the sentence “or common law privilege,” over which appeared to be the judge’s initials. The majority interpreted these handwritten revisions to be a specific rejection by Judge Fong of “any argument that the government could rely upon common law principles like the deliberative process privilege to resist its statutory disclosure obligations.” A review of the available documents in the Hawaii Legal Reporter, however, shows that the common law privileges had not been argued in that case, which more likely explained Judge Fong’s striking of that phrase. In contrast to Judge Sodetani’s detailed findings of fact, conclusions of law, and order expressly concluding that the public records law in 1983 did not require disclosure of the Senate’s budget conference worksheets, Judge Fong’s summary orders and the factual circumstances of his cases did not clearly establish that he ordered the release of internal deliberative documents because he actually considered them to be public records under the law existing in 1979. Thus, the only definitive court decision— rendered by Judge Sodetani after a hear-

ing, testimony, affidavits, and memoranda directly addressing the public records law preceding the UIPA, and which was unsuccessfully appealed to the Hawaii Supreme Court—had clearly held that internal deliberative materials in the form of budget conference worksheets were not public records subject to disclosure by the Senate. Sixth, contrary to the public testimony credited by the majority in Peer News, there is substantial evidence to show that the 1988 Legislature knew when it enacted the UIPA that internal documents were not considered public records by the State Executive branch, the City and County of Honolulu, the Senate, and the Circuit Court in Abercrombie v. The Senate. Although the majority extensively discussed public testimony that was critical of an exemption for inter- or intra-agency deliberative material and had claimed that it would “result in closing off access to records which are currently open to the public,” the 1988 Legislature knew this view was inaccurate in light of Abercrombie v. The Senate. Indeed, two defendants in that case, Senators Wong and Yamasaki, had direct knowledge of Judge Sodetani’s decision and had retained their key leadership positions as Senate President and Senate Ways and Means Committee Chair, respectively, during the 1988 session when the UIPA was being considered for adoption. Additionally, there was extensive testimony to the Legislature from the Honolulu Corporation Counsel that public disclosure was not required for all internal documents of other government agencies. The Corporation Counsel’s February 9, 1988 testimony to the House Judiciary Committee specifically incorporated by reference Managing Director Harris’s testimony at “Volume II, pp. 116-131 and at Volume III, pp. 369614” of the Governor’s Committee

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Report. In testimony regarding real property records, the Corporation Counsel further stated, “We have no objection to these categories of information being specified as records which must be disclosed. However, we would consider internal working documents, certain individually identified records, material prepared in anticipation of litigation and attorney-client communications to be confidential even though they contain ‘real property tax information.”’ Thus, contrary to the testimony cited in Peer News, both chambers of the Legislature in 1988 had direct knowledge and substantial testimony to conclude that the pre-UIPA law did not require disclosure of certain internal documents of government agencies. Seventh, although the Legislature specifically protected certain of its own documents from disclosure by adopting the legislative exception found in HRS Section 92F-13(5),6 there is no clear showing of its intent to disclose the internal records of nonlegislative agencies. Rather, there is specific legislative intent to exclude from disclosure records that were unavailable in 1988, which would thus have excluded the internal documents of state and county government agencies based on the testimony presented to the Legislature in 1988, but not presented to the Court in Peer News decades later. To avoid being overor under-inclusive, the Senate declined to statutorily list specific records to be excepted from disclosure and instead created four categorical exceptions that could be implemented under the common law. The final bill adopted the Senate’s categorical approach, including the frustration exemption in HRS § 92F-13(3). The accompanying Conference Committee report explained that “[t]he records

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which will not be required to be disclosed under Section -13 are records which are currently unavailable. It is not the intent of the Legislature that this section be used to close currently available records[.]” When the missing facts discussed above are considered, there was substantial testimony to the Legislature in 1988 supporting the argument that the internal records of state and county government agencies were “records which are currently unavailable.” Eighth, in carving out the categorical exceptions from disclosure, the 1988 Legislature left it to OIP and the courts to determine whether disclosure of such records would be required as unanticipated cases arose. As the dissent noted, in rejecting a specific listing of records and instead creating the categorical exceptions to access, the Senate’s committee report stated it “prefers to categorize and rely on the developing common law. The common law is ideally suited to the task of balancing competing interest [sic] in the grey areas and unanticipated cases.” The final bill granted OIP various powers in HRS §92F42 to investigate, review and rule on agencies’ denial or granting of access to information and to provide opinions and guidance on the UIPA, subject to judicial review and enforcement. OIP’s opinions since 1989 have recognized the DPP under the frustration exception to disclosure, and subsequent legislatures have not acted to invalidate those rulings for the past three decades. Unless the Court reverses its Peer News decision, however, the Legislature would have to act to restore the DPP. Indeed, during the 2019 legislative session, House Bill 1478 and Senate Bill 1453 proposed changing the UIPA’s definition of “agency” to include “the nonadministrative

functions of the courts,” which would essentially have placed all of the courts’ functions under the UIPA’s disclosure requirements and would have essentially made the Court’s own internal deliberative documents, such as draft opinions, law clerk memos, and other internal communications, subject to public disclosure under Peer News. For the same reasons that OIP had recognized that the DPP allowed the Executive, Legislative, and Judicial agencies to withhold internal deliberative records, the Judiciary opposed legislation that would have subjected its own internal deliberative documents to public disclosure under Peer News. The Judiciary’s written testimony strongly opposed both 2019 bills on the basis that publicly disclosing draft opinions and written communications between justices, law clerks, and others “could create a chilling effect that would substantially inhibit the flow of communication, and could adversely impact the very decision-making process that is imperative to well-conceived and appropriately vetted court opinions.” Other testifiers explained that “[t]he courts would be less likely to freely and fully communicate with staff and other judges about issues in cases, because documents containing such information would then be accessible to parties and others in ongoing cases or for use in subsequent cases. . . . [P]arties would constantly seek access to pre-decisional documents in an effort to impact cases,” thereby disrupting case management, delaying resolution of litigation, and impairing merit- based decisions. These reasons for not wanting the courts’ internal decision-making open to public access were some of the same reasons OIP cited in its opinions recognizing the DPP. Although the Legislature deferred decision-making on these 2019 bills, they have carried over to the 2020 session. Absent any change by the Legislature or Court, however, OIP will continue to abide by the Peer News decision and advise agencies that they can no longer use the DPP to justify an exception to disclosure under HRS § 92F-13(3). Thus, agencies can no longer argue that decision-making is a function that could be frustrated and must instead provide an individualized and sufficiently detailed analysis demonstrating the legitimacy of the government function and the likelihood that the function will be frustrated in an identifiable way if the record is disclosed. ____________________

1 Created in 1988, OIP is the single state agency administering both the UIPA, chapter 92F, HRS, Hawaii’s open records law, and the Sunshine Law, Part I of chapter 92, HRS, the open meetings law. One or both laws are applicable to all state, county, and independent agencies in all three branches of government.

The majority opinion was written by Justice Richard Pollack and joined by Justices Sabrina McKenna and Michael Wilson. The dissenting opinion was written by Justice Paula Nakayama and joined by Chief Justice Mark Recktenwald. The opinions, legislative and court documents, and other materials referenced in this article are posted on the Opinions page at oip.hawaii.gov.

HRS § 92F-15(b) (2012) states that “[o]pinions and rulings of the office of information practices shall be admissible and shall be considered as precedent unless found to be palpably erroneous[.]” For an explanation of the UIPA’s 2012 revisions and palpably erroneous standard of review, see Cheryl Kakazu Park and Jennifer Z. Brooks, 2013 Law and Administrative Rules Governing Appeal Procedures of Hawaii’s Office of Information Practices, 36 U. Haw. L. Rev. 271 (2014).

The State of Hawaii filed its own amicus brief and did not represent OIP on appeal.

See, e.g., OIP Opinion Letter No. 03-20 (concluding that the records of the Oversight Committee for the First Circuit Family Court, as a whole, were predecisional and protected from disclosure by the DPP); OIP Opinion Letter No. 91-24 (determining that the Judiciary’s interview panelists’ notes are not required to be disclosed because it would frustrate the decision-making function that occurs during the employee selection process); OIP Opinion Letter No. 00-01 (concluding that the DPP and frustration exception may apply to: (1) internal correspondence between a legislator and his staff; (2) correspondence between elected officials; (3) correspondence containing draft legislation, soliciting recipients’ input, and noting comments and responses; (4) correspondence and emails between elected officials relating to strategy; and (5) personal notes taken at a majority caucus on an issue). 6

HRS § 92F-13(5) protects from disclosure “[i]nchoate and draft working papers of legislative committee including budget worksheets and unfiled committee reports; work product; records or transcripts of an investigating committee of the legislature which are closed by rules adopted pursuant to section 21-4 and the personal files of the members of the legislature.”

Appointed since 2011, Cheryl Kakazu Park, J.D., M.B.A., is the longest serving Director of Hawaii’s Office of Information Practices, and she has extensive legislative experience since 1976, before the UIPA was enacted. Ms. Park also served the Hawaii and Nevada judiciaries for eight years and was in private practice for nine years.

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H SBA HAP PE NIN GS Board Action The HSBA Board took the following actions at its meeting in January: • Approved the submittal to the Hawaii State Bar Foundation of the project expenditure proposal for 2020 projects to be funded from the proceeds of the 2019 Annual Dinner; • Ratified President P. Gregory Frey’s appointment of Florence Nakakuni as the Chair of the HSBA Nominating Committee; • Ratified President Frey’s reappointment

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of following individuals as the HSBA representatives on the Supreme Court Nominating Committee: Sidney Ayabe, Sherry Broder, Judge Linda Luke (ret.), and Stephanie Rezents; and • Voted to support the Judiciary’s supplemental budget requests, including operational requests and capital improvement project requests.

Be a Candidate for the 2021 HSBA Board The HSBA is looking for enthusiastic attorneys, who care about improving the legal profession and making a difference, to run for a position on the HSBA Board,

either as an officer (one-year term) or director (two-year term). Beginning January 2021, the officer positions of Vice President, Treasurer, and Secretary will be available, and the following director positions will be available: six for Oahu, one for Maui, and one for East Hawaii. Board members from Kauai and West Hawaii are currently serving a two-year term set to expire in December 2021. Interested attorneys should email a cover letter and resume to the HSBA Nominating Committee (nominations@hsba.org) by April 17. The Nominating Committee will have a slate ready by the end of May and discourages any campaigning before that time.

Member Benefits Spotlight BookingCommunity HSBA members are given exclusive access to hotel rates that are up to 70% less than any other online travel booking site, with over 800,000 participating hotels and resorts. Visit www.bookingcommunity.com/ hsba to learn more. Hawaiian Airlines HSBA members are eligible for a 5% off discount on all transpacific web fares (round trip only). For reservation instructions, sign in to your HSBA member account, and click on “My Account” > “Benefit-Hawaiian Airlines.” This discount is effective only for tickets purchased on/after January 21, 2020. Baggage fees will apply to Preferred Affiliate Bookings. DeBiasi Pacific DeBiasi Pacific has designed and built swimming pools, spas, and beautiful gardens at recreational and resort facilities throughout Hawaii and the Pacific since 1983. Now they bring this expertise to your project, transforming outdoor spaces into private boutique resorts. They will help you draw up a budget and work within it to create a perfect outdoor environment you absolutely cannot wait to come home to. DeBiasi Pacific shall provide a free pool heater (valued at $6,000), a complimentary landscape consultation or three months of free pool servicing (valued at $900) with any newly or re-constructed pool using DeBiasi Pacific Inc. to HSBA members when they present their HSBA bar cards. If the member chooses the option of receiving three months of free pool servicing, the member must sign a one-year contract for pool servicing with DeBiasi Pacific Inc.

NOTICES OF DISCIPLINE David A. Sereno On January 15, 2020, the Hawai‘i Supreme Court suspended Maui attorney David A. Sereno from the practice of law in the State of Hawai‘i. The suspension is effective immediately and is to continue until further order of the court. Sereno is suspended due to his failure to cooperate in two pending disciplinary matters, one of which precipitated the petition for suspension, and another matter that came to light while the noncooperation petition was pending. As the two investigations allege a failure to return significant unearned funds and may result in claims against the Lawyers’ Fund for Client Protection, it is expected that the ODC will move forward with formal disciplinary charges by default. Upon entry of this suspension order, Sereno shall not accept any new retainer or engage as attorney for another in any new case or legal matter of any nature. Sereno is required to promptly notify all of his clients, and any attorneys for any adverse party in any pending litigation, of his suspension and consequent inability to act as an attorney. Sereno shall surrender to all clients all papers and property to which the clients are entitled and any advance payments of fees that have not been earned. Sereno, age 58, was admitted to the Hawai‘i bar in 1988, and is a graduate of the University of Hawai‘i, William S. Richardson School of Law. (Case information: ODC v. David A. Sereno, SCAD-19-00000571, January 15, 2020.) Lawrence Jacob Song On January 21, 2020, the Hawai‘i Supreme Court suspended Lawrence Jacob Song from the practice of law in Hawai‘i. The suspension is for a period of 60 days, effective 30 days following entry of the suspension order. Song

resides in Playa Del Rey, California. The suspension is a reciprocal discipline proceeding based upon Song’s 2018 suspension by the California Supreme Court and subsequent reciprocal suspension by the District of Columbia Court of Appeals. The suspension arose out of his no contest plea in the Los Angeles (California) Superior court to felonious “assault by means of force likely to produce great bodily injury.” In the California disciplinary proceedings, the parties agreed that the conviction “did not involve moral turpitude but did involve other misconduct warranting discipline.” Should Song seek reinstatement to the practice of law in Hawai‘i, he will be required to show proof of compliance with the disciplinary conditions imposed by both the California and the District of Columbia authorities, and reinstatement to the practice of law in both jurisdictions. Upon entry of the January 21, 2020 suspension order, Song shall not accept any new retainer or engage as attorney for another in any new case or legal matter of any nature in Hawai‘i. However, between January 21, 2020 and February 20, 2020 he may wind up and complete, on behalf of any client, all matters that were pending on January 21, 2020. During that time, he is required to promptly notify all of his clients and any attorneys for any adverse party in any pending litigation, of his suspension and consequent inability to act as an attorney. By February 20, 2020, Song shall surrender to all clients all papers and property to which the clients are entitled and any advance payments of fees that have not been earned. Song, age 67, was admitted to the Hawai‘i bar in 1995 and is a graduate of the Columbus School of Law, Catholic University of America, Washington D.C. (Case information: ODC v. Lawrence Jacob Song, SCAD-19-00000820.)

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C O URT BR IEF S Judges Cataldo, Copeland, and Nishimura Sworn In

Guests waited patiently in a long line to bid him aloha. Attendees included Chief Justice Mark E. Recktenwald, who presented Judge Kubo with a Certificate of Recognition for his many years of public service. Marc Alexander, Executive Director of the City and County of Honolulu Mayor’s Office of Housing, presented Judge Kubo with a proclamation from Mayor Kirk Caldwell declaring December 13, 2019, Ed Kubo Day.

Per Diem Judge Announcements Family and friends looked on proudly as Lisa W. Cataldo, Rebecca A. Copeland, and Alvin P.K.K. Nishimura were sworn in as judges of the First Circuit on January 6, 2020. The oath of office was administered by Chief Justice Mark E. Recktenwald in the Hawaii Supreme Court courtroom. Judge Cataldo will serve as judge of the Circuit Court for a 10-year term. Judges Copeland and Nishimura will serve as judges of the District Family Court. Their terms as District Court judges will each be for six years. Guest speakers were Gov. David Y. Ige, Hawaii State Bar Association President P. Gregory Frey, Hawaii State Trial Judges Association President Judge Matthew J. Viola, Judicial Selection Chair Ronette M. Kawakami, and Senate President Ronald D. Kouchi.

Judge Kubo’s Retirement Celebration

The Honorable Edward H. Kubo, Jr. celebrated nearly a decade of service as judge of the Circuit Court of the First Circuit by inviting a few hundred of his closest friends and co-workers to lunch on December 13, 2019.

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Natasha Rani Shaw and Blake T. Okimoto were recently reappointed as per diem judges of the District Court of the First Circuit. Shaw was further designated to preside as District Family judge, and her term is from January 15, 2020 to January 14, 2022. Okimoto’s term is from January 19, 2020 to March 10, 2021.

CADR’s Spring 2020 Special Training Events The Center for Alternative Dispute Resolution (“CADR”) will host free workshops at Aliiolani Hale, 417 South King Street, Room 101: The Value and Perils of Nonverbal Communication April 1, 2020, 1 – 2:30 p.m. Guest trainer: Lisa Jacobs, Pono Divorce. Co-taught with CADR trainer Anne Marie Smoke This workshop will focus on the values and virtues of nonverbal communication. Presenters will address how critical nonverbal cues are to the quality of our daily interactions and how powerful they are in establishing rapport and trust whether at work or at home. Register at: www.surveymonkey.com/r/ADR_ 2020april1 De-Stressing in the Workplace May 15, 2020, 9:30 – 11 a.m. Guest trainer: Tom DiGrazia, Yoga School of Kailua, Inc., and Mediation Center-Windward Oahu When we are under stress, we often make bad, emotionally-driven decisions. The impacts may be detrimental to the morale, health, and well-being of ourselves and our coworkers, yet we can undertake some simple, effective things to lessen its effects, specifically in the workplace. Register at: www.surveymonkey.com/r/ADR_2020 may15

CAS E NOTES Hawaii Supreme Court Criminal State v. Carroll, NO. SCWC-160000593, January 24, 2020, (Mckenna, J.). This case arose from the disappearance, recovery, and repair of a bronze spear attached to the bronze King Kamehameha I statue in Hilo, Hawaii. After a jury trial in the circuit court, William Roy Carroll, III (“Carroll”) was convicted by a jury of two counts of theft and one count of criminal property damage, and sentenced to five years’ imprisonment. On appeal to the ICA, and now again on certiorari to the Hawaii Supreme Court, Carroll contended the circuit court erred by: (1) denying his challenge to two prospective jurors for cause, thereby violating his right to peremptory challenges; (2) denying his motion for judgment of acquittal based on insufficiency of evidence; and (3) improperly penalizing him in sentencing for exercising his right to a trial. The ICA concluded Carroll’s points of error lacked merit and affirmed the circuit court’s judgment of conviction and sentence. The Hawaii Supreme Court held the circuit court abused its discretion in denying Carroll’s challenge for cause of Juror 48, which required him to exercise one of his peremptory challenges to excuse that juror and caused him to exhaust his peremptory challenges, thus impairing his right to exercise a peremptory challenge on a different juror. This error required his conviction be vacated and the case be remanded to the circuit court for a new trial. The Hawaii Supreme Court also held, however, that because there was substantial evidence to support Carroll’s convictions for the theft and criminal property damage offenses, double jeopardy principles did

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Appeal Pointer HRAP Rule 32(b), which governs quality and style of print for documents filed with the appellate court, provides that the print must be standard 12 point pica or equivalent and yield no more than 14 characters per inch. No attempt shall be made to reduce or condense the print in a manner that would increase the content of the document. not preclude a retrial. Based on its rulings on the first two questions on certiorari, the Hawaii Supreme Court did not address Carroll’s third question on certiorari regarding sentencing. State v. Sheffield, No. SCAP-170000707, January 2, 2020 (McKenna, J.). David M. Sheffield (“Sheffield”), a stranger to the complaining witness (“CW”), allegedly followed her while she walked along a street at night, stated that he wanted to beat her up and have sex with her, pulled a loop on her backpack as she tried to cross a street at a crosswalk, and dragged her backwards about five or ten steps before she broke free. Sheffield was charged with one count of kidnapping in violation of Hawaii Revised Statutes § 707-720(1)(d) (2014), a class A felony punishable with up to twenty years of imprisonment, and one count of third degree assault, a misdemeanor punishable with up to one year of imprisonment. At the State’s request, the third degree assault count was dismissed before trial. Sheffield was tried by a jury in the circuit court and found guilty on the kidnapping count. He appealed, and the Hawaii Supreme Court accepted transfer of the appeal from the ICA. On appeal, Sheffield argued that, when kidnapping is the only count tried,

the State must prove the defendant used a greater degree of “restraint” than that incidentally used to commit the underlying unprosecuted assault in the third degree offense. He also argued the jury should have been so instructed. Sheffield asserted that the act of pulling the loop on CW’s backpack and dragging her backwards five to ten steps was insufficient evidence of “restraint” to support the kidnapping conviction. He asked the Hawaii Supreme Court to reverse his conviction based upon insufficiency of the evidence, or, in the alternative, to vacate his conviction and remand this case to the circuit court for further proceedings. The Hawaii Supreme Court held that the “restraint” required to support a kidnapping conviction under Haw. Rev. Stat. § 707720(1)(d) was indeed restraint in excess of any restraint incidental to the infliction or intended infliction of bodily injury or subjection or intended subjection of a person to a sexual offense; therefore, the circuit court plainly erred in failing to so instruct the jury. State v. Williams, No. SCWC-170000226, January 3, 2020, (McKenna, J.). Patrick Williams (“Williams”) was charged with assault in the second degree1 against his two-year-old son (“minor son”) in violation of Haw. Rev. Stat. § 707-711(1)(a) and/or § 707711(1)(b), via an August 11, 2015 indictment in the family court. On January 12, 2017, a jury found Williams guilty of the lesser included offense of assault in the third degree, in violation of Haw. Rev. Stat. § 707-712. On March 28, 2017, the family court entered its final judgment, sentencing Williams to one year of probation. Williams appealed the family court’s final judgment to the ICA, arguing the family court

Thank you to the law firms, businesses, and individuals for supporting the Legal Aid Society of Hawaii’s four year Justice Campaign. Your continued support is leading the way towards providing access to justice for those in need. Hawaiian Electric Company Blaine Rogers Island Insurance Foundation Bronster Fujichaku Robbins Jodi Yamamoto Cades Foundation Marr Jones Wang LLP Carlsmith Ball LLP Michael Cruise Corianne Lau Rod Aoki Cronin, Fried, Sekiya, Kekina & Fairbanks SSFM International Dentons US LLP Tricia Nakamatsu Gary Y. Murai Yamamoto & Caliboso Goodsill Anderson Quinn & Stifel LLP Hawaii Gas For pro bono opportunities or to make a donation in lieu of pro bono under HRPC Rule 6.1, please contact Sergio Alcubilla at 527-8063 or at sergio.alcubilla@legalaidhawaii.org.

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237 Kuumele Place #8, Kailua, HI 96734 melhertz@theretirementcoach.org Securities and advisory services offered through the Strategic Financial Alliance, Inc. (SFA), member FINRA and SIPC, mel r. hertz is a registered representative and an investment adviser representative of SFA, which is otherwise unaffiliated with the retirement coach. Supervising Office (678) 954-4000

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plainly erred by failing to strike certain improper opening statements made by the deputy prosecuting attorney and by admitting certain x-rays into evidence without the necessary foundation. Williams also argued there was insufficient evidence to sustain his conviction. In its summary disposition order (“SDO”), the ICA concluded the points of error alleged by Williams lacked merit. The ICA ruled: (1) although the deputy prosecuting attorney’s comments in his opening statement were improper, the family court had instructed the jury to refrain from considering the comments as evidence and, therefore, the error was harmless; (2) there was no reasonable possibility that any error in admitting the contested x-rays into evidence contributed to Williams’ conviction; and (3) viewing the evidence in the light most favorable to the State, there was sufficient evidence that Williams at least recklessly caused minor son to suffer bodily injury. See State v. Williams, No. CAAP-17-0000226, at 4–6 (App. June 15, 2018) (SDO). The ICA then entered its judgment on appeal affirming the family court’s final judgment. Williams’ certiorari application asked that the Hawaii Supreme Court address the three issues he had presented to the ICA: Whether the ICA gravely erred in holding that: (1) the prosecutor’s improper comments constituted harmless error; (2) the [family] court did not err in admitting the x-rays into evidence without the improper [sic] foundation; and (3) there was sufficient evidence to sustain Williams’ conviction. The Hawaii Supreme Court held that Williams’ conviction on the charge of assault in the third degree must be vacated because the deputy prosecuting attorney’s elicitation of evidence regarding Child Welfare Services’ involvement in violation of a defense motion in limine was improper and not harmless beyond

a reasonable doubt. The Hawaii Supreme Court also addressed the evidentiary foundation issue regarding the x-rays not addressed by the ICA, and held there was insufficient foundation for admission of the contested x-rays into evidence because the physician through whom the x-rays were introduced was not a custodian or “other qualified witness” able to lay a foundation pursuant to Hawaii Rules of Evidence (“HRE”) Rule 803(b)(6) (2002). The Hawaii Supreme Court also held, however, that Williams’ conviction on the charge of assault in the third degree was supported by substantial evidence.

Foreclosure OneWest Bank, F.S.B. v. The Assoc. of the Owners of the Kumulani at the Uplands at Mauna Kea, No. SCWC-16-0000123, January 9, 2020, (Wilson, J.). In response to a pair of post-judgment motions filed in this foreclosure case, the circuit court filed two orders. The first found Respondent/Plaintiff-Appellant OneWest Bank, F.S.B. (“OneWest”), the foreclosing mortgagee and winning bidder at the foreclosure auction, liable for damages in an amount equal to its down payment for its failure to close the foreclosure sale. The second awarded that down payment amount as expectation damages to Petitioner/Defendant-Appellee the Association of the Owners of the Kumulani at the Uplands at Mauna Kea (“the Association”), a junior lienholder. Because creditors in a judicial foreclosure action are “entitled to payment according to the priority of their liens,” Haw. Rev. Stat. § 667-3 (2016), the Hawaii Supreme Court held that the circuit court abused its discretion by awarding damages to the Association, rather than by applying the down payment amount to reduce the debt owed to OneWest.

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 mediations for clients of most of Hawaii’s major law firms. • 41 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, and Arbitration, 2018. • 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 For ADR work, please contact

Dispute Prevention & Resolution (808) 523-1234; dprhawaii.com For employment investigations, please contact jh@hiattlaw.com or at (808) 885-3400. Resume and references at www.hiattlaw.com. March 2020

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Land Title Guaranty Escrow Serv., Inc. v. Wailea Resort Co., Ltd., No. SCWC-140001138, (McKenna, J.). This consolidated appeal arose from the fourth and sixth in a series of six appeals from a lawsuit in the circuit court. The parties were Michael J. Szymanski (“Szymanski”), Wailea Resort Company (“Wailea”), and ADOA-Shinwa Development and Shinwa Golf Hawaii Company (collectively “Shinwa”). The litigation concerned a dispute arising from a 1999 contract regarding the sale of approximately twenty-three acres of land in Honualua, Maui (“the Property”). Szymanski’s application for writ of certiorari (“Application”) raised seven questions. Five of Szymanski’s questions related to whether the Honorable Rhonda I.L. Loo’s (“Judge Loo”) interest in Alexander & Baldwin (“A & B”), which she had disclosed in financial disclosure statements but not on the record in the lawsuit, required her recusal. The Hawaii Supreme Court held that the ICA did not err in its application of the “law of the case” doctrine to refuse further consideration of Judge Loo’s recusal because the issue had already been raised and decided against Szymanski in the third appeal and no cogent reasons, patent error, or exceptional circumstances existed to set aside its prior rulings. Therefore, Szymanski’s questions relating to the disqualification of Judge Loo were without merit. Szymanski also asked whether the ICA gravely erred when it declined to review whether the Honorable Peter T. Cahill’s (“Judge Cahill”) 2015 order entering final judgment improperly dismissed with prejudice Szymanski’s third-party complaint against Shinwa. The Hawaii Supreme Court held that the ICA also did not err in its application of the law of the case doctrine to this issue because it had af-

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firmed the 2010 Judgment that dismissed Szymanski’s third-party complaint in Appeal 2 and no cogent reasons, patent error, or exceptional circumstances existed to set aside its prior ruling. Szymanski’s final question was whether the ICA gravely erred in affirming the circuit court’s order disbursing funds to Wailea, which was based on the ICA’s affirmance of Judge Loo’s 2004 summary judgment orders ruling that Szymanski had breached the contract. The law of the case doctrine did not apply to this issue. The Hawaii Supreme Court also held that the ICA erred by holding Wailea was “clearly entitled” to the funds and by affirming the circuit court’s disbursal of funds because Szymanski’s $50,000 deposit was not a “Downpayment” as defined by the contract. American Savings Bank, F.S.B. v. Chan, No. SCWC-15-0000309, January 21, 2020, (McKenna, J.). This certiorari proceeding arose from two cases filed and consolidated in the circuit court concerning a foreclosure dispute between the Villages of Kapolei Association (“Association”), the Hawaii Housing Finance and Development Corporation (“HHFDC”), Johnny Kinman Chan and Jean Toshiko Chan (“Chans”), and American Savings Bank, F.S.B. (“ASB”). The dispute concerned the circuit court’s determination of lien priority between the Association’s and HHFDC’s competing liens and the valuation of HHFDC’s senior lien. The underlying foreclosure of ASB’s first mortgage lien is not in dispute. The Association’s application for writ of certiorari (“Application”) raised three issues. First, the Association contended the ICA erred by affirming the circuit court’s alleged retroactive application of Haw. Rev. Stat. § 201H-47 (Supp. 2009) to rule that HHFDC’s lien was senior and superior

to the Association’s liens. The Hawaii Supreme Court held that the ICA did not err because (1) whether the circuit court actually applied Haw. Rev. Stat. § 201H-47 was unclear; (2) HHFDC had lien priority over the Association’s liens pursuant to Haw. Rev. Stat. § 201E-221 (repealed 1997), the statute in effect when the deed and Shared Appreciation or Equity (“SAE”) Agreement between the Chans and HHFDC’s predecessorin-interest, the Housing Finance and Development Corporation (“HFDC”) were entered; and (3) HHFDC had lien priority over the Association pursuant to the “first in time, first in right” principle and the SAE Agreement, which was incorporated into the deed. Second, the Association asserted the ICA erred by ignoring the plain language of Sections 1, 2, 3, and 7 of the SAE Agreement relating to the applicability of the agreement’s appraisal process and whether the SAE Agreement became null and void upon ASB’s foreclosure. The Hawaii Supreme Court held the ICA did not err in determining the appraisal process applied and that ASB’s foreclosure did not nullify the SAE Agreement. Third, the Association argued the ICA erred by holding that HHFDC had rights under the SAE Agreement because there were genuine issues of material fact regarding HHFDC’s standing to enforce the agreement. The Hawaii Supreme Court held that, as a matter of law, HHFDC had standing to enforce the SAE Agreement as successor to HFDC pursuant to Act 350 of 1997 and Act 196 of 2005. 1997 Haw. Sess. Laws Act 350; 2005 Haw. Sess. Laws Act 196.

Tax In the Matter of the Tax Appeal of Kaheawa Wind Power, LLC, No. SCAP-170000816, January 21, 2020, (Recktenwald, C.J.). This case arose

from a taxation dispute between Appellant County of Maui (County) and Appellees Kaheawa Wind Power, LLC, Kaheawa Wind Power II, LLC (collectively, Kaheawa), and Auwahi Wind Energy LLC (Auwahi), regarding lease of land on the island of Maui in order to operate their wind farms. At issue was whether the County had the authority, under article VIII, section 3 of the Hawaii Constitution, to include the value of Appellees’ wind turbines in Appellees’ real property tax assessments, and to redefine the term “real property” within section 3.48.005 of the Maui County Code (MCC) to include wind turbines for that purpose. Appellees challenged the County’s actions in the Tax Appeal Court (TAC), which issued summary judgment orders and a final judgment in their favor. The TAC held that the County, by amending the MCC, exceeded its authority under article VIII, section 3 because the delegates to the 1978 Constitutional Convention did not intend to grant the counties the power to redefine “personal property” as “real property.” In response, the County filed five separate appeals with the ICA (consolidated under CAAP-17-816) and filed an application for transfer, which the Hawaii Supreme Court granted. The Hawaii Supreme Court held that the County exceeded its constitutional authority by amending MCC § 3.48.005 to expand its definition of “real property” to include “personal property,” and agreed with the TAC that the delegates to the 1978 Constitutional Convention did not intend to grant the counties the power to define the term. The Hawaii Supreme Court further held that the delegates intended for this power to be reserved to the legislature.

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HAWAII BAR JOURNAL

OFF THE RECORD Seth Buckley and Zachary DiIonno established Candela Law Group (CandelaHawaii.com), a boutique transactional law firm that services clients in the areas of real estate, non-profit organizations, and business law. K. Kanani Souza joined Coates Frey Tanimoto & Gibsonâ&#x20AC;&#x2122;s family law firm. She received her J.D. degree from the William S. Richardson School of Law and most recently served as a Deputy Prosecuting Attorney with the City and County of Honolulu. She joins the officeâ&#x20AC;&#x2122;s Domestic Abuse/TRO Practice Group where her focus will be on Divorce including Domestic Abuse and TROs. Kaitlyn Mark joined the Porter McGuire Kiakona & Chow law firm as an associate in family law. Gemma-Rose Poland Soon has started her own law practice GemmaRose Poland Soon, Esq., LLLC. Her practice focuses exclusively on family law, including agency and family court appeals. Shimpei Oki is a partner at Goodsill Anderson Quinn & Stifel LLP, effective January 1, 2020. He joined the firm as an associate in 2013. Born and raised in Tokyo, Oki speaks, reads, and writes fluent Japanese and assists Japanese companies and investors in real estate, corporate, and business immigration matters. He received his J.D. degree from the William S. Richardson School of Law, University of Hawaii. Na Lan has become a Director at Damon Key Leong Kupchak Hastert. She joined the firm in 2017 as Of Counsel in the areas of condominium and community association law and immigration law, as well as in bilingual legal services for Mandarin-speaking investors and business owners. Born and raised in China, she is a graduate of Nanjing University of Information Science & Technology in China, where she earned a B.S. in Atmospheric Science, with highest honors. She also earned her real estate license and is a member of the National Association of Realtors and the Honolulu Board of Realtors. The Cades Schutte law firm named

28 March 2020

HAWAII BAR JOURNAL

O FF THE R EC ORD Trisha L. Nishimoto a partner in the Cades Schutte Litigation Department. She joined the firm in 2012 and practices in the areas of defense of medical malpractice claims, personal injury, insurance litigation, and representation of physicians in administrative disciplinary matters. Andrea K. Ushijima became a partner in the firm’s Finance and Real Estate Department. She joined the firm in 2013. Her practice includes commercial finance, commercial real estate, and banking and consumer finance law. Lane Hornfeck became a shareholder in the Shulman Rogers law firm in Potomac, Maryland. She practices in the areas of business and corporate disputes, real estate and construction, fiduciary, hospitality, antitrust and trade practice litigation, class action defense, appellate litigation, and alternative dispute resolution. Del Green, a Director with Case Lombardi & Pettit, is the Chairperson for the Host Organization Committee for the Rotary International convention in Honolulu, Hawaii, taking place on June 6-10 2020. The convention is expected to draw 25,000 to 30,000 Rotarians, plus family members, from +170 countries. Dozens of HSBA members are involved in supporting the success of the international convention. Green is a Past District Governor for Hawaii (Rotary District 5000), 2015-16. Craig Hirai was appointed as the director of the Department of Budget and Finance, effective Dec. 16, 2019. Hirai has served as executive director of the Hawai‘i Housing Finance & Development Corporation, State of Hawai‘i since 2013. He is also the sole member of Craig K. Hirai, CPA, LLC. Previously, Hirai was a consultant (shareholder/director) at Bowen Hunsaker Hirai Consulting, Inc. and Bowen Hunsaker Hirai, Certified Public Accountants. In addition, Hirai has worked as a tax attorney in private practice. Kimberly Tsumoto Guidry was named the new Solicitor General for Hawai‘i. She joined the Department of the Attorney General’s appellate division in 2002, and for the past eight years, she 30 March 2020

HAWAII BAR JOURNAL

has served as First Deputy Solicitor General. She is a member of the Hawai‘i Supreme Court’s Standing Committee on the Hawai‘i Rules of Appellate Procedure, and she recently completed her first three-year term as a member of the Board of Bar Examiners of the Hawai‘i Supreme Court. Save the Date for the 2020 HSBADai Ichi Tokyo Bar Association Friendship Meeting, Envisioning 2020: AI & Data Privacy Protection in the New Digital Era, which will take place on April 1617, 2020, in Tokyo, Japan. The event will feature a joint legal seminar, networking opportunities with attorneys from Japan and Hawaii, a special VIP tour of the National Diet of Japan, and unique and authentic local dining experiences.

2020 Hawaii Access to Justice Conference Save the date: Friday, June 19, 2020. The Hawaii Access to Justice Conference, sponsored by the Hawaii Access to Justice Commission, will be an all-day event. Please attend to be part of an exciting, provocative discussion about seeking justice for the underserved, including opportunities for audience participation. The keynote speaker will be Honorable Nancy Gertner (Ret.) who is on the faculty of the Harvard Law School. Opening remarks will be given by Hawaii Supreme Court Chief Justice Mark Recktenwald and Chair of the Commission, former Hawaii Supreme Court Associate Justice Simeon Acoba. Hawaii-licensed attorneys attending this event can receive five continuing legal education (“CLE”) credits and one ethics credit hour, which will satisfy in full the yearly three-credit CLE requirement. At least one credit of ethics is required every three years — to be counted towards the annual CLE requirement. (Three credits may be carried forward to the next year, so attendance meets the current year and next year’s CLE requirements in full.)

ATTORNEY WANTED ASSOCIATE ATTORNEY (Civil Litigation) Established downtown law firm is seeking a litigation associate attorney. 3-6 years civil litigation experience preferred; Admission to Hawaii Bar Required. Excellent benefits; Salary commensurate with experience. Please submit resume and writing samples in confidence to: Recruiting Committee/HR Case Lombardi & Pettit, A Law Corporation 737 Bishop Street, Suite 2600 Honolulu, HI 96813 recruitingdirector@caselombardi.com ESTABLISHED MID-SIZED FIRM is seeking an experienced Associate Attorney, licensed in Hawaii, to join our team. We are looking for someone with some litigation experience, and is looking to gain more experience in a wide variety of areas of law. We hope to find someone with excellent writing skills, strong research skills, written and verbal communication skills, and who is able to multi-task. We need to add another team player to our already outstanding team. We offer a very competitive salary and benefits package. Please email your resume and writing sample for immediate consideration or mail to: BRONSTER FUJICHAKU ROBBINS Attention: Administrator 1003 Bishop Street Suite 2300 Honolulu, Hawaii 96813. All inquiries are held in strict Confidence! F U K U N AG A M ATAYO S H I C H I N G & KON-H ER R ER A is looking to hire an associate attorney with three to five years of civil litigation experience. The firm handles a variety of cases in numerous practice areas including products liability, construction, professional liability, personal injury, and insurance law. Must be licensed in Hawaii with experience in both state and federal courts. Qualified candidates must have exceptional research, writing, and analytical skills; ability to manage multiple cases and assignments; excellent verbal and written communication skills; and a desire to learn. The firm offers a competitive salary and benefits package Interested applicants should email their resume and letter of interest to eol@fmhc-law.com IMMEDIATE SUPERVISING AND STAFF ATTORNEY vacancies within the State of Hawaii Division of Consumer Advocacy. Please send resume and contact information to Consumeradvocate@dcca.hawaii.gov KESSNER UMEBAYASHI BAIN & MATSUNAGA is seeking an associate attorney to join its team. Qualified candidates must be licensed to practice law in Hawaii and must also demonstrate effective communication skills and strong research and writing skills. Two years of experience is preferable. Competitive benefits offered, including 401(k), medical,

dental and vision coverage, vacation and sick leave and parking. Salary commensurate with experience and qualifications. Interested applicants should submit a cover letter, resume and writing sample to lawyers@kdubm.com. LITIGATION DEPARTMENT of Honolulu boutique law firm that has served Hawaii for more than 25 years seeks a talented, conscientious associate. Practice areas include maritime defense and insurance, insurance coverage, commercial, products liability, and insurance defense litigation. Candidate must have strong academic credentials and well-developed research and writing skills. Will have direct client contact, so strong verbal and written communication skills are a must. Experience with Microsoft Office, including Word, Excel, and Outlook a plus. Expected to work independently, but in a team-based environment. Candidates must already be licensed to practice in the State of Hawaii at time of application. Competitive salary commensurate with experience and excellent benefits that include: Medical/Dental/Vision insurance, parking, vacation and sick leave, 12 holidays per year, and enrollment in company retirement/401(k) plan after one year. Please reply to this ad by sending your cover letter, resume, and writing sample to info@ macdonaldrudy.com. No phone calls please. All sub mis sio n s will b e held in s tr ict confidence. LYONS, BRANDT, COOK & HIRAMATSU seeks civil litigation attorney to join and grow our team of lawyers. Responsibilities include all aspects of case investigation and discovery, legal research and writing, court appearances and oral arguments, trial preparation and participation, and appellate briefing and arguments. Preferred applicants have litigation experience, excellent verbal and written communication and advocacy skills, are highly detail oriented and organized, have solid judgment and strong integrity, and are able to work independently and as part of a team. Applicants must be licensed to practice law in Hawaii and in good standing. Salary commensurate with experience. Benefits offered. Please send letter of interest and resume to hr@lbchlaw.com. O’CONNOR PLAYDON GUBEN & INOUYE LLP, is looking for an Associate Attorney in litigation. One year of litigation experience is desired. Must be licensed to practice in Hawaii. Salary commensurate with experience. Benefits include: vacation/sick leave, medical, dental, vision, 401(k), parking, life and LTD insurance. gmp@opgilaw.com. REAL ESTATE / BUSINESS ATTORNEY: Schneider Tanaka Radovich Andrew & Tanaka, LLLC seeks an attorney with four or

more years of experience in real estate and/or business transactions. Qualified candidates must be licensed to practice law in Hawaii and are expected to have effective communication skills and well-developed research and writing skills. Competitive salary and benefits, including 401(k), medical, dental, vision and drug coverage, vacation, personal leave and parking. Interested applicants should submit a cover letter and resume (in confidence) to Schneider Tanaka Radovich Andrew & Tanaka, LLLC, Attn: David Andrew, 1100 Alakea Street, Suite 2100, Honolulu, HI 96813, or to dandrew@stratlaw.com. Questions may be directed to David Andrew by email or by calling 808-792-4200. UNIVERSITY OF HAWAII, Office of General Counsel, seeks Associate General Counsels for transactional (pos. #89562) and employment law (pos. #89411) positions, as well as a transactional paralegal (pos. #80156). Attorney applicants must have at least 8 years of experience. For more information, see WORKATUH.HAWAII.EDU and search by position number. The University is an EEO/AA employer.

EXPERT WITNESS AQUATIC SAFETY EXPERT 28 years aquatic Experience. Qualified as an expert in state and federal courts. See our ad on page 56 of the HSBA Directory. Aquatics consulting Service 808-960-9348 www.aquaticsconsulting.com CONSTRUCTION DEFECTS, contractor issues, premises liability, real estate disclosure. National Building Expert. Best Selling Author. www.lanceluke.com 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. Spikedenis@hawaii.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 2-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 ADMINISTRATION ONE ON ONE litigation legal/administrative assistant wanted for name partner in high volume civil trial practice. Must be a selfstarter with strong communication skills, able and willing to deal directly with clients, and work well with others. 5-7 years experience in civil litigation practice a must, including knowledge of state/federal court rules, along with working knowledge of Microsoft Word. Experience with Juris preferred. Competitive benefits offered; salary commensurate with experience. All interested applicants should email their current resume and cover letter to hr@lbchlaw.com

LEGAL CONSULTING ENVIRONMENTAL DUE DILIGENCE for property transactions. Investigation & hazard evaluation. Permitting & Compliance. Inclusion Consulting (808)261-4444 www.inclusionhawaii.com 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

LEGAL WRITING /RESEARCH EXPERIENCED ATTORNEY will provide legal writing services. Motions, memos, complaints, appellate briefs, and other writing assignments. Reasonable rates. Writing samples, and references provided on request. Call (808) 7358701 or (808) 227-2141.

OFFICE SPACE AVAILABLE - January 15, 2020. Interior office in a shared class A law office suite downtown. $400 per month. Includes kitchen and referral work opportunities. marc@attorneysforfreedom.com. AVAILABLE - Two window offices (1 or both), in a friendly, shared law office suite, located downtown, with beautiful 28th floor views. Includes conference room, kitchen, room for support staff, if necessary. Available June 1, 2020. If interested, call Bob at 524-7331.

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 March 2020

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