Hawaii Bar Journal - March 2022 by Hawaii Bar Journal

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

ARTICLES 44

Recent Decisions Show Enduring Significance of Supreme Court of Hawai‘i’s Milestone Environmental Opinions PASH, Waiahole I, and MECO

by David Raatz

20 24

by Lennes N. Omuro

The Unauthorized Practice of Law in Hawaii

HSBA OFFICERS President Shannon Sheldon President-Elect Rhonda Griswold Vice President Jesse Souki Secretary Lanson Kupau

OF NOTE 16

Court Briefs

Treasurer Alika Piper

18 20 26

HSBA Happenings

YLD OFFICERS

22 27

Case Notes

28 30

Off the Record

32 30

Classifieds

President Jasmine Wong Vice President/President-Elect Lisa Yang Secretary Nelisa Asato Treasurer Kelcie Nagata

Moments in History

EXECUTIVE DIRECTOR Patricia Mau-Shimizu GRASS SHACK PRODUCTIONS Publisher Brett Pruitt Art Direction Debra Castro Production Beryl Bloom

On the Cover: Green Anthuriums by Noriko. “Elegant and sophisticated with excellent depth of color Hawaii Bar Journal is published monthly with an additional issue in the fourth quarter of each year for the Hawaii State Bar Association by Grass Shack Productions, 1111 Nuuanu Ave., Suite 212, Honolulu, Hawaii 96817. Annual subscription rate is $50. Periodical postage paid at Honolulu, Hawaii and additional mailing offices. POSTMASTER: Send address changes to the Hawaii Bar Journal (ISSN 1063-1585), 1100 Alakea St., Ste. 1000, Honolulu, Hawaii 96813.

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and a bold palette” accurately describes Noriko’s highly regarded and avidly collected vibrant floral paintings. With subtle tones and splashes of color she creates beguiling vibrant floral canvases. Noriko’s work can be seen at the Art Board Gallery located at 1170 Nuuanu Ave. in Honolulu’s art district. (This art orignally ran on our cover in November 2005) 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.

Recent decisions show enduring significance of Supreme Court of Hawai‘i’s milestone environmental opinions

PASH, Waiahole I, and MECO

By David Raatz With recent decisions, the Supreme Court of Hawai‘i provided insight—and some surprises—on the lasting effect of its milestone environmental opinions PASH, Waiahole I, and MECO. In Public Access Shoreline Hawaii v. Hawai‘i County Planning Commission, 79 Haw. 425 (1995).1 the Hawai‘i Supreme Court held the state constitution requires agencies to protect the reasonable exercise of native Hawaiians’ traditional and customary gathering rights, even if it means overriding property owners’ right to exclude. The “groundbreaking”2 PASH is influential not just on gathering rights but also on administrative procedure and standing, as seen in Community Associations of Hualalai, Inc. v. Leeward Planning Commission, 150 Haw. 241 (2021). In In re Water Use Permit Applications, 94 Haw. 97 (2000), known as Waiahole I, the Hawai‘i Supreme Court defined the “basic parameters” of the public trust doctrine for water resources in a “historic,”3 “landmark,”4 “monumental,”5 and “pathbreaking”6 opinion. Under Waiahole I, agencies must advance public trust purposes—particularly including the preservation of drinkable water—as exhibited by Lana‘ians for Sensible Growth v. Land Use Commission, 146 Haw. 496 (2020). In In re Maui Electric Co. (MECO), 141 Haw. 249 (2017), the Hawai‘i Supreme Court held the right to a clean and healthful environment is a “protectable property interest” in a “landmark”7 opinion that was one of the “major developments”8 in Hawai‘i’s jurisprudence. Applying MECO’s principles, Protect & Preserve Kahoma Ahupua‘a Association v. Maui Planning Commission, 149 Haw. 304 (2021), held the Coastal Zone Management Act (CZMA)—as a “law relating to environmental quality”—triggered protections of the state constitution’s Due Process Clause.

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PASH on administrative procedure and standing: Hualalai (2021) PASH is one of the most widely discussed cases in Hawai‘i history among law professors, law students, and legal theoreticians. Much of the discussion has centered on Justice Robert G. Klein’s provocative conclusion for a unanimous court “that the western concept of exclusivity is not universally applicable” to property rights in Hawai‘i. 79 Haw. at 447. The case has been cited in more than 150 law-review articles9 and was the subject of a University of Hawai‘i Law Review Symposium10 last year. But in recent years, the case has not been widely discussed among litigators and judges, at least according to published opinions. When PASH was cited by the Hawai‘i Supreme Court in December 2021, it was the first time in eight years the opinion was mentioned. And it came in a procedural case, Community Associations of Hualalai, Inc. v. Leeward Planning Commission. PASH was more than just a dramatic conflict between property rights and gathering rights. It also adjudicated issues raised under Chapter 91, Hawai‘i Revised Statutes (HRS), sometimes called the Hawai‘i Administrative Procedure Act. The court only reached the substantive issues because it found the plaintiff organization, Public Access Shoreline Hawai‘i (PASH), satisfied Chapter 91’s requirements to bring a judicial appeal of an agency action. The PASH organization did that by showing that its members exercised traditional and customary gathering rights under the state constitution and that those rights could be infringed by the property owner’s SMA use permit. Thus, the defendant, the Hawai‘i County Planning Commission (HCPC), should have allowed the organization to

participate in proceedings on the permit application. “As to the Commission’s decision to deny standing to PASH to participate in a contested case, the Hawai‘i Supreme Court squarely rejected the Commission’s ‘restrictive interpretation of standing requirements,’”11 a commentator explained. PASH’s expansive view of standing, in both administrative proceedings and court, was applied in Justice Michael D. Wilson’s opinion for a unanimous Hawai‘i Supreme Court in Hualalai. In that case, a property owner applied for a special permit to operate a quarry and maintain a construction base yard and a junk yard on property zoned for agricultural use. An organization representing local community associations sought to intervene in the planning commission’s proceedings. The application was withdrawn and proceedings halted before formal action on the application. The organization filed a direct appeal with the Hawai‘i Supreme Court on the planning commission’s failure to grant its petition to intervene. The Hawai‘i Supreme Court evaluated whether the plaintiff organization had standing to bring the appeal under Chapter 91 as interpreted in PASH. Justice Wilson wrote that PASH “identified the ‘necessary inquiry’ to determine whether a court may review an agency appeal under HRS § 91-14(a)”: (1) there must have been a contestedcase hearing; (2) “the agency’s action must represent a final decision and order, or a preliminary ruling such that deferral of review would deprive the claimant of adequate relief;” )3)“the claimant must have followed the applicable agency rules and, therefore, have been involved in the contested case”; and (4) “‘the claimant's legal interests must have been injured’ such that the claimant has ‘standing to appeal.’” 150 Haw. at 255.

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Justice Wilson then applied each of the four prongs. The defendants asserted the plaintiff failed the first prong because the application by landowner Bolton Inc. was withdrawn before the Hawai‘i County Leeward Planning Commission (LPC) actually conducted a hearing. But the Hawai‘i Supreme Court held that the prong was satisfied because the requirement to hold a conducted-case hearing was triggered by the plaintiff ’s petition to intervene: “The proceedings . . . constituted a contested case within the meaning of HRS § 91-14(a) and PASH because, although no agency hearing occurred, a hearing was required by LPC Rules 4 and 6 and HRS § 91-9 to determine Bolton’s and Hualalai’s respective legal rights and duties.” 150 Haw. at 256. The next question was whether there could be a “final decision” without a formal action by the agency. Justice Wilson cited PASH to note that “denial of a party’s request to intervene in a contested case” is a “final decision.” He observed that the PASH organization had formally sought “to participate in the proceeding and to implement contested case procedures,” with the Hawai‘i Supreme Court “remanding to the HCPC to hold a contested case hearing in which PASH would be allowed to participate.” 150 Haw. at 257. Justice Wilson again cited the LPC’s rules—noting they required action—and concluded that the evasion of procedural rules should not result in evasion of judicial review. The PASH precedent helped to “compel the conclusion that an agency’s failure to act on a party’s formal petition to intervene constitutes a final decision within the meaning of HRS § 91-14(a).” Id. The plaintiff organization in Hualalai satisfied the third prong—following agency rules for involvement in the case— by properly filing an application to intervene and submitting testimony: “The LPC’s failure to grant Hualalai’s petition

to intervene does not preclude this court from finding that Hualalai clearly participated and followed LPC Rules in the contested case proceeding.” 150 Haw. at 258. The fourth prong—legal injury to establish standing—was satisfied as Justice Wilson applied standards established in a string of land-use cases, including PASH. Despite not acting on the underlying permit application, the County “improperly enabled development by Bolton that resulted in the property, environmental, and aesthetic injuries Hualalai identified in its petition to intervene,” the Hualalai opinion said. 150 Haw. at 259. “Hualalai’s injury is likely to be remedied by the favorable judicial action it seeks: a hearing before the LPC,” Justice Wilson said. “In light of this court’s lenient threshold for standing in cases that are in the realm of environmental concerns, Hualalai has shown that it has standing, as required by PASH for judicial review pursuant to HRS § 91-14(a).” 150 Haw. at 259. As the plaintiff satisfied the four-part test, the Hawai‘i Supreme Court remanded the case to the Leeward Planning Commission for further proceedings. PASH demonstrated the Hawai‘i Supreme Court’s “inclination to throw open the courthouse doors to responsible citizens’ groups”12—a tendency that endures more than a quarter-century later, as seen in Hualalai. Waiahole I on the primacy of preserving drinkable water: Lana‘ians for Sensible Growth (2020) Waiahole I arose from an appeal of the Commission on Water Resource Management’s apportionment of water permits following the demise of O‘ahu’s sugar industry. 94 Haw. at 110-11. The O‘ahu Sugar Company constructed the Waiahole Ditch System starting in 1913 to transport water to its sugarcane fields. “The dispute was between the local community of windward

O‘ahu, who wanted to restore the local streams, and dozens of private parties seeking water permits to ensure continued diversion and use of the 27 million gallons of water diverted through the Waiahole ditch,”13 a commentator noted. The first paragraph of Justice Paula A. Nakayama’s opinion for a 4-1 majority noted the Water Commission’s contestedcase hearing was of “unprecedented size, duration, and complexity.” 94 Haw. at 110. Her 166-page opinion—which affirmed in part and vacated in part the Water Commission’s order—was also lengthy and complex, listing scores of parties, attorneys, and table-of-contents entries, while providing “a veritable treatise”14 on the public trust doctrine. Before addressing the novel and intricate legal issues, Justice Nakayama established basic physical and legal facts: “The Waiahole Ditch System collects fresh surface water and dike-impounded ground water from the Ko‘olau mountain range on the windward side of the island of O‘ahu and delivers it to the island’s central plain.” 94 Haw. at 111. Diversions by the ditch system reduced the flows in several windward streams, specifically, Waiahole, Waianu, Waikane, and Kahana streams, affecting the natural environment and human communities dependent upon them,” she wrote. “The impacts of stream diversion, however, went largely unacknowledged until, in the early 1990s, the sugar industry on O‘ahu came to a close.” Id. The opinion noted that the public trust doctrine had first been recognized in Withfollowing the equipment in Hawai‘i in 1899 a U.S. Supreme pCourt decision in 1892 and that the doctrine was incorporated into the state conThey could easily and safely stitution in 1978. 94 Haw. 127-28 (citing p Illinois Central Railroad Co. v. Illinois, 146 U.S. 387 (1892); King v. Oahu Railway & Land Co., 11 Haw. 717 (1899)). The venerT able doctrine stands for the proposition that fresh water “‘isThe a natural resource number of court owned by the state subject to, but in some r sense in trust for, the enjoyment of certain

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public rights.’” 94 Haw. at 128 (quoting County of Hawaii v. Sotomura, 55 Haw. 176, 183–84 (1973)). While the Supreme Court of Hawai‘i over decades had often “contemplated the public interest in water resources,” Waiahole I afforded an opportunity—and an obligation—to go beyond mere contemplation and to comprehensively establish the doctrine’s core principles. 94 Haw. at 128. Out of the case’s legal, procedural, and scientific chaos, order came from Justice Nakayama’s opinion. She identified three distinct protected trust purposes: (1) “maintenance of waters in their natural state,” 94 Haw. at 136; (2) “domestic water use,” 94 Haw. at 137—“particularly drinking,” id.; and (3) “the exercise of Native Hawaiian and traditional and customary rights.” Id. In the process of identifying these purposes and in assessing the Water Commission’s compliance with the public trust doctrine, the opinion provided a series of edifying declarations. The public trust is “an inherent attribute of sovereign authority,” Justice Nakayama wrote. 94 Haw. at 131. Thus, the State Water Code “does not supplant the protections of the public trust doctrine.” 94 Haw. at 133. “The public trust doctrine applies to all water resources without exception or distinction,” the court held, expressly including ground water for the first time. Id. While the public trust doctrine affords discretion to government officials, they must make their decisions with a preference toward long-term preservation of water resources for the public’s protection: • “Under the public trust, the state has both the authority

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and duty to preserve the rights of present and future generations in the waters of the state.” 94 Haw. at 141. • “[A]ny balancing between public and private purposes must begin with a presumption in favor of public use, access, and enjoyment.” 94 Haw. at 142. • “In furtherance of its trust obligations, the Commission may make reasonable precautionary presumptions or allowances in the public interest.” 94 Haw. at 159. Applying the public trust doctrine to the facts, the Hawai‘i Supreme Court affirmed some of the Water Commission’s determinations, but vacated and remanded other components for further consideration. Justice Nakayama directed the Water Commission “to effectuate the Water Code’s framework for instream use protection” and, “with utmost haste and purpose,” to “work towards establishing permanent instream flow standards for windward streams.” 94 Haw. at 156. “In the meantime,” she wrote, “the Commission shall designate an interim standard based on the best information presently available.” Id. After another extensive hearing and order by the Water Commission, the Hawai‘i Supreme Court took up the matter again in In re Water Use Permit Applications, 105 Haw. 1 (2004) (Waiahole II), resulting in another opinion by Justice Nakayama—this time for a unanimous court—again affirming in part and vacating in part. That opinion resulted in yet another contested case. In 2006, the Water Commission issued its third and final Findings of Fact, Conclusions of Law, and Decision and Order, increasing the “water added to the windward streams,” going from 9.9 millions of gallons per day to 12 millions of gallons per day, which was validated in an unpublished disposition by the

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Intermediate Court of Appeals in 2010. The entire official record of the epic case, including Water Commission and judicial decisions, is catalogued on the Water Commission’s website under “Waiahole Ditch Combined Contested Case Hearing (CCH-OA95-1).”15 Waiahole I sparked a University of Hawai‘i Law Review Symposium the following year featuring Professor Joseph L Sax, whose work on the development of the public trust doctrine was cited four times in the opinion.16 The opinion has been cited in more than 180 cases, including in the appellate courts of nine other jurisdictions. The Hawai‘i Supreme Court most recently applied Waiahole I two years ago in Lana‘ians for Sensible Growth v. Land Use Commission, another decades-long water saga. While Waiahole I arose from the end of O‘ahu’s once-prevalent sugar industry, Lana‘ians for Sensible Growth stemmed from Lana‘i transitioning to an island devoted to high-end tourism after being dominated by pineapple industry. For more than 60 years, starting in the 1920s, James Dole, the Dole Corporation, and Castle & Cooke successively used much of Lana‘i for farming as one of the world’s largest producers of pineapples. David Murdock bought Castle & Cooke in 1985—assuming ownership of more than 95 percent of its land—and within a few years had transformed the island’s character to a resort destination. In 1991, the State of Hawai‘i Land Use Commission (LUC) approved an order conditionally granting land-use entitlements for the island’s new Manele Golf Course, an amenity for a luxurious beachfront hotel. In re Lanai Resort Partners, Docket A89-649, Findings of Fact, Conclusions of Law, and Decision and Order (April 16, 1991).17 Condition 10 of the LUC’s order said that the resort “shall not utilize the potable water from the high-level groundwater aquifer for golf course irrigation use, and shall instead develop and utilize only alternative non-potable sources of water (e.g., brackish water, reclaimed sewage effluent) for golf course irrigation requirements.” Just two years later, the LUC issued an order to show cause stating it had reason to believe the resort had been violating Condition 10 by using potable water on the golf course. In re Lanai Resort Partners, Docket A89-649, Order to Show Cause (Oct. 13, 1993).18 The LUC’s 1993 order set off a series of administrative and judicial proceedings, leading to a new order in 2017, In re Lana‘i Resorts, LLC, Docket A89-649, Final Findings of Fact, Conclusions of Law, and Decision and Order (June 1, 2017),19 by which time Larry Ellison had become the island’s near-total property owner after buying it from Murdock. In its 2017 order, the LUC ruled for Ellison’s resort, finding “that the Resort presented ‘substantial credible evidence’ that the water used to irrigate the golf course was and is brackish under the specific meaning of the language in Condition 10 . . . and

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therefore an allowable alternate source of water.” The LUC adopted a “special interpretation,” concluding that “brackish” water was per se non-potable and, thus, suitable for golf-course irrigation. The LUC also determined that the water used to irrigate the golf course was not safe for drinking under Maui County Code standards. The LUC found that its action was consistent with the public trust doctrine as explained under Waiahole I. Lana‘ians for Sensible Growth, an unincorporated group of island residents, appealed the order to the Hawai‘i Supreme Court. By a vote of 4-1, the Hawai‘i Supreme Court affirmed the LUC, but the Justices were divided on reasoning. Only Justice Wilson would have struck the LUC’s order. Justice Richard W. Pollack wrote the majority opinion and was joined by Justices Sabrina S. McKenna and Wilson in concluding that brackish water can be potable, contrary to what the LUC found. His opinion, joined in full by Justice McKenna, nonetheless affirmed the LUC’s order because it was “not clearly erroneous” in allowing certain brackish water to be used for golfcourse irrigation because there was evidence it was undrinkable under government standards. 146 Haw. at 512. Joined by PASH author Justice Nakayama, Chief Justice Mark E. Recktenwald wrote an opinion concurring in the judgment affirming the LUC’s 2017 order but otherwise dissented, disagreeing with the majority’s reasoning. Justice Pollack’s majority opinion identified the Hawai‘i Supreme Court’s task as construing Condition 10 consistent with: (1) principles of statutory interpretation, noting that they apply to administrative orders as well as statutes, 146 Haw. at 502-03, and (2) a “presumption that the LUC complied with its public trust obligations.” 146 Haw. at 504. First, the opinion said Condition 10 should be read with the terms “brackish” and “potable” having their “plain,” “common sense,” and “common” meaning. 146 Haw. at 503. That construction “would not produce a result that is absurd, unjust, or at odds with governing law.” 146 Haw. at 504. Thus, under statutory-interpretation principles, there was no basis to employ the LUC’s self-described “special interpretation” that “brackish” water was necessarily “non-potable.” Id. He observed “brackish” commonly means “somewhat salty, distasteful,” 146 Haw. at 509 n. 15, and “potable” commonly means “drinkable.” 146 Haw. at 514. Justice Pollack concluded: “Brackish water is therefore ‘potable’ if it is suitable for drinking under county water quality standards and ‘non-potable’ if it is not.” 146 Haw. at 503. Second, he turned to the task of construing Condition 10 in compliance with the public trust doctrine. In this 12-paragaph section of the opinion, he cited Waiahole I 13 times.

146 Haw. at 504-09. “[A]gency decisions affecting public trust resources carry a presumption of validity,” Justice Pollack said. 146 Haw. at 504 (quoting Waiahole I, 94 Haw. at 143). So, Condition 10 was presumed to have been approved by the LUC in 1991—and later construed—“consistent with its constitutional public trust duties.” 146 Haw. at 504. He noted the preeminent trust purpose of preserving water for domestic use, particularly human consumption, citing his majority opinion in another case that also applied Waiahole I, Kauai Springs, Inc. v. Planning Commission of County of Kaua‘i,133 Haw. 141 (2014). Writing in Kauai Springs, Justice Pollack said Waiahole I stands for the proposition that “the public trust protects domestic water use, in particular, protecting an adequate supply of drinking water,” 133 Haw. at 172—an assertion he repeated in Lana‘ians for Sensible Growth. 146 Haw. at 508. “From this perspective, it is apparent that Condition 10 serves to protect and preserve the waters of Lana‘i for domestic use by prohibiting the Resort from irrigating its golf course with water that would otherwise be used as drinking water,” Justice Pollack wrote. Id. “‘Brackish’ water may become needed for domestic use.” Id. So this analysis yielded the same interpretation of “brackish” and “non-potable” as when applying their common meanings. “The plain reading of Condition 10 is reinforced by the presumption that the LUC complied with its public trust obligations,” Justice Pollack wrote. 146 Haw. at 504. “It would assuredly be counter to the State’s public trust obligations to permit a private commercial resort to irrigate its golf course with water that the public needs for daily living.” 146 Haw. at 505. Yet, the body of the opinion closed with a paragraph upholding the LUC’s 2017 order—from which Justice Wilson dissented. Justice Pollack concluded that the LUC in 2017 was not clearly

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erroneous in determining that the resort complied with Condition 10. The water that was used to irrigate the golf course was indeed “non-potable”—not because it was “brackish”—but because it was not suitable for use as drinking water under the County of Maui’s standards. Thus, because it was not fit for human consumption, the resort appropriately used it on the golf course, consistent with both Condition 10 and the public trust doctrine. The court’s affirmance of the LUC’s order, concluding that the resort complied with the 1991 order, finally resolved the dispute. 146 Haw. at 511-12. The court was divided on outcome, wording, and science. But all five Justices agreed the public trust doctrine recognized the protection of drinking water as “among the highest uses of water resources,” in Waiahole I’s words. The LUC had a “public trust duty to protect potable brackish water on Lana‘i for use as drinking

water” and duty to “make reasonable precautionary presumptions or allowances in the public interest” in the face of scientific uncertainty,’” Justice Wilson wrote. 146 Haw. 519, 523 (Wilson, J., dissenting in part). On behalf of himself and Justice Nakayama, Chief Justice Recktenwald wrote that the LUC had a “public trust duty to ‘conserve and protect’ Lana‘i’s limited drinking water resources for the benefit of the people of Hawai‘i.” 146 Haw. 512, 522 (Recktenwald, C.J., concurring in judgment and dissenting). The court’s split was on disagreement over whether “potable” was synonymous with “drinkable” and whether the water used on the golf course was drinkable— not on the public trust doctrine itself. Though Justice Pollack has retired, the court is likely to retain this position. His replacement, Justice Todd W. Eddins, last year praised Justice Pollack’s opinion in Lana‘ians for Sensible Growth.20

MECO on the due process right to a clean and healthful environment: Protect and Preserve Kahoma Ahupua’a Association (2021) The Hawai‘i Supreme Court in MECO held renewable-energy advocates should have been allowed to intervene in a Public Utilities Commission (PUC) contested-case hearing on an agreement allowing Maui Electric to continue using energy produced at a fossil-fuel-burning plant. 141 Haw. at 253. Justice Pollack’s opinion for a 3-2 majority began by quoting the state constitution: Article XI, section 9 of the Hawai‘i Constitution guarantees each person “the right to a clean and healthful environment, as defined by laws relating to environmental quality.” Article I, section 5 provides that “no person shall be deprived of life, liberty or property without due process of law.” Id.

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The first issue was whether HRS Chapter 269, “Public Utilities Commission,” was a law relating to environmental quality—that is, whether it included “control of pollution and conservation, protection and enhancement of natural resources.” 141 Haw. at 261. If so, residents could assert a substantive constitutional right to a clear and healthful environment. Chapter 269 makes “it mandatory for the Commission when exercising its duties to recognize the ‘need’ to reduce reliance on fossil fuels and to ‘explicitly consider’ the levels and effect of greenhouse gas emissions,” the opinion noted. 141 Haw. at

262. “Chapter 269 also includes HRS § 269–27.2, concerning the utilization of electricity generated from nonfossil fuels, and Part V, prescribing renewable portfolio standards.” 141 Haw. at 263. In MECO, the Hawai‘i Supreme

Court credited affidavits submitted by Maui residents and Sierra Club members expressing concerns about clean air from the coal-fired production facility at Pu‘unene. “The Commission was statutorily required to consider the hidden and long-term costs of the continued reliance on energy produced at the Pu‘unene Plant, including the potential for increased air pollution as a result of greenhouse gas emissions,” Justice Pollack wrote. 141 Haw. at 265. Justice Pollack concluded Chapter 269 was an environmental-quality law: “These regulations would appear to be precisely the type of ‘laws relating to environmental quality’ that article XI, section

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9 references.” Id. The Hawai‘i Supreme Court then determined the right to a clean and health environment created “a property interest protected by due process,” resulting in constitutionally guaranteed procedural rights for the residents. Id. Justice Pollack summarized the reasoning on behalf of himself and Justices McKenna and Wilson, with Justice Nakayama and Chief Justice Recktenwald dissenting. “Where a source of state law—such as article XI, section 9—grants any party a substantive right to a benefit—such as a clean and healthful environment—that party gains a legitimate entitlement to that benefit as defined by state law, and a property interest protected by due process is created,” he wrote. Id. “In other words, the substantive component of article XI, section 9 . . . is a protectable property interest.” Id.

After finding a property interest, the court next addressed the issue of what process was due to protect the interest. “The protected property interest in a clean and healthful environment asserted by Sierra Club necessitated a hearing by the Commission to consider the impacts of approving the Agreement on Sierra Club’s members’ right to a clean and healthful environment,” the majority opinion said. 141 Haw. at 269. The asserted impacts included “the release of harmful greenhouse gases,” “the cost of the energy,” and the agreement’s “potential hidden and long-term consequences.” Id. The Hawai‘i Supreme Court applied the MECO principles last year in Protect and Preserve Kahoma Ahupua’a Association (PPKAA) v. Maui Planning Commission, where the plaintiffs sought to intervene in the Maui Planning Commission’s proceedings on an application for a Special

Management Area (SMA) use permit for the Kahoma Village housing project. The project was located within the Island of Maui’s SMA, a coastal region with boundaries established by the Maui Planning Commission. Under Section 8-8.4 of the Maui County Charter, the commission is the island’s authority for the CZMA. The CZMA requires SMA use permits for “development.” HRS § 205A28. Among other criteria, consistency with county general plan is required for SMA use permits. HRS § 205A-26. The commission granted an SMA use permit to Stanford Carr Development, LLC, allowing the project to proceed. The plaintiff organization, PPKAA, unsuccessfully sought to intervene in a contested-case hearing on the permit application. The plaintiff alleged the permit was inconsistent with the West Maui Community Plan, which is part of the county’s General Plan.

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Writing for a unanimous court, including the MECO dissenters, Justice McKenna noted the plaintiff organization was similarly situated with the residents in MECO: “As in MECO, PPKAA did not merely assert unilateral expectations of aesthetic and environmental values, but a protectable property interest in its constitutional right to a clean and healthful environment under article XI, section 9 of the Hawai‘i Constitution.” 149 Haw. at 313. The Hawai‘i Supreme Court concluded the CZMA was “a law ‘relating to environmental quality’ for the purposes of article XI, section 9” as asserted by the plaintiff. Id. The CZMA’s express purpose “is to ‘preserve, protect, and where possible, to restore the natural resources of the coastal zone of Hawai‘i,’” the opinion noted. Id. (quoting HRS § 205A-21). The statute also “require[s] consideration of issues relating to the preservation or conser-

vation of natural resources.” 149 Haw. at 313 (quoting County of Hawaii v. Ala Loop Homeowners, 123 Haw. 391, 410 (2010), abrogated on other grounds by Tax Foundation of Hawai‘i v. State, 144 Haw. 175 (2019)). With the substantive right determined, Justice McKenna then turned to the question of “whether PPKAA’s right to procedural due process was violated.” 149 Haw. at 313. She resolved the due process issue in the plaintiff ’s favor in a single paragraph, including multiple citations to MECO. “Here, the private interest was PPKAA’s constitutional right to a clean and healthful environment,” she wrote. 149 Haw. at 313-14. “The risk of an erroneous deprivation of PPKAA’s interest was high absent PPKAA’s participation in the contested case hearing because the Project could have adverse and long-term environmental impacts to the SMA.” 149 Haw. at 314.

She noted that “PPKAA raised concerns regarding the Project’s potential impacts to the SMA, including loss of scenic and open space resources, drainage and runoff impacts, and impacts on the tsunami evacuation zone.” Id. “As adjacent landowners to the Project, PPKAA’s members would likely bear the brunt of adverse impacts to the SMA, and their knowledge of the area could have supplemented the findings of the environmental assessment,” the opinion stated. Id. “[A]s the Commission was already required to consider the CZMA in making its decision on Carr’s SMA use permit, it would not [be] unduly burdensome to allow PPKAA to participate in the contested case hearing.” Id. The matter was remanded to the Maui Planning Commission to allow satisfaction of the plaintiff ’s due process right to participate in a contested-case hearing. (Continued on page 19)

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COURT B RIEF S DeWeese and Taniyama Sworn-In

Malinao, Morikone, and Park Sworn-In

The Honorable Wendy M. DeWeese and Kimberly B.M. Taniyama were inducted into office when the Hawaii State Supreme Court convened in special session on December 2. DeWeese will serve as Judge of the Circuit Court of the Third Circuit for a 10-year term ending December 1, 2031. Taniyama will serve as Judge of the District Court of the Third Circuit for a six-year term ending December 1, 2027.

During the December 16 special session of the Hawaii State Supreme Court, Chief Justice Mark E. Recktenwald administered the oath of office to Clarissa Y. Malinao, Shanlyn A.S. Park, and Kevin T. Morikone as judges of the Circuit Court of the First Circuit. Each will serve 10-year terms ending December 15, 2031.

Hamman Sworn-In

Mahalo Nui Loa, Lester Oshiro [

The Honorable Kirstin M. Hamman was sworn-in as Judge of the Circuit Court of the Second Circuit on December 17 during a special session of the Hawaii State Supreme Court. She will serve a 10-year term ending December 16, 2031.

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Observing the necessary pandemic health and safety precautions, friends, family, judges, Judiciary staff, and members of the bar gathered at the Hale Kaulike courthouse on the morning of December 29, to celebrate the distinguished career of Third Circuit Chief Court Administrator Lester Oshiro. Chief Justice Mark E. Recktenwald presented Oshiro

with a proclamation declaring December 29, 2021, Lester D. Oshiro Day in the courts of the State of Hawai i. During his tenure, Oshiro oversaw a number of significant initiatives, including launch of the Big Island Drug Court and Big Island Veterans Treatment Court programs, opening of the Hilo and Kona Courthouse Self-Help Centers, and construction of both the Hale Kaulike Courthouse in Hilo and the Keahuolu Courthouse in Kona. He is also known for recognizing up-and-coming talent and mentoring many of the state’s next generation of judges and leaders.

Chief Judge Bissen Recognized Chief Justice Mark E. Recktenwald proclaimed December 30, 2021, Chief Judge Richard T. Bissen, Jr., Day in the courts of the State of Hawaii and presented him with a proclamation highlighting his distinguished career. Chief Judge Bissen retired after more than 16 years of service with the Judiciary, during which time he displayed the highest integrity, sound judgment, keen knowledge of the law, and exceptional leadership in addressing the multitude of pandemic challenges.

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H SBA HAP PE NIN GS Run for the 2023 HSBA Board We are looking for enthusiastic attorneys who care about improving the legal profession and making a difference. Consider running for the HSBA Board as an officer (one-year term) or director (twoyear term). The following officer positions will be available beginning January 2023: Vice President, Treasurer, and Secretary. The following director positions will be available: six for Oahu, one for Maui, and one for East Hawaii. The HSBA/ABA Delegate position will also be available. Board members from Kauai and West Hawaii are currently serving a two-year term set to expire in December 2023. If interested, email a cover letter and resume to the HSBA Nominating Committee (nominations@hsba.org) by April 29. The Committee will have a slate ready by the end of May and discourages any campaigning before that time.

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(Continued from page 15) As the case was winding through the judicial system, the project was developed, as reported by The Maui News in a front-page story on June 22, 2021. As of the end of January, the commission had not scheduled a hearing. PPKAA is already having an impact on administrative proceedings. On November 18, 2021, the PUC suspended Docket 2018-0433, “APPLICATION FOR APPROVAL OF POWER PURCHASE AGREEMENT FOR RENEWABLE DISPATCHABLE GENERATION WITH PAEAHU SOLAR LLC,”21 citing PPKAA. The Hawai‘i Supreme Court held oral argument in a related case, In re Maui Electric Co., SCOT-21-0000041, on December 6, 2021.22 The PUC opted to wait for the Hawai‘i Supreme Court’s opinion before resolving Docket 2018-0433 after a participant organization submitted a brief asserting that the Hawai‘i Supreme Court may apply PPKAA to invalidate the underlying power-purchase agreement.23 Under MECO and PPKAA, respectively, the PUC statute and the CZMA are “laws relating to environmental quality,” triggering both substantive and procedural constitutional rights. Browsing through HRS chapter headings, a reader may envision an array of other statutes being characterized as environmental laws because they support “control of pollution and conservation” and “protection and enhancement of natural resources.” PPKAA makes it more likely residents and organizations will be able to intervene in administrative proceedings by planning commissions on applications for SMA use permits, all of which are considered under the CZMA. ___________________ 1

This opinion is generally referred to as PASH but is sometimes called PASH II. See, e.g., Adam Roversi, The Hawaiian Land Hui Movement: A PostMahele Counter-Revolution in Land Tenure and Community Resource Management, 34 U. Haw. L. Rev. 557, 608 n. 8 (2012).

Melody Kapilialoha MacKenzie, Ke Ala Pono—the Path of Justice: The Moon Court’s Native Hawaiian Rights Decisions, 33 U. Haw. L. Rev. 447, 455–56 ( 2011).

Susan Pang Gochros, Aloha, Chief Justice Moon, 14 Haw. B.J. 4, 10 (Sept. 2010).

and the Public Trust: A Neglected State Duty, 23 AsianPac. L. & Pol’y J. 1, 12 (2021). 14 Michael C. Blumm & Zachary A. Schwartz, The Public Trust Doctrine Fifty Years After Sax and Some Thoughts on Its Future, 44 Pub. Land & Resources L. Rev. 1, 30 (2021).

Christine Daleiden, Hawaii’s Ditch Systems: Water Allocation After the Sugar Cane, 10 Haw. B.J. 28, 29 (July 2006); Summer Sylva, Indigenizing Water Law in the 21st Century: Na Moku Aupuni O Ko’olau Hui, A Native Hawaiian Case Study, 16 Cornell J.L. & Pub. Pol’y 563, 564 (2007). 5 Kacy Manahan, The Constitutional Public Trust Doctrine, 49 Envtl. L. 263 (2019).

Michael C. Blumm & Zachary A. Schwartz, The Public Trust Doctrine Fifty Years After Sax and Some Thoughts on Its Future, 44 Pub. Land & Resources L. Rev. 1, 31 (2021).

15 https://dlnr.hawaii.gov/cwrm/newsevents/cch/cchoa95-01/ (last visited Jan. 11, 2022).

16 Proceedings of the 2001 Symposium on Managing Hawai‘i’s Public Trust Doctrine, 24 U. Haw. L. Rev. 21 (2001).

17 https://luc.hawaii.gov/wpcontent/uploads/2016/10/Exhibit-28-LUCs-Findingsof-Fact-Conclusions-of-Law-and-Decision-and-Order-date d-April-16-1991.pdf (last visited Jan. 12, 2022).

7 Erin Daly, Environmental Constitutionalism in Defense of Nature, 53 Wake Forest L. Rev. 667, 677 (2018).

18 https://luc.hawaii.gov/wpcontent/uploads/2016/10/Exhibit-29-LUCs-Oct.-131993-Order-to-Show-Cause.pdf (last visited Jan. 12, 2022).

Simeon R. Acoba, Jr., Four Major Hawai‘i Judicial Developments in the Last 50 Years, 23 Haw. B.J. 11 (Jan. 2019). 9 E.g., Samuel J. Panarella, Not in My Backyard; PASH v. HPC: The Clash Between Native Hawaiian Gathering Rights and Western Concepts of Property in Hawaii, 28 Envtl. L. 467 (1998); M. Casey Jarman & Robert R.M. Verchick, Beyond the “Courts of the Conqueror”: Balancing Private and Cultural Property Rights Under Hawai‘i Law, 5 Scholar: St. Mary’s Law Review on Minority Issues 201 (2003); David M. Forman, The Hawaiian Usage Exception to the Common Law: An Inoculation Against the Effects of Western Influence, 30 U. Haw. L. Rev. 319, 322 (2008).

https://luc.hawaii.gov/wpcontent/uploads/2016/06/A89-649-FINAL-FOFCOLDO-JUN-1-2017.pdf (last visited Jan. 12, 2022). 20

Todd W. Eddins, Gifts from the Past for the Future: A Tribute to Justice Richard Pollack, 43 U. Haw. L. Rev. 636, 656–57 (2021). 21

https://dms.puc.hawaii.gov/dms/dockets?action=details&docketNumber=2018-0433 (last visited Jan. 11, 2022). 22

https://www.courts.state.hi.us/oral-argument-beforethe-hawaii-supreme-court-scot-21-0000041 (last visited Jan. 11, 2022). 23

Ellen R. Ashford & Kauluponookaleilehua M. Luuwai, eds., 25 Years of PASH, 43 U. Haw. L. Rev. 339 et seq. (2021).

https://dms.puc.hawaii.gov/dms/DocumentViewer?pid =A1001001A21I08A93527H00192 (last visited Jan. 15, 2022).

11 William K. Meheula III, A Litigator’s Approach to Issues Concerning Exercise and Protection of Native Hawaiian Traditional and Customary Rights, 43 U. Haw. L. Rev. 592, 609 (2021) (quoting PASH, 79 Hawai‘i at 434).

David Raatz is a lawyer in Wailuku.

Denise E. Antolini, The Moon Court’s Environmental Review Jurisprudence: Throwing Open the Courthouse Doors to Beneficial Public Participation, 33 U. Haw. L. Rev. 581, 588 (2011). 13

Devon H. Miller, Wahiawa Reservoir (Lake Wilson)

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All Hawaii attorneys should be aware that they should not engage in the unauthorized practice of law in other jurisdictions or assist others in engaging in the unauthorized practice of law in Hawaii. But what constitutes the practice of law? How do you know if you are violating the statutes or rules of another jurisdiction? Hawaii Revised Statutes § 605-14 states as follows: It shall be unlawful for any person, firm, association, or corporation to engage in or attempt to engage in or to offer to engage in the practice of law, or to do or attempt to do or offer to do any act constituting the practice of law, except and to the extent that the person, firm, or association is licensed or authorized so to do by an appropriate court, agency, or office or by a statute of the State or of the United States. Nothing in sections 605-14 to 60517 contained shall be construed to prohibit the preparation or use by any party to a transaction of any

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legal or business form or document used in the transaction. A violation of this statute is a misdemeanor1 and only the attorney general and any bar association in Hawaii have standing to maintain an action for violation of the statute.2 Hawaii Rules of Professional Conduct, Rule 5.5 further provides as follows: A lawyer shall not (a) practice law in a jurisdiction

The Unauthorized Practice of Law in Hawaii by Lennes N. Omuro

where doing so violates the regulation of the legal profession in that jurisdiction; or (b) assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law; or c) allow any person who has been suspended or disbarred and who maintains a presence in an office where the practice of law is conducted by the lawyer to have any contact with the clients of the lawyer either in person, by telephone, or in writing or to have any contact with persons who have legal dealings with the office either in person, by telephone, or in writing. Both the statute and the rule prohibit the unauthorized practice of law in Hawaii. But what constitutes the practice of law in Hawaii? The legislative history to HRS § 605-14 supports the uncontroversial position that the practice of law is not limited to appearing before courts and consists

of, among other things, the giving of advice, preparing documents and providing other services affecting the legal rights of a party where such advice, drafting or service requires the use of any degree of legal knowledge, skill or advocacy.3 The legislature, however, declined to define the “practice of law” by way of specific examples because “attempts to define the practice of law in enumerating the specific types of services that come within the phrase are fruitless because new developments in society, whether legislative, social, or scientific in nature, continually create new concepts and new legal problems.”4 In addition, the commentary to HRPC, Rule 5.5 merely provides, in part, that “the definition of the practice of law is established by law and varies from one jurisdiction to another.”5 Neither the legislative history to the statute nor the commentary to the rule provide comprehensive guidance on what constitutes the practice of law in Hawaii. Most of the relevant Hawaii case law also concerns situations where the issue of whether there may have been unauthorized practice of law activity should be rather apparent – for example, situations where individuals who are not licensed attorneys, such as debt collectors or trustees, engage in activities such as appearing in court, or where suspended lawyers nonetheless continue to engage in their practice. Often, however, the more perplexing situation involves attorneys who are licensed in other jurisdictions and who provide legal services either in or affecting matters in Hawaii. In 1998, the Hawaii Supreme Court looked at the issue of whether an Oregon company’s general counsel, who was licensed and located in Oregon, engaged in the unauthorized practice of law by engaging in such activities as consulting with the client and the client’s Hawaii counsel regarding an appeal, preparing a statement in anticipation of mediation,

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assisting Hawaii counsel with legal research, analyzing briefs and papers submitted by other parties, planning strategy for the appeal, resolving supersedeas bond issues, and reviewing and critiquing briefs and papers prepared by Hawaii counsel. Fought & Company, Inc. v. Steel Engineering and Erection, Inc., 87 Haw. 37, 951 P.2d 487 (1998).6 On the other hand, the Oregon company’s general counsel performed all of its services in Oregon, did not draft or sign any of the papers filed in the appeal, did not appear in court, did not communicate with opposing counsel, and Hawaii counsel was at all times in charge of the representation. In concluding that the general counsel located in Oregon did not engage in the unauthorized practice of law in Hawaii, under the circumstances described above, the Court declared that a commercial entity that serves interstate markets is likely to receive more effective and efficient representation when its general counsel based close to its home office and who is familiar with its operations supervises the work of local counsel.7 The Court also referred favorably to factors set forth in a California Supreme Court decision rendered earlier that year, Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court of Santa Clara County, 949 P.2d 1, 70 Cal. Rptr. 2d 304 (Cal. 1998). In particular, the Court made its decision in light of the factors suggested by Birbrower where it was reasoned that: the practice of law “in California” entails sufficient contact with the California client to render the nature of the legal service a clear legal representation. In addition to a quantitative analysis, we must consider the nature of the unlicensed lawyer’s activities in the state. Mere fortuitous or attenuated contacts will not sustain a finding that the unlicensed lawyer practiced law “in California.” The primary inquiry is whether the unlicensed lawyer engaged in sufficient activities in the

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state, or created a continuing relationship with the California client that included legal duties and obligations.8 The Fought decision therefore suggests that Hawaii courts may engage in a type of sufficient contacts analysis and look at the level of legal activity deemed to have been performed in Hawaii by an attorney licensed in another jurisdiction when evaluating whether that attorney is engaging in the unauthorized practice of law. The activity necessary to rise to the level of practicing law in Hawaii, however, remains largely unresolved in this jurisdiction. Interestingly, the Birbrower decision referred to favorably in Fought to support the conclusion that there was no unauthorized practice of law in Hawaii by mainland counsel, is a decision primarily referred to in the legal literature for raising an alarm over restrictions on multijurisdictional practice and triggering significant changes to ABA Model Rules of Professional Conduct, Rule 5.5. This alarm was raised because the Birbrower court held that New York lawyers, who engaged in corporate counseling and filed an arbitration demand in California for a California client, could not collect fees under their engagement agreement with the client for work deemed to have been performed in California because they violated the California unauthorized practice of law statute in effect at the time. There was also language in Birbrower suggesting that a lawyer could still practice law in the state and violate the California statute even if the lawyer was not physically present in the state by advising a California client by phone, fax, computer or other means.9 Indeed, following Birbrower, California enacted a new statute regarding an out of state lawyers’ ability to engage in arbitration in California and a number courts, including the Hawaii Supreme Court in Fought, have interpreted or distinguished

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Birbrower in ways to avoid its harsh result.10 Moreover, as indicated above, following Birbrower, the ABA substantially changed Model Rule 5.5 to clarify rather liberally a lawyer’s ability to engage in multi-jurisdictional practice. For example, Model Rule 5.5(c) provides as follows: (c) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that: (1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter; (2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized; (3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission; or (4) are not within paragraphs (c)(2) or (c)(3) and arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice. Hawaii has not yet, however, adopted this version of Model Rule 5.5 and the extent to which Model Rule 5.5 may be persuasive has, to this author’s knowledge, not yet been significantly addressed in reported Hawaii appellate decisions.

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Finally, besides avoiding participating in or assisting others to participate in the unauthorized practice of law in Hawaii, Hawaii lawyers should also be concerned about avoiding their own unauthorized practice of law in other jurisdictions. Most jurisdictions have adopted rules like Model Rule 5.5 referenced above. The ABA maintains a detailed chart containing information on the status of multi-jurisdictional practice rules in each jurisdiction, which can be accessed online. More practically, however, if you are working with mainland counsel and need to appear in another jurisdiction or perform work for a use by a mainland client in another jurisdiction, you should not hesitate to obtain the advice of mainland counsel on their relevant local statutes and rules. This article is not intended to be a comprehensive overview of all unautho-

Moments in History by Carol K. Muranaka Making front-page news in 1930, the League of Women Voters (“League”) wanted the lawyers to take a stand on the subject of jury duty.1 Affiliated with the National League of Women Voters of America, the local group requested the bar association to express an opinion on the subject since Senator Hiram Bingham did not accept their invitation to speak at their meeting. Mrs. Harry Kleugel, chair of the Women’s Council of Hawaii, was quoted: There is no state in the Union in which the eyes of the nation are centered quite as they are on Hawaii, as a political entity. No state has had the status of Hawaii, and it has created an interest in the world. But let me tell you that it is aspiring to Statehood, and its raw material is the center of economic

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rized practice of law authorities or issues relevant to Hawaii attorneys. As always, you should seek appropriate legal advice as needed. _______________ 1

Haw. Rev. Stat. § 605-17. Haw. Rev. Stat. § 605-15.1. 3 Sen. Stand. Comm. Rep. No. 700, in 1955 Senate Journal, at 661; Hse. Stand Comm. Rep. No. 612, in 1955 House Journal at 783. 4 Id. 5 The comment to Rule 5.5 does make it clear that the rule does not prohibit a lawyer from employing the services of paraprofessionals and delegating functions to them so long as the lawyer is supervising and retains responsibility for the work. Likewise, the rule does not prohibit lawyers from providing advice or instruction to non-lawyers whose employment requires knowledge of the law: for example, claims adjusters, employees of financial or commercial institutions, social workers, accountants, and persons employed by governmental agencies. Lawyers may also counsel nonlawyers who wish to proceed pro se. 2

interest. There are more than pleasure seekers and tourists thinking in terms of Hawaii. Do you know that more than casual investigators are coming to the Islands all the time? The time is coming when it will be judged by its treatment of its women and children, rather than by its beauty. Arthur Withington, then president of the bar association, voiced his opposition to women sitting on juries. In a telephone interview with the newspaper, Withington said:

The Hawaii Supreme Court considered this issue in the context of whether the client could recover attorneys’ fees incurred for work performed by its mainland counsel. 7 Fought, 87 Haw. at 47. 8 Id. citing Birbrower, 17 Cal. 4th at 128. 9 Birbrower, 17 Cal. 4th at 128-129 (Conversely, the court also rejected the notion that a person automatically practices law in California whenever the person practices California law anywhere or “virtually” enters the state by telephone, fax, e-mail, or satellite.) 10 See also, Restatement Third, The Law Governing Lawyers (2000), which rejects the Birbrower result as being “unduly restrictive” at Reporter’s Note to Section 3, Comment e.

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

included William H. Heen, Roy A. Vitousek, Oliver F. Soares, and Lorrin A. Thurston. After the bar association voted against the bill in Congress giving women the right to serve on the juries, the League vowed to continue their fight of “a fundamental principle of citizenship—a principle of equality that belongs to women and is not man’s to grant though unfortunately it has been given men to allow.”3 _________________ 1

There is not sufficient interest among the members of the association to call a meeting. Nobody whom I know wants jury service for women. Personally, I am opposed to it. I am also opposed to women’s suffrage. The two are fundamentally unsound. 2 Members of the local bar who did not oppose women’s jury service reportedly

“League Women Ask Showdown from Bar Association,” The Honolulu Advertiser, Friday morning, September 26, 1930, p. 1 2 “Arthur Withington, Head of Bar, Against Jury Duty and Votes for Women,” The Honolulu Advertiser, Friday morning, September 26, 1930, p. 1. 3 “Women Voters Will Continue Jury Demand,” Honolulu Star-Bulletin, Tuesday, December 23, 1930, p. 1.

CAS E NOTES Supreme Court

Appeal Pointer

Insurance

When moving to supplement the record pursuant to HRAP Rule 10(e)(2) with transcripts that had been accidentally omitted, the motion or the declaration of counsel appended to the motion should indicate the estimated completion date for the transcripts.

Carvalho v. AIG Haw. Ins. Co., Inc., Case No. SCWC-16-0000167, January 11, 2022, (Wilson, J.). This case arose from a dispute regarding payment of uninsured motorist and underinsured motorist benefits to Petitioners/Plaintiffs-Appellants Bernet Carvalho (“Carvalho”), individually, and as Personal Representative of the Estate of her deceased son. Petitioner argued that the circuit court (1) improperly precluded evidence and (2) improperly denied her Motion to Amend Complaint solely on the basis of undue delay. The Hawaii Supreme Court held that the ICA did not err when it held that the circuit court was within its discretion to exclude evidence related to an unpleaded claim. To resolve the second issue, the Hawaii Supreme Court considered whether, under Hawaii Rules of Civil Procedure Rule 15(a), undue delay alone is a sufficient basis to deny leave to amend a complaint. Consistent with the requirement of Rule 15(a) that leave be freely given to requests to amend a complaint, the Hawaii Supreme Court held that undue delay alone was an insufficient basis to deny leave to amend a complaint under Haw. R. Civ. P. Rule 15(a). Morane v. Harbor Mall, LLC, Case No. SCWC-17-000006, January 11, 2022, (Wilson, J.). Petitioner/Plaintiff-Appellant Patricia Moranz (“Moranz”) was injured near her place of employment on August 28, 2012 and received workers’ compensation (“WC”) benefits from her employer’s WC insurance carrier, Respondent/Intervenor-Appellee DTRIC Insurance Company, Ltd. (“DTRIC”) shortly thereafter. In 2014, Moranz brought suit in circuit court against Harbor Mall, LLC, (“Harbor Mall”) the owner of the building in which she was injured, and in 2016, reached a settlement with Harbor Mall for $200,000.00

(“Harbor Mall settlement”). Around the time of the Harbor Mall settlement, DTRIC sought reimbursement of those WC benefits it had paid to Moranz after her accident under Hawaii Revised Statutes § 386-8 (2015) and Alvarado v. Kiewit Pacific, Co., 92 Hawaii 515, 520, 993 P.2d 549, 554 (2000). Under Haw. Rev. Stat. § 386-8 and Alvarado, when an injured employee recovers a third-party settlement, an insurer is entitled to reimbursement of all WC benefits it has paid

the employee, less its “share” of reasonable attorney’s fees and costs incurred by the employee in pursuing the thirdparty action. Per Haw. Rev. Stat. § 3868 and Alvarado, the Hawaii Supreme Court clarified (1) the proper timing of Alvarado calculations, which determines the reimbursement due the insurer from the third-party settlement and (2) the reimbursement process for an insurer when the amount of WC benefits the insurer has already dispensed to the employee (“paid compensation”) is less than the amount it owes the employee for its “share” of attorney’s costs and fees for the third-party action. Here, the parties disagreed over whether certain WC benefits that DTRIC owed Moranz (“DTRIC settlement”) were properly classified as “paid compensation” or benefits that DTRIC owed Moranz in the future (“calculable future benefits”) under the Alvarado formula. The parties also disagreed over the process of

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DTRIC’s reimbursement of WC benefits because DTRIC’s “share” of attorney’s fees and costs exceeded the amount it had previously contributed to Moranz as “paid compensation.” The Hawaii Supreme Court also clarified that Alvarado calculations shall be performed based on the date on which the employee receives the third-party recovery. In this case, at the time Moranz received the third-party recovery (i.e., the Harbor Mall settlement) on or about September 20, 2016, DTRIC had not yet paid its settlement; thus, the DTRIC settlement should have been categorized as a “calculable future benefit” rather than “paid compensation” under the Alvarado formula. The Hawaii Supreme Court also emphasized that an insurer’s “share” of the attorney’s fees and costs the employee incurs while pursuing third-party recovery is based on the insurer’s total WC liability. Thus, the Hawaii Supreme Court clarified that the insurer must pay its full pro rata “share” regardless of the amount the insurer has contributed in “paid compensation” versus the amount it still owes in “calculable future benefits” at the time the employee receives the third-party recovery. In this case, DTRIC owes its full “share” of Moranz’s attorney’s fees and costs in the amount of $89,140.17, based on its total WC liability of $189,062.13 ($63,245.41 in “paid compensation” plus $125,816.72 in “future calculable benefits”). Under Haw. Rev. Stat. § 386-8(d), DTRIC was entitled to reimbursement of the $63,245.41 it expended in “paid compensation.” Further, under Haw. Rev. Stat. § 386-8(i), DTRIC was “relieved from the obligation to make further compensation payments to [Moranz] . . . up to the entire amount of the balance of the settlement or the judgment,” meaning that Moranz must exhaust $125,816.72 in “calculable future benefits” from the remainder of the Harbor Mall settlement. After paying her attorney’s fees and costs ($94,298.29), reimbursing DTRIC its “paid compensation” ($63,245.41), and exhausting “calculable future benefits” ($125,816.72) from the $200,000.00 Harbor Mall settlement, Moranz retains the remainder: $5,779.75 in excess of her WC benefits.

O FF THE R EC ORD Max J. Kimura, a civil litigation attorney with more than 10 years of legal experience, has joined Damon Key Leong Kupchak Hastert as an Associate. He practices in the Litigation, Arbitration and Mediation, and Appeals practice group, specializing in construction litigation. He earned his law degree from the University of California, Hastings College of the Law. Kara Teng became a staff attorney at The Legal Clinic Hawaii where she will provide free or affordable immigration services and removal defense. She was previously an Attorney Advisor to the San Francisco Immigration Court. Scott G. Morita was named vice president and corporate counsel and will assume many of the duties of Nelson Chun, who will retire as chief legal officer of A&B in early 2022. Morita served as associate general counsel since joining A&B in 2018.

Maile S. Miller and Sara S.T. Strona were named directors of Starn O’Toole Marcus & Fisher. Miller focuses her practice in the areas of commercial litigation, environmental litigation, and land use and zoning law. She received her law degree from William S. Richardson School of Law, University of Hawai‘i at Manoa. Strona focuses her practice in the ares of real estate law, commercial transactions and corporate law. She also received her law degree from the William S. Richardson School of Law. Bryan Andaya, who has been an attorney of counsel to ES&A, Inc. since 2017, has become a director. His practice includes franchising, corporate transactions, business strategy, real estate, and labor and employment law. His most recent position was President and COO of L & L Franchise, Inc., where he oversaw

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HAWAII BAR JOURNAL

all day-to-day operations for the established Hawaii company, playing a key role in its national and international growth. He is the current chair of the Board of Directors of the Honolulu Board of Water Supply, and he is a past chair of the Board of Directors for Goodwill Industries of Hawaii. Goodsill Anderson Quinn & Stifel announced the promotions of Daniel Lam and Deirdre Marie-Iha to Partner. Lam’s practice focuses on securities regulation, mergers and acquisitions, startups, corporate governance, entity structuring, and general business law. Prior to joining Goodsill in 2015, he practiced as a corporate and securities attorney at McGrath North Mullin & Kratz, PC LLO, located in Omaha, Nebraska. He received his law degree from Creighton University School of Law in 2014 with magna cum laude honors. Marie-Iha has been practicing for more than 20 years as a civil litigator and appellate practitioner. Prior to joining Goodsill, she practiced for more than a dozen years as a deputy attorney general at the Hawai‘i Attorney General’s office. She graduated from the University of Colorado School of Law in 1999. Robert D. Harris is the new executive director and general counsel for the Hawai‘i State Ethics Commission. He is a former solar energy company executive and director of the Sierra Club. Toren K. Yamamoto and Clint K. Hamada joined Damon Key Leong Kupchak Hastert as Associates. Yamamoto practices in the law firms’s Business and Commercial Law practice group. He earned his law degree, cum laude, from the William S. Richardson School of Law, where he was staff writer and Technical editor for the University of Hawai‘i Law Review. Hamada practices in the firm’s Business and Commercial, Land Use, Litigation,

Arbitration and Mediation, and Appeals, and Wills, Trusts, and Estates, practice groups. He also received his law degree magna cum laude from the William S. Richardson School of Law. Second Circuit Chief Judge Richard T. Bissen, Jr. and First Circuit Court Judge Paul B.K. Wong received the 2021 Jurist of the Year Award from Hawai‘i Supreme Court Chief Justice Mark E. Recktenwald in October 2021. The presentations were part of the annual employee Incentive Awards Ceremony, which recognizes Judiciary personnel for improvements to court operations or programs and outstanding contributions to public service. Carl Varady and Thomas Grande were honored as 2021 National Trial Lawyers of the Year by Public Justice for their representation of 2,700 Native Hawaiian beneficiaries of the Hawaiian Home Lands Trust in Kalima v State of Hawai‘i, a class action filed in 1999 and currently in the claims administration process. They are the first Hawai‘i lawyers to win the award. The Mediation Center of the Pacific honored the following at their annual recognition and holiday gathering: Mediator of the Year: Tom Mitrano; Apprentice Mediator of the Year: George Apter; District Court Mediator of the Year: Clyde Namuo; Above & Beyond: Mimi Beams; Special Mediator Recognition: Denise George; Effective Advocacy in Mediation: Moanike‘ala Crowell; Peacemaker Award: Representatives Nadine Nakamura and Troy Hashimoto; Community Peace Award: Windward Community Action Teams; Conch Shell: Jillian Okamoto, David Chee, and Dan O’Meara; Lawyer as Problem Solver: Judge Darolyn Lendio Heim; Friend of the Center: Kenna Stormo Gipson.

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