Hawaii Bar Journal - MAY 2022

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TABLE O F C ON TE NTS VO LUM E 26 , N U M B E R 5

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

ARTICLES 44

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OF NOTE

President Shannon Sheldon

Treasurer Alika Piper YLD OFFICERS President Jasmine Wong Vice President/President-Elect Lisa Yang Secretary Nelisa Asato Treasurer Kelcie Nagata

When Raffles, Sweepstakes, Games of Chance and Skill Constitute Illegal Gambling in Hawaii

by Christine Daleiden

HSBA OFFICERS

President-Elect Rhonda Griswold Vice President Jesse Souki Secretary Lanson Kupau

Fifty Years of Title IX

by The Honorable Sabrina McKenna and Jennifer Rose

12

Case Notes

14

2022 Hawaii Access to Justice Conference

15 20 16 22 18 28 27 30 30 31 31

Court Briefs HSBA Happenings Notice of Suspension—Noah D. Fiddler 2022 Suspensions Off the Record Classifieds

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

Hawaii Bar Journal is published monthly with an additional issue in the fourth quarter of each year for the Hawaii State Bar Association by Grass Shack Productions, 1111 Nuuanu Ave., Suite 212, Honolulu, Hawaii 96817. Annual subscription rate is $50.

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On the Cover: Evanescence by Santa Moreno. Born in Mexico, Moreno is a self-taught Watercolor artist who has been living in Hawaii for the past 17 years. With a background in fashion and graphic design, Santa has always been drawn to the creative field. Moreno discovered her real passion when she came across the work of watercolor artists Viktoria Prischedko and Alvaro Castagnet. Her latest work focuses on semi-abstract forms with a touch of realism. She enjoys painting portraits, still life, and a variety of scenery capturing moments rather than places. Her watercolors have been exhibited, and sold, at Cedar Street Galleries, and the recent show ‘HERstory, at Marks Garage in Honolulu.

To learn more about her work, visit her website www.santamoreno.com 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.

Fifty Years of

TITLE

IX

by The Honorable Sabrina McKenna and Jennifer Rose

Above: Sabrina McKenna receiving law school graduation diploma from Chief Justice Wm. S. Richardson, 5/17/82. Left: 1977-78 Wahine Basketball Team (Sabrina McKenna #15)

“Let us in, it’s our time!” yelled University of Hawai‘i women student-athletes on a weeknight in the fall of 1974, while banging on the Koko Head end doors of Klum Gym as the clocked rounded 5:30 p.m.

As someone reluctantly opened the door, coach Rick Pitino was still running drills for the men’s basketball team. Slowly, the volleyball women moved toward the benches around the team’s small, allotted practice space, the one volleyball court on the Koko Head end of Klum Gym, led by their coach, the late Alan Kang. The basketball women moved toward the benches by its center court practice area with their coach, Farrington High

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School P.E. teacher Patsy Dung. After some minutes, the men finally left the court so that the women’s teams could begin their practices.

How had it finally become “our time,”i even with such limited practice spaces, limited resources, and during hours when others were enjoying dinner? How did we get from 1972, when the University of Hawai‘i had no women’s athletics teams and only 7% of U.S. law school graduates were women, to 2022, when we celebrate the successes of so many University of Hawai‘i women’s teams and more than 53% of U.S. law students are women?

These changes are undoubtedly due in large part to the transformational power of the 1972 law commonly referred to as “Title IX”: No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.

engaged in Title IX’s drafting and passage from the time it was first proposed several years before its actual enactment. The law’s proponents sought to expand the non-discrimination protections of the 1964 Civil Rights Act (Act) to prohibit sex discrimination in education. Title VI of the Act prohibited discrimination in

Title IX of the Education Amendments of 1972, 20 U.S.C. § 1680 et seq., Public Law 92-318.

We are approaching the 50th anniversary of Title IX’s enactment on June 23, 1972. Although its original text has not changed, the scope and impact of Title IX has changed through Above: Patsy Mink caselaw, other statutory Below: Sabrina McKenna individual basketball photo. changes, and implementing regulations, and its full reach has yet to be federally assisted programs, including known. The authors seek to provide a education programs, on the basis of race, general overview of the ground-breaking color, and national origin, but not on the law’s history, evolution, and impact. An basis of sex. Title VII prohibited discrimexplanation of the entirety of Title IX law ination in employment based on race, is beyond what can be properly covered by color, sex, national origin, or religion, but this article.2 The authors therefore condid not include non-employment aspects centrate on athletics, which continues to of educational institutions. be an area of focus, and discuss the law’s Initial drafts of Title IX sought to exchanging foci. The article also touches on pand the non-discrimination protections Hawaii’s special connection to Title IX. of the Act to prohibit sex discrimination, Title IX Background Hawai‘i Representative Patsy Takemoto Mink, the first woman of color elected to Congress in 1964, was denied admission to all the medical schools to which she applied in 1948 because she was a woman. She turned her focus to law and was one of two women in her class at the University of Chicago Law School, from which she graduated in 1951.

Representative Mink was actively

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but only in higher education. See generally Paul M. Anderson, Title IX at Forty: An Introduction and Historical Review of Forty Legal Developments that Shaped Gender Equity Law, 22 Marq. Sports. L. Rev. 325, 326-27 (2012). Senator Birch Bayh and Representative Edith Green were significant contributors to the Act, but co-author Representative Mink is recognized as a major sponsor of the actual text enacted

by Congress and signed into law by President Richard Nixon on June 23, 1972. In fact, through a Joint Resolution of Con-

gress, Title IX was renamed the “Patsy Takemoto Mink Equal Opportunity in Education Act” on October 29, 2002, a few weeks after Representative Mink’s untimely death. Public Law 107-255.

As Representative Mink explained, and consistent with the original draft of Title IX, the law was initially intended to end the discrimination that women encountered in applying to college. See Cindy Luis, Anything Worth Having is Worth Having Now, (February 2, 2022), available at https://www.cindyluis.com/ 2022/02/02/todays-avca-article-on-dr-donnis-thompson-lateuh-womens-athletic-director/ (Luis article). The language of the law, however, is not restricted to academics, as it includes “any education program or activity.”

Title IX applies to schools, local and state educational agencies, and other institutions that receive federal financial assistance from the federal government. A recipient institution that receives federal funds must operate its ed-

ucation program or activity in a manner free of discrimination based on sex, including sexual orientation and gender identity. Title IX applies to all aspects of education, both in and out of the classroom. It protects students and employees of the educational institutions, whether they are male, female, or non-binary. See https://www.whitehouse.gov/briefingroom/presidential-actions/2021/01/20/executive-order-preventing-and-combating-discriminatio

n-on-basis-of-gender-identity-or-sexual-orientation/; see also https://www2.ed.gov/about/offices/list/ocr/docs/202106-titleix-noi.pdf.

Title IX obligations touch on broad areas of educational institutional governance, including recruitment, admissions, and counseling; financial assistance; science, technology, engineering and mathematics education; career and technical education; athletics; sexbased harassment, which encompasses sexual assault and other forms of sexual violence; treatment of pregnant and parenting students; treatment of LGBTQI+ students; discipline; single-sex education; and employment.

Title IX and Athletics Before Title IX’s enactment, Representative Mink had actually discussed the lack of opportunities for women athletes at the University of Hawai‘i and in U.S. colleges and universities with Dr. Donnis Thompson, the first University of Hawai‘i women’s athletics director. Dr. Thompson was recruited by the University of Hawai‘i to coach its inaugural women’s track and field team in 1961. When Dr. Thompson left Hawai‘i to pursue a doctoral degree, the track and field program folded, and when Title IX passed there were no women’s athletics teams at the University of Hawai‘i. Soon after Title IX’s passage, Dr. Thompson was appointed the first University of Hawai‘i women’s athletics director. The University of Hawai‘i women’s program was given a $5,000 budget for the 1972-73 school year. See Luis article.

As of 1972, athletic opportunities for high school girls in Hawai‘i were also limited. Although team competition and state championships existed in 1972 for high school girls’ volleyball and track and field, there were no high school girls’ basketball and softball leagues and championships until 1977. Perhaps based on the existing Hawai‘i high school girls’ programs, Dr. Thompson started the University of Hawai‘i women’s athletics program with women’s volleyball and track and

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field teams in the 1972-73 school year.

The first team included Hawaii State Bar Association member and later the University of Hawai‘i associate athletic director Marilyn Moniz, as well as Linda Fernandez, Joey Akeo, and Beth McLachlin. See Kim Baxter, Rainbow Wahine mark 40 Years since Title IX (October 26, 2011), available at http://www.hawaii.edu/malamalama/2011 /10/title-ix/. Dr. Thompson’s vision and genius in developing the Wahine Volleyball program and the Wahine Volleyball program’s impact on Title IX and the community is the stuff of legend and an award-winning documentary. See Rise of the Wahine: Champions of Title IX, by Dean Kaneshiro, available at https://www.riseofthewahinefilm.com/home.

Before Title IX’s passage, Congress had not focused on the possible application of the law to athletics. Soon after its passage, however, members of Congress were “besieged” by proposals to exclude athletics from its scope due to concerns

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regarding the law’s impact on men’s athletics programs, especially revenue producing programs. On May 20, 1974, Senator John Tower of Texas proposed an amendment that would exempt revenueproducing sports from Title IX. The “Tower Amendment” was rejected. Instead, an amendment introduced by Senator Jacob Javits passed. This amendment directed the U.S. Department of Health, Education, and Welfare (HEW), to issue regulations that contained, “with respect to intercollegiate athletic activities, reasonable provisions considering the nature of particular sports.” See Jocelyn Samuels and Kristen Galles, In Defense of Title IX: Why Current Policies Are Required to Ensure Equality of Opportunity, 14 Marq. Sports. L. Rev. 11, 19-20 (2003)(“Samuels & Galles, 14 Marq. Sports. L. Rev.”).

In 1975, HEW promulgated Title IX regulations governing athletics requiring “that education institutions (1) offer male and female students equal opportunities to

participate in sports; (2) allocate athletic scholarship dollars equitably; and (3) treat male and female students equitably in all aspects of athletics, including with regard to equipment and supplies; locker rooms, facilities, and practice areas; scheduling of games and practices; medical and training services; publicity; and assignment and compensation of coaches.” Samuels & Galles, 14 Marq. Sports. L. Rev. at 13. In 1979, HEW issued a Policy Interpretation on Title IX establishing a three-prong test to clarify requirements for “governing equal participation opportunities.” Title IX: A Policy Interpretation, 44 Fed. Reg. at 71,418C(5)(a). See Samuels & Galles, 14 Marq. Sports. L. Rev. at 14-15. See also, Women’s Sports Foundation, History of Title IX, available at https://www.womenssportsfoundation.org/advocacy/history-of-title-ix/. After the Department of Education, through its Office of Civil Rights, took over monitoring of Title IX compliance, the threeprong test has been “clarified” several

times, which appears to have sometimes strengthened and sometimes weakened the law’s impact. See generally, https://www. womenssportsfoundation.org/advocacy/history-oftitle-ix/.

For several years from 1984, the scope of Title IX’s application to athletics was severely curtailed by the United States Supreme Court’s opinion in Grove City v.

Bell, 465 U.S. 555 (1984). Grove City College was a private college that refused federal financial assistance, but had students who received Basic Educational Opportunity Grants. 465 U.S. at 559. The Court held that the receipt of these grants by some of the college’s students did not trigger institution-wide coverage under Title IX. 465 U.S. at 571-72. In 1987, however, Congress passed the Civil Rights Restoration Act over President Reagan’s veto, abrogating Grove City’s holding.

Pub.L. 100-259, codified at 20 U.S.C. § 1687. The Act provides that if any part of anCeducational institution receives federal

funds, all of its programs and activities must comply with Title IX. See Samuels & Galles, 14 Marq. Sports L. Rev. at 23.

Then, in 1992, the Supreme Court decided Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992), holding that a damages remedy is available for an action to enforce Title IX. 503 U.S. at 76. Although Title VII limits compensatory and punitive damages awards to a maximum of $300,000 for employers with more than 500 employees, see https://www.eeoc. gov/remedies-employment-discrimination, Title IX sets no damages limit. In 2007, a lawsuit brought by former Fresno State volleyball coach and Punahou graduate Lindy Vivas, who was one of several women coaches fired by that university in 2004, set the record for a Title IX damages award at the time with a $5.85 million jury award. See https://www.punahou. edu/hall-of-fame-detail?pk=1115288.

There is a state corollary to Title IX for public high school athletics, but it does

not provide a private right of action. See Hawaii Revised Statutes § 302A-461 (2020).

At the time of Title IX’s enactment on June 23, 1972, the University of Hawai‘i had no women’s athletics program. The University of Hawai‘i women’s athletics probably would not have started in 1972 but for Title IX’s enactment. In the 1972-73 school year, Dr. Thompson started the program with volleyball and track and field with a mere $5,000 budget. Through the efforts of strong leaders such as Representative Mink and Dr. Thompson, and with the force of Title IX law as well as community and legislative support, the University of Hawai‘i at Manoa campus now also has women’s teams in basketball, beach volleyball, cross country, golf, sailing, soccer, softball, swimming and diving, tennis, track and field and water polo.

Issues continue to arise, such as the differences between the men’s and women’s basketball weight rooms during

Corporation Counsel Seeks Attorneys to Join Office

The Department of the Corporation Counsel’s current focus is to enhance our team of litigators in our Litigation Division, which represents and vigorously defends the City’s interests in a wide range of tort and civil rights cases.

The Department also seeks applications from attorneys interested in environmental law - specifically related to solid waste management, employment law, and real estate and land use, including eminent domain and city planning, for its Counseling and Drafting Division.

Additionally, the Department seeks a Hawai`i based attorney to join the Transportation and Community Services Section to represent the Honolulu Authority for Rapid Transportation (HART). The ideal candidate will have 7+ years of practice, with the skills and experience to provide a broad range of legal services required for this complex capital project, including intergovernmental agreements, federal regulation, transactional work, procurement, environmental law, real estate law, and contract and construction claims.

The Department offers a unique and fulfilling career as a public sector attorney working for the good of our community. We encourage a balanced life, and flexible work arrangements are possible. Civil litigation and administrative law experience, experience with governmental entities, and familiarity with open government and open records laws are a plus. A strong work ethic, positive attitude, and a desire to serve are bigger pluses. We welcome attorneys committed to the City and County of Honolulu.

If you would like more information about specific positions, or if you are ready to submit a letter of interest, resume, and references, please email us at cor@honolulu.gov.

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last year’s NCAA basketball tournament.

See https://www.washingtonpost.com/sports/ 2021/03/19/ncaa-women-basketball-weightroom/. But there can be no dispute that women and girls, whether at the University of Hawai‘i at Manoa, other colleges, high schools, middle schools, or non-curricular leagues and events, now have athletic opportunities that simply did not exist 50 years ago.

More Recent Issues in Title IX Like many federal mandates, Title IX has evolved since its inception. It now covers a wide range of activities on campuses receiving federal funds.

In recent years, differing interpretations of Title IX’s applicability to transgender students in athletics have received significant attention. See https://www.womenssportsfoundation.org/advocacy/history-of-titleix/. In addition, higher education institutions have increasingly applied Title IX to discipline students, faculty and staff

Above: Patsy T. Mink shaking hands with Lyndon B. Johnson.

for cases involving sexual harassment, sexual violence, stalking, sexual discrimination, and domestic/dating violence. The law requires that all educational programs receiving federal funds deal with sexual harassment and assault promptly and in a manner that enables students to participate in and benefit from educational activities.

Under former Education Secretary Betsy DeVos, several changes were made

to Title IX regulations regarding campus sexual harassment and misconduct that were more protective of the alleged perpetrator. See summary of regulations effective August 14, 2020 available at https://www2. ed.gov/about/offices/list/ocr/docs/titleix-summary.pdf. On March 8, 2021, President Biden issued an executive order calling for a 100 day review to consider changes to those regulations. See https://www.whitehouse.gov/briefing-room/presidential-actions/ 2021/03/08/executive-order-on-guaranteeingan-educational-environment-free-from-discrimination-on-the-basis-of-sex-including-sexual-orientati on-or-gender-identity/. Soon thereafter, the Office of Civil Rights began seeking public input on possible changes. See https://www.ed.gov/news/press-releases/department-educations-office-civil-rights-launchescomprehensive-review-title-ix-regulations-fulfill-pr esident-bidens-executive-order-guaranteeing-educational-environment-free-sex-discrimination.

Although the 2020 rules remain in effect, in July 2021, the Biden administration provided guidance on how to interpret the rules, which are seen to weaken their effect. See https://www2.ed.gov /about/offices/list/ocr/docs/202107-qa-titleix.pdf; see also https://www.futureed.org/whats-next-for-title-ix/.

By the time this article is published, new proposed regulations should be available for public review. See https://www. politico.com/news/2021/12/15/title-ix-proposals-april-524871.

Conclusion As can be seen, there have been numerous changes to Title IX law since its passage in 1972. The first fifty years have seen the law’s maturation, but the law’s potential impact has yet to be fully seen.

Although many people associate Title IX with athletics, and more recently with sexual harassment and misconduct, the most important impact of Title IX has probably been in academics. In 1972, the year of Title IX’s passage, only 7% of all U.S. law school graduates and only 9% of all U.S. medical school graduates were women. Now, over 53% of both U.S. law

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and medical school students are women.

For years, more than 50% of U.S. higher education degrees have been awarded to women. Now, 37% of U.S. attorneys and 46% of Hawai‘i attorneys are women.

See American Bar Association, Profile of the Legal Profession 2021, p. 17, available at https://www.americanbar.org/content/dam/a ba/administrative/news/2021/0721/polp.pdf & HSBA 2021 Bar Statistics & Summaries, p. 3, available at https://hsba.org/images /hsba/ Misc/2021_Bar_Statistics_and_ Summaries.pdf.

The 50th anniversary of this landmark legislation, championed by Hawaii’s own Patsy Mink, marks decades of hardfought progress for girls and women in classrooms, on the court, and in leadership positions across the country,” said Co-Author Jennifer Rose, Director for the University of Hawai‘i’ Office of Institutional Equity. “Over the last half century, Title IX has had incredible impacts on the ways that society at large not only treats girls in education, but approaches and condemns sexual harassment and sexual violence more broadly.”

It is not only women and Americans that Title IX has helped academically. CoAuthor McKenna vividly recalls being driven to Waianae District Court in the 1990’s by a late bailiff. He told her that when he returned from serving in Vietnam, he wanted to become a court reporter, but believed he was denied admission because he was a man. Further, 50 years ago, very few men were admitted to nursing school. In addition, Title IX has opened U.S. undergraduate and graduate educations to women from around the world. Just a few examples include Taiwan President Tsai Ing-wen (L.L.M, Cornell, 1980), Indra Nooyi, former chairperson and chief executive officer of Pepsico (master’s degree in public and private management, Yale, 1980), and Donna Strickland, 2018 Nobel Laureate in Physics (Ph.D., Rochester, 1989).

According to McKenna, “Patsy Mink changed my life because she fought for Title IX and its implementing regulations,

which enabled me to receive a University of Hawai‘i athletic scholarship and then be admitted to law school; I wouldn’t have those opportunities had I finished high school before 1972.” A law that has transformed schools and society is rightfully named for a woman from Hawai‘i, the incomparable Representative Patsy Takemoto Mink. Perhaps the law and its legacy can be considered a gift of aloha to the world. _________________ 1 This story is from author McKenna’s personal experience. She was extremely fortunate to become one of the early beneficiaries of Title IX after walking on to the Wahine Basketball Team in 1974 and being given a scholarship by Coach Patsy Dung after making the team. She had just wanted to play basketball, as she had for U.S. Department of Defense high school and women’s teams in Japan, and she had no idea that receiving a scholarship for playing was even possible before it was provided to her.

2 A Westlaw search revealed more than 1000 law review articles with Title IX in their titles. Some recent examples include Jeffrey Sun, Challenging College Disciplinary Outcomes: Circuits Recognizing Erroneous Outcome Theory as Title IX Sex Discrimination, 396 WEST’S ED. LAW. RPTR. 833 (2022); Christina Vieira da Rosa, Title IX Abroad: A Proposed Framework for Extraterritorial Application, 25 LEWIS & CLARK L. REV. 1317 (2022); Andrew F. Emerson, Will Due Process Be Returned to Academic Suspension?

An Analysis of Academia’s Rejection of the Title IX Final Rule, 71 CATH. U. L. REV. 105 (2022); Tiffany Cummins Nick, Protecting Students with Disabilities from Sexual Harassment in Education: Title IX and More, 70 DEP’T OF JUST. J. OF FED. LAW & PRACTICE 217 (2022); Kathleen Comerford, Put Me In, Coach!: How Title IX Should Regulate Transgender Female Athletes, 52 SETON HALL L. REV. 869 (2022); Parker Bednasek, Turning a Blind Eye: The Causation Standard for Title IX Peer Sexual Misconduct Claims, 70 U. KAN. L. REV. 329 (2021); Dana Bolger, Alexandra Brodsky, and Sejal Singh, A Tale of Two Title IXs: Title IX Reverse Discrimination Law and Its Trans-Substantive Implications for Civil Rights, 55 U.C. DAVIS L. REV. 743 (2021); Miriam Pysno Solomon, Tax, Spend, and Prevent Discrimination: Why Title IX’s Passage under the Spending Clause Holds

the Answer to a Quarter-Century Long Circuit Split, 106 MINN. L. REV. 479 (2021); Brian L. Porto, Unfinished Business: The Continuing Struggle for Equal Opportunity in College Sports on the Eve of Title IX’s Fiftieth Anniversary, 32 MARQ. SPORTS L. REV. 259 (2021); Jane K. Stoever, Title IX, Esports, and #etoo, 89 GEO. WASH. L. REV. 857 (2021); Emily Suski, Subverting Title IX, 105 MINN. L. REV. 2259 (2021); Ty Alper, Third-Party Sexual Harassment: The Challenge of Title IX Obligations for Law School Clinics, 96 WASH. L. REV. 1 (2021); Tan Boston, As California Goes, So Goes the Nation: A Title IX Analysis of the Fair Pay to Play Act, 17 STAN. J. CIV. RTS. & CIV. LIBERTIES 1 (2021); Sarah Rudolph Cole, What Title IX Dispute Systems Designers Can Learn from Arbitration, 13 PENN. ST. ARB. L. REV. 49 (2021); Katie Lew, Unbalanced: The Case for Removing Title IX’s Private College Admissions Exemption, 70 DUKE L.J. 847 (2021); Haley C. Carter, Under the Guise of “Due Process”: Sexual Harassment and the Impact of Trump’s Title IX Regulations on Women Students of Color, 36 BERKELEY J. GENDER L. & JUST. 180 (2021).

Sabrina S. McKenna was sworn in as Associate Justice of the Hawai‘i Supreme Court in 2011. She is a graduate of the University of Hawai‘i at Manoa and the William S. Richardson School of Law. She was a civil litigator, corporate counsel, and law professor before serving as trial court judge from 1993 until her appointment to the Supreme Court.

Jennifer Solidum Rose is the Director of the University of Hawai‘i Office of Institutional Equity, overseeing Title IX institutional responses.

For over 25 years, she has provided advocacy to address civil rights and gender equity. She was awarded the 2017 Outstanding Woman Lawyer of the Year Award by Hawaii Women Lawyers for her work on Title IX.

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CAS E NOTES Supreme Court

Appeal Pointer

Criminal

In cases where Rule 52(a) of Hawai`i Family Court Rules (“HFCR”) requires the entry of findings of fact and conclusions of law, the family court retains jurisdiction to enter the FOF/COL after a notice of appeal is filed. The parties to the appeal do not have to file a motion for remand in the appellate court. If the FOF/COL are not transmitted with the record on appeal, the family court can supplement the record on appeal pursuant to HRAP Rule 10(e)(2)(b).

The parties to the appeal do not have to file a motion to supplement the record in the appellate court. All requests for relief related to the entry and filing of FOF/COL pursuant to HRFC Rule 52(a) should be directed to the family court.

State v. Keanaaina, No. SCWC-170000898, March 22, 2022, (Nakayama, J., with McKenna, J. dissenting with whom Wilson, J., joins). Petitioner/Defendant-Appellant Samson K. Keanaaina (“Keanaaina”) appeals the judgment of the ICA affirming the circuit court’s denial of Keanaaina’s motion to suppress evidence. On certiorari, Keanaaina contended that the evidence against him – specifically, the contents of a gray backpack – should be excluded because (1) Hawaii Police Department officers failed to comply with Hawaii Revised Statutes § 803-37’s requirement that officers “demand entrance” before entering a building and (2) the resulting search of Keanaaina’s backpack exceeded the terms of the search warrant the officers executed. Keanaaina is incorrect. First, the statutory obligation to “demand entrance” only applies when the building’s entrance is “shut.” It cannot feasibly be said that the entrances to the tent structure – which had multiple openings between the materials forming its walls – were shut. Thus, the officers did not need to demand entrance, nor did the officers’ actions constitute a breaking. Moreover, the purposes of Haw. Rev. Stat. § 803-37 were satisfied when the officers’ entry did not create any risk of harm. Second, there was no indication that the backpack belonged to Keanaaina. The searches of the backpack consequently did not exceed the terms of the search warrant.

McKenna, J., with whom Wilson, J. joined, dissented. McKenna, J. stated that the Majority assumed the validity of an unconstitutional general search warrant that failed to describe the place to be searched with sufficient particularity.

The Majority also held that Wright’s residence was “open,” contradicting existing precedent that defines the force required to constitute a breaking under Haw. Rev. Stat. § 803-37. The Majority

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rulings violated the constitutional and statutory rights of citizens without traditional, sheltered homes.

Family Crofford v. Adachi, No. SCWC-160000365, February 28, 2022, (Recktenwald, C.J.). At issue is whether marital agreements that consider fault or misconduct when dividing the marital property are enforceable. The parties entered into a post-marital agreement expressing, among other things, that if Joe Crofford (“Husband”) engaged in extramarital affairs or physically harmed his wife Kristi Adachi (“Wife”), Wife would receive most of the parties’ joint assets. Husband contended on certiorari that the agreement was void because it violated Hawaii’s public policy favoring no-fault divorce and equitable distribution of marital property. The Hawaii Supreme Court had not previously considered whether marital agreements that account for misconduct or fault when dividing the marital property were enforceable. Upon review, the

Hawaii Supreme Court concluded these agreements were not enforceable.

Land Carmichael v. Board of Land and Natural Resources, No. SCWC-16-0000071, March 3, 2022, (Wilson, J.). Since 1986, the water rights for 33,000 acres of ceded lands in the Koolau Forest Reserve and Hanawi Natural Area Reserve have been governed by four revocable permits issued by Respondent/Defendant-Appellant/Cross-Appellee/CrossAppellant the Board of Land and Natural Resources (“BLNR”) to forprofit corporate entities, Respondents/Defendants-Appellants/Cross-Ap pellees Alexander & Baldwin, Inc. and East Maui Irrigation Co., Ltd. In this case, the Hawaii Supreme Court considered whether BLNR’s authorization of these four permits during the past decade to divert more than 100 million gallons of water per day from east Maui streams required an environmental assessment pursuant to the Hawaii Environmental Policy Act (“HEPA”), Haw. Rev. Stat. chapter 343. Given the significant environmental impact of the permitted action, the BLNR’s authority to issue revocable permits was subject to the environmental review requirements of HEPA.

Public Utilities In the Matter of the Application of Maui Elec. Co., Ltd., No. SCOT-21-0000041, March 2, 2022, (Eddins, J., with Wilson, J., dissenting). After a contested case proceeding, the Public Utilities Commission (“PUC”) approved a power purchase agreement (“PPA”) between Maui Electric Company, Limited (“MECO”) and Paeahu Solar LLC (“Paeahu”).

The PPA followed competitive bidding that MECO and other electric utility companies collectively conducted in 2018. Paeahu was one of eight projects selected through this competitive procurement process. Under the PPA, MECO would purchase renewable

energy from Paeahu’s solar-plus-battery plant located within Ulupalakua Ranch on Maui (the “Project”). Appellant Pono Power Coalition (“Pono Power”), a Maui community group, asked the Hawaii Supreme Court to vacate the PUC’s approval of the PPA for two reasons. First, Pono Power pointed to the winning bidders’ post-selection use of the same counsel to negotiate non-price PPA terms. It argued the PUC failed to evaluate the common counsel’s involvement under the “rule of reason,” a burdenshifting standard created for Sherman Antitrust Act cases. Second, Pono Power asserted that the PUC failed to fulfill its public trust duties. It claimed the PUC merely catalogued the Project’s anticipated permits and left decision-making about trust resources to the agencies with jurisdiction over those permits. Instead, Pono Power contended, the PUC should have made explicit findings that identified the affected trust resources and how they would be protected. The Hawaii Supreme Court declined to inject antitrust standards into PPA approval proceedings. Haw. Rev. Stat. chapter 269 already requires the PUC to examine potential anticompetitive practices. And those statutes equip the PUC with a framework for that analysis: they prescribe “the public interest” as the controlling principle. The Hawaii Supreme Court also held that the PUC appropriately evaluated the allegations of anticompetitive conduct. The PUC considered the circumstances relating to the winning bidders’ shared counsel, balanced other statutory factors, and found the PPA terms reasonable and in the public interest. The PUC was not required to apply antitrust standards in this analysis. Next, the Hawaii Supreme Court held that the statutes governing the PUC’s PPA review – Haw. Rev. Stat. §§ 269-6(b) and 269-145.5(b) - reflected the core public trust principles: the State and its agencies must protect and promote the justified use of Hawaii’s natural beauty and natural resources. Thus, when there is no reasonable threat to a trust resource, satisfying those statutory provisions fulfills the PUC’s obligations as

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trustee. But when a project poses a reasonable threat, the public trust principles require more from the PUC: the commission must assess that threat and make specific findings about the affected trust resource. Here, the record shows that the PUC conducted the statutory balancing. Under Haw. Rev. Stat. 269-6(b), the PUC considered the need to mitigate the risks associated with fossil fuel-based energy; it also weighed other “technical, economic, environmental, and cultural considerations” under Haw. Rev. Stat. § 269-145.5(b). The PUC then found the PPA “in the public interest.” Because the record lacked a reasonable threat to a trust resource, this public interestminded balancing satisfied the PUC’s public trust duties. The Hawaii Supreme Court affirmed the PUC’s approval of the PPA. Wilson, J., dissented, stating that the Majority allowed the PUC to defer its obligation to protect public trust resources to other state agencies. Once Pono Power, a beneficiary of the state’s public trust, raised “evidence of possible damage” to specific public trust resources, the PUC bore a duty to independently investigate those allegations as trustee. Ching v. Case, 145 Hawaii 148, 177, 449 P.3d 1146, 1175 (2019). Instead, the PUC deferred a determination of whether “reasonable allegation[s] of harm” were raised as to specific public trust resources by cataloguing the list of permits that Paeahu would have to obtain from other agencies. Kauai Springs, Inc. v. Planning Comm’n of Kauai, 133 Hawaii 141, 173, 324 P.3d 951, 983 (2014). Wilson, J. could not conclude, as did the Majority, that the PUC considered whether Pono Power raised a reasonable allegation of harm. Pono Power rightly contended it is entitled to such a determination. Accordingly, Wilson, J. dissented and would remand for the PUC to determine whether a reasonable allegation of harm was made.

Intermediate Court of Appeals Administrative City and County of Honolulu v. Honolulu Police Commission, No. CAAP-20-

0000776, March 16, 2022, (Hiraoka, J.).

The Honolulu Police Commission determined that the City and County of Honolulu must pay for an attorney to defend former Honolulu Police Department chief Louis M. Kealoha (“Kealoha”) in a federal criminal prosecution. A federal jury later found Kealoha guilty. The City appealed the Police Commission’s determination that Kealoha was entitled to a defense. The circuit affirmed. The City filed this secondary appeal. The ICA held that the Police Commission properly applied its administrative rules — which are consistent with the language of, and the legislative intent behind, Haw. Rev. Stat. §§ 52D-8 (2012) and 52D-9 (2012) — to the relevant facts in the record.

Kealoha’s subsequent conviction did not retroactively vitiate the Police Commission’s determination.

2022 Hawaii Access to Justice Conference Save the date: Friday, June 17, 2022. The Hawai i Access to Justice Conference, sponsored by the Hawai‘i Access to Justice Commission, will be an all-day event, currently scheduled to be held in person at the Law School. Please plan to attend for a provocative discussion and varied workshops that seek justice for the underserved and include extensive audience participation about pressing current issues.

Hawai i Supreme Court Chief Justice Mark Recktenwald and Second Circuit Judge (ret.) Joseph Cardoza, chair of the Commission, will offer opening remarks.

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

COURT B RIEF S Judge Darien Ching Nagata Honored by Hawaii Women Lawyers

and justices do and how they are there to ensure fairness in the justice system. He also listened to the students describe their aspirations, including becoming police officers, lawyers, and information technology specialists. The students asked several questions, including “what happens if the police arrest the wrong person?” and “what if a person doesn’t show up for court?”

He then read “Duck for President” by Doreen Cronin to the students, earning him many smiling faces and an appreciative round of applause.

As time was running out, students were still calling out questions. “Where are the courthouses?” One student said, “Please come back again!”

Second Circuit at Lanai Career Fair Third Circuit District Family Court Judge Darien W.L. Ching Nagata received the 2021 Outstanding Judicial Achievement Award from the Hawaii Women Lawyers (HWL). Representative Richard Onishi, Rep. David Tarnas, Representative Jeanne Kapela, Senator Joy San Buenaventura, Sen. Lorraine Inouye, Representative Nicole Lowen, Representative Mark Nakashima, and Chief Justice Mark Recktenwald joined HWL to celebrate Judge Nagata and the other awardees on International Women’s Day. The March 8 ceremony was held in front of the Patsy T. Mink statute outside the Hawaii State Library.

Judge Nagata was honored along with Susan Arnett, Outstanding Woman Lawyer of the Year; Professor Carole J. Peterson, Lifetime Achievement Award; Nalani Fujimori Kaina, Distinguished Service Award; and Nanci Kreidman and the Domestic Violence Action Center, President’s Award.

Second Circuit Court Judge Kirstin M. Hamman and Judicial Assistant Sidnei Camacho spent Saturday, March 12, on Lanai participating in a career fair hosted by the Maui Police Department-Lanai District.

Judge Hamman spoke to interested community members about becoming a judge, the judiciary’s role in government, and access to justice.

One young man was particularly interested in learning about the justice system and the role of a judge.

Chief Justice Visits Lunalilo Elementary Students Fourth graders in Liandra Bonifacio’s class spent part of the morning on March 4 with Chief Justice Mark Recktenwald. He and other community leaders were invited to help Lunalilo Elementary School observe Read Across America Day. The Chief Justice talked about what judges

Retired First Circuit Court Judge Dexter Del Rosario stopped by to talk story and express his love and passion for the people of his home island of Lanai. He noted that the courthouse is the only formal symbol of government in this small rural community.

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H SBA HAP PE NIN GS HSBA Board Action The HSBA Board took the following actions at its meeting in February: • Voted to ratify President Sheldon’s appointment of Glenn T. Melchinger as Technology Committee Chair for 2022; • Determined that proposed legislation relating to the Children’s Justice Program meets the Keller test and voted to submit testimony in support of such legislation; • Determined that proposed legislation relating to internet Posting of personal information meets the Keller test and voted to submit testimony in support of such legislation; and • Determined that proposed legislation relating to increased fees for court-appointed counsel and guardian ad litem child and adult protective services meets the Keller test and voted to submit testimony in support of such legislation.

Mandatory Continuing Legal Education Board Openings The Hawaii State Board of Continuing Legal Education is seeking applicants to fill three expiring attorney terms on its Board beginning on October 2, 2022 and expiring October 1, 2025. Responsibilities and duties include, but are not limited to, participating in quarterly board meetings, occasionally reviewing applications for CLE credits, and providing recommendations to the HSBA staff for various oversight issues that arise. Prior experience in CLE organization or coordination is preferred. Board positions are uncompensated. If interested in serving, please submit a resume and cover letter noting your area of law practice to the Nominating Committee at nominations@hsba.org no later than Friday, May 27, 2022.

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The HSBA’s Young Lawyers Division For more than 60 years, the YLD has served as a vital community service provider of the HSBA. Through its leaders, past and present, YLD volunteers have organized Law Day Legal Clinics across the state, provided legal information to hundreds of callers every Wednesday night, and sponsored projects to educate the next generation about the law and professional opportunities through projects such as Junior Judges (grades 4 through 6), the State Mock Trial Competition (high school), career day speaking engagements, and much more.

Mahalo to the YLD leaders, past and present: 2022: 2021: 2020: 2019: 2018: 2017: 2016: 2015: 2014: 2014: 2013 2013: 2012: 2011: 2010: 2009: 2008: 2007: 2006: 2005: 2004: 2003:

Jasmine Wong Christopher St. Sure Addison Bonner Summer H. Kaiawe Jamila Jarmon Trejur P. Bordenave Ryan K.Y. Hew Miriah Holden Miriah Holden (August – December) Malcolm Barcarse Jr. (January – July) Malcolm Barcarse Jr. (June – December) Jeff Kent (January –May) John G. Roth Levi K.K. Hookano Lisa K.Y. Nakahara Damien L. Elefante Jill M. Hasegawa Nichole K. Shimamoto Ryan G. S. Au Roxann Chun Bulman Peter V. Lee Kristie K. Cruz Chang

2002: 2001: 2000: 1999: 1998: 1997: 1996: 1995: 1994: 1993: 1992: 1991: 1990: 1989: 1988: 1987: 1986: 1985: 1984: 1983: 1982: 1981: 1980: 1979: 1978: 1977: 1976: 1975: 1974: 1973: 1972: 1971: 1970: 1969: 1968: 1967: 1966: 1965: 1964: 1963: 1962: 1961: 1960: 1959: 1958:

Jodi L. Kimura Russ S. Awakuni J. Stanley Yoshimoto Cynthia K. Ching Amy K. Morikami Keith Y. Amemiya Stacy C. Suzuki Scott K. Saiki Grant Y.M. Chun Andrew S. Winer Lorraine Akiba Darolyn H. Lendio Leslie A. Hayashi Coralie Chun Matayoshi Sharon R. Himeno John S.W. Lim Michael J.Y. Wong Christopher G Pablo Sidney J.Y. Wong Cynthia Winegar Paul D. Alston Roy A. Vitousek Marjorie Higa Manuia Linda K.C. Luke Michael R. Marsh Melvin M.M. Masuda Wesley W. Ichida Thomas L. Stirling,Jr. Gerald Sumida Dennis A. Ing Bruss H.K. Keppeler Robert S. Toyofuku John A. Chanin Peter C. Lewis Clinton K.L. Ching Burnham H. Greeley Burnham H. Greeley Philip H. Ching Dwight M. Rush Vernon F.L. Char Stanley Y.F. Ling Bertram T. Kanbara Righard C. Knight Robert A. Franklin Donald D.H. Ching

Member Benefits Spotlight Hawaiian Airlines HSBA members are eligible for a 5% off discount on all transpacific web fares (round trip only). For reservation instructions, sign into your member account. Once you are signed into your account, please click on “My Account” > “Benefit-Hawaiian Airlines.” Baggage fees will apply to Preferred Affiliate Bookings.

Enterprise / National / Alamo Please the following links for information on available memberships/benefits: • Emerald Club enrollment link: https://bit.ly/3hYlHil • HSBA custom booking link for Enterprise / National / Alamo: https://elink.enterprise.com/en/hawstbar.html • Emerald Club Benefits Flyer: https://bit.ly/3vYBhCS • Account Reps: https://bit.ly/3t0CmIs

DEPUTY PROSECUTING ATTORNEY AND LAW CLERK VACANCIES

The Department of the Prosecuting Attorney, City and County of Honolulu, is looking to fill vacant deputy prosecuting attorney positions at all experience levels. Applicants must be licensed to practice law in the State of Hawaii and in good standing before the Hawaii Supreme Court at the time of hire. Those waiting for bar exam results are encouraged to apply. The ideal applicant should have strong analytical skills, be comfortable with both oral and written communications, exhibit high ethical standards, and show a commitment to public safety. Salaries start at $75,588. Great benefits package including pension, health coverage, and defined-contribution plans.

The Department is also recruiting law clerks who intend to take the bar exam in February 2022. Law clerks would be in excellent position to be hired as deputy prosecuting attorneys upon passage of the bar exam. Salary is $50,880.

Position comes with full benefits.

To apply, please visit our website at: https://www.honoluluprosecutor.org/employment-opportunities.

Please contact Nadine Cunningham at (808) 543-1508 with any questions, concerns, or assistance.

Kapolei Inline Hockey Arenas Kapolei Inline Hockey Arenas is offering walk-in skating during KIHA public skating hours. Walk through the door and get ready to skate in their public skating rink. To accommodate COVID-19 guidelines, all guests must show proof of full vaccination for all ages upon arrival.

As an HSBA member, you will receive $5.00 off walk-in public skating sessions. Each session lasts a maximum of two hours at the allotted session times and includes a pair of rental skates.

HSBA members will need to present their HSBA Bar Card upon arrival to redeem the discount. This offer will be valid for one family per bar card.

(Continued on page 29)

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Notice of Suspension – Noah D. Fiddler On March 22, 2022, the Hawai‘i Supreme Court imposed a three-year suspension from the practice of law on Noah D. Fiddler. The suspension is retroactive to July 16, 2021, with the balance of the period of suspension beyond March 22, 2022 stayed pending completion of a period of probation continuing until November 1, 2025.

Fiddler previously entered into a deferred acceptance of guilt (“DAG”) to five felony counts of the willful failure to collect and pay over a tax and twelve misdemeanor counts of willful failure to file a tax return. Proceedings for professional discipline on a conviction of a crime were commenced that resulted in an order of restraint effective July 16, 2021 that was deemed a suspension from the practice of law. Fiddler then entered into a stipulation with the Disciplinary

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Board of the Hawai‘i Supreme Court to impose formal discipline of a three-year suspension, stayed, with actual suspension retroactive to the date of the order of restraint, through the entry of the order of suspension.

While on probation, Fiddler will be required to comply with various terms and conditions of probation and submit to monitoring by the Office of Disciplinary Counsel. The conditions of probation include (1) fulfillment of all of terms and conditions of the probation imposed by the state criminal court in connection with his DAG plea, (2) submission to ODC, every year during probation, a declaration that he has paid his federal, state, and business taxes, accompanied by relevant documents in support, including the tax returns themselves and proof of payment of any taxes due, (3) submission to ODC, annually during this probation period, proof of completion of pro

bono services toward a total of 360 hours, performed through a qualified provider of such legal services, and (4) submission to monitoring by a designated ODC representative, who will be allowed to communicate with Respondent Fiddler’s probation officer in the criminal matter. The probationary period shall end November 1, 2025 but may be subject to revocation on the occurrence of certain events.

Fiddler, age 67, was admitted to the Hawai‘i bar in 1982, and is a graduate of the Southwestern University School of Law, Los Angeles California.

[Case information: ODC v. Fiddler, SCAD-22-0000069 (restraint case ODC v. Fiddler, SCAD-21-0000398, criminal proceeding State v. Fiddler, 1CPC-180000632).]

Ed. Note: This article was previously published in the February 2015 issue of the Hawaii Bar Journal.

The issue of legalizing gambling in Hawaii is always a hot topic, with bills introduced to the Legislature nearly every year. In a recent Honolulu Civil Beat article, author Blaze Lovell considers how lucrative legal gambling in Hawaii would be. In estimating that Hawaii residents likely spent $159.7 million in Las Vegas just in 2019, a case is made for keeping that money, plus the huge amounts of revenue that would be generated from legal gambling, in Hawaii. Blaze Lovell, Gambling Is Illegal in Hawaii. But Las Vegas Is Only A Plane Ride Away, Honolulu Civil Beat, January 18, 2022. Despite bills being introduced year after year, though, with proceeds proposed to go to deserving beneficiaries, each bill continues to be rejected. Consistent with the idea that there is little tolerance for gambling in Hawaii, law enforcement over the years appears to have become more and more aggressive in investigating and closing illegal gambling establishments. Whether and if illegal raffles, sweepstakes, or games of chance will ever be a law enforcement priority continues to be unknown.

In Hawaii, it is well known that gambling is illegal. To most, illegal gambling equates to slot machines operated in discreet back rooms and online casinos.

With the rise of internet gambling and the

When Raffles, Sweepstakes, Games of Chance and Skill Constitute Illegal Gambling in Hawaii

by Christine Daleiden

recent explosion of adult video game parlors, Hawaii’s gambling statutes have been the source of recent law enforcement actions. In May 2014, the Office of the Prosecuting Attorney and the Honolulu Police Department issued 70 cease and desist orders to businesses for possessing machines at adult video game parlors that were considered gambling devices.1 The machines deemed to be gambling devices included one where a video game is played for a fee, and the player, if successful, receives a discount coupon to buy products on the internet and an entry into a sweepstakes.2 Another is a game where one pays to play a video game, earns points, and is rewarded for the points with

cash.3 Even seemingly innocuous games were targeted in the enforcement actions, including “coin pusher” games. These games, which can be found even in kiddy arcades, are played by dropping a coin onto moving metal shelves covered with other coins. If one is lucky, the coin will bump other coins off the shelf to the bottom level, where they can be collected. In these games, there might be $20 bills mixed in with the coins to tantalize the players to drop more coins in.4 Also considered illegal gambling in Hawaii are church raffles, retail contests, and product promotions where chance is involved. While law enforcement is not cracking down on fundraising activities at churches or non-profit dinner events where raffles are being promoted, these activities still potentially carry a criminal penalty.

Hawaii’s Gambling Statutes It should first be noted that Hawaii’s gambling statutes are generally difficult to understand,5 contain ambiguous language,6 and contain inconsistencies seemingly arising from several amendments that occurred over decades.7 Rather than

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being helpful, the legislative history is a source of confusion.8 There is also little case law interpreting the statutes.

With that as a caveat, gambling offenses are covered in Section III, Chapter 712 (“Offenses Against Public Health and Morals”) of the Hawaii Penal Code.

Gambling offenses can be misdemeanors or felonies, depending on the profits realized.9 Illegal gambling comes in the form of promoting or advancing gambling, or

possessing gambling records or devices.

While the term “advancing gambling” generally targets the establishment of a gambling business, a person who plays or participates in a gambling activity may also be liable.10 A person engages in gambling if: (1) he stakes or risks something of value; (2) upon the outcome of a contest of chance or a future contingent event not under his control or influence; (3) upon an agreement or understanding that he or

O’CONNOR PLAYDON GUBEN & INOUYE LLP ATTORNEYS AT LAW SINCE 1876

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someone else will receive something of value in the event of a certain outcome.11 The Chapter also covers lotteries.

Although the idea of establishing a statesponsored lottery is on the legislative agenda from time to time, lotteries have been declared illegal in Hawaii, even if the lottery is drawn or conducted outside of Hawaii in a jurisdiction where it is legal.12 This statute presumably was enacted to prevent nationwide lotteries, such as “Powerball” from being played in Hawaii.13 Games of Chance in Hawaii “Games of chance,” such as sweepstakes, contests, and raffles are generally categorized as illegal lotteries. In Hawaii, a lottery is defined as a gambling scheme where: (1) The players pay or agree to pay something of value for chances, represented and differentiated by numbers or by combinations of numbers or by some other medium, one or more of which chances are to be designated the winning ones; and

RACHEL A. ZELMAN has joined our firm as an associate attorney. Ms. Zelman graduated from Columbia University with dual B.A. degrees in Latin American Studies and Economics in 2007. She earned her Juris Doctorate from George Washington University School of Law, where she was awarded the Laurence E. Seibel Memorial Award in Labor and Employment Law. Ms. Zelman served as a judicial law clerk for the Honorable Jeannette H. Castagnetti in the First Circuit Court of the State of Hawaii. In that capacity, she provided support in all areas of civil litigation from pre-trial through post-judgment motions.

Her experience in law also includes over eight years of complex construction litigation, civil litigation, corporate governance and compliance, and bankruptcy.

Ms. Zelman volunteers for Legal Services of Hawaii, providing legal assistance to low-income residents, including advising on consumer protection matters, residential leasehold disputes, and defending civil lawsuits including debt collection relief.

Bar Memberships: Hawaii State Bar Association, 2013 United States District Court, District of Hawaii, 2013 United States Bankruptcy Court, District of Hawaii, 2016 United States Court of Appeals for the Ninth Circuit, 2019

Pacific Guardian Center, Makai Tower 733 Bishop Street 24th Floor Honolulu, Hawaii 96813-4070 Telephone: (808) 524-8350 Fax: (808) 531-8628 Email: info@opgilaw.com www.opgilaw.com 20 May 2022

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(2) The winning chances are to be determined by a drawing or by some other method based on an element of chance; and (3) The holders of the winning chances are to receive something of value.14 Illegal games of chance were specifically enumerated in the former version of Chapter 712.15 The original statute made it a misdemeanor to set up or assist in any type of lottery scheme, to sell or buy a ticket of chance in a lottery scheme, to conduct or play any game of chance or any game where money is lost or won or to be present where such games occur . . .”16 In a 1973 amendment, the Legislature stated that “by broadly defining the terms ‘advancing gambling activity’ and ‘promoting gambling activity’, it makes unnecessary the explicit listing of various games of chance that was present in previous statutory law.”17 The commentary to the provisions added in 1973 explains that “a new offense of gambling

Solutions Start Here [was] created to cover all other acts related to gambling for which evidence of profit need not be available nor applicable. The point of this is to obtain a clearer statement that gambling in all aspects is prohibited except in the limited case of social gambling.”18 The Legislature evidently wishes to widely prohibit gambling by enacting comprehensive laws.

Social Gambling inequipment Hawaii in With the p Although gambling activities are broadly defined, social gambling is allowed in Hawaii pureeasily “contests Theyfor could and of safely skill.”

Pursuant to Hawaii Revised p Statutes § 712-1231, social gambling is legal if: (1) all players play on equal terms; (2) noTplayer directly or indirectly receives anything of value, other than a player’s personal gamblingThe winnings; (3) itofis court number rplayed in a private residential building; and (4) all players are at least 18 years old.

To be legal, social gambling does not allow a business to profit from allowing the use of its premises for gambling, supplying refreshments, food, drinks, services, lodging or entertainment.

Bookmaking Because the19 annual fis specifically prohibited.20 The Standing Committee Report to this section provides that “[c]asual gambling activities in a social context, involving contests of skill, and conducted in places other than those enumerated in the law, such as casual bets between golfers or bowlers would be ‘social gambling.’”21 This statement is seemingly broad, but it misleads the reader by failing to note how extensive the list of prohibited enumerated places is under the statute. The enumerated list of sites where social gambling cannot legally occur is: hotels, motels, bars, nightclubs, cocktail lounges, restaurants, massage parlors, billiard parlors, or any business establishment of any kind, public parks, public buildings, public beaches school grounds, churches or any otherTpublic area.22 If these casual bets between golfers or bowlers take place at a bowling alley, golf course, or business establishment of any kind, the bets are illegal, and therefore no longer considered “social gambling.”23 The exception for so-

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cial gambling is extremely narrow, and generally only applicable to those casual bets, based on skill and not chance, that take place in the home.

Promotions Using Games of Chance: Lotteries, Sweepstakes, and Raffles Advertisers have long understood the value of using games of chance to fundraise and to promote products or services. There is no doubt that consumers love to play games of chance where they can win prizes. This is evident from the number of radio call-in contests.

These promotions, however, must be structured so that they do not violate Hawaii’s gambling laws.

What makes lotteries, sweepstakes, raffles, and contests illegal is the combination of consideration, chance, and a prize.

The chart on this page summarizes the characteristics of these three elements, all three of which must be met for the activity to be considered illegal under Hawaii law.

Avoiding state gambling penalties requires the removal of any one of these three elements. By doing so, the activity ceases to be illegal. Because awarding a prize is the enticement to get a consumer to participate in the activity, removal of this element is not really an option. It therefore makes sense to eliminate consideration or chance if it can be done without completely removing the enticement to participate.

Determine Whether Consideration is Present In attempting to structure a legal

promotion involving a “game of chance,” it should first be determined whether the activity involves a participant who “pays something of value.” If consideration is not present, the activity is legal. Consideration is broad and need not be in the form of money; it is generally measured by the amount of effort that the participant must expend in order to win the prize. If the level of effort meets a certain threshold, consideration is present. In Hawaii courts have not specifically opined on where that threshold is, but other jurisdictions have provided some, although sometimes conflicting, guidelines: Requiring weekly visits to a grocery store to obtain a punch card, register name and address at a desk sitting inside the door, and be present at the drawing was deemed consideration.25 • Requiring a participant to go into a service station, obtain a ticket, and leave a stub on the counter was deemed consideration.26 • Requiring a participant to register for a prize at a theatre and be present when the

Elements

prize was drawn was not enough effort to be deemed consideration.27 • Requiring the return of a response, and checking “yes” to purchase a magazine and “no” to just enter the drawing was deemed consideration because of the “time, thought, attention and energy expended by members of the public in studying . . . advertising.”28 • Requiring a participant to enter a grocery store, obtain a prize slip and Bonus Bingo book, run the prize slip under water to reveal a game, locate the game in the prize book, and indicate the receipt of the prize slip was deemed consideration.29 • Requiring a participant to spend hours following football in order to forecast winners was deemed consideration.30 • Requiring a participant to register for a contest on coupons sent through the mail and to deposit the tickets at a supermarket was deemed consideration.31 • Requiring a participant to register for a drawing at a business establishment was not deemed consideration.32

Haw. Rev. Stat. § 712-1220(6)

Consideration

(1) The players pay or agree to pay something of value for chances, represented and differentiated by numbers or by combinations of numbers or by some other medium, one or more of which chances are to be designated the winning ones; and

Chance

( 2) The winning chances are to be determined by a drawing or by some other method based on an element of chance; and

Prize

(3) The holders of the winning chances are to receive something of value.

“Something of value” means any money or property, any token, object, or article exchangeable for money or property, or any form of credit or promise directly or indirectly contemplating transfer of money or property or of any interest therein, or involving extension of a service or entertainment.24

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• Requiring participants to obtain bingo cards from sponsoring stores and watch a televised game to win was not deemed consideration.33 • Requiring a participant to travel to a store one time to deposit an entry ticket was not deemed consideration.34 Eliminate Consideration by Providing an Alternative Form of Entry If it is determined that consideration is present, it can be removed in two ways to better the chances of making a game of chance legal. The first is to make the consideration element optional by allowing an alternate mode of entry to everyone. For example, a promotion where a gift card (prize) is being raffled (chance) to all those people who purchase a newspaper (consideration) in a given time period can be made legal if the raffle is also made eligible to any person who submits an entry form. That is the reason that “no purchase necessary” adorns many contest rules.

Providing an alternative form of entry, by itself, however, is not necessarily enough to prevent liability. An alternate mode of entry must be equally available to all consumers and must be given equal treatment with the purchase-based entry.

The odds of winning the prize cannot be different and there cannot be different classes of prizes for different methods of entry. Official rules should clearly state the material terms of the promotion, eligibility, how to enter, how winners are selected, and the duration of the promotion.

Any restrictions should be made clear.35 Furthermore, if promotions are in the United States, compliance with the Deceptive Mail Prevention and Enforcement Act (“DMPEA”) is required.36 This law was designed to protect consumers from buying products that they don’t need or want. Among other things, the DMPEA requires that for sweepstakes, “no purchase necessary” be clearly and conspicuously displayed in rules and on promotional materials relating to sweepstakes, the sweepstakes must state that a purchase will not increase an entrant’s

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chance of winning; names, address, and contact information of sponsors must be displayed; official rules must be provided, number and retail value of all prizes must be disclosed, and the odds of winning.

For contests, the sponsor must disclose the number of rounds or levels of the contest and the cost of entering each level, the estimated number or percentage of winners who have won previous games, the method used for judging the contest and the judges’ qualifications, the date prizes will be awarded, and the value of each prize.37 Because using an alternate mode of entry is clearly a method of side-stepping illegal gambling laws, these entries face heavy scrutiny, with law enforcement sometimes describing the games as “thinly veiled lotteries”38 If the effort required to win the prize is too onerous, or the participants have to pay even a nominal fee to participate without receiving equivalent value, the game may be considered illegal gambling even if a free entry is offered. In 2007, this issue became highly publicized due to a text message game related to the television show, America’s Got Talent.39 For that promotion, participants entered a sweepstakes by sending a text for a fee in order to enter. A free method of entry was also offered, but the court found that the free method of entry, by itself, could not erase the fact that consideration was required to enter the sweepstakes. The court stated those who sent the text messages got nothing of value in return for the entry. Courts have found that alternate forms of entry do not always save promotions from being deemed illegal lotteries: • Availability of alternate mode of entry not sufficient in a grocery store sweepstakes because the majority of the entrants obtained entry from product purchases, thus resulting in some entrants “paying to play.”40 • Availability of alternate mode of entry not sufficient if entrants paid consideration by purchasing what the promoter was selling.41

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• Movie theatre prize drawing violated lottery law despite free method of entry.42

the interaction time to request voluntary donations.

Eliminating Consideration by Not Charging to Participate The second way to remove consideration is to not charge a fee for entry into the activity. For example, if raffle tickets are offered free of charge to everyone at an event, but at the offering, voluntary donations are solicited, consideration is not present.

Illegal raffles probably take place daily in Hawaii, with proceeds largely benefiting charitable organizations located in Hawaii. In fact, it would be unusual to go to a fundraising event and not be solicited to purchase a raffle ticket to win a prize, such as an all-expense paid “stay-cation” at a Hawaii resort.

This is clearly “pay to play” and is considered illegal gambling. In fact, the legality of the practice has been questioned to such an extent that the Office of the Attorney General’s Charities Division has issued guidance on raffles:

Remove the Element of Chance by Replacing it with the Element of Skill Another way to take a game out of the realm of illegal gambling is to remove the element of chance. Chance can be removed by choosing the winner based entirely on skill. For example, offering a prize for the best essay contest is an activity where pure skill is involved so this would most likely be considered legal, despite the fact that the effort of writing was required to enter the contest.

In Hawaii, however, even if skill is added, if chance plays a significant role in the outcome of the contest, it still may be considered illegal gambling. Pursuant to Haw. Rev. Stat. § 712-12220(3), a “contest of chance” means any contest, game, gambling scheme, or gaming device in which the outcome depends in material degree upon an element of chance, notwithstanding that skill of the contestants may also be a factor therein” (emphasis added).

For example, in State v. Prevo, the court held that there was no distinction drawn between chance and skill, or games of chance and games of skill. Rather, all games so designed that money or other things of value are staked or wagered on the outcome are gambling games.44 The Court in Prevo looks to the legislative history of the gambling statute, and notes that the original penal code back in 1850 simply read “Whoever by play at cards, or any other game, wins or loses any sum of money or thing of value is guilty of gaming.” The provision remained largely unchanged except for the addition of enumerated games, yet continued to be comprehensive in scope. Although the current Hawaii Revised Statutes have been amended, the commentary to the gambling provisions demonstrates the same commitment to comprehensive ban on gambling.45 In Territory v. Pierce,46 a game of skill that had elements of chance in it was found to be an illegal lottery. In this case,

Charities may not legally use a raffle as a fundraising device, unless it is made clear to every participant that participation in the raffle is free of charge and that donations are strictly voluntary. Charities must exercise great care in communications with the public to ensure that individuals are not lead to believe that they must purchase ticket or other lottery device, to participate.

A charity may conduct a raffle ancillary to another fundraising event for which there is a charge to participate, like a dinner event or dinner show, silent auction, provided that participation in the raffle does not require the participant to pay something of value or lead any person to believe that a participant must pay something of value. Thus, although a charity may charge to allow a participant to attend a dinner show, they may not do so for any raffle that is conducted.43 To avoid any legal issues, raffles could be distributed free to participants, using

a game described as “Aloha Quiz” was played, which was similar in all respects to the game commonly known as “Bingo.”

Contestants who successfully obtained Bingo were then asked a question which they had to answer correctly before the money prize was actually delivered (although testimony showed that the contestant was given several chances to answer a simple question correctly). The court held that this was still a lottery, even though it required a solution of problems to win the prize. A contest is not any less of a lottery, the court decided, if chance enters into any part of the problem and influences the final result.

In Territory v. Sur,47 the Court found betting on football games fell under the definition of lottery, and thus constituted illegal gambling. In Sur, there was a betting scheme wherein the bettor attempted to predict winning college football teams.

The amount of money won depended upon the amount of consideration paid, the number of winning teams selected, and the odds established by the operator.

The Court noted that regardless of how much information on the players and teams past performance is available, there is always some element of chance, thus even if chance was not predominant, it was to be considered and weighed in its relations to the odds which determine the amount of winnings. Thus, the scheme was an impermissible lottery.48

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Are Changes in Legislation Being Contemplated to Legalize Sweepstakes, Contests, and Raffles?

State legislation was recently proposed to legally allow fundraising through charitable raffles.49 The proposal was deferred, presumably due in large part to testimony submitted by the former Attorney General, who acknowledged the important social services that can be provided by charitable fundraising but opposed exceptions to the state’s gambling laws due to “grave concerns.” Moreover, the former Attorney General warned that “a broad exception opens the door to increased potential for criminal violations by those who use the exception as a loophole to avoid criminal culpability.”50 May 2022

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To date, raffles at non-profit fundraising dinners and contests at churches have not been the subject of a large number of prosecutions. By ensuring that these perhaps innocuous activities remain illegal, while at the same time using discretion in enforcement, law enforcement is strategically preventing vice and corruption that arises from more serious gambling activities. In providing legal advice about raffles, contests, and promotions, inform clients that these activities are potentially criminal activities and law enforcement has the right to treat them that way. The following guidance may be helpful: • For contests or promotions, remove any fee, charge, or excessive effort and provide an alternate mode of entry.

• For games of skill, make sure it is a pure game of skill with no chance involved.

• For raffles, offer tickets to everyone without collecting a fee, but solicit purely voluntary donations. __________________ 1 City prosecutor broadens gambling crackdown, more machines targeted, Nestor Garcia, May 12, 2014, found at http://khon2.com/2014/05/12/city-prosecutorbroadens-gambling-crackdown-more-machines-targeted/.

After the cease and desist letters were mailed, indictments were filed, but in October 2014, all charges in the indictment were dropped against nine owners of adult game rooms on the grounds that false information was presented to the grand jury. See http://khon2.com/2014/10/10/massive-gambling-indictment-dropped-defense-attorneys-call-for-investigation/.

2 Product Direct Sweepstakes. Id..

3 An example is the Fish Hunter Games. Id. 4 Examples are Monopoly, Bonus Hole, Car Wash. Id. 5 Try to decipher this: “No other person, corporation, unincorporated association, or entity receives or becomes entitled to receive, anything of value or any profit directly or indirectly from any sources, including but not limited to permitting the use of the premises, supplying refreshments, food, drinks, service, lodging or entertainment . . .” Haw. Rev. Stat. § 712-1231 (a)(3).

6 For example, “gambling scheme” and “gambling activity” are presumably used interchangeably but “gambling scheme” is not defined.

7 For example, the 1973 Commentary on Haw. Rev. Stat. § 712-1229, that prohibits out of state lotteries to be conducted in Hawaii, provides that “[b]ecause the person who places the bet or buys the lot-

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tery ticket is not criminal [criminally liable?] under this Part, only the seller or promoter is covered . . . .” (emphasis added). In light of the expansion of the earlier statutes to specifically make players liable (the term “acting other than a player” was deleted from the former statute, and a new provision was added specifically making a person is liable if “he plays or participates in any form of gambling activity”), this seems patently inconsistent. However, under Haw. Rev. Stat. § 7121220(5), this comment may relate to § 712-1220(5) that states that “lottery tickets and other items used in the playing phase of lottery schemes [note that “lottery schemes” are not defined and lotteries are defined as “gambling schemes”], are not gambling devices within this definition.”

8 See id.

9 See Haw. Rev. Stat. §§ 712-1221, 712-1222, 712-1224, 712-1225, 712-1226.

10 Haw. Rev. Stat. § 712-1220(1).

11 Haw. Rev. Stat. § 712-1220(4).

12 Haw. Rev. Stat. § 712-1229.

13 There are 44 states where Powerball is legal.

14 Haw. Rev. Stat. § 712-1220(6). “Something of value” means “any money or property, any token, object, or article exchangeable for money or property, or any form of credit or promise directly or indirectly contemplating transfer of money or property or of any interest therein, or involving extension of a service or entertainment.” Id. at § 712-1220(11).

15 Haw. Rev. Stat. § 746 et al.

16 See Commentary on §§ 712-1221 to 1223.

17 Id. 18 Id. 19 See Footnote 5, above.

20 Haw. Rev. Stat. § 712-1231.

21 Commentary on Haw. Rev. Stat. § 712-1231.

22 Haw. Rev. Stat. § 712-1231(a)(4).

23 Id. 24 Haw. Rev. Stat. § 712-1220(11).

25 Blackburn v. Ippolito, 156 So. 2d 550 (Fla. Dist.

Ct. App. 1963).

26 Knox Industries Corp. v. State ex rel. Scanland, 258 P.2d 910 (Okla.1953).

27 Little River Theatre Corp. v. State, 185 So. 855 (1939).

28 State v. Reader’s Digest Ass’n, Inc., 501 P.2d 290 (Wash.1972).

29 State ex rel. Schillberg v. Safeway Stores, Inc., 450 P.2d 949 (1969).

30 Seattle Times Co. v. Tielsch, 495 P.2d 1366 (Wash.

1972).

31 Lucky Calendar Co. v. Cohen, 117 A2d 487 (1955).

32 People v. Psallis, 12 NYS2d 796 (1939 Mag Ct NY); Brice v. State, 242 SW 2d 433 (1951).

33 ACF Wrigley Stores, Inc. v. Olsen, 102 NW 2d 545 (1960).

34 Haskell v. Time, Inc., 857 F. Supp. 1392 (E.D. Cal. 1994).

35 Cabot and Von Kirk, Internet Sweepstakes, Contests

and Games, Bloomberg Law Reports-Intellectual Property, July 2007.

36 39 U.S.C. § 3001 et al.

37 Id. 38 Cabot and Von Kirk, Internet Sweepstakes, Contests and Games, Bloomberg Law ReportsIntellectual Property, July 2007.

39 America’s Got Talent, Glass v. NBC Universal Inc., et al., Case No. CV07-0844-JFW (C.D. Cal. 2007).

40 Kroger v. Cook, 265 N.E.2d 780 (Ohio 1970).

41 Tierce v. State, 122 Ga. App. 845 (1970).

42 State v. Danz, 140 Wash. 546 (1926).

43 Office of the Attorney General, Charities Division, Guidance Regarding Charitable Raffles, found at http://ag.hawaii.gov/tax/files/2013/01/DOC0 18.pdf.

44 State v. Prevo, 44 Haw. 665 (1961).

45 In this case, the defendant was charged with violation of Revised Laws of Hawaii Section 288-4, “Playing prohibited games.” Defendant had been present at the establishment, tending the merchandise counter, where the game “Fascination” was being played. Fascination is played on a table at one end of which there is a square arrangement of 25 holes consisting of five vertical and five horizontal rows. The player is seated behind the opposite end of the table and is furnished a hard rubber ball, about one-eighth of an inch smaller than the holes. This ball is rolled up a gradient plane toward the rows of holes. Between the player and the holes is a barrier extending across the width of the rows of holes which the ball must surmount before reaching the holes. As the ball enters a hole an electrical device lights up the location on a reproduction of the playing grid set up on a vertical backboard of the device. If the ball does not enter one of the holes, it rolls off to the side and enters an opening. In either case, the ball is returned to the player for the next roll.

Id. 46 43 Haw. 246 (Haw. 1959).

47 39 Haw. 332 (Haw. 1952).

48 Id. 49 H.R. 29, HD 1, Requesting The Department Of The Attorney General To Identify And Analyze Permissible And Unlawful Methods Of Fundraising For Charitable Organizations.

Measure deferred on April 5, 2013.

50 Testimony of the Department of the Attorney General, Twenty-Seventh Legislature, 2013 on H.R. No. 29, Concerning Permission of Raffles as a Means of Fundraising for Charitable Organizations, March 11, 2013, found at http://www.capitol.hawaii.gov/session2013/Testimony/HR29_TESTIMONY_CPC_03-1113_.PDF.

2022 Suspensions On March 1, 2022, the listed attorneys were administratively suspended for failure to complete the 2022 attorney licensing registration process required by the Hawaii Supreme Court, which includes payment of dues and fees for the Disciplinary Board, the Lawyers’ Fund for Client Protection and the Attorney & Judges Assistance Program.

Edward H. Ayau Joanne Batangan Badua Kenny Young Baik Dayna M. Beamer R. Eric Hoolulukamak Beaver Andrew Robert Carl Martin Chang Deborah Ann de Quevedo Natasha Dexter Joel Ira Edelman Katherine H. Federle Marybeth King Fentriss Harry F. Ferguson-Brey Thomas Joseph Fisher Robert Frank Gebbia Crystal Diane Golm Glenn S. Grayson Carolyn Y.Y. Grayson James Nathan Greenberg Kristen Jennifer Gruber Curt L. Hamakawa Scott Kiemon Hanano Susan L. Harrison Nathan Alexander Hartman Chris Heckman Mariano V. Hernando Craig H. Hirai Lea Ok Soon Hong Masumi Horiuchi Allison Renee Imber Samuel Jajich Stephanie Deweese Johnstone Laura Hokunani Edmunds Kaakua Keith M. Kaneshiro Vickie L.S. Kapp Kevin M. Katsura Heather T. Kaufman James Patrick Kelly Nicolas Thomas Kelsey Mariko Faith Kikawa Crosswell Hyun S. Kim Steven J. Kim Jinhee Ahn Kim Jasmine Christina King Joseph N. Kiyose

Douglas Knowlton Carole D. Landry Jeffrey Dale Larson David P. Ledger Philmund Lee Mark Leemon Craig K.W. Leong Cathy Jo Lewis Samuel A.B. Lyons Remy Chang Mendelsohn F. Stewart Merdian Danille Anderson Minayoshi Richard Lee Montarbo Samuel Sang Yoon Nam Steven J. Noufer Julia Sakissian Oaten Christopher Andrew Olson Toni Marie Owan Jeremy Ira Pollack Jennifer Margret Porter Daniel J.Y. Pyun Matthew Robert Re Robert P. Richards Byron Ariel Rodriguez Sidney Stillerman Royer R Peter David Scott

Susan Lee K. Seah Joseph Kelly Seipel Neil Adam Sheehan William Lee Shipley Guy A. Sibilla Peter Kurt Simon Kamanaonapalikuhonua Farden Souza Rae McCorkle Sultan Dwight T. Tanaka Janice E.C. Teramae Sara Mae Theodorous Kyle A. Thompson Steven V. Torkildson Irene Elizabeth Vasey James R. Veary Michele R. Wallace Everett Walton Aubry Wand Jeffrey A. Wayne Stacy Lee Williamson John Winnicki Ann Michele Winterman Auburn Raquell Wise Richard C. Wootton Michael Yukio Yoshino Jamie Beth Zaffino

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(Continued from page 17) For more information on public skating sessions, visit KIHA’s website at https://www.kihapublicskate.com/ or contact them at kihapublicskating@gmail. com or via phone at (808) 682-5441.

Kumu Kahua Theatre Kumu Kahua Theatre produces world-class theatre written by and about the people of Hawai i, performed in downtown Honolulu. They are pleased to offer HSBA members a 25% discount on staged production tickets. Please call the theatre’s office at (808) 536-4441 to redeem your discount or use the code “HSBA” when ordering online.

For more information, visit Kumu Kahua Theatre’s website at https://www.kumukahua.org/.

Honolulu Payroll Honolulu Payroll LLC was founded to provide hand-holding local service and support to small business owners.

They take the employee burden off of your plate by doing all that is required as a business with respect to your employees to maintain 100% compliance. From labor laws to taxes and making sure your employees are paid on time, Honolulu Payroll can do it all with a 1-point-ofcontact approach. They are excited to team up with HSBA to provide our service to even more firms across the state.

New clients will be given a lifetime 10% discount off the monthly service fee, waived setup fees, and 3 months of the first year for free. For more information, contact Nicholas Salisbury, Sr. Account Manager, at (808) 499-9651, or visit their website at www.hnlpayroll.com.

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O FF THE R EC ORD William C. Bowen joined O’Connor Playdon Guben & Inouye as an associate attorney. He received his bachelor’s degree in mechanical engineering from the University of Vermont, a master of engineering from the University of Canterbury in New Zealand, and his law degree from the Loyola Law School in California.

Jamie Fukumoto has joined Goodsill Anderson Quinn & Stifel as Counsel and will practice in its corporate and captive insurance sections where she will advise clients on business entity formations (such as the organization of limited liability companies, partnerships, corporations, and joint ventures), stock acquisitions, corporate reorganizations, membership interest purchases and captive insurance. She received her law degree from the University of Hawai’i at Manoa William S. Richardson School of Law and was

awarded the Kashiwagi Japanese Studies Fund Scholarship. Her Japanese language fluency will add to the Japanese Practice Group at Goodsill with Alan Fujimoto and Shimpei Oki (partners) and Tanya David (associate), who are also fluent in English and Japanese.

William C. Byrns is a partner at Rush Moore where he concentrates his practice in real property, finance, commercial, and business law. He received his law degree from the University of California at Berkeley (Boalt Hall).

Monica K. S. Choi also joined the firm as Of Counsel. She was formerly with the Department of the Corporation Counsel and received her law degree from Whittier Law School.

Lissa H. Andrews and John D. Zalewski announced the formation of their new law firm, Andrews & Zalewski LLC, at ASB Tower in downtown Hon-

olulu, effective April 1, 2022, where they will continue their civil litigation and commercial litigation practices.

Mark M. Murakami, a Director with Damon Key Leong Kupchak Hastert, has been elected as the Hawaii member of Owners’ Counsel of America (OCA), an exclusive association of the nation’s leading eminent domain lawyers. Membership in OCA is by invitation-only, and limited to a single member in each state. Members are selected for their experience and dedication in defending the constitutional rights of private property owners in eminent domain, inverse condemnation, regulatory takings, and other property rights matters.

Jeffrey Ueoka was appointed to the J. Walter Cameron Center’s Board of Directors. The Cameron Center includes 18 community agencies or nonprofits that serves approximately 30,000 Maui residents.

U‘ilani Tanigawa Lum was appointed one of the new board directors for the Hawai‘i Land Trust, a statewide local nonprofit that protects, stewards and connects people to lands that sustain Hawai‘i; she will serve as secretary.

The Green Team (fka Team Sia and Geico) won the championship in the Hawaii Lawyer’s Basketball League.

The Green Team players are; David Gruebner, Casey Hines, Ben Koenigsfeld, Bob Mash, Andrei Plotnick, Justin Reyes, Sergio Rufo, Michael Van Dyke, and Winston Wong.”

News for “Off the Record” Please send in information about movement within the bar, about elections to various boards, awards, and other news to any one of the editors on the editorial board, Carol K. Muranaka at <carol.k.muranaka@gmail.com> or Cynthia M. Johiro at <Cynthia.M.Johiro@hawaii.gov>.

30 May 2022

HAWAII BAR JOURNAL

Articles Wanted If you are interested in writing either a short or long article of general interest to members of the bar, please send your submissions to Ed Kemper at edracers@aol.com; Cynthia M. Johiro at cynthia.m.johiro@hawaii.gov; or Carol Muranaka at carol.k.muranaka@gmail .com ; or to any of the volunteer editors on the editorial board. All submitted articles should be of significance to and of interest or concern to members of the Hawaii legal community. A short article is approximately 500 to 1,500 words.

The Hawaii Bar Journal reserves the right to edit or not publish submitted material.

Did You Know?

• What is the shortest law in the Hawai‘i Revised Statutes? At nine words, the following statute might be a strong candidate: “Thomas Square shall be maintained as a public park.”

Haw. Rev. Stat. § 46-65.6.

• Children under the age of sixteen are prohibited from certain places unless with a parent or guardian. Haw. Rev. Stat. § 577-19 provides as follows: Children prohibited in certain places, when; penalty. Any keeper of a coffee shop, ice cream parlor, victualing or billiard saloon, bowling alley, skating rink, theater, show house, or premises in which any show, moving picture, or other like public entertainment is given, who permits any child under the age of sixteen years to be or remain upon the premises or in the saloon, rink, theater, show house, or premises, or in whose premises such child may be found between the hours of ten in the evening and six in the morning, unless the child is accompanied by the child's parent or guardian, or some other adult person thereto authorized by such parent or guardian, shall be fined not more than $100. [L 1870, c 23, §1; am L 1915, c 44, §2; RL 1925, §3051; RL 1935, §4533; am L 1943, c 78, pt of §1; RL 1945, §12285; RL 1955, §330-17; HRS §577-19; am L 1975, c 77, §1(7); gen ch 1985]

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LEGAL CONSULTING

Email hawaiilawpro@gmail.com.

LEGAL NURSE CONSULTING Assistance in

O’CONNOR PLAYDON GUBEN & INOUYE LLP

Legal Nurse Consulting, Life Care Planning, &

managing the medical aspects of your case.

Seeking Associate Litigation and/or

Workers’ Compensation Nurse Case Manage-

Bankruptcy Attorney. Minimum 1 year legal

ment. Cynthia L. Fricke, RN, BSN, CCM, CLCP.

experience. Licensed to practice law in

(808) 253-0232. www.islandlegalnurse.com

Hawaii Good research, writing and people

frickec001@hawaii.rr.com

skills Send resume to info@opgilaw.com

EXPERT WITNESS CONSTRUCTION, 30 yrs; P.E., MS/BS Civil Eng’g, CCM, CEP; excellent written/oral comm; utilities, road, bridge, treatment plant, pump station, transit, multi-story; claims, scheduling, estimating; sj@sjcivil.com, 808-271-5150.

CONSTRUCTION DEFECTS, contractor issues, premises liability, real estate disclosure.

AOAO, Landlord/Tenant and mold disputes National Building Expert. Best Selling Author. https://expertwitness.now.site 808-422-2132 May 2022

HAWAII BAR JOURNAL

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