Hawaii Bar Journal - November 2021 by Hawaii Bar Journal

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

by Edward Kemper

19 12 24

OF NOTE

President Levi Hookano

Treasurer Alika Piper YLD OFFICERS President Christopher St. Sure Vice President/President-Elect Jasmine Wong Secretary Nelisa Asato Treasurer Leo Shimizu

Plain Language is Always Practicable Possible by David Raatz

HSBA OFFICERS

President-Elect Shannon Sheldon Vice President Rhonda Griswold Secretary Russ Awakuni

United States Magistrate Judges of the United States District Court of Hawaii

HSBA Happenings

Court Briefs

Disciplinary Statistics for 2016-2020

25 20

Off the Record

26 22 31 28

Case Notes Classifieds

30 31

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

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On the cover: Giant Orchid by Linda Umstead. This showy flower is a giant orchid, the world's largest orchid plant, painted en plein air on site at Wahiawa Gardens. Umstead comes to painting and illustration with a designer's eye. She enjoys exploring many art mediums and has come to love painting watercolor botanicals, the subjects of an annual wall calendar which she retails locally through the Bishop Museum and Bookends in Kailua. To order a 2022 botanical wall calendar featuring the world's rarest orchids, email Linda Umstead at lindaumsteadillustrations@gmail.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.

United States Magistrate Judges of the United States District Court of Hawaii

Chief Magistrate Judge Kenneth J. Mansfield

Magistrate Judge Rom Trader

By Edward Kemper In the United States District Court, District of Hawai‘i, there are currently three United States Magistrate Judges: Chief Magistrate Judge Kenneth J. Mansfield, Magistrate Judge Rom Trader, and Magistrate Judge Wes Reber Porter. This article provides their collective responses to questions about practice before a United States Magistrate Judge. Background Judge Mansfield was appointed on April 1, 2016. Prior to his appointment, Judge Mansfield was the Co-Managing Partner of McCorriston Miller Mukai MacKinnon LLP, where he practiced law for nineteen years. Prior to that, Judge Mansfield was a civil litigator at Greenbaum Rowe Smith & Davis in New Jersey. Judge Mansfield’s private practice focused on commercial litigation, health care, insurance coverage and bad faith, and government contracting. Judge Trader was appointed as a Magistrate Judge in January of 2019. Prior to joining the federal bench, Judge Trader served nearly ten years as a trial judge in the Circuit Court of the First Circuit, assigned to both civil and criminal calendars. Prior to his judicial career, Judge Trader spent twenty years as a Deputy Prosecuting Attorney for the City and County of Honolulu. Judge Trader received his BA in Economics (1984) and his law degree (1987), both from the University of Hawaii. Judge Porter was appointed as a U.S. Magistrate Judge by the district court judges in April 2019. Before joining the court, Judge Porter was an educator, primarily as a full-time law professor in San Francisco, and a trial attorney representing the United States. In practice, he served as a Senior Trial Attorney

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Magistrate Judge Wes Reber Porter

with the Department of Justice, Criminal Division’s Fraud Section, an enforcement attorney with the Securities and Exchange Commission, an Assistant U.S Attorney for the U.S. Attorney’s Office for the District of Hawaii, and a Judge Advocate General for U.S. Navy stationed in Pearl Harbor. 1. Please describe your role as a United State Magistrate Judge. United States Magistrate Judges serve in federal district courts throughout the country. You will hear Magistrate Judges referred to as “MJs” around the courthouse. Yet, in other court systems, a “magistrate” has a different background and serves in very a different function. It is best to use Magistrate Judge, Judge or MJ in federal court. MJs primarily assist the district judges by handling the case management, discovery, and mediation and settlement of civil cases filed in the district, as well as preliminary hearings and warrant approvals in federal criminal matters. The federal judiciary created MJs to assist District Judges with the growing workload in federal court. In Hawaii, the MJs also assist the parties throughout a civil case with scheduling dates and deadlines, discovery disputes, consent jurisdiction, and continued settlement discussions throughout the case. 3. How much time do each of you spend on average on criminal matters as opposed to civil matters? In the District of Hawaii, our three MJs handle criminal matters on a rotating monthly duty schedule. Because we continue to work on civil matters during the criminal duty month, less than a quarter of our time on average is spent on criminal matters.

4. In certain situations, the Magistrate Judge can be the trial judge in a civil case. If so, what are the procedures? If you are the trial judge and make a decision who would hear an appeal if a notice of appeal is filed? Under our Local Rule 73.1, a Magistrate Judge may conduct all phases of a civil case including jury or non-jury trials. Because it is based upon the agreement of the parties, this practice is commonly referred to as “consent” or “consenting” to a Magistrate Judge. To consent to all proceeding handled by the magistrate judge under LR 73.1(a), the parties should file the completed AO Form 85. To consent to a specific matter such as attorney’s fees applications, the parties should file the completed AO Form 85A. The district website also includes “How To Guidance” about consenting to a magistrate judge. If all parties consent, the MJ then has the same jurisdiction over a civil case or matter as the District Judge. Any matter ruled on by a Magistrate Judge by consent must be appealed directly to the Ninth Circuit Court of Appeals. 28 U.S.C. § 636(c)(3); Fed. R. Civ. P. 73(c). Our local rules governing consenting to a MJ are among the most flexible in country. The parties in a civil case may consent to any of the three MJs in the district, at any time in the litigation (although, we each agree that earlier is typically better for the parties and the court). Beginning with the challenges of the pandemic, we each discuss consent with the parties at the opening scheduling conference and encourage the attorneys to speak with their clients about consent. Parties should consider that district judges are assigned both civil and criminal cases, and criminal cases are given a calendar priority. MJs are not assigned felony criminal trials and do not “double book” their trial calendars; thus, magistrate judges may be more readily available. In other words, a magistrate judge can offer a firm trial date while a District Judge cannot.

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5. What roles do you play in criminal cases in the Hawai‘i federal court system? The MJs review and approve request for search warrants, arrest warrants, and other investigatory steps taken by the United States Attorney’s Office and the agencies who investigate federal crimes in the district. The MJs also handle initial appearances, arraignments, detention hearings, and other preliminary matters in a criminal case, as well as misdemeanors and violations that take place on federal land. Lastly, the MJs may handle guilty plea hearings, and other proceedings for a United States District Judge by making findings and recommendations.

6. What roles do you play typically in the civil case in the Hawai‘i federal court system? In non-consent cases, MJs primarily handle civil case management, discovery disputes and settlement for the assigned United States District Judge. We set at least one mandatory settlement conference in civil cases and the bulk of our work is our continued efforts to resolve cases before trial and before the parties engage in expensive discovery or motions practice. 7. Do you meet the U.S. District Court judges, and if so, what is generally discussed and/or decided? In our relatively small district, the MJs do meet with the U.S. District Judges. MJs are involved in the administrative functions and decisions of the court. MJs also serve on various committees, task forces, and other groups carrying out the work of the court. Because MJs are charged with case management of all civil cases, MJs regularly confer with U.S. District Judges about the dates and deadlines in a civil case. MJs do not, however, discuss the merits of a case with the assigned U.S. District Judge. First, in non-consent civil cases, substantive decisions by MJs may be appealed to the U.S. District Judge de novo. Second, MJs handle the settlement conferences in non-consent matters, and we keep all settlement communications confidential.

8. Do the Magistrate Judges confer with each other, and, if so, what are the usual topics? We do confer regularly. We have tried to align many of our processes and practices to better serve the legal community practicing in federal court. For example, we have shared trial procedures before magistrate judges, emergency discovery telephone conferences, and Rule 16 scheduling dates and deadlines in consent cases. We also confer regularly on questions in case management, discovery, and other aspects of litigation, as well as unique

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issues with warrants and in criminal law. We also coordinate global settlement efforts with private mediators, in related cases, and with one another. 9. How has the COVID-19 pandemic affected the conduct and/or procedures of the Magistrate Judges? Like most professions, the judiciary had to navigate many challenges during the pandemic. For MJs in the district, we quickly transitioned from our largely in-person, paper-intensive functions to provide for video-conferencing, tele-conferencing, and secure, electronic document submission. Like others, we look forward to returning to “normal” with many of our duties, but there are likely some processes and procedures that will remain. For example, on the criminal side, reviewing, approving, signing, and stamping electronic submissions to the court has become a very efficient process for the court, federal agents, and attorneys. 10. As a result of the COVID-19 pandemic, will there be any permanent changes in the Magistrate Judge’s courts and, if so, what would those changes entail? It remains to be seen. We hope to keep the electronic submissions and approvals discussed above and the telephonic status and scheduling conferences that can save time for everyone. Also, in some circumstances, early settlement conferences by Zoom can be very effective and efficient for the parties. 11. Are there any matters under consideration in the federal district court practice that the bar members should be made aware of ? In recent years, we restyled and revised our civil local rules, and we are in the process of doing the same the criminal local rules. We also hope to further standardize the dates and deadlines in the initial scheduling order in civil cases. 12. What advice would you provide to members of the bar who practice in your court? Be proactive, attentive to details, and candid with the court. Again, as MJs, we see our role to assist the lawyers in the case, and we can better assist the lawyers if they bring issues to our attention early and take a reasonable position in the case including settlement. 13. Is the court division you administer able to handle the cases with reasonable dispatch at this time? If not, what is the proposed solution? Yes. Our philosophy is a civil case should not be delayed on account of matters before the MJ in the case. That includes scheduling assistance, resolving discovery disputes, and furthering settlement discussions.

Solutions Start Here 14. Any suggestions for settlement conferences? We encourage concise, candid settlement letters that address liability, damages, and preparedness for trial. We also encourage lawyers to identify any unique motivating factors or other issues that may not be readily apparent to us. We prefer to focus discussions on reasonable settlement evaluations, not “everything I might win at trial” settlement positions. To foster productive discussions, parties and their clients must come fully prepared to any settlement conference. Litigants that do so and provide the court with the necessary tools always stand the best chance of settlement. Help us, help you. Endeavor to be a straight shooter. Make the best use of the opportunity to resolve your dispute and forego unnecessary posturing. While taking aggressive positions may be viewed as part of the litigation landscape, it is seldom helpful in facilitating settlement.

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15. What are the benefits of early settlement discussions from the court’s perspective (even if the case does not settle)? There are multiple benefits to early settlement conferences. First, an early, neutral case assessment may be very helpful to the parties and their attorneys. Even without the benefit of much discovery, we endeavor to help the parties by offering a candid, objective assessment of the parties’ respective positions, along with our best guess as to where the case might go if it does not settle. Second, in any case with potential fee shifting, early resolution offers the only chance to compromise before attorneys’ fees become a material bargaining chip. We try to avoid situations where legal fees, as opposed to liability and damages, drive the discussion. That becomes impossible as fee shifting cases approach trial. Lastly, early settlement conferences often reveal targeted discovery the parties need to better assess their cases. In those

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instances, we will ask the parties to conduct that discovery and come back to try again in 60 to 90 days. As long as settlement conferences are productive and are proceeding in good faith, we will hold them as many times as necessary in any given case. 16. What are the significant federal cases that lawyers that practice in federal court should be aware of ? a. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604 (9th Cir. (1992). We receive informal requests, stipulations, and motions to amend the Rule 16 scheduling order on a near-daily basis. There are real restrictions, however, on our ability to grant these requests. Federal Civil Procedure Rule 16(b) provides that a scheduling order “may be modified

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only for good cause and with the judge’s consent.” Johnson is important because it sets forth the controlling “good cause”

standard, holding that “good cause” “primarily considers the diligence of the party seeking the amendment.” Johnson, 975 F.2d at 609; see also Fed. R. Civ. P. 16 advisory committee’s notes (1983 amendment) (noting that the district court may modify the pretrial schedule “if it cannot reasonably be met despite the diligence of the party seeking the extension”). Accordingly, our analysis must focus on the moving party’s reasons for seeking modification. If the moving party was not diligent, Johnson dictates that our “inquiry should end.” Id. Likewise, stipulations to amend the scheduling order should contain sufficient detail to support our “good cause” findings to approve the amendment. b. Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Court for Dist. of Mont., 408 F.3d 1142 (9th Cir. 2005).

In Burlington, the Ninth Circuit held that “boilerplate objections or blanket refusals inserted into a response to a Rule 34 request for production of documents are insufficient to assert a privilege.” 408 F.3d at 1149. Burlington nevertheless rejected a per se waiver rule that would deem a privilege waived if a privilege log is not produced within Rule 34’s 30-day time limit. The Ninth Circuit instead instructed district courts to make a case-bycase determination whether a privilege is waived by a party’s untimely production of an adequate privilege log. The practice pointer for litigants, in our view, is to attempt to agree on a reasonable schedule for production of a privilege log. If the parties cannot reach such an agreement, they should consider seeking expedited discovery assistance to obtain a workable, court-approved deadline. c. Kamakana v. City & City of Honolulu, 447 F.3d 1172 (9th Cir. 2006); Ctr. for Auto

Safety v. Chrysler Grp., LLC, 809 F.3d 1092 (9th Cir 2016). Any attorney seeking to file documents under seal should be very familiar with these two cases and LR5.2. Starting with the well-settled presumption in favor of public access to federal court records, the proponent of sealing bears the burden with respect to sealing, and a failure to meet that burden means that the default posture of public access prevails. Kamakana, 447 F.3d at 1182. The Ninth Circuit has recognized that two different standards may apply when a request to seal a document is made in connection with a motion—namely the “compelling reasons” standard or the “good cause” standard. Center For Auto Safety, 809 F.3d at 1096-97. Under the good cause standard, a party requesting sealing must show that, for “each particular document” it seeks to seal, “specific prejudice or harm will result if no protective order is granted.” Under the compelling rea-

sons standard, a court may seal a record only if it finds a “compelling reason” to support such treatment and articulates “the factual basis for its ruling, without relying on hypothesis or conjecture.” Id. If the court makes such finding, it “must then conscientiously balance the competing interests of the public and the party who seeks to keep certain judicial records secret.” Id. at 1097. This is all to say that we cannot take motions to seal lightly, and attorneys should be careful to counsel their clients about the presumption of access to federal court records. d. Kokkonen v. Guardian Life Ins., 511 U.S. 375 (1994). Parties frequently ask the court to retain jurisdiction for purposes of enforcing a settlement agreement. Kokkonen reminds us, however, that federal courts have no inherent power to enforce settlement agreements entered into by parties litigating before them. Rather, courts

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have ancillary jurisdiction to enforce a settlement agreement only “if the parties’ obligation to comply with the terms of the settlement agreement ha[s] been made part of the order of dismissal—either by separate provision (such as a provision ‘retaining jurisdiction’ over the settlement agreement) or by incorporating the terms of the settlement agreement in the order.” Kokkonen, 511 U.S. at 381. Thus, depending on the circumstances, the court may be able to retain jurisdiction provided that the stipulation for dismissal sets forth a discreet, limited period of time necessary for enforcement of the settlement agreement. For example, the parties might include the following language in their proposed stipulation for dismissal: “This Court shall retain jurisdiction for six months from the date of this stipulation for dismissal to resolve any disputes or actions related to the Settlement Agreement and Release between the parties dated January 1, 2021. See

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Kokkonen v. Guardian Life Ins., 511 U.S. 375, 381-81 (1994)” The court cannot otherwise agree to open-ended retentions of jurisdiction. 17. There are differences between the Haw ai‘i Rules of Civil Procedure and the Federal Rules of Civil Procedure and Local Rules of Practice for United States District Court, District of Hawai‘i. Do any of these differences cause confusion in the federal system and if so, what should practitioners be aware of ? a.

LR7.8 Pre-filing Conference Effective September 1, 2019, the court instituted a mandatory pre-filing conference applicable to most motions: “counsel contemplating the filing of any motion shall first contact opposing counsel to discuss thoroughly, preferably in person, the substance of the contem-

plated motion and any potential partial or complete resolution. The conference shall take place at least seven days prior to the filing of the motion.” As with the meet-and-confer requirement on discovery motions required by LR37.1(a), the court intends for this meet and confer to be robust. If a party is not going to oppose a motion, or any portion of a motion, this prefiling conference is the time to resolve that by agreement. b. LR10.3(b)(4) Mandatory Chambers Copies This rule prescribes the format for mandatory chambers copies: “Mandatory Chambers Copies shall be held together with a single staple in the upper left corner. In lieu of a staple, rubber bands or binder clips are acceptable. Metal prongs and fasteners are not allowed.” Please be mindful of this rule, particularly its prohibition on metal prongs and fasteners.

c. Fed. R. Civ. P. 16 Pretrial Conferences; Scheduling; Management Although there are now similarities between Fed. R. Civ. P. 16 and Haw. R. Civ. P. 16 (effective July 1, 2021), it is worth highlighting for practitioners the significance of the Rule 16 Scheduling Order. Because pretrial deadlines are set by Court order, the parties cannot simply stipulate around them by agreement. The Court has to approve any revisions to the scheduling order, subject to the “good cause” standard discussed above. d. LR26.2(b) Written Responses to Discovery Requests By rule, boilerplate and generalized objections to discovery requests are prohibited. e.

LR26.2(d) This rule suggests the categories of information to include on a privilege log. f. LR37.1(c) Expedited Discovery Assistance Local Rule 37.1(c) sets forth a procedure for receiving expedited discovery assistance from a magistrate judge. We find this to be an efficient way of handling many of the typical discovery disputes in which litigants find themselves. We do not have a “one size fits all” approach to these requests. We might resolve a LR37.1 request with an informal status conference, a formal hearing, or without a hearing, depending on the circumstances. Our goal is to get the parties a thoughtful, but quick, resolution to their dispute. Please be mindful that LR37.1 expedited discovery assistance is better suited for targeted and discrete discovery issues which the parties have been unable to resolve among themselves. The expectation is that the parties will take their meet-and-confer obligations seriously. When parties engage in a good faith

dialogue to identify and address discovery matters, they are often able to resolve or significantly limit the issues the Court is asked to decide on an expedited basis. When parties fail to do so, much time and effort are needlessly wasted. Where a request for expedited discovery assistance is not accompanied by the required certification of compliance with LR37.1(b), the Court may deny relief outright. Otherwise, when the parties fail to conduct a robust meet-and-confer, the nature and scope of the discovery dispute is often unnecessarily broad. Avoid the “kitchen sink approach,” and instead pick and choose the issues which lend themselves to the limitations of 5page letter briefs, expedited discovery conferences and narrow rulings. Also, please remember that magistrate judges have busy calendars and, thus, greatly appreciate when parties do their level best to resolve discovery disputes before seeking court assistance. g. LR54.2 Motions for Attorney’s Fees and Related Nontaxable Expenses Effective September 1, 2019, the court completely overhauled the manner in which it handles motions for attorneys’ fees. The new local rule differs materially from the prior local rule, as well as Haw. Civ. P. 54(d). Counsel should carefully review this rule in its entirety before seeking or opposing an award of fees. Reviewing and deciding motions for attorney’s fees and non-taxable expenses are laborious and time-consuming for the magistrate judges and their law clerks. To assist in the expeditious review of such motions, counsel should ensure that these motions are clear and properly supported. Failure to provide adequate support for the requested hourly rates for counsel and paralegal staff, coupled with numerous mathematical errors and block-billing, among others, requires the Court to devote additional time, care and attention to address.

h. LR56.1 Motions for Summary Judgment A motion for summary judgment filed in the United States District Court for the District of Hawaii differs from the state court’s motion for summary judgment in that the motion must be accompanied by a separate concise statement detailing each material fact that the movant contends is undisputed and essential for the court’s determination of the motion. The concise statement in support of or in opposition to the motion may not exceed five pages or 1,500 words. Litigants sometimes overlook this requirement. Of critical importance is that material facts set forth in the movant’s concise statement will be deemed admitted unless controverted by a separate concise statement of the opposing party. LR56.1(g). 18. Any other thoughts or suggestions to attorneys who appear before you? We encourage litigants to be mindful of providing opportunities for junior lawyers to conduct hearings before the Court, particularly where the junior lawyer drafted or contributed significantly to the underlying motion. Unless the proceeding is a jury trial, the MJs are generally amenable to permitting more than one lawyer to argue for a party if this creates an opportunity for such attorneys to participate. Also, at Rule 16 conferences, counsel should be prepared to discuss anticipated problems and possible solutions, as well as the viability and timing of early settlement discussions.

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Plain Language is Always Practicable

e l b i s s Po

By David Raatz During the 1978 Constitutional Convention, the 102 delegates meeting at the Old Federal Building in downtown Honolulu were on the verge of proposing a plain-language directive for Hawai`i’s Constitution. The draft proposal read: “All governmental writing meant for the public, in whatever language, should be plainly worded, avoiding the use of technical terms.” But a motion was made to add a qualifying introductory clause: “Insofar as practicable, . . .”1 A proponent for the amendment said, “By saying, ‘Insofar as practicable,’ we are saying that there are those cases in which non-plain language is unique and necessary for that particular problem.”2 Another delegate, arguing against the amendment, said, “‘Insofar as practicable’ is an atrocious phrase and has no part in any governmental writing.”3 But the argument was unsuccessful. The amended provision was included in a constitutional amendment the voters approved at the 1978 general election. So, for more than 40 years, the State’s plain-language policy has itself included legalese.4 The good news is that plain language is always practicable—or, more plainly, possible. Indeed, clients, judges, and the public not only accept plain language in legal writing; increasingly they demand it. Comparing plain language to legalese What is plain language? “A communication is in plain language if its wording, structure, and design are so clear that the intended readers can easily find what they need, understand what they find, and use that information,” according to the International Plain Language Federation.5 Traditionally, American legal writing has been characterized by legalese: arcane terminology, convoluted phrasing, and condescension. Legalese has long been mocked and lamented. •“What do you get when you cross the Godfather with a lawyer? An offer you can’t understand.”6 •“Why is legal writing almost indecipherable to ordinary people? Because it is almost indecipherable to lawyers and judges.”7 •“Obfuscation should be abjured. You should also try to be clear.”8 Plain language creates concise and clear legal documents with powerful, effective communication. According to some

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commentators, plain-language proficiency is an attorney’s ethical duty.9 In a Michigan Bar Journal column last year,10 plain-language practitioners Candice Burt and Frances Gordon rewrote an employment contract that contained long words and sentences, ambiguous phrases, and jargon. See excerpt below. Impediments to readability in the original draft included expressing a number with both a numeral and a word, inserting other distracting parenthetical content, and using “notwithstanding”— which should be added to a writer’s list of banned words. The plain-language redraft included the following elements: • sentences capped at 20 words, • clear phrases and non-technical terminology, avoiding complex or legalistic terms and awkward syntax, and • a tone that was directed to and respectful of the reader, guiding the reader with textual sub-headings rather than numbering.11 Plain language is conversational and

Original 4. Probation (only applicable to new Employees) 4.1 Notwithstanding anything to the contrary contained in this agreement, this agreement is subject to the Employee successfully completing a probation period of 3 (three) months commencing on the date of employment. 4.2 During the probation period, the Employees performance will be assessed and where appropriate, the Employer will give the Employee such reasonable evaluation, instruction, training, guidance or counseling as may be required to enable the Employee to render a satisfactory service.

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should be comprehensible when read aloud. Getting to plain language via concision and clarity To ensure concision, every paragraph, sentence, and word must serve a purpose. If a writer is unable to provide an articulable reason for its existence, the paragraph, sentence, or word should be cut. This practice is consistent with the interpretative canon known as the rule against surplusage—applied by state and federal courts—which assumes every provision in a legal text exists for some reason.12 Clarity requires simple, direct wording. But achieving simplicity is difficult. As Professor Joseph Kimble wrote, “Anyone can complicate matters; it’s much harder to simplify without oversimplifying, and only the best minds and best writers can hit that mark. In fact, writing simply and directly only looks easy.”13 Maintaining a list of ambiguous words and phrases fosters clarity. The Hawaii Legislative Drafting

Redraft Probation of three months The purpose of the probation period A three-month probation period applies from the start date of your employment. The purpose of the probation is to assess whether you are suitable for the position that we appoint you to. During your probation We base our assessment on how well you perform during the probation period. To help you to perform in a satisfactory way, we’ll give you reasonable evaluation, instruction, training, guidance, and counseling.

Manual has some good suggestions: • Do not use “and/or.” • Do not use “said” as an adjective. • Do not use: “aforesaid”; “forthwith,” “henceforth,” “hereafter,” “hereby,” “hereunder,” “in the event that” (use “if ”), or “in order to (use “to”). A widely shared article14 by Bryan A. Garner, Editor in Chief of Black’s Law Dictionary, listed other terms to avoid, including these: • deem The Seattle Seahawks are deemed to be the XLVIII Super Bowl champions. That’s silly. They are the champs. • provided that Experts in drafting have long agreed that this phrase is the bane of legal drafting. • pursuant to This is pure legalese. Avoiding unhelpful words and phrases helps ensure the remaining words and phrases are constructive, putting the writer on the path to improved clarity. Suggestion: avoid “including, but not limited to” Another imprecise term is “including, but not limited to.” The phrase is usually intended to mean a list is not exhaustive. But there are better ways to express that message. Sometimes “including” is sufficient. Avoiding a list using a different type of sentence is sometimes another good option. “Including, but not limited to” is, at best, superfluous because courts say it means the same as “including.” As the Supreme Court of Hawai`i has held, “The term ‘including’ in no way implies exclusivity.”15 Likewise, Black’s Law Dictionary advises that “‘including’ typically indicates a partial list.”16 Contrary to the verbose drafter’s likely intent, the phrase “including, but not limited to” means the subsequent list is exclusive, according to some courts:

• “If all goods of any kind are to be included, why mention only a few? A court required to give ‘reasonable and effective meaning to all terms,’ must shy away from finding that a significant phrase (like the lengthy description of chemicals and fertilizers we have here) is nothing but surplusage.”17 • “When the legislature uses the phrase ‘including, but not limited to’ in a statute, the application of that statute is limited to the types of items therein particularized.”18

Mediator, Arbitrator,

Receiver, and Special Master Services, Employment Investigations

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

Dispute Prevention & Resolution (808) 523-1234; dprhawaii.com For employment investigations, please contact jh@hiattlaw.com or at (808) 937-4179. Resume and references at www.hiattlaw.com. 16 November 2021

HAWAII BAR JOURNAL

Suggestion: avoid “shall” Not using “shall” is another way to increase clarity. The official guidelines for the federal Plain Writing Act of 2010 stated: “[U]se ‘must’ to indicate requirements. . . ‘[S]hall’ is imprecise. It can indicate either an obligation or a prediction. Dropping ‘shall’ is a major step in making your document more user-friendly.”19 The advice was supported by references to Professor Kimble and Mr. Garner. The guidelines noted Professor Kimble observed “‘shall’ has three strikes against it”:20 First, lawyers regularly misuse it to mean something other than “has a duty to.” It has become so corrupted by misuse that it has no firm meaning. Second—and related to the first—it breeds litigation. There are . . . hundreds of cases interpreting “shall.” Third, nobody uses “shall” in common speech. It’s one more example of unnecessary lawyer talk.21 The guidelines also quoted Mr. Garner’s advice to “delete every shall”: 22 “Shall” isn’t plain English. . . In just about every jurisdiction, courts have held that “shall” can mean not just “must” and “may,” but also “will” and “is.” Increasingly, official drafting bodies are recognizing the problem.23

The end of the debate between traditionalists and plain-language advocates? After advocating for plain language for decades, Professor Kimble last year documented “distortions” and “exaggerations” from advocates of traditional legal writing.24 Presenting a paper at the Plain Language Summit on October 24, 2020, Professor Kimble responded to a critic who asserted the more expansive style of traditional legal writing promotes accuracy more effectively than plain language: Clarity and accuracy are complementary—not competing—goals. By striving for clarity, you invariably improve accuracy. Lawyer-linguist Deborah do Carmo, also writing last year, contended that traditionalists need not feel threatened by the plain-language movement. “Plain-language practitioners aren’t demanding that lawyers write like lifestyle bloggers or tabloid journalists; they’re asking lawyers to adopt a few tried-and-tested techniques so others can more easily understand them.”25 Eleven years after the Plain Writing Act and more than four decades after the Hawai`i Constitution’s qualified endorsement of plain language, awareness of the need for clear, concise legal writing continues to grow. The debate between plainlanguage advocates and those favoring traditional legal writing may be inching to resolution. Resources on plain language Many websites help lawyers keep tabs on the latest developments and advice on plain language, including the following: • Adams on Contract Drafting

https://www.adamsdrafting.com/blog/

sponsibility, 8 Scribes J. Legal Writing 159 (2001-02). Candice Burt & Frances Gordon, Legal Content in Plain Language: An Example, 99 Mich. B.J. 40 (Dec. 2020). 11 Id. 12 See, e.g., State v. Choy Foo, 142 Haw. 65, 80 n. 7 (2018); Torres v. Barr, 976 F.3d 918, 930 (9th Cir. 2020) (citing Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 34–35 (2003); Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 174–79 (2012)). 13 Joseph Kimble, What Plain Language Is Not, 94 Mich. B.J. 42 (Dec. 2015). 14 Bryan A. Garner, Ax these terms from your legal writing, ABA J. (April 2014). 15 Lealaimatafao v. Woodward-Clyde Consultants, 75 Hawai`i 544, 556-57 (1994). 16 “Include,” Black’s Law Dictionary (11th ed. 2019). 17 Shelby County State Bank v. Van Diest Supply Co., 303 F.3d 832, 837 (7th Cir. 2002) (construing “all inventory, including but not limited to agricultural chemicals, fertilizers, and fertilizer materials” as providing an exclusive list of inventory). 18 In re Clark, 910 A.2d 1198, 1200 (N.H. 2006) (construing a list of 18 items preceded by “including, but not limited to” as exclusive) (citations omitted) (legalese in original). 19 Federal Plain Language Guidelines at 25-26 (March 2011; revised May 2011). 20 Federal Plain Language Guidelines (online version), “Shall and must,” https://www.plainlanguage.gov/guidelines/conversational/shall-and-must/ (last visited Feb. 16, 2021). 21 Id. 22 Id. 23 Id. 24 Joseph Kimble, Flimsy Claims for Legalese and False Criticisms of Plain Language: A 30-Year Collection, 19 Scribes J. Legal Writing 1 (2020). 25 Deborah do Carmo, What is legalese?, Dotted & Crossed Blog (Nov. 30, 2020), https://dottedandcrossed.eu/what-is-legalese/ (last visited Feb. 16, 2021). 10

• LawProse Blog https://www.lawprose.org/lawprose-blog/ • Michigan Bar Journal’s “Plain Language” column https://www.michbar.org/generalinfo/plainenglish/homep • Resources: PlainLanguage.gov https://www.plainlanguage.gov/resources/ But insofar as plain language is deemed impracticable, notwithstanding the foregoing, advice pursuant to traditional legal writing shall be provided hereunder: “Nine Easy Steps to Longer Sentences” https://plainlanguage.gov/resources/humor/nine -easy-steps-to-longer-sentences/ _____________________ 1

Convention Journal, Hawaii State Constitutional Convention, 36th Day (Aug. 21, 1978), at page 178. 2 Id., at page 179. 3 Id. 4 Haw. Const. art. XVI, § 13 (“Insofar as practicable, all governmental writing meant for the public, in whatever language, should be plainly worded, avoiding the use of technical terms.”). 5 Center for Plain Language, https://centerforplainlanguage.org/about/ (last visited Feb. 16, 2021). 6 The Bold and the Beautiful: Episode 1.388, CBS television broadcast (Oct. 13, 1988). 7 Mark Painter, Long tradition of “legalese” finally starting to change, Cincinnati Business Courier (Dec. 11, 2003), https://www.bizjournals.com/cincinnati/stories/2003/ 12/15/editorial2.html (last visited Feb. 16, 2021). 8 Karen J. Sneddon & David Hricik, Writing Matters: Sounds Like Greek to Me, 15 Ga. B.J. 68, 71 (April 2010). 9 See, e.g., Gerald Lebovits, Legal-Writing Ethics— Part II, 77 N.Y. St. B.J. 64 (Nov./Dec. 2005); Thomas Haggard, Good Writing as a Professional Re-

David Raatz is a lawyer in Wailuku.

November 2021

HAWAII BAR JOURNAL

H SBA HAP PE NIN GS Board Actions The HSBA Board took the following actions at its meeting in August: • Adopted the recommendation of the joint Executive-Finance Committee to set the per head allotment for Neighbor Islands at $20 per member for 2022; • Adopted the recommendation of the joint Executive-Finance Committee to approve the proposed 2022 budget for the community and civic education projects and events; • Adopted the recommendation of the joint Executive-Finance Committee to approve the request of the Civic Education Committee to co-sponsor a project with the University of Hawaii that will provide college students statewide with educational information on the U.S. and Hawaii Constitutions; • Adopted the recommendation of the Executive Committee to approve the proposal to establish an HSBA WellBeing Committee; and • Approved the recommendation of the Awards Committee and HSBA President to honor the following people with these HSBA Awards at the Annual Meeting being held in conjunction with virtual Bar Convention on October 15, 2021: Robert A. Alm, Judge Riki May Amano, Jill M. Hasegawa - HSBA President’s Award (for extraordinary contributions and lifetime achievement that best exemplify the mission statement of the HSBA) Gerald Y. Sekiya - Golden Gavel Award (for outstanding service to the state or federal judiciary) Carrie Ann Shirota - Champion for Social Justice Award (for courageous legal work in the face of public controversy that helps to promote the interests of justice and preserves the integrity of the Judiciary)

18 November 2021

HAWAII BAR JOURNAL

Elliot H. Loden - Malama Hawaii Award (for outstanding and effective non-legal community service activities to make a difference and improve the quality of life in Hawaii)

Attention Attorneys: Retiring/Change in Status Do not wait until the annual December license registration renewal to contact the HSBA if you are contemplating retirement from the practice of law or a change in your status for 2022, or if you need to update your public directory profile. Please contact Liberty Castillo at lcastillo@hsba.org for options, directions, and other information such as CLE requirements.

Member Benefits Spotlight APPAREL Adore Clothing Adore is a local women’s boutique with two locations, on the island of Oahu, Hawaii. Adore is located in the Ka Makana Ali‘i shopping mall and Kahala Mall, and offers complimentary styling. Members will receive 20% off a regular priced item when they show their HSBA card. Allison Izu Allison Izu is a Hawai‘i-based designer and fashion brand, creating elevated basics for the modern woman. For the past 10 years, Allison Izu has been obsessed with fit and function. As the brand has evolved, so has her focus. In 2018, Allison Izu launched her inclusive campaign which empowers women #LiveYourLetter. Learn more about your body type, what to wear to accentuate it, and about informative semi-private styling seminars with Allison Izu at her Kaimuki boutique (1114 11th Ave.)—because the right outfit can empower you to live your best life. Mem-

bers will receive 10% off all regular priced items when they present their HSBA card. Pineapple Palaka Neckties HSBA members receive a 25% discount on Pineapple Palaka’s entire product line of luxury Hawaiian neckwear (available on their website). Pineapple Palaka offers Hawaii-designed neckties, bowties, and accessories for your own use or for gifts. Enter promo code ALOHA25HSBA at checkout to have the discount applied. The Ultimate Foot Store Opened in 2010, The Ultimate Foot Store (UFS) strives to provide supportive and fashionable footwear for Hawaii, offering quality brands like Vionic, Hoka, OOfos, and Birkenstock. Most of their products carry the seal of approval from the American Podiatric Medical Association. If you are looking for quality products with excellent customer service and care, come in to any of their six Ultimate Foot Store locations around the island including the centrally located UFS in Kakaako at Keauhou Lane. Members receive 15% off insoles with use of their HSBA card. HOME FURNISHING Creative Island Furnishings Creative Island Furnishings is a locally owned and operated business which offers a full line of high quality, handmade all-weather outdoor furniture designed and manufactured specifically for Hawaii’s environment. Call (808) 397-7387 to schedule a showing at our showroom in Kalihi (1622 Kanakanui Street). HSBA members receive a 15% discount on all purchases when they show their HSBA card.

Robert B.

GIFTS Gifts.com Gifts.com provides tens of thousands of expertly curated gifts and unique ideas. Receive a 15% discount using the code: BLUEGOLD15. Visit their website for more information at https://www.gifts.com/. Island Olive Oil Company Island Olive Oil Co. is a locally owned and operated olive oil and balsamic tasting room. Island Olive Oil Co. proudly features over 50 unique oils and vinegars on tap, which are perfect for the simplest of home cooks to the most discerning chef. They carefully curate a variety of locally sourced, as well as imported gourmet products, and specialize in creating custom and special-order gourmet gift baskets which are perfect for corporate, client gifts, and special occasions. Conveniently located in Ward Center next to the Paul Brown Salon and in Kailua Town Center between California Pizza Kitchen and Miyoshi Ramen. Visit their website for more information at https://www.islandoliveoil.com/. Bar members will receive 15% off all gift baskets. Come in or email them at info@islandoliveoil.com for pre-orders.

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November 2021

HAWAII BAR JOURNAL

C O URT BR IEF S Lesley Maloian Sworn-in as District Family Judge of the First Circuit A virtual crowd of family, friends, and colleagues tuned in to watch Lesley N. Maloian be sworn-in as District Family Court Judge of the First Circuit on August 30. Chief Justice Mark E. Recktenwald presided over the ceremony, which was livestreamed on the Judiciary’s YouTube Channel. Guest speakers were Hawaii State Bar Association President Levi K. Hookano, Hawaii State Trial Judges Association President Judge Matthew J. Viola, Judicial Selection Commission Vice-Chair Francine Dudoit-Tagupa, and Senate President Ronald D. Kouchi. Maloian will serve a six-year term.

McWhinnie Retained as First Circuit District Judge Judge James C. McWhinnie was recently retained as District Court Judge of the First Circuit. His new six-year term will be December 17, 2021 to December 16, 2027.

The Second Circuit recently honored its longtime chief judge by naming its law library The Honorable Judge Joseph E. Cardoza Law Library. Chief Judge Cardoza, who retired in June 2019 after 20 years of service to the Judiciary, was joined at the ceremony by his wife, Paulette, son, Joey, and judicial colleagues, along with family and friends via Zoom. The dedication was a surprise for Judge Cardoza, leaving him momentarily speechless and clearly moved by the honor. Chief Justice Mark E. Recktenwald participated in the celebration via Zoom and read a certificate of recognition commemorating the occasion. Second Circuit Chief Judge Richard T. Bissen, Jr., recalled that he was inspired to go to law school by then-attorney Cardoza. Judge Bissen eventually followed in the footsteps of his mentor, rising to Chief Judge. The beautiful granite plaque was fabricated by several local vendors under the direction of Joey Cardoza, and the gold and white lettering was meticulously hand-painted by Ka‘ihi Bissen.

Kauai Veterans Court Recognizes Newest Grad

Seeking Applicants for First Circuit (Oahu) Independent Grand Jury Counsel The Circuit Court of the First Circuit is seeking applicants for Independent Grand Jury Counsel. The compensation shall be as provided by law. To be considered for a one-year appointment, please submit a letter indicating your interest and a resume by Friday, December 3, 2021 to: Judge Christine E. Kuriyama 777 Punchbowl Street Honolulu, Hawaii 96813

Second Circuit Law Library Named for Judge Cardoza

From left, Taryn Dean, Judge Michael K. Soong, Matthew Timm, and Evan Price. Deputy Chief Judge Michael K. Soong presided over the graduation hearing for the Kauai Veterans Court’s fourth graduating class on September 13, 2021. Due to the pandemic, only the graduate, prosecutor, Veteran Mentor, VA Treatment Coordinator, and court staff attended in-person. The Kauai Veterans Court has graduated five clients to date. Each graduate has addressed substance addiction, performed community service and re-entered society as a contributing member during the program.

Left, Chief Judge Joseph Cardoza (ret.) and Chief Judge Richard Bissen, Jr.

20 November 2021

HAWAII BAR JOURNAL

DISCIPLINARY STATISTICS FOR 2016 - 20201

Misconduct (cont’d)

Statistics of ethical complaints handled by the Office of the Disciplinary Counsel (“ODC”) were recently posted at the Disciplinary Board and ODC website at https://dbhawaii.org. General Category of Alleged Misconduct 2020

20212

23 3 42

13 5 26

8 0 4

0 0 6 1 10 8

0 0 0 4 15 0

0 0 1 12 39 4

0 0 0 3 19 1

0 0 0 6 24 2

7 0 15 1 2

13 0 7 2 1

14 0 13 4 3

11 2 12 1 3

5 1 4 2 0

0 1 0 0 0

3 11

0 5

2 8

2 13

0 17

0 0

Misconduct

2016

2017

2018

2019

Abandonment Abuse of process Abusiveness Advising violation of law Advising witness to hide, suppressing evidence, bribing witness Appeal in bad faith Commingling Commission of crime Conflict of interest Conversion Direct mail solicitation Dishonesty, Fraud, Deception, Misrepresentation Disobedience of court order Disrespect of court Excessive fees Failure to account Failure to cooperate Failure to maintain records Failure to promptly deliver property Failure to promptly pay out Failure to return unearned portion False, fraudulent, deceptive, or misleading advertising Fee dispute, no unethical conduct Harassment Improper assertion of lien on client’s property Improper contact with opposing party Improper contact with tribunal Improper disclosure of confidential information

25 3 2

22 1 13

10 2 26

0 3 1 2 19 12

22 November 2021

HAWAII BAR JOURNAL

Improper payment to client Improper referral fees and contingency fees Improper trial publicity (rev. 1/86) Improper withdrawal from employment Incompetence Influence government official In-person solicitation IOLTA violation Lack of diligence failure to communicate Misrepresentations to client Misrepresentations to court Misrepresentations to others Neglect Other (advertising) Other (fees) Other (fee issues) Other (fraud) Other (funds and property) Other (interference with justice) Other (performance) Other (performance issue) Other (personal behavior) Other (personal behavior and crimes) Other (solicitation) Prosecutorial misconduct Scheme to defraud Specialization (advertising) Threaten criminal prosecution Unclassified matters not constituting an offense Unlawful practice of law (UPL) and assisting UPL Use of perjured testimony or false evidence Withdrawal - funds in dispute

2016

2017

2018

2019

2020

20212

0 35

10 12

7 14

13 13

4 17

2 5

0 0

0 3

0 16

0 6

0 3

0 4

5 39 0 1 0 0

25 50 0 2 0 0

14 1 0 2 0 0

31 0 2 0 2 0

16 0 1 0 0 0

7 0 0 0 0 0

0 0

2 2

0 16

1 10

1 0

10 0

33 0

0 0

1 0

0 4

2 5

15 7

12 6

9 0

2 0

Case Source

Case Disposition

Description

2016

Anonymous Attorney General Attorneys Bar association Client Court Reporters Financial institution Judges Member of the public Office of Disciplinary Counsel Opposing counsel/ party Other Other government agency

2017

2018

2019

2020

2021

4 0 11 0 169 0 6 13

5 0 10 1 149 0 16 12

23 0 14 0 111 0 12 9

2 0 37 0 170 0 3 16

3 1 32 0 134 0 2 9

2 0 13 0 71 0 0 0

60 16

60 5

86 44

129 139

84 59

51 20

Field of Legal Practice Involved 2018

Cases

2016

2017

2018

2019

2020

2021

Opened Closed Dismissed

330 339 286

312 256 218

368 297 257

464 331 278

347 255 187

466 255 192

Informal Admonition by ODC

1 7

0 5

2 2

0 4

2 3

1 0

0 2

3 1

1 1

1 0

Informal Admonition by Disciplinary Board

Private Reprimand Public Reprimand Public Censure Suspension Resignation in lieu of discipline

Disbarment

Legal Practice

2016

2017

2020

2021

Antitrust Bankruptcy Business law Collections Condominium Criminal Divorce Immigration Labor and employment law Landlord-tenant None Other Other family law Other litigation Other non-litigation Patents; trademarks Personal conduct Personal injury Probate Real estate Tax Wills; trusts; estate planning Workers’ compensation

0 0 11 3 15 89 34 2

2 11 1 12 25 53 16 2

1 6 8 15 4 69 44 3

2019

0 0 16 6 17 113 32 3

0 0 15 2 20 92 29 0

0 1 11 2 11 28 20 0

17 7 2 5 10 19 5 0 16 19 8 33 0

12 4 0 6 15 26 9 3 24 33 4 36 3

14 9 1 2 21 28 2 0 16 7 4 34 0

13 1 4 7 12 52 17 0 181 21 10 54 6

6 14 3 3 15 29 10 1 10 8 13 27 1

2 5 5 1 12 22 2 0 5 4 7 9 0

____________________________ 1

This article was prepared from statistics posted at the Disciplinary Board and the Office of Disciplinary Counsel website: https://dbhawaii.org. The note for these statistics at the website states as follows: Statistical Data, with the exception of disposition statistics (numbers “dismissed, Informal Admonition, Private Reprimand, Public Reprimand, Censure, Suspension, Disbarment”) are assessed on initial/intake review and may not accurately reflect the final factual findings/data related to the complaint following investigation and disposition. 2 The statistics for 2021 were posted at the above website in August 2021.

Data by County County

Honolulu Hawaii Maui Kauai Kalawao

2016

348 0 0 0 0

2017

309 12 5 1 0

2018

322 18 17 3 0

2019

629 2 0 0 1

2020

360 2 0 0 0

November 2021

HAWAII BAR JOURNAL

OFF THE RECORD Goodsill Anderson Quinn & Stifel welcomed Nicholas K. N. Kido recently, and welcomed Jason M. Tani, Daniel M. Chen, and Bryan M. Harada to the firm on July 12, and Kristie M. Kutaka and Alyssa N. Simbahon to the firm on August 2. Kido is a Litigation Associate in the Business Litigation practice group with emphasis on civil litigation. He received his law degree from the William S. Richardson School of Law. Tani and Chen joined the firm as partners with practices that focus in the areas of commercial litigation, trust and estate litigation, real estate litigation, construction litigation, and insurance defense. Harada joined the firm as counsel and practices law in the areas of civil litigation, trusts and estates litigation, and intellectual property matters. Kutaka also joined the firm as counsel and practices law in the areas of insurance defense, premises liability, commercial litigation, real estate disputes and transactions, and trust and estate litigation. Simbahon is an associate within the firm and focuses her practice on commercial and business litigation, construction law, and premises liability cases. Angela Kuo Min, former executive director of Volunteer Legal Services of Hawai‘i, moved during the summer to a new job at the Judiciary as Special Assistant to the Administrative Director of the Courts. Zachery K. Kondo recently joined the Clay Chapman Iwamura Pulice & Nervell law firm, as a Senior Associate and will continue to practice in the area of mortgage banking and foreclosure law.

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New appointees in the United States Department of the Interior are Keone Nakoa as Deputy Assistant Secretary for Insular and International Affairs and Summer Sylva as Senior Advisor for Native Hawaiian Affairs.

November 2021

HAWAII BAR JOURNAL

CAS E NOTES Supreme Court Administrative In re Investigation of: KAHEA, No. SCAP-20-0000110, September 21, 2021, (Eddins, J.). In July 2019, construction of an astronomical observatory (the “Thirty Meter Telescope or TMT”) near the Mauna Kea summit loomed. That month, law enforcement officers arrested over thirty protesters on Mauna Kea’s slopes. Hoping to thwart the Thirty Meter Telescope’s construction, the protesters had blocked the road leading to the TMT’s planned site. Later, the State charged these protesters with obstructing a highway or public passage. The arrests and charges followed a lengthy legal and political battle over Mauna Kea’s future. KAHEA: The Hawaiian Environmental Alliance, is an outspoken anti-TMT partisan in that scrap. One way KAHEA opposed development on Mauna Kea was through its Aloha ‘Aina Support Fund. According to KAHEA’s website, the Aloha ‘Aina Support Fund “prioritizes frontline logistical support for non-violent direct actions taken to protect Mauna Kea from further industrial development.” In November 2019, the State of Hawaii Attorney General (the “State AG or Attorney General”) issued a subpoena duces tecum to First Hawaiian Bank (the “Subpoena”). The Subpoena commanded the bank to produce eighteen categories of records from KAHEA’s accounts. KAHEA moved to quash the Subpoena. It claimed the Subpoena was retaliatory harassment. KAHEA said the State AG wanted to punish it for its anti-TMT advocacy. The State AG maintained that the Subpoena was not retaliatory. The Attorney General said an ongoing investigation justified the Subpoena. The State wondered whether the Aloha ‘Aina Support Fund’s (the “Fund”) financial support for direct action on Mauna Kea meant KAHEA had an illegal purpose

26 November 2021

HAWAII BAR JOURNAL

Appeal Pointer A statement of jurisdiction must be filed by an appellant and a crossappellant within 10 days after the record on appeal is filed with the appellate clerk. HRAP 12.1(a). An appeal or cross-appeal is in default if the statement of jurisdiction is not filed. Relief from default must be obtained from the appellate court.

that made it ineligible for an income taxation exemption under Internal Revenue Code section 501(c)(3). The circuit court did not quash the entire Subpoena. But it disallowed fifty percent of the Subpoena’s requests. And though the Subpoena sought documents connected to “all financial records of KAHEA,” the court trimmed the Subpoena’s scope to “any account that holds assets belonging to the Aloha ‘Aina Support Fund.” On appeal, KAHEA argued that the whole Subpoena should have been quashed because it: (1) exceeded the Attorney General’s statutory authority under Hawaii Revised Statutes § 28-2.5 (2009); (2) was unreasonable, oppressive, and subject to quashing under Haw. Rev. Stat. § 282.5(e); and (3) violated KAHEA’s First Amendment rights. Each of these arguments in some way flowed from KAHEA’s underlying contention that the Subpoena was retaliatory. The State AG portrayed the Subpoena as a legitimate and reasonable exercise of its investigatory powers. The Attorney General rejected KAHEA’s retaliation claim as unsupported by the record. It asserted the Subpoena’s constitutionality. The Hawaii Supreme Court agreed with the State AG that its investigatory powers validated the Subpoena. But the Hawaii Supreme Court concluded that two Subpoena requests seeking information about monies going into rather than coming out of KAHEA’s bank accounts was

unreasonable. The Hawaii Supreme Court also concluded that KAHEA’s argument about the Subpoena curtailing its First Amendment freedom of speech rights failed: the Subpoena neither punished nor forbade KAHEA’s speech. And – though KAHEA’s contention that the State AG had some retaliatory animus towards KAHEA was not entirely unpersuasive — the Hawaii Supreme Court further concluded that KAHEA’s First Amendment retaliation claim also failed; the record lacked a showing that retaliatory motive was a substantial or motivating factor in the Subpoena’s issuance.

Collections Lima v. Deutsche Bank Nat’l Trust Co., No. SCCQ-19-0000937, September 3, 2021, (Nakayama, J.). The United States District Court for the District of Hawaii asked the Hawaii Supreme Court to determine: Is the effect of the mortgage considered only as a matter of setoff that a lender has the burden of proving after the borrower establishes the amount of the borrower’s damages, or does a borrower with no pre-foreclosure rights in property except as encumbered by a mortgage bear the burden of accounting for the effect of the mortgage in establishing the element of harm in the liability case? The Hawaii Supreme Court held that a borrower bears the burden of accounting for the effect of a mortgage when establishing the element of harm in the liability case for a wrongful foreclosure or unfair or deceptive acts or practices case. Criminal State v. Bringas, No. SCWC-170000543, August 31, 2021, (Recktenwald, C.J. with McKenna and Wilson, J.J. each dissenting separately). Petitioner Adrian-John C. Bringas was convicted of second-degree murder for the death of W, a minor. In its jury instructions, the circuit court instructed the jury

on the lesser included offenses of second-degree murder, including third-degree assault. Haw. Rev. Stat. § 707-712 (2014), the statute defining third-degree assault, provides that the offense may be reduced to a petty misdemeanor if the fight or scuffle is the result of “mutual affray.” Consistent with the statute and Hawaii Jury Instructions Criminal 9.21A, the circuit court submitted a special interrogatory to the jury on mutual affray. The interrogatory stated: “Did the prosecution prove beyond a reasonable doubt that the fight or scuffle was not entered into by mutual consent?” The court instructed the jury that it must answer the special interrogatory only if it found Bringas guilty of the included offense of third-degree assault. The jury found Bringas guilty as charged of second-degree murder, yet answered the special interrogatory by placing an X on the line next to “no.” Bringas argued that the circuit court abused its discretion when it denied his motion for a new trial because the jury’s inconsistent verdict mandated vacatur. The Hawaii Supreme Court disagreed. There was a reasonable way to reconcile the jury verdict. The evidence in this case could have reasonably caused the jury to conclude that the altercation leading to the decedent’s death began as mutual affray but ended in second-degree murder. Thus, the jury’s answer to the mutual affray special interrogatory was reconcilable with its verdict that Bringas was guilty of second-degree murder. McKenna, J. dissented stating that by finding Bringas guilty of murder in the second degree, but by then answering a question it was to answer only if it found Bringas not guilty of the same offense, the jury delivered an ambiguous and inconsistent verdict. Wilson, J. also dissented. Bringas moved for a new trial on the basis that the answer to the special interrogatory on the verdict form demonstrated that the jury had misunderstood their instructions; the circuit court denied his motion. The ICA affirmed Bringas’ conviction, holding that the circuit court

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WALTER S. KIRIMITSU Mediator & Arbitrator

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

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

DISPUTE PREVENTION AND RESOLUTION, INC. 1003 Bishop Street, Honolulu, HI 96813 | Phone: 523-1234 November 2021

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did not err in denying his new trial motion and that the answering of the special interrogatory was merely “surplusage[.]” State v. Bringas, No. CAAP-17-0000543, 2018 WL 4927734, at *9 (App. Oct. 11, 2018) (mem.). By both finding Bringas guilty of the charge of murder in the second degree and answering a question that it was instructed to answer only if it found him not guilty of the same offense, the jury delivered an “irreconcilably inconsistent” verdict. Miyamoto v. Lum, 104 Hawaii 1, 8, 84 P.3d 509, 516 (2004) (quoting Carr v. Strode, 79 Hawaii 475, 489, 904 P.2d 489, 503 (1995)). Convictions supported by irreconcilable verdicts cannot stand. See Territory v. Thompson, 26 Haw. 181, 184 (1921). State v. David, No. SCWC-190000319, September 9, 2021, (Eddins, J. with Recktenwald, C.J., dissenting). On the night of New Year’s Day 2011, Peter David killed his cousin, Santhony Albert. The two had been drinking at family gatherings. They fought outside a relative’s apartment. David stabbed Albert. David said he acted in self-defense. A jury convicted David of assault in the first degree. The ICA affirmed. David challenged the trial court’s ruling preventing him from advancing evidence of Albert’s .252 blood alcohol concentration (“BAC”) level unless he called an expert to explain its meaning. The Hawaii Supreme Court held that the trial court erred in conditioning the BAC evidence on such expert testimony. Excluding the BAC evidence undercut David’s constitutional right to present any and all competent evidence to support his defense. It violated David’s due process right to a fair trial. Recktenwald, C.J., dissented. In his view, the circuit court did not abuse its discretion when it precluded the admission of the precise BAC of decedent Albert, without expert testimony explaining the import of that scientific measurement. Nor did he conclude that the circuit court’s ruling infringed on defendant Peter David’s right to present a complete defense, when ample other testimony established that Albert was intoxicated.

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State v. Riveira, No. SCWC-17-0000727, August 31, 2021, (Eddins, J.). The prosecution injected victim impact evidence into Ralph Riveira’s burglary trial. And during opening statement and closing argument, the State spotlighted the crime’s effect on the burglarized family. It also told the jurors that defense counsel tried to “trick” them. The prosecution’s narrative focused on the victims’ emotional state and actions after the crime. This constituted prosecutorial misconduct. So did the comment besmirching defense counsel. But the evidence overwhelmingly established Riveira’s guilt. Therefore, the Hawaii Supreme Court concluded that the misconduct was harmless and affirmed Riveira’s conviction Evidence Sylvestor v. Administrative Director of the Cts., St. of Haw., No. SCWC-170000004, September 13, 2021, (Eddins, J.). An Administrative Driver’s License Revocation Office hearing officer revoked Brent Sylvester’s driver’s license after finding probable cause to support Sylvester’s arrest for operating a vehicle under the influence of an intoxicant. Three civilian witnesses wrote statements on a standard Honolulu Police Department form (“HPD-252”). They described Sylvester’s conduct and interactions with them after he purportedly rear-ended their car. Two police officers’ sworn statements referenced the witnesses’ accounts. The hearing officer considered the civilian witnesses’ HPD252 statements. The hearing officer also considered the witnesses’ statements incorporated in the police officers’ sworn statements. Sylvester objected. The district court sustained the license revocation. The ICA affirmed the district court’s decision. The Hawaii Supreme Court addressed whether administrative driver’s license revocation hearing officers can consider civilian witnesses’ unsworn statements when making probable cause determinations. The Hawaii Supreme Court held they can. The administrative license revocation laws —

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namely, Haw. Rev. Stat. §§ 291E-36, 291E-37(c), and 291E-38(g) - do not require sworn statements from civilian witnesses. Instead, the sworn statement requirement only covers (1) law enforcement officers, (2) persons who administer alcohol or drug tests, and (3) those who maintain the testing equipment. OIP State of Haw. Org. of Police Officers v. City and County of Honolulu, No. SCAP19-0000450, September 17, 2021, (Recktenwald, C.J.). The Uniform Information Practices Act (“UIPA”) promotes government transparency and accountability by requiring state and agencies to make their records available for public scrutiny. However, “[t]he policy of conducting government business as openly as possible must be tempered by a recognition of the right of the people to privacy, as embodied in section 6 . . . of article I of the [Hawaii Constitution.]” Haw. Rev. Stat. § 92F-2. Accordingly, UIPA mandates disclosure of public records but furnishes an exception for “[g]overnment records which, if disclosed, would constitute a clearly unwarranted invasion of personal privacy[.]” Haw. Rev. Stat. § 92F-13(1) (2012). This case required the Hawaii Supreme Court to apply this exception to records about police misconduct. The Hawaii Supreme Court has recognized a “compelling public interest in instances of police misconduct given the importance of public oversight of law enforcement.” Peer News LLC v. City & Cty. of Honolulu, 138 Hawaii 53, 74, 376 P.3d 1, 22 (2016). But under UIPA, the public’s interest must be balanced against any countervailing privacy interests. Here, plaintiff State of Hawaii Organization of Police Officers (“SHOPO”) sued under UIPA to prevent the disclosure of certain police misconduct records, invoking the privacy exception. Preliminarily, the Hawaii Supreme Court held that there is no private cause of action to prevent, as opposed to compel, the release of public records under UIPA. The circuit court correctly dismissed

SHOPO’s UIPA claims for that reason. It erred, however, by conflating the constitutional privacy right with the statutory privacy interests codified in UIPA; the core protections of the Hawaii Constitution remained unaltered when the legislature chose to extend greater protections than Article I, Section 6 requires. Nonetheless, the Hawaii Supreme Court held that UIPA requires the release of the requested records. This issue compelled the Hawaii Supreme Court to revisit two cases in which they had previously considered the required scope of disclosure of police misconduct records: State of Hawaii Organization of Police Officers v. Society of Professional Journalists – University of Hawaii (SHOPO v. SPJ), 83 Hawaii 378, 927 P.2d 386 (1996), and Peer News. While SHOPO v. SPJ made clear that police officers did not enjoy a constitutional privacy interest in their misconduct records, Peer News acknowledged that the legislature had recognized a significant privacy interest by statute. Act 47, however, subsequently rescinded that recognition. 2020 Haw. Sess. Laws Act 47, § 1 at 364. The Hawaii Supreme Court applied Act 47 here, and to the extent the records fell within the categories enumerated by Haw. Rev. Stat. § 92F14(b)(4)(B)(i)-(v)(2012) (excepting certain kinds of misconduct information from the general privacy interest in a personnel file), SHOPO v. SPJ’s holding applied – only a scintilla of public interest will compel disclosure, a threshold easily surpassed here. To the extent the records fell outside those categories, the balancing test prescribed by Peer News applies. The Hawaii Supreme Court agreed with the circuit court that, applying the Peer News test, the public interest in disclosure outweighs the significant privacy interest at stake. Moreover, SHOPO’s challenges to the procedures employed by the circuit court and the City, and to the circuit court’s application of the balancing test, were unconvincing.

ATTORNEY WANTED ASSOCIATE ATTORNEY BFL Law, in Kona, Hawai‘i, seeks a Hawai‘i licensed associate attorney to join our dynamic team. The ideal candidate will have experience and/or interest in any combination of family law, criminal law, civil litigation, transactional and/or real estate law. We are looking for an attorney available to work with us full-time, collaboratively and independently, on state and federal court cases and Hawaii real estate and business transactions. Duties will include meeting with clients, appearing at hearings and evidentiary trials, organizing discovery, conducting legal research, and writing briefs and other legal documents. Email resume, writing sample and references to dawn@bfl.law ATTORNEY POSITION for Employee Benefits Practice Group in Hawaii involving all aspects of employee benefits law, including pension and profit sharing, ESOP transactions, executive compensation. Also advice in general business, income tax, and estate planning. Interested candidates should submit their cover letter, resume, transcript, and writing sample to recruiting@carlsmith.com. EXPERIENCED ATTORNEY BFL Law, in Kona, Hawai‘i, is looking for an experienced, Hawai‘i licensed attorney to join our boutique (i.e., micro-sized) firm. The ideal candidate will possess excellent litigation and/or transactional law skills, perfectionistic traits combined with affability when confronting mistakes, a love of college football, dogs, or cat videos, or at the very least a sense of humor combined with great baking acumen. The position may be full-time or part-time, on Island or off, Of Counsel or another creative cooperative arrangement. Email dawn@bfl.law

SETTLE MEYER LAW is in search of a transactional associate attorney with at least 2-4 years’ business and/or real estate legal experience, and a commercial litigation/intellectual property associate with 2-4 years’ experience. This is an exciting opportunity to work at a firm tackling a number of pressing issues facing Hawaii, including affordable

housing and high-tech/IP business development. Qualified candidates must have distinguished academic credentials, strong research, writing and analytical skills, and be self-starters with a commitment to excellence. Please submit resume, writing samand salary requirement to ple info@settlemeyerlaw.com. UNIVERSITY OF HAWAII, Office of General Counsel, seeks Associate General Counsels for litigation (pos. #89335) and employment law (pos. #89411) positions. Applicants must have at least 8 years of experience. For more information, see www.governmentjobs.com/careers/hawaiiedu and search by position number. The University is an EEO/AA employer.

EXPERT WITNESS CONSTRUCTION, 30 yrs; P.E., MS/BS Civil Eng’g, CCM, CEP; excellent written/oral comm; utilities, road, bridge, treatment plant, pump station, transit, multi-story; claims, scheduling, estimating; sj@sjcivil.com, 808-271-5150. COLLISION RECONSTRUCTION EXPERT, serving all the Islands: 40 years experience, qualified as expert in state and federal courts. John H. Meserve, CRS. (808) 450-5555 jhmeserve@gmail.com CONSTRUCTION DEFECTS, contractor issues, premises liability, real estate disclosure. AOAO, Landlord/Tenant and mold disputes National Building Expert. Best Selling Author. https://expertwitness.now.site 808-422-2132 PPREMISES SECURITY EXPERT Case Evaluation • Expert Witness • 45 Expert Retentions • CourtQualified in Hawaii 1st, 2nd & 5th Circuits • Consulting (surveys, documents, procedures, design) Albert B. “Spike” Denis, CPP, CFE. Pacific Security Group LLC. 1050 Bishop Street, Suite 303, Hono, HI 96813. Spike@psghawaii.rr.com Tel:808.224.4559

veteran with substantial “Real-World” experience and proven Trial testimony. Web: www.castlelyonshawaii.net. Watch 1-minute video. Call Michael K. Ryan, President, CastleLyons Corp. -- 808.282.4059. REAL ESTATE/PROPERTY MGMT/AOAO expert. See www.jurispro.com. Search for “Griswold”. Robert S. Griswold, CRE, CPM, CCIM, PCAM, CCAM, GRI, ARM. www.griswoldremgmt.com (858) 597-6100

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

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LEGAL STAFF KAMEHAMEHA SCHOOLS is searching for a Legal Secretary to support our Real Estate Legal division at our Kawaiahao Plaza office in Honolulu. This is a Hybrid position which provides work from home flexibility on an approval basis. Visit www.ksbe.edu/careers for a full job description and to apply for this position.

REAL ESTATE: Over 45-years as a Developer, Broker, Builder and Realty Advisor. HI Broker’s License, MBA/USC, extensive development and brokerage background. Seasoned real estate

November 2021

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