Hawaii Bar Journal - November 2015

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BAR JOURNAL A N O FFICIAL P UBLICATION

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H AWAII S TATE BAR A SSOCIATION N OVEMBER , 2015 $5.00

TA B L E O F C O N T E N T S VO L U M E 1 8 , N U M B E R 1 1

EDITOR IN CHIEF Carol K. Muranaka BOARD OF EDITORS Christine Daleiden David Farmer Susan Gochros Ryan Hamaguchi Cynthia Johiro Edward Kemper Laurel Loo Melvin M.M. Masuda Melissa Miyashiro Eaton O'Neill Lennes Omuro Brett Tobin Jodi Kimura Yi HSBA OFFICERS President Gregory Markham President-Elect Jodi Kimura Yi Vice President Nadine Ando Secretary Russ Awakuni Treasurer Mark M. Murakami YLD OFFICERS President Miriah Holden Vice President/President-Elect Ryan Hew Secretary Alicia Mears

ARTICLES 4 Form I-864 (Affidavit of Support) and its Effect on Divorce: What Every Family Law Attorney Needs to Know About Immigration Law

by Gary Singh and Usha Pillai

18 Trusteeships and the “Senior Tsunami� by Yvonne Shinmura 22 2015 New Legislation

by Ed Kemper

27 The Disciplinary Board Proposed Budget for 2016 27 Why the Hawaii State Bar Foundation?

by Rai Saint Chu

OF NOTE 20 HSBA Happenings 20 Vacancy on the Hawaii Access to Justice Commission 28 Court Briefs 30 Case Notes

Treasurer Ryan Loeffers 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 second 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.

Advertising inquiries should be directed to: Grass Shack Productions (808)521-1929 FAX: (808)521-6931 brett@grassshack.net

On the cover: Chinatown color by Kenneth Herrmann. Dr. Herrmann is a retired neonatologist who in retirement is focusing on photography, travel, and playing cello in his community orchestra.

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.

by Gary Singh and Usha Pillai

who sees the effect that immigration documents have on subsequent family law events such as marriage, adoption, divorce, and execution of prenuptial agreements, it is vital that a family law practitioner have a basic understanding of the hybrid law where family and immigration laws intersect. When in doubt a family law practitioner must contact an immigration lawyer immediately, because immigration law issues may jeopardize a separate family law matter, and timing could be critical to the outcome of the case.

While beyond the scope of this article to provide an exhaustive analysis, it presents: (1) an introduction to the role of affidavits of support in

Has any Hawaii family law practitioner heard of spousal support for life in a divorce? Or finding that what one thought were spousal support obligations are really contract damages? Does every family law practitioner’s intake form ask for information regarding the citizenship or immigration status of any potential client and spouse?

The seemingly innocuous Affidavit of Support (Form I864) makes all of the above questions relevant.

HOW DO IMMIGRATION LAWS IMPACT FAMILY LAW? Congress limits lawful permanent residence in the United States

Form I-864 (Affidavit of Support) and its effect on Divorce:

What Every Family Law Attorney Needs To Know About

Law to certain select groups of people.

According to Immigration and Nationality Act (“INA”) § 203(a), intending immigrants who can obtain lawful permanent resident status are usually: (1) family-sponsored immigrants, who are immediate relatives and family preference immigrants of U.S. citizens or immediate relatives of lawful permanent residents; (2) employment-based preference immigrants sponsored by U.S. based companies; (3) refugees and asylees; or (4) diversity visa lottery immigrants.

The Office of Immigration Statistics Yearbook shows that of the four categories, family-sponsored immi4 November 2015

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grants have always constituted the largest category. In 2013, family-sponsored immigrants represented 66 percent of the total that were granted permanent residence. Immediate relatives of U.S. citizens made up 44 percent of the total lawful permanent resident flow, and spouses of U.S. citizens comprised 57 percent of immediate relative lawful permanent residents. These statistics reveal that there is a significant family law aspect to immigration law, and that marriage is the most common legal mechanism used to obtain immigration status in the United States.

As it is usually the family law practitioner and not the immigration lawyer

the family immigration context; and (2) an introductory overview of such affidavits of support in family law practice using statutory and judicial authority regarding issues of enforceability, jurisdiction, computing support, prenuptial waivers, and determining the duration of the obligations of the affidavit of support.1 THE ROLE OF THE AFFIDAVIT OF SUPPORT (FORM I-864) IN FAMILY-BASED IMMIGRATION INA § 213a(4)(c) states that a U.S. citizen or lawful permanent resident may file an immigration petition for a relative seeking lawful permanent resi-

dence in the United States. A citizen of the United States may petition for a spouse; children, married or unmarried; parents; and brothers and sisters.

8 U.S.C. § 1151(b)(2)(A)(i) (2012). A lawful permanent resident may petition for a spouse and unmarried children under age twenty-one. 8 U.S.C. § 1153(a) (2012). Filing a Form I-864 Affidavit of Support is part of the application process, and the affiant who accepts financial responsibility for the relative becomes a sponsor. 8 U.S.C. § 1183a (March 13, 2002).

A sponsor must be a U.S. citizen, national, or permanent resident at least 18 years of age, and domiciled in the United States or a U.S. territory or possession, according to the governing statute 8 U.S.C. § 1183a(f). Though the statute does not define “domicile,” the Attorney General in Park v. Holder, 63 F.3d 855 (9th Cir. 2009), promulgated a regulation defining it as the sponsor’s principal residence, as defined in INA § 101(a)(33), with the sponsor intending to maintain that residence for the foreseeable future. Id. at 858-59.

The INA § 101(a)(33) definition of “residence” is: “the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent.” Id. The court went on to state that, although a sponsor must be domiciled in the United States, a person may qualify as a sponsor even though not currently living in the United States. Such a sponsor must prove by a preponderance of the evidence that the sponsor (1) is only temporarily residing abroad by reason of employment, and that such employment meets the requirements of INA § 319(b)(1); or (2) will establish a domicile in the United States on or before the date of the alien’s admission or adjustment of status. Id. In Park, the noncitizen wife was denied adjustment of status to lawful permanent resident because her citizen husband failed to qualify as a sponsor by virtue of his having no intention to be domiciled in the United States. Id. A sponsor must show that household income is equal to or higher than 6 November 2015

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125% of the U.S. poverty level for sponsor’s household size. 8 U.S.C. § 1183a(f) (2012). The household size includes the sponsor, dependents, any relatives living with the sponsor, and the immigrants being sponsored. Id. If a sponsor is on active duty in the armed forces, and the immigrant being sponsored is a spouse or child, then that sponsor’s income only needs to equal 100% of the U.S. poverty level for the sponsor’s household size.

8 U.S.C. § 1183a(f)(3) (2012).

If the income level of an intended sponsor falls below these financial criteria, a joint sponsor may be found.

8 U.S.C. § 1183a(f) (2012). A joint sponsor must be willing to accept legal responsibility for supporting the sponsored family member with the original sponsor. Id. A joint sponsor must meet all the same requirements independently but need not be related to the immigrant. Id. Form I-864 requires the sponsor to maintain the immigrant at an annual income that is not less than 125% of the applicable federal poverty guidelines during the period in which the affidavit is enforceable. 8 U.S.C.A § 1183a(a) (1)(A) (March 13, 2002). Form I-864 must be filed and accepted by the U.S. Citizenship and Immigration Services (“USCIS”) for a noncitizen to overcome inadmissibility due to a likelihood of becoming a “public charge.” 8 U.S.C. § 1182(a)(4) (March 13, 2002).

The Affidavit of Support is considered a contract between the federal government and the petitioning sponsor of the alien. It is legally enforceable against the sponsor by: 1) the sponsored alien; 2) the federal government; 3) any state or any political subdivision thereof; or 4) any other entity that provides any means-tested public benefit. An action to enforce the contract may be brought against the sponsor in any appropriate state or federal court. 8 U.S.C. § 1183a (March 13, 2002).

In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), which modified the Immigration and Nationality Act. The amended act required that all sponsors petitioning for

intending immigrants execute a Form I864 Affidavit of Support, to ensure that these immigrants do not become a public charge. Congress intended to “create a new, legally binding affidavit of support in order to seek reimbursement from sponsors for the costs of providing public benefits.” Commentary relating to § 551 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) as quoted in H.R. Conference Report 104-828, 104th Cong., 2nd Sess. (Sept. 24, 1996).

This document serves the important public policy objective of relieving the government of the responsibility of supporting poor, jobless immigrants, by placing it on the relative sponsor instead.

THE IMPACT OF THE AFFIDAVIT OF SUPPORT ON MARRIAGE AND DIVORCE The main concern of the family law practitioner is the effect of Form I-864 obligations on divorce. However, there must be a valid marriage for immigration purposes before there is a legitimate divorce. The duration of a valid marriage is also a factor to be considered.

What is a Valid Marriage for Immigration Purposes?

Since marital status is a means of granting immigration status, Congress both defines and regulates marriage through the immigration process.

Usually marriages performed legally abroad are considered legitimate in the United States for immigration purposes.2 However, marriages performed under laws that conflict with U.S. federal laws on marriage or the laws of the state of the spouse’s domicile are deemed invalid. Therefore, bigamous and polygamous marriages, unconsummated proxy marriages, and some common law unions are not valid. Sham marriages used as a means of circumventing immigration law are not valid for immigration purposes. Same-sex couples now enjoy immigration benefits based on marriage, after the Supreme Court struck down the Defense of Marriage Act.3 Lawful permanent residence status obtained through marriage is condition-

al if it is based on a marriage that was less than two years old on the day permanent residence was given. INA § 204.4 Conditional resident status is given on the day the immigrant is lawfully admitted to the United States on an immigrant visa or adjustment of immigrant’s status to permanent residence. Id. A conditional permanent resident receives a non-renewable green card valid for two years. Id. Conditional permanent residence status confers the same rights and responsibilities as that of lawful permanent resident status. Id. This non-renewable legal immigrant status is designed to help USCIS determine if the marriage is bona fide.

Id. During the two-year conditional period, the USCIS may terminate the foreign national’s conditional status if it determines that: (1) the marriage was a fraudulent marriage, entered into to evade the immigration laws of the United States, or (2) has been judicially annulled or terminated other than through the death of a spouse. Id. In order to remain a permanent resident based on marriage, a conditional permanent resident must file a Form I-751 petition to remove the condition during the 90 days before the temporary card expires. Id. Assuming all conditions in the law have been met and there is no indication of a sham marriage, conditional permanent resident status converts to lawful permanent resident status after filing of Form I-751. Id. Congress established the two-year conditional permanent status requirement for foreign national spouses with the Immigration Marriage Fraud Amendments (IMFA). INA § 216.

The Secretary of Homeland Security, in the Attorney General’s discretion, may waive the requirements and remove the conditional basis of the permanent resident status for a noncitizen spouse who fails to meet the necessary legal requirements if such spouse can demonstrate that (1) extreme hardship would result if removed from the United States; (2) the qualifying marriage was entered into in good faith, and though the marriage was legally terminated (for reasons other than the death of the

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sponsoring spouse), the noncitizen spouse was not at fault in failing to meet the joint petition requirement; (3) the qualifying marriage was entered into in good faith but during the marriage the noncitizen spouse or child was battered or subjected to extreme cruelty by the sponsoring spouse, or citizen or lawful permanent resident parent; or (4) the qualifying marriage was entered into in good faith, but the U.S. citizen or lawful permanent resident spouse subsequently died. INA ยง 216c(4), 8 U.S.C.A. ยง 1186c(4) (March 13, 2002). In all cases, the USCIS reviews the legitimacy of the marriage prior to removing or waiving the condition.

The Enforceability of Form I-864 Obligations In Divorce Proceedings The governing statute clearly states that the affidavit of support is legally enforceable against the sponsor by the noncitizen spouse. 8 U.S.C.A. ยง 1183a(e) (March 13, 2002). All courts that have considered this issue to date have found that a noncitizen spouse is entitled to enforce Form I-864. E.g., Stump v. Stump, 2005 WL 1290658 (N.D. Ind. 2005); Shumye v. Felleke, 555 F. Supp. 2d 1020 (N.D. Cal. 2008).

An action to enforce Form I-864 against the sponsor may be brought in any appropriate court by the noncitizen spouse. 8 U.S.C.A. ยง 1183a(e) (March 13, 2002). In Davis v. Davis, 2004 WL 2924344, the first case to examine the issue, the court opined that a state court presiding over a divorce proceeding had subject matter jurisdiction over the Form I-864 obligations of the husband. The Davis court further stated that Form I-864 support obligations may be enforced in any state or federal court. Id. In Love v. Love, 33 A.3d 1268, 1274 (Pa. Super. Ct. 2011), a Pennsylvania Superior Court held that an immigrant in a support action against a sponsor spouse may enforce the Affidavit of Support during the support proceedings without having to initiate a separate civil action.

Support obligations under Form I-864 may terminate only if one of the

following conditions occur: the noncitizen spouse (1) becomes a citizen of the United States; (2) has worked, or can be credited with, forty quarters of coverage under Title II of the Social Security Act; (3) ceases to hold the status of an alien lawfully admitted for permanent residence and departs the U.S.; (4) obtains in removal proceedings a new grant of adjustment of status; or (5) dies.

8 C.F.R. § 212a.2(e)(2)(i) (June 1, 2009).

All courts that considered the issue have held that, in accordance with the language in Form I-864, divorce does not terminate the sponsor’s obligation.5 Deserving particular attention from the family law point of view is the condition terminating Form I-864 obligations once the immigrant has worked or can be credited with forty quarters of coverage under Title II of the Social Security Act. A noncitizen immigrant may share the quarters earned by the spouse during the marriage, even though the immigrant may have never worked, and even if the marriage is not intact, thus changing the period of the obligation. In Davis v. Davis, 970 N.E.2d 1151 (Ohio App. May 11, 2012), the court granted the parties legal separation. In the divorce action that followed, the court found that the husband shared qualifying quarters with his wife, even though they were separated, thus shortening the period of his obligation.

Characterization of Form I-864 Obligations Form I-864 obligations have been litigated either as a contract cause of action, joined to a divorce proceeding, see, e.g., In re Marriage of Sandhu, 207 P.3d 1067 (Kan. Ct. App. 2009); or as spousal maintenance. See, e.g., Bar nett v. Bar nett, 2 3 8 P. 3 d 5 9 4 (Alaska 2010).

Whether Form I-864 rights are characterized as spousal support or as contract damages is of grave importance to the strategy of the practitioner, as issue preclusion and claim preclusion considerations can also affect the outcome of a case. How Form I-864 obligations are characterized also makes a big

difference for the beneficiary. Many states have special enforcement mechanisms for spousal support, making enforcement cheaper and easier.6 However, spousal maintenance may be regarded as income for federal income tax purposes, while a contract judgment award is not.7 A contract judgment may be discharged in bankruptcy proceedings, but bankruptcy courts have uniformly held that Form I-864 judgments are non-dischargeable domestic support obligations. E.g., In re Ortiz, No. 6:11-bk07092-KSJ, 2012 Bankr. LEXIS 5324 (Bankr. M.D. Fla. Oct. 31, 2012).

Whether Form I-864 rights are characterized as spousal support or as contract damages is of grave importance to the strategy of the practitioner, as issue preclusion and claim preclusion considerations can also affect the outcome of a case.

In Love v. Love, 33 A.3d 1268, 1274 (Pa. Super. Ct. 2011), a Pennsylvania appellate court reversed the trial court for not incorporating Form I-864 obligations into the support order. The dissent stated that while imprisonment was an enforcement mechanism for support, such imprisonment is unconstitutional for private debt. Id. at 1281 (Freedberg, J., dissenting); Const. art. 1, § 17.

Both the courts in Greenleaf v.

Greenleaf, Docket No. 299131, 2011 WL 4503303, at 2 (Mich. Ct. App. Sept. 29, 2011), and Khan v. Khan, 332 P.3d 1016 (Wash. App., 2014), found that the obligation under the affidavit as being separate and distinct from any obligation to pay spousal support. The Greenleaf court

stated that the trial court should first determine plaintiff ’s obligation under the affidavit of support and enforce that before making a separate determination whether the defendant is entitled to spousal support. Greenleaf, 2011 WL 4503303, at 2. Hrachova v. Cook8 reversed this order of consideration, awarding damages under the affidavit as contract, years after spousal support or alimony obligations were determined or had ended. The Khan court stated that the non-citizen spouse could bring a separate suit for a contract award as her Form I-864 rights against her sponsor spouse had not been considered in court.

Khan, 332 P.3d 1016, 1020.

Computing Support/Contract Award The measure of damages against a citizen-sponsor in the event of a divorce is specific performance pursuant to the contractual terms of Form I-864 where the citizen-sponsor is required to maintain the non-citizen beneficiary at 125% of the poverty level for the period during which the Affidavit of Support is enforceable. Factors to be considered in computing the award are the Annual Federal Poverty Guidelines, household size of the immigrant spouse, contract defenses of mitigation and set-offs in particular, and other contract defenses in general.

Annual Federal Poverty Guidelines The 2015 HHS Poverty Guidelines for Affidavit may be found at http://www.uscis.gov/sites/default/files /files/form/i-864p.pdf.

On Following State-Specific Poverty Guidelines In Villars v.Villars, 305 P.3d 321, 325 (Alaska 2013), the A l a s k a Supreme Court held that the trial court rightly calculated the required level November 2015

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of support based on the poverty guidelines of California, the state where the beneficiary resided, rather than those of Alaska, where the original support order was entered. The court reasoned that it was consistent with the statutory purpose of providing obligatory financial support for the beneficiary, but declined her a windfall by collecting at Alaska’s heightened poverty level, when she actually resided in California. Id. Determining Household Size In determining household size for the Affidavit of Support, Form I-864 regulations state that the household includes: (1) the sponsor; (2) the sponsor’s spouse; (3) the sponsor’s unmarried children under age 21 (not including stepchildren); (4) any person claimed as a dependent on the sponsor’s federal income tax return for the most recent year; (5) the number of noncitizens the sponsor has sponsored under Form I-864, where the obligation has not terminated; and (6) all non-citizens sponsored under the current Form I-864. 8

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C.F.R. § 213a.1. Household size may also include the sponsor’s parent, adult child, brother or sister, if that person’s income is used for the current Form I-864. Id. Stump v. Stump, 2005 WL 2757329 at *4 (N.D. Ind. Oct.25, 2005), was the original case to explore this issue. A sponsor must use total household size in determining whether income is sufficient to satisfy the 125 percent requirement for sponsorship of a non-citizen spouse.

However, after divorce, the citizen-sponsor had the obligation to only maintain a household of one—the non-citizen spouse at 125 percent of poverty level.

Id. The court did not want to place the non-citizen beneficiary in a better position than she would have been had the breach not occurred. Id. In Erler v. Erler, No. CV-12-02793CRB, 2013 U.S. Dist. LEXIS 165814, at *5 (N.D. Cal. Nov. 21, 2013), the court recognized that there is no single definition of “household size” for purposes of the federal poverty guidelines that applies across all federal law contexts.

The Department of Health and Human Services defers to programs that rely on the guidelines for administering various benefits. Id. The noncitizen-beneficiary in Erler lived with her adult son. The son’s income, if imputed to her, would place her above 125% of the federal poverty guidelines. Id. at *7. The noncitizen-beneficiary argued that she was a household of one, so she could qualify for support under Form I-864. Id. at *6.

The court rejected this argument on the grounds that the guidelines’ definition of household is context-specific. Id. at *5.

The court also rejected the argument that it should look only to the citizensponsor’s contractual obligation under Form I-864 for financial support. Id. at *7. The court held that, only where a non-citizen beneficiary “lives alone, or only temporarily with others, she should receive payments based on a one-person household.” Id. Otherwise, the court must “strike a balance between ensuring that the immigrant’s income is sufficient to prevent her from becoming a public

charge while preventing unjust enrichment to the immigrant.” Id. at *7 (citing Stump, 1:04-CV-253-TS, WL 2005 2757329, at *5-6).

What Constitutes Income for Form I-864?

Love noted a lack of definition for “income” under the INA, along with the “narrow” definition under state domestic code and the C.F.R.9 “Income,” according to 8 C.F.R. § 213a.1, means an individual’s total income as considered for purposes of the individual’s U.S. Federal income tax liability. Most courts compare the plaintiff ’s actual annual income for each calendar year at issue against the 125% of

Poverty Guideline threshold for that year, and Poverty Guidelines means official poverty line as revised annually.10 According to 8 U.S.C. § 1183(a) (1)(A), the sponsor must maintain the sponsored spouse “at an annual income” that is not less than the 125% poverty threshold for the period during which Form I-864 is enforceable. Additionally,

the purpose of Form I-864 damages is to put the immigrant spouse in as good a position as the spouse would have been in had the contract been performed.

See Stump, 2005 U.S. Dist. LEXIS 26022 at *21.

Shumye v. Felleke, 555 F. Supp. 2d 1020, 1024, stated that, to obtain such a result, it must compare the immigrant spouse’s income against the 125% poverty threshold for each “individual year” in question.

The Effect of Mitigation and Setoffs in Calculating Support Because Form I-864 is a contract, the contract defense of mitigation and

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set-offs apply in calculating awards to the sponsored spouse. Courts confronted with the issue have arrived at various interpretations as to what constitutes “reasonable efforts” to mitigate one’s damages under the affidavit of support.

What further compounds the issue of mitigations and set-offs is that they are fact-intensive issues, with income-influencing considerations such as the age and health of the immigrant, employment history, level of education, and assets owned prior to marriage.

Cheshire v. Cheshire, 2006 U.S. Dist.

LEXIS 26602 at *17 (M.D. Fla. May 4, 2006), opined that, when a non-citizen beneficiary has an independent source of income that falls below the 125% poverty guidelines, the citizen-sponsor need pay only the difference required to bring the beneficiary to 125% of the poverty guidelines. While the court upheld the liability under Form I-864, it offset the obligation by the amount of income the sponsored spouse had earned after the divorce. Id. Shumye v. Felleke, 555 F. Supp. 2d 1020, 1024, recognized certain set-offs as constituting income that would reduce damages owed under Form I-864. The court stated that student grants are categorized as income because they need not be repaid. Id. Student loans are repayable and so are categorized as debt. Id. Affordable housing subsidies are also considered income. Id. at 1025. However, a divorce settlement was not income to be offset against Form I-864 obligations, because a stipulation entered in the divorce proceedings clearly stated that it was made without prejudice to the sponsored spouse’s rights or claims that might arise from Form I-864. Id. In Younis v. Farooqi, 597 F. Supp. 2d 552 at 554 (D. Md. Feb. 10, 2009), “occasional” cash gifts received by the non-citizen former wife from friends and members of her mosque after the parties had separated were held to be de minimis and, therefore, did not reduce the former husband’s obligation to her under Form I-864. The court in Nasir v. Shah, No. 2:10-cv-01003, 2013 WL 3085208 (S.D. Ohio June 18, 2013), held that an

immigrant-beneficiary’s unemployment insurance payments qualified as “income” for purposes of offsetting his sponsors’ Form I-864 support obligations. The Nasir court also held that receiving child support cannot be considered an off-set as it was “a financial obligation to one’s non-custodial child, not a monetary benefit to the other parent.” Id. This ruling is in direct contrast to the one in Naik v. Naik, 944 A. 2d 713, 717 (N.J. Super. Ct. A.D., Apr. 24, 2007), where child support is considered income, to be categorized along with alimony and income-producing assets received as equitable distribution, reducing sponsor’s obligations.

The Seventh Circuit in Liu v. Mund, 686 F.3d 418, 420 (7th Cir. 2012), held that a Form I-864 beneficiary has no duty to mitigate damages by seeking employment because Form I-864, the INA, and federal regulations were all silent as to whether the beneficiary had a duty to seek employment. The court stated that there was no federal common law duty to mitigate and that the underlying policy behind Form I-864 was only to prevent the noncitizen from becoming a public charge. Id. at 422. However, Ainsworth v. Ainsworth, No. 02-1137-A, 2004 U.S. Dist. LEXIS 28962, at *4 (M.D. La. Apr. 29, 2004), held that, “if the sponsored immigrant is earning, or is capable of earning, [125% of the poverty guidelines] or more, there obviously is no need for continued support.” In agreement is Naik v. Naik, 944 A.2d 713, 717 (N.J. Super. Ct. A.D. 2007), stating that “the sponsored immigrant is expected to engage in gainful employment, commensurate with his or her education, skills, training and ability to work in accordance with the common law duty to mitigate damages.”

However, Younis v. Farooqi, 597 F. Supp. 2d 552, 554 (D. Md. 2009), takes the middle ground by stating that “assuming” the plaintiff-beneficiary had a duty to make reasonable efforts to mitigate damages by obtaining employment she need not apply for every available job in order to mitigate her losses; she need only make reasonable efforts. The court did note that, in the event the

plaintiff is unable or even unwilling to attain full-time employment, the defendant continues to remain liable under the affidavit, as these are not terminating conditions. Id. As to imputing income to an unemployed immigrant, Love based its reasoning on the clear statutory purpose of the Form I-864 and held that, unlike actual income, “earning capacity will never provide shelter, sustenance, or minimum comforts to a destitute immigrant.” Love v. Love, 33 A.3d 1268, 1277-78 (Pa. Super. Ct. 2011). However, the Supreme Court of Alaska in Barnett v. Barnett, 238 P.3d 594, 598 (Alaska 2010), held that earning capacity should be imputed to an Form I-864 beneficiary, and spousal support was not appropriate given the beneficiary’s imputed earning capacity.

As to attorney fees, both Form I-864 and its authorizing statute, 8 U.S.C. § 1183a(c), clearly provide that a beneficiary may recover attorney fees and costs of collection incurred to enforce support obligations if such beneficiary should prevail in the suit, a judgment entered, and the fee reasonable.11 Contract Defenses that Affect Enforceability of Form I-864 Since Form I-864 is a contract, it follows that the intending noncitizen is a third-party beneficiary to the contract made between the sponsor and the federal government. Many of these contract defenses will be affirmative defenses and pursuant to Fed. R. Civ. P. 12(b) must be raised in the answer or first responsive pleading, to avoid being waived.

Consideration in a Form I-864 Contract Consideration for a Form I-864 contract is found in a citizen-sponsor’s promise to support the intended beneficiary if granted entry into the United States. Cheshire v. Cheshire, No. 3:05-cv00453-TJC-MCR, 2006 WL 1208010, 4 (M.D. Fla. May 4, 2006). “As the alternative would be couples living in separate countries, courts easily find consideration in the non-citizen beneficiary’s being found admissible to the United

States, obtaining legal permanent residence in the United States, and in her not being deported. . . .” Baines v. Baines, No. E2009-00180-COA-R3-CV, 2009 WL 3806131, 5 (Tenn. Ct. App. Nov. 13, 2009). The Stump court opined that the citizen-sponsor made the promise to support as consideration for the immigrant beneficiary’s application “not being denied on the grounds that she was an immigrant likely to become a public charge.” Stump v. Stump, 1:04-CV253-TS, 2005 WL 2757329, at *5-6.

Unconscionability In Al-Mansour v. Shraim, Civil No. CCB-10-1729, 2011 WL 345876, 2 (D. Md. Feb. 2, 2011), the court agreed with a husband-sponsor that Form I-864 displayed the characteristics of a contract of adhesion by being prepared in printed form, drafted unilaterally by a dominant party, presented on a ‘take it or leave it’ basis, and lacking any “real opportunity to bargain about its terms.”

However, the court found that, “while the Form I-864 may be a contract of adhesion, under Maryland law, it is not unconscionable” as the sponsor receives a substantial benefit. Id. at 3. A Tennessee appellate court did not find Form I-864 unconscionable in Baines v.

Baines, No. E2009-00180-COA-R3-CV, 2009 WL 3806131, 5-7 (Tenn. Ct. App. Nov. 13, 2009), because the husbandsponsor had been actively involved in his wife’s immigration process, had himself met with the immigration attorney to sign the affidavit, and was neither coerced nor an involuntary or reluctant actor in the immigration application process.

Fraud Under the contract defense doctrine of “unclean hands,” a plaintiff could be equitably estopped from claiming damages under the Form I-864, which the defendant was made to sign fraudulently.

POMEROY’S EQUITY JURISPRUDENCE, § 397 at 657 (3d ed. 1905). In cases where the citizen-sponsor was defrauded into marrying the intending immigrant, a potential defendant may be counseled to seek an annulment based upon fraud November 2015

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13

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under Hawaii law, rather than a divorce, should the circumstances so indicate. A family court may declare a marriage void if “consent to the marriage of the party applying for annulment was obtained by . . . fraud, and there has been no subsequent cohabitation.” HRS § 580-21(5) (2012).

Impossibility In the unpublished decision in Hajizadeh v. Hajizadeh, 961 N.E.2d 541, (Ind. Ct. App. Jan. 18, 2012) (unpublished decision), citing Dove v. Rose Acre Farms, Inc., 434 N.E.2d 931, 935 (Ind. Ct. App. 1982), an Indiana appellate court stated that, where performance of a contract becomes impossible, nonperformance is excused, and no damages can be recovered. The only period when the beneficiary was owed and not supported under Form I-864, was when the beneficiary temporarily returned to his home country, deliberately concealing his whereabouts. The court upheld the trial court’s finding that the beneficiary had rendered performance of Form I-864 impossible. Id. Illusory Promise While the Form I-864 on page 4 provides that the intending immigrant’s becoming a permanent resident is the ‘consideration’ for the contract, the government can deliver its end of the bargain only after it exercises discretion for the immigrant to overcome public charge inadmissibility and to grant permanent residency. See, e.g., INA § 245(a), 8 U.S.C. § 1255(a) (Attorney General may adjust status to lawful permanent residency “in his discretion”). The government may find itself statutorily denying access to an immigrant even after receiving a properly executed Form I-864.12 Void for Vagueness The Form I-864 contract may be considered void for vagueness, since the duration or term of the contract is too indefinite, and the amount of potential liability is also unknown.13 The I-864 Form itself does not state that it is a contract. Id. An indefinite amount of time could pass before one of the terminating conditions of the contract — such as a party’s death, naturalization of the spon-

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sored noncitizen, abandonment of lawful permanent residence status, or the acquisition of forty (40) qualifying quarters — takes place. Id. A citizen sponsor cannot estimate potential liability on the Form I-864 contract because a sponsor is required to reimburse the government for any means-tested benefits received by a sponsored alien, including Medicaid. Id. With an alien capable of incurring substantial medical expenses, a sponsor cannot predict potential liability.

Id. The reimbursement provision in Form I-864 could subject a sponsor to more liability than needed in order to qualify as a sponsor. Id. Where a citizen sponsor originally only had to demonstrate the ability to maintain the noncitizen spouse as part of a total household unit, Stump now requires a citizen sponsor to maintain a noncitizen spouse at a level separate from the preexisting household, and thus at a higher total level. Id. Condition Precedent In re Marriage of Sandhu, 207 P.3d 1067 (Kan. Ct. App. 2009), held that income falling below 125% of the pover-

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ty level is considered a condition precedent to receiving sponsor support under Form I-864. Under the new I-864 form (revised September 19, 2011), it appears that a beneficiary must have achieved lawful permanent resident status in order to sue for support, as 8 C.F.R. § 213a.2(e) states that support obligations commence when the intending immigrant is granted admission as an immigrant or an adjustment of status.

EFFECT OF PRENUPTIAL AGREEMENT WAIVERS ON FORM I-864 OBLIGATIONS DURING DIVORCE A Hawaii federal district court was the first to consider the issue of an immigrant spouse waiving her right to support under Form I-864 by prenuptial agreement in Blain v. Herrell, No. 1000072 ACK-KSC, 2010 U.S. Dist.

LEXIS 76257 (D. Haw. July 21, 2010).

The parties entered into a prenuptial agreement, stating that each would be “solely responsible for his or her own future support after separation,” and “waiving rights to alimony and spousal support. Id. at *1-2. Form I-864 was

executed by the U.S. citizen-spouse agreement approximately one year after the prenuptial contract was signed. Id. at *24-25.

The court did not elaborate on the significance of the timeline. Though the sponsor moved to dismiss the case, the court in dicta stated that the noncitizenbeneficiary was entitled to waive her rights under Form I-864 pursuant to a basic principle of contract law. Id. The court reasoned that a beneficiary’s private rights were her own to waive if she so chose. Id. However, the court went on to state that it is the right of any federal, state, local or private agency to enforce Form I-864 against the citizenspouse should any such agency provide any covered means-tested public benefit to the non-citizen beneficiary. Id. at *25.

Somewhat puzzling is the fact that Hawaii’s Uniform Premarital Agreement Act, HRS § 572D-6 (b) (1987), states that, if a stipulation in a premarital agreement modifies or eliminates spousal support, causing that party to seek public assistance at the time of separation or divorce, then a court — despite the terms of the agreement — may require the other party to provide the support necessary to avoid eligibility for public assistance. However, the term “may require” as used in the HUPAA statute may be interpreted as allowing for discretionary treatment by a judge.

According to Department of Homeland Security (“DHS”), § 213A of the INA does not provide any basis to say that divorce does or does not affect a support obligation under the Form I-864. Affidavits of Support on Behalf of Immigrants, 71 Fed. Reg. 35732, 3570 (June 21, 2006). DHS takes the position that an adult non-citizen beneficiary can probably surrender the right to support under Form I-864 in the event of a divorce. Id. However, the DHS position agrees with Blain, in that the sponsored immigrant and sponsor (or joint sponsor) may not alter Form I-864 obligations to DHS and benefit-granting agencies in the event of a divorce. Id. Erler v. Erler, CV-12-02793-CRB, 2013 WL 6139721, at *2 (N.D. Cal. Nov. 21, 2013), was the second federal district court to consider the issue of immigrant premarital agreement waiver of the right to spousal support under Form

I-864. Because the premarital agreement stated that neither party would seek nor obtain any form of alimony or support from the other, the citizenspouse claimed that the premarital agreement rendered the Form I-864 contract void during divorce proceedings. Id. The court declined the claim on the grounds that the I-864 was executed after the premarital agreement, thereby distinguishing it from the facts in Blain, where the premarital agreement was signed first. Id. The court also held that the citizen-sponsor could not “unilaterally absolve himself of his contractual obligation with the government by contracting with a third party.” Id. The court reasoned that allowing parties to nullify support obligations by relying on premarital agreements would “undermine the [I-864] Affidavit’s goal of preventing immigrants from becoming public burdens.” Id. In Shah v. Shah, an unpublished decision,14 the parties signed a prenuptial agreement prior to executing Form I-864, stating that the non-citizen beneficiary “waives, releases and relinquishes any and all rights whatsoever, whether arising by common or statutory law (present or future) of any jurisdiction to spousal alimony, maintenance, or other allowances incident to divorce or separation.” The court held first that the language of the prenuptial agreement waived a claim to support under Form I-864, but that the waiver was limited to claims “incident to divorce or separation.” Shah, 2014 WL 185914 at 5-6.

While Form I-864 has nothing to do with divorce or separation, it requires a sponsor to support a noncitizen spouse regardless of divorce or separation. Id. The court also held that, even if the parties’ prenuptial agreement did attempt to waive claims to support under the Form I-864, such waiver was not one of the five terminating conditions for Form I-864 obligations set forth by 8 C.F.R. § 213a.2(e)(2), and therefore could not terminate Form I-864 support terms. Id. Under 8 U.S.C. § 1183a (March 13, 2002), the statute authorizing the I-864, the government may not accept a Form I-864 and admit an alien unless the I-864 is “legally enforceable against the sponsor by the sponsored alien.”

Shah, 2014 WL 185914 at 7. The Shah

court reasoned that “it would undermine the purpose of the statute to allow sponsors to present an I-864 to immigration authorities that can never be enforced by the sponsored alien due to a prenuptial agreement that is not disclosed to immigration authorities.” Id. CONCLUSION A client’s immigration status in this country may have serious ramifications as to the strategy and approach of a family law attorney. Attorneys must be mindful of immigration status and affidavit of support enforcement considerations, incorporating mechanisms to recognize them as a part of daily routine, starting with initial information-gathering steps during intake. Family law attorneys must be able to identify the relevant issues and to advise the client to seek the advice of immigration counsel if necessary. ________________ 1 In preparing this article the authors relied on Victoria Tobar Thronson, ‘Til Death Do Us Part: Affidavits of Support and Obligations to Immigrant Spouses, 50 Fam. Ct. Rev. 594 Oct. 2012), Charles Wheeler, Alien vs. Sponsor: Legal Enforceability of the Affidavit of Support, 10 BENDER’S IMMIGRATION BULL., 1791-1796, (Dec. 2005); Geoffrey A. Hoffman, Form I-864 (Affidavit of Support) and Efforts to Collect Damages as Support Obligations Against Divorced Spouses: What Practitioners Need to Know, 83 FLA. BJ. 53 (Oct. 2009); Greg McLawsen, Suing on the Affidavit of Support, 17 BENDER’S IMMIGRATION BULL. 1943 (DEC. 15, 2012); Greg McLawsen, Suing on the Affidavit of Support, March 2014 Update, BENDER’S IMMIGRATION BULL. (2014), available at http://ssrn.com/abstract=2412718; Greg McLawsen’s legal blog available at http://www.pugetsoundlegal.net/services/i864-affidavit-of-support/www.i-864.net 2 USCIS Marriage and Marital Union for Naturalization http://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12-PartGChapter2.html (last visited Feb.10, 2015).

3

USCIS Same-Sex Marriages http://www.uscis.gov/family/same-sex-marriages (last visited Aug. 15, 2015).

4 See also USCIS Conditional Permanent Residence http://www.uscis.gov/green-card/after-greencard-granted/conditional-permanent-residence (last visited Aug. 15, 2015).

5 See Cheshire v. Cheshire, 2006 WL 1208010 (M.D. Fla. 2006); Iannuzzelli v. Lovett, 981 So. 2d 557 (Fla. Dist. Ct. App. 2008); Stump v. Stump, 2005 WL 1290658; Shumye, 555 F. Supp. 2d

1020 (N.D. Cal. 2008); Younis v. Farooqi, 597 F. Supp. 2d 552 (D. Md. 2009); In re Marriage of Sandhu, 207 P.3d 1067 (Kan. Ct. App. 2009).

6 See, e.g., 20 WASH. PRAC., FAM. AND COMMUNITY PROP.L. (West 2011) § 36.10 (maintenance order can be enforced by a state agency through property lien, withholding of federal benefits, and intercepting income tax refunds inter alia).

7 See IRS, Publication 17, Tax Guide 2011 for Individuals, Ch. 18 (Dec. 21, 2011), available at http://www.irs.gov/pub/irs-pdf/p17.pdf (last visited Feb. 10, 2015).

8

Hrachova v. Cook, No. 5:09-cv-95-Oc-GRJ, 2009 WL 3674851, at *2 (M.D. Fla. Nov. 3, 2009), (the defendant husband was liable to his former wife since 2001 to the time that she filed her suit in 2009).

9 Love, 33 A.3d 1268, 1277-78.

10 See, e.g., Shumye v. Felleke, 555 F. Supp. 2d 1020, 1024; Carlborg v. Tompkins, 2010 U.S. Dist.

LEXIS 117252, at *8 (W.D. Wi., Nov. 3, 2010).

See also INA § 213A(h); 8 U.S.C. § 1183a(h); 8 C.F.R. § 213a.1.

11 See, e.g., Sloan v. Uwimana, No. 1:11-cv-502 (GBL/IDD), 2012 U.S. Dist. LEXIS 48723 (E.D. Va. Apr. 4, 2012), where fees were awarded in reliance on 8 U.S.C. § 1183a(c), subject to scrutiny for reasonableness pursuant to the Lodestar method.

12

Greg McLawsen, Suing on the Affidavit of Support, 17 BENDER’S IMMIGR. BULL. 1943 (Dec. 15, 2012), available at http://www.pugetsoundlegal.net/blog/wp-content/uploads/ 2014/01/i-864_ssrn_version.pdf.

13

Charles Wheeler, Alien vs. Sponsor: Legal Enforceability of the Affidavit of Support, available at http://www.ilw.com/articles/2006,0110wheeler.shtm. 14 Def. Mot. Summ. J. Ex. A as quoted in Shah v. Shah, Civil No. 12–4648 (RBK/KMW), 2014 WL 185914 at 5-6 (D.N.J. Jan 14, 2014).

Gary Singh is an experienced immigration, criminal, and family attorney, who has been in practice since 1995. He has also been a member of the American Immigration Lawyers Association since 1998, a Board Member of Volunteer Legal Services Hawaii, a member of the Committee of Interpreters, and a committee member of the Hawaii Supreme Court Committee on Equality and Access to the Courts.

Usha Pillai graduated from the William S. Richardson School of Law, and she works with Gary Singh on special projects.

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JERRY M. HIATT MEDIATOR, ARBITRATOR, AND SPECIAL MASTER SERVICES Involved in hundreds of mediations and arbitrations over 38 years of practice

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Trusteeships and the “Senior Tsunami”

by Yvonne Shinmura Hawaii, as well as other jurisdictions, is currently facing the challenges of an aging lawyer population, coined the “senior tsunami.” A recent demographic study found that approximately 50% of the active HSBA membership is composed of attorneys over the age of 50.

The study reported that there were 3,760 actively licensed Hawaii attorneys between the ages of 49 and 67, the “baby boomer” generation.

When an attorney passes away or becomes disabled, inventorying and return of client files and funds becomes a critical issue for the protection of the public. Under Supreme Court Rule 2.20, trustees are appointed by the Court where an attorney dies, is disabled, is suspended or disbarred, or abandons his or her law practice, and no other responsible party can be found to wind down the practice. Since December 2014, eight attorneys, from ages ranging from 45 to 77 years old, have passed away at the approximate rate of almost one lawyer per month.

RSCH 2.20 charges the Office of Disciplinary Counsel (“ODC”) with initiating the Trusteeship proceeding.

When ODC becomes aware of the need for a Trusteeship for a deceased or disabled lawyer, finding a potential trustee, such as successor counsel or a volunteer lawyer, is a challenge.

Last year the HSBA conducted a survey about the naming of successor counsel to oversee a lawyer’s practice in the event of his or her death or other emergency. According to the results of a 2015 HSBA survey, an overwhelming number of solo and small firm attorneys (with less than five lawyers in the firm) do not have an active attorney designated in writing to oversee his or her practice should such circumstances arise.

More often than not, ODC’s attorneys are appointed trustees because no

one else can be found to perform the task.

There are currently eight Trusteeships open at ODC. The time and expense involved in inventorying an attorneys’ files may involve the following: 1) cataloguing (dormant versus active files); 2) reviewing files to prioritize return to a client and identify original or protected documents; and 3) arranging return of files to the client. Time spent auditing an attorney’s client trust account can be significant because of claims for a refund of advanced retainer fees, outstanding fee disputes, and inadequate client trust accounting records. Also, there are storage fees for the files while the Trusteeship proceeding is ongoing.

In addition to acting as a trustee, ODC attorneys manage active caseloads (which exceed the national average in other state bar disciplinary agencies), serve on committees, provide educational presentations to the bar, and provide ethics opinions to bar members.

Although most trusteeships will still be undertaken by ODC staff and volunteer attorneys, Supreme Court Rule 2.20 permits the payment of compensation and reimbursement of expenses to trustees, subject to Supreme Court approval. On occasion, it has been necessary to hire trustees because volunteers are not available and it is not cost-effective for ODC attorneys to serve (such as where the law practice is located on a neighbor island).

Coupled with the realistic likelihood of an increased need for Trusteeships in 2016-2017 (based upon the demographic study and HSBA survey), ODC will likely require the appointment of more outside trustees so that it may continue to timely investigate and prosecute cases.

It is anticipated that the need for Trusteeship costs will continue to rise in 2016-2017 as more attorneys cease practicing voluntarily, due to discipline, or by reason of disability or death.

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HSBA HAPPENINGS August Board Action Summary

The HSBA Board took the following actions at its meeting in August: • Voted to present the following awards at the luncheon at the Bar Convention: C. Frederick Schutte Award (outstanding and meritorious service to the legal community and the profession) - Carol K. Muranaka Golden Gavel Award (for outstanding service to the state or federal judiciary in Hawaii) - Judge Steven S. Alm Malama Hawaii Award (outstanding and effective non-legal community service activities that improve the quality of life in Hawaii) - Thomas Huber President’s Award (extraordinary contributions and/or lifetime achievement that best exemplify the HSBA’s mission: To unite and inspire Hawaii’s lawyers to promote justice, serve the public, and improve the legal profession) - Jay Fidell • Approved the purchase of an office telephone system to replace the 10-year old system currently in use.

CLE Corner

Webcasts of past HSBA CLE 101 programs are available online. Please visit the HSBA CLE webcasts page to purchase: Federal Legislative Process 101; Real Estate Transactions 101; Business Entity Concerns; Construction Law 101: All the Basics!; Intellectual Property 101; Public Utilities Law 101; Immigration 101; Native Hawaiian Law 101; Ceded Lands and the Public Land Trust Probate 101 What happens if I submit my annual registration renewal form before I complete the required 3 CLE credits for the year?

The HSBA strongly recommends that you take your required three CLE credits prior to submitting your annual registration renewal so that you may certify on the renewal statement that you 20 November 2015

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have completed your required three CLE credits for the year. If you complete your required CLE credits after the registration renewal is submitted, you will be subject to a compliance audit.

Contact Debbie Blanton, MCLE Administrator at dblanton@hsba.org for related questions and concerns.

Registration Renewal

Annual License Registration Renewal December 1 - December 31, 2015 There’s no need to stress; there are a number of ways to renew your license and update your status and contact information.

Online: www.hsba.org for your electronic registration form Print and Mail: www.hsba.org to print your registration form Phone: call 808-537-1868 In-person: come to the HSBA office, weekdays 8:00 a.m. to 4:00 p.m.

Reminders: Log into your HSBA website My Account at www.hsba.org to access your account to confirm your preferred email and U.S. Postal Service mailing address for future license renewal announcements.

Complete your annual CLE requirement before renewing your license to avoid an automatic compliance audit. For online CLE seminar assistance contact cle@hsba.org.

2016 online registration forms should not be used if you are changing your licensing status for calendar year 2015. Change of status requests for 2015 must be processed and 2015 CLE requirements must be completed no later than December 31, 2015. For change of status information contact ars@hsba. org.

Commissioner. The Commission’s primary purpose is to substantially increase access to justice in civil legal matters for low and moderate-income residents of This position will begin Hawaii.

January 1, 2016 and expire December 31, 2017. Qualifications: active HSBA member who has demonstrated a commitment to and familiarity with access to justice issues in Hawaii; willing and able to devote time to perform necessary duties; conscientious, studious, thorough and diligent in learning methods and problems of the organization.

Applicants should submit to the HSBA Nominating Committee (nominations@hsba.org) by December 1, 2015: a resume, reason for wanting to serve, and area of concentration. Please note that this position is uncompensated, and that applicants need to disclose all public disciplinary sanctions. If there have been none, then so state.

HSBA Members Visit Seoul, South Korea

The HSBA and the Seoul Bar Association (“SBA”) signed a Friendship Agreement in September 2013 when a delegation of SBA attorneys visited Honolulu. The bar associations agreed to meet every two years to share information, provide legal symposiums and network. In September 2015, members of the HSBA visited Seoul, South Korea to engage in legal symposiums and other activities with members of the SBA. The members of the HSBA delegation were: John Rhee (President, Korean-American Bar Association of Hawaii (KABAH); Christina Bae, Alan Fujimoto, Elizabeth Lee, James Lee, Wilbur Roadhouse, and Sandra Deheza (Seoul, South Korea).

Vacancy on the Hawaii Access to Justice Commission

The Hawaii Access to Justice Commission will have a vacancy due to the resignation of a current

The delegation and Director of International Affairs SBA

2015 New

by Ed Kemper In 2015, the Hawaii Legislature passed, and the Governor signed 243 acts.

Many of the new enactments relate to appropriations, the interworkings of state agencies or commissions, and what could be best described as technical amendments and corrections, or changes in the law that do not have broad or wide effect. Those types of laws will not be summarized below.

These brief summaries will hopefully highlight and focus on the new laws that may have an impact on the everyday practice of law. The new legislation is described at the Governor’s website (http://governor.hawaii.gov/bills/).

ADMINISTRATIVE LAW Act 140 Judiciary Package; UIPA; Government Records RELATING TO THE UNIFORM INFORMATION PRACTICES ACT. Broadens the individual’s significant privacy interest under the Uniform Information Practices Act to include records that if disclosed would create a substantial and demonstrable risk of physical harm to an individual.

BUSINESS REGULATION Act 161 Ethanol; Motor Vehicles; Energy Efficiency RELATING TO ETHANOL. Repeals existing requirement that gasoline for motor vehicles be composed of ten per cent ethanol. Effective date: December 31, 2015.

Act 200 Unfair and Deceptive Practices; Free Trial Offers; Automatic Renewals; Continuous Service Offers RELATING TO CONSUMER PROTECTION. Requires persons charging a consumer’s 22 November 2015

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credit or debit card or account for automatic renewal or continuous service offer to first obtain the consumer’s affirmative consent. Requires acknowledgment of terms, cancellation policy, and information on how to cancel the automatic renewal or continuous service to be provided to the consumer. Requires free trial offers to clearly and conspicuously disclose how to cancel the agreement prior to the consumer being charged for goods and services.

Act 158 Technology Businesses; Employment Covenants or Agreements; Noncompete Clause; Nonsolicit Clause RELATING TO EMPLOYMENT AGREEMENTS. Prohibits noncompete and nonsolicit clauses in employment contracts relating to employees of a technology business.

Act 227 Liquor Licenses; Restaurant; Retail Dealer; Brewpub; Small Craft Producer Pub RELATING TO INTOXICATING LIQUOR. Authorizes restaurants with a liquor license to sell beer, malt beverages, or cider for offpremises consumption, under certain conditions. Authorizes retail dealers with a liquor license to sell beer, malt beverages, or cider in non-original packages, under certain conditions. Authorizes brewpubs and small craft producer pubs with a liquor license to sell malt beverages manufactured on the premises or purchased from another liquor licensee for off-premises consumption.

Act 97 Renewable Portfolio Standards; Clean Energy Initiative; Public Utilities Commission RELATING TO RENEWABLE STANDARDS.

Increases renewable portfolio standards to 30 percent by December 31, 2020, 70 percent by December 31, 2040, and 100 percent by December 31, 2045.

Requires the Public Utilities Commission to include the impact of renewable portfolio standards, if any, on the energy prices offered by renewable energy developers and the cost of fossil fuel volatility in its renewable portfolio standards study and report to the Legislature.

Act 198 Dentistry; Board of Dental Examiners; Summary Suspension of License RELATING TO DENTISTRY. Authorizes the board of dental examiners to summarily suspend a license. Establishes procedures for the summary suspension of a license. Specifies that continuing to practice dentistry, or attempting to do so, while the summary suspension is in effect is grounds for revocation of the license.

Act 133 Compensation of Trustees RELATING TO THE COMPENSATION OF TRUSTEES. Clarifies how trustees shall be compensated.

CIVIL PRACTICE OR PROCEDURES Act 125 Service of Civil Process Fees RELATING TO THE CIVIL PROCESS. Aligns the district court fee schedule for sheriff, deputy sheriff, police officer, and civil process servers on the Department of Public Safety’s list for service of civil process to fee schedule established under Haw. Rev. Stat. § 607-8(a). Increases service of civil process fees.

CRIMINAL AND TRAFFIC Act 11 Motor Vehicle; Under the Influence; Habitual Offender RELATING TO DRIVING UNDER THE INFLUENCE. Amends the offense of habitually operating a vehicle under the influence of an intoxicant to include operating a vehicle under the influence of an intoxicant after at least one conviction within the previous ten years for habitually operating a motor vehicle under the influence of an intoxicant.

Act 12 Bicycle Signals RELATING TO BICYCLE SIGNALS. Clarifies bicycle turn and stop signals.

Act 193 Crime; Forensic Identification; DNA Testing; Felons RELATING TO FORENSIC IDENTIFICATION. Clarifies that the penalty for the offense of intentionally or knowingly failing to provide DNA samples is a misdemeanor.

Downgrades reckless failure to provide such samples to a petty misdemeanor and deletes negligent failure to provide such samples from the offense.

Act 194 Penal Code; Multiple Sentences of Imprisonment RELATING TO THE HAWAII PENAL CODE. Requires the Department of Public Safety to send written notice to defendants with terms of imprisonment imposed prior to June 18, 2008, to notify these defendants that the department may recalculate their multiple terms of imprisonment and of their rights to have the court review their sentences.

Act 192 Emergency Vehicles; Move Over Law; Civil Defense RELATING TO EMERGENCY VEHICLES. Amends the definition of “emergency vehicle” to include sheriff division vehicles, Hawaii emergency management agency vehicles, civil defense vehicles, DOT harbors division vehicles, DLNR division of conservation and resources enforcement vehicles, and county emergency manageNovember 2015

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ment vehicles to require approaching vehicles to slow and change lanes when nearing the emergency vehicle when it is stopped for official duties.

Thank you to the many attorneys who continue to volunteer at the Hilo Court Self-Help Center.

"What interests me about volunteering in our self-help center, and which I did not anticipate, are the number of clients who come in seeking our mana'o and assistance so that they can help someone else.

They are putting in lots of time so that they can achieve some legal objective that will benefit their children; their grandchildren; or their elderly parents. Seeing others giving of themselves like that makes me feel that this is all worthwhile."

- Volunteer attorney Charles Heaukulani Hilo Court Self-Help Center

Contact Sergio Alcubilla Director of External Relations (808) 527-8063 · sealcub@lashaw.org www.legalaidhawaii.org

Act 40 Operating a Vehicle; License; Ignition Interlock Permit RELATING TO USE OF INTOXICANTS WHILE OPERATING A VEHICLE. Allows an ignition interlock permit holder to take necessary tests to apply for relicensing during the final 30 days of the revocation period. Prohibits operating a vehicle with an ignition interlock permit without a state identification card. Prohibits operating a vehicle once a notice of administrative revocation that serves as a temporary permit has expired unless the driver has a valid driver’s license. Effective date: January 1, 2016.

HEALTH Act 123 State Park System; Smoking or Use of Tobacco Products Prohibited RELATING TO STATE PARKS. Prohibits smoking and the use of tobacco products and electronic smoking devices within the state park system. Requires posting of signage prohibiting smoking and the use of tobacco products.

Act 39 Motion Picture Theaters; Accommodation; Open Movie Captioning; Audio Description RELATING TO MOVIE THEATERS. Requires a public accommodation that owns, leases, leases to, or operates a motion picture theater in more than two locations in the State to provide open movie captioning during at least two showings per week of each motion picture that is produced and offered with open movie captioning. Requires a public accommodation that owns, leases, leases to, or operates a motion picture theater in the state to provide, upon request, audio description of any motion picture that is produced and offered with audio description. Effective date: January 1, 2016 and sunsets January 1, 2018.

Act 241 Medical Marijuana; Patients and Caregivers; Protections; Certifying Physician RELATING TO MEDICAL MARIJUANA.

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Establishes a licensing system for medical marijuana dispensaries. Prohibits counties from enacting zoning regulations that discriminate against licensed dispensaries and production centers. Allows a qualifying patient, primary caregiver, or an owner or employee of a medical marijuana production center or dispensary to transport medical marijuana in any public place, under certain conditions. Replaces the requirement that a certifying physician be the qualifying patient’s primary care physician with a requirement that the physician have a bona fide physician-patient relationship with the qualifying patient. Allows persons authorized to use and possess medical marijuana in other states to be treated similarly to qualifying patients in this state pursuant to rules adopted by the department of health after January 1, 2018. Prohibits primary caregivers from cultivating medical marijuana after December 31, 2018, subject to certain exceptions. Authorizes the Department of Health to conduct criminal history checks on license applicants, licensees, prospective employees of dispensaries and production centers, subcontractors, and persons authorized to enter and remain on such premises.

Appropriates funds.

Act 242 Medical Marijuana; Protections; Reasonable Accommodations RELATING TO MEDICAL MARIJUANA. Prohibits discrimination against medical marijuana patients and their caregivers by schools, landlords, courts with regard to medical care or parental rights, planned community associations, condominium property regimes, or condominiums.

Act 122 Tobacco Products; Electronic Smoking Devices; Possession; Consumption; Sale or Furnishing of; Prohibitions RELATING TO HEALTH. Increases the minimum age for sale, possession, consumption, or purchase of tobacco products or electronic smoking devices from eighteen to twenty-one.

Defines “tobacco products” to include electronic smoking devices.

Act 235 Autism; Mandatory Health Coverage RELATING TO AUTISM SPECTRUM DISORDERS.

Requires health insurers, mutual benefit societies, and health maintenance organizations to provide coverage for autism diagnosis and treatment.

Act 186 Powdered Alcohol; Prohibition RELATING TO HEALTH. Prohibits the consumption, purchase, possession, and sale and distribution of powdered alcohol. Defines powdered alcohol.

Act 199 Licensing; Practice of Behavior Analysis; Behavior Analysts; Behavior Analyst Program; Department of Commerce and Consumer Affairs; Appropriation ($) RELATING TO LICENSING. Establishes the Behavior Analyst Program within the Department of Commerce and Consumer Affairs. Requires the licensing of behavior analysts for the practice of behavior analysis beginning on January 1, 2016, and ending on June 30, 2021.

Appropriates funds to implement the Behavior Analyst Program.

Act 19 Regulation of Tobacco Products RELATING TO THE REGULATION OF TOBACCO PRODUCTS. Amends Chapter 328J, Hawaii Revised Statutes, to prohibit the use of electronic smoking devices in places where smoking is prohibited.

INSURANCE Act 32 Property Insurance; Hawaii Property Insurance Association; Policies; Non-renewal; Lava Zone; State of Emergency; Moratorium RELATING TO INSURANCE. Specifies the total percentage of property insurance policies that an insurer may non-renew in a lava zone during a state of emergency due to lava flow in that lava zone, with specific exceptions. Specifies that if residential property insurance is unavailable due to a moratorium on insurance policies in a lava zone during a state of emergency due to lava flow, the Hawaii Property Insurance Association shall remove its moratorium; requires the Hawaii Property Insurance Association to offer new policies and provide a maximum waiting period of six months for the policy coverage to take effect after the moratorium is removed.

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REAL PROPERTY Act 29 Residential Landlord-Tenant Code; Security Deposit; Utility Service RELATING TO THE RESIDENTIAL LANDLORD-TENANT CODE. Amends the Residential Landlord-Tenant Code to allow use of the security deposit to: replace keys, including key fobs, parking cards, garage door openers, and mail box keys; and pay for utility service provided by the landlord under the rental agreement but not included in the rent.

Act 135 Real Estate; Seller Disclosure Requirements; Required Documentation; Restrictions or Conditions on Use; Good Faith RELATING TO REAL ESTATE SELLER DISCLOSURE. Clarifies that the required disclosure of documents by a seller for residential real property that is subject to restrictions or conditions on use applies to documents relating to restrictions or conditions subject to Haw. Rev. Stat. § 508D-9. Effective date: November 1, 2015.

Act 62 Mortgage Servicers; Mortgage Loan Delinquencies; Loss Mitigation; License; Bond; Duties; Prohibited Activities RELATING TO MORTGAGE SERVICERS. Updates mortgage servicer licensing and regulatory requirements including crediting of payments, payment of taxes and insurance, delinquencies and loss mitigation efforts, borrower complaints, fee and information disclosures, record maintenance, assignment of servicing rights, and prohibited activities.

Act 225 Secure and Fair Enforcement for Mortgage Licensing Act; Seller Exemption RELATING TO THE SECURE AND FAIR ENFORCEMENT FOR MORTGAGE LICENSING ACT. Establishes a mortgage license exemption for seller-financed mortgage loans, if certain conditions are met. Requires the seller to provide to the buyer the terms of the financing. Requires the seller to provide a disclaimer, to be initialed by the buyer, regarding the financing.

Act 204 Vacation Rentals; Transient Accommodations Tax;

Registration; Advertisements RELATING TO TAXATION. Authorizes fines to be deposited into the tax administration special fund. Increases the balance that may be retained in the tax administration special fund in each fiscal year. Authorizes the Department of Taxation (“DOTAX”) to enforce civil penalties for operators and plan managers who fail to display the certificate of registration and registration ID numbers for transient accommodations and resort time share vacation plans. Authorizes DOTAX to issue citations for failure to provide the registration identification number or link to the number and the contact information of the local contact in an advertisement for a transient accommodation or resort time share vacation plan.

Effective date: January 1, 2016.

Act 41 Real Estate Brokers; Salespersons; Buyer; Real Estate Commission RELATING TO REAL ESTATE BROKERS AND SALESPERSONS. Allows the real estate commission to take disciplinary action if a real estate broker or salesperson for a seller or purchaser of real estate acts in a manner that prohibits a prospective purchaser or seller from being able to retain a real estate broker or salesperson. Effective date: November 2, 2015.

Act 220 Landlord-Tenant Code; Domestic Violence; Residential Rental Agreements; Early Termination RELATING TO DOMESTIC VIOLENCE. Permits the termination of residential rental agreements in cases of domestic violence. Specifies additional procedures under the residential landlord-tenant code for instances of domestic violence.

TAXATION Act 93 Transient Accommodations Tax; Increase; Resort Time Share Vacation Units RELATING TO TAXATION. Amends the definition of fair market rental value. Increases the transient accommodations tax imposed on resort time share vacation units by one per cent each year to gradually achieve a rate of 9.25 per cent of the fair market rental value.

The Disciplinary Board Proposed Budget for 2016 The Disciplinary Board of the Hawaii Supreme Court (“Board”) has submitted its 2016 proposed budget for comment to the Hawaii State Bar Association (“HSBA”) pursuant to Supreme Court Rule 2.4(e)(8).

Ultimately, the Board will submit the final version of its 2016 budget to the Hawaii Supreme Court no later than November 1, 2015.

The Board will be seeking the Court’s approval for an increase in the annual disciplinary fees, which have not increased since 2006. The requested increase will range between $70.00 for inactive attorneys and July 2016 new admittees (first group) and $85.00 for active attorneys and February 2016 new admittees (second group). A portion of the increase reinstates the 2013 prior reduction of fees in the amount of $15.00 and $30.00 for each group, respectively.

The remainder of the increase is

Why the Hawaii State Bar Foundation?

by Rai Saint Chu Building a legacy in the pursuit of justice and equality is what the Hawaii State Bar Foundation is about.

Our Foundation was created to support the Hawaii State Bar Association (“HSBA”) in promoting justice and equality. Formed in 2012, we are a 501(c)(3) charitable organization, allowing our Foundation to raise taxdeductible funds. With HSBA’s help, we have kept our overhead quite low, so most of our fundraising can go to support programs that further our mission.

Above and beyond the HSBA projects funded by member dues, our Foundation (in conjunction with HSBA since 2013), has raised funds through our Annual Dinner for various public service projects, including SelfHelp Centers in the Courts for pro se parties and the Judiciary's Courts in the Community program, which brings Supreme Court

designed to offset the effects of the Court’s earlier direction to deplete the Board’s reserves.

Between 2006, and 2010, the Board’s reserves grew from $462,004 to $1,409,171. A review of the Board’s budgets approved by the Court for 2013, 2014, and 2015, reflects expenditures exceeding revenues by $537,205, $437,924, and $535,787, respectively. In the Orders approving those budgets, the Court noted the deficits and directed the Board to use its reserves. Because of this, the Board’s reserves have steadily diminished over the past three years. At the end of 2015, the projected remaining reserve for 2016 is $365,343, an amount that the Board considers financially unsettling for the following reasons.

First, because the bulk of the disciplinary fees are not received by the Board until March and April of the budgeted year, cash reserves of approximately $400,000 will be needed to cover its expenditures for the period of January to April 2016.

Second, although the projected reserves of $365,343 at the end of 2015

may cover the January to March/April 2016 revenue drought, there is another financial consideration that can no longer be deferred—the Board will no longer have reserves to cover a projected deficit for 2016.

For 2016, proposed budget expenditures reflect a modest increase of 2.2% over the 2015 budget. The increase encompasses anticipated rising costs of more trusteeships due to an aging lawyer population. Without the approval of fee increases, expenditures would again exceed revenues by approximately $576,599, or $211,356 beyond the remaining reserves. The Board has no source of revenue other than the fees assessed by the Court and the Lawyers’ Fund for Client Fund Protection’s contract to provide investigative and administrative services.

With the reserve fund at risk, the Board believes that there is no other recourse than to seek an increase in fees.

It is imperative that the disciplinary system be solidly-funded for future years so that it may fulfill its obligation to our profession and community.

arguments to public high schools. Both programs have made a positive impact and stirred strong interest in access to justice in our State. We have also made grants to Legal Aid Society of Hawaii; Friends of Children's Mental Health; Friends of the Family Specialty Courts; Hawaii Friends of Restorative Justice; State Court pro bono appellate project; Hawaii Mock Trial Competition and the list continues.

We continue in our second year with our Fellows program for individual donations, similar to the American Bar Association Fellows. We are extremely grateful that in the inaugural year of the Hawaii State Bar Foundation Fellows Program in 2014, 45 distinguished members of the HSBA became Founding Fellows or Founding Life Fellows. Our dream of creating a legacy to promote justice and equality continues.

Our Foundation cordially invites everyone to become or continue as a Fellow of the Hawaii State Bar

Foundation with your 2015 support.

Our “Founding Life Fellows” and “Founding Fellows” designations will be extended into 2015. We offer the following categories, with the corresponding donation levels: - Founding Life Fellow - pledge $1,000 per year for 4 years; - Founding Fellow - pledge $1,000, payable $250 per year for 4 years; and - Associate Founding Fellow - $100 per year while eligible to be a member of the Young Lawyers Division.

You are invited to our Foundation’s reception on Thursday, November 12, 2015 from 4:30-6:30 p.m. at the Conference Room of Goodsill Anderson Quinn & Stifel, at the First Hawaiian Center, 16th floor, to recognize our Founding Fellows to date and to recruit prospective Fellows.

Join us in creating and sustaining a special legacy dedicated to justice and equality in Hawaii.

See www.hsba.org/foundation for more information.

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COURT BRIEFS Judge Alm Leads National Panel on HOPE Probation

First Circuit Court Judge Steven Alm and Dr. Robert DuPont, First Director of the National Institute on Drug Abuse (“NIDA”) and President of the Institute for Behavior and Health (“IBH”), led a roundtable discussion about HOPE Probation (“Hawaii’s Opportunity Probation with Enforcement”), September 16 in Washington, D.C. “The State of the Art of the HOPE Probation Model: A Roundtable Discussion for Criminal Justice Leaders” was organized by the non-profit Institute for Behavior and Health, Inc. For the last year, Judge Alm and Probation Section Administrator Cheryl Inouye, along with Dr. Dupont and the Institute for Behavior and Health, have been working on a report entitled “State of the Art of HOPE Probation.” It details the essential and recommended elements needed to implement a successful HOPE strategy. This report, which included survey-research and monitoring strategies, was presented to the Laura and John Arnold Foundation at the Round Table.

“This was a great opportunity to showcase the work we are doing here in Hawaii,” said Judge Alm. “Along with Dr. DuPont and I, there were criminal justice leaders from around the country who have launched HOPE in their own jurisdictions. We shared our experiences and perspectives with all those who are looking to implement the HOPE model.”

In 2004, Judge Alm launched the nation’s first HOPE program to reduce probation violations by drug offenders and others at high risk of recidivism.

Now there are 31 states using the HOPE strategy in probation, parole, pre-trial, and prison.

Research has shown that HOPE reduces victimization and crime, helps offenders succeed on probation and avoid being sentenced to prison, thus saving taxpayers millions of dollars.

Self-Help Centers Provide Legal Information to More Than 10,000 People

More than 10,000 people have now been assisted at courthouse self-help 28 November 2015

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centers in Hawaii. These centers were established through collaboration among the Hawaii State Judiciary, the Hawaii Access to Justice Commission, Legal Aid Society of Hawaii, and the Hawaii State Bar Association. The first Self-Help Center was opened four years ago on Kauai, and these centers are now available statewide to self-represented litigants who wish to consult with volunteer attorneys regarding civil legal matters at no cost to the litigant, and virtually no cost to the state.

“This milestone is a testament to the hard work and dedication of the hundreds of volunteer attorneys who have donated their time and professionalism to helping those who otherwise might not be able to afford a lawyer,” said Chief Justice Mark Recktenwald. “I’d also like to extend a special thanks to the Hawaii Access to Justice Commission, the Hawaii State Bar Association, all county bar associations, Legal Aid Society of Hawaii and its AmeriCorps program, and our partners in the community who have helped us make significant strides in providing greater access to justice.”

“Hawaii has been recognized as a leader across the country for our access to justice initiatives with the establishment of statewide self-help centers as a living example of these efforts,” said Associate Judge and Hawaii Access to Justice Commission Chair Daniel Foley. “It is because of the concerted efforts of all those who have partnered with the Commission, as well as the vision, leadership, and commitment of Chief Justice Recktenwald.”

There are currently six locations, including at courthouses in Lihue, Wailuku, Kona and Hilo, and on Oahu, where they are called Access to Justice Rooms, at Family Court in Kapolei and at District Court in Honolulu.

The response from those who have been served at the Self-Help Centers has been overwhelmingly positive.

Hawaii State Bar Association President Gregory Markham went on to say, “10,000 people served represents the commitment and dedication of the many attorneys who volunteer their time and

professionalism to assist self-represented litigants. Along with the positive feedback we have received from the self-represented litigants, many of our attorneys have commented on what a rewarding experience it has been to be able to give back to the community.”

“Jake” the Judiciary’s Facility Dog

The Children’s Justice Center of Oahu (“CJC”) is happy to welcome a new member to their team; a certified facility dog named Jake. The two-year old golden retriever was trained on Maui by “Assistance Dogs of Hawaii.” Jake is providing quiet comfort to all children and their families who come to the CJC. “We thank the Chief Justice, Administrative Director Rod Maile, Intergovernmental and Community Relations Department Director Susan Gochros, Budget Director Tom Mick, Sherrie Seki, and all those who supported this effort,” said Jasmine Mau-Mukai.

“We hope this pilot project will be a success and that we can have more facility dogs join our family at the other CJCs across the state.”

Left to right: Children Justice Center’s Director Jasmine Mau-Mukai, Chief Justice Mark Recktenwald, CJC of Oahu’s Program Director Julie Buto, and “Jake” the facility dog.

CA S E N OT E S Supreme Court Criminal

State v. Deguiar, No. SCWC-110000573, September 17, 2015, (Recktenwald, C.J.). This case arose from the murder of Jermaine Duckworth.

On April 9, 2008, Appellant was indicted for Duckworth’s murder and kidnapping, as well as firearms charges and other offenses. In two separate trials, the State attempted to prove that Appellant was the individual who shot and killed Duckworth.

Both trials ended in mistrial. In the second trial, Appellant was tried on Counts I through IV only. The jury indicated that it could not reach a verdict on Counts I, III, and IV, and the circuit court declared a mistrial on those counts. Although the jury appeared to reach a unanimous verdict of guilty on Count II, the circuit court concluded that the jury’s failure to reach a unanimous result on a related interrogatory meant that the jury was in fact hung on Count II, and so the circuit court declared a mistrial on that count as well.

The circuit court discharged the jury.

Later that night, the circuit court concluded that it had erred by not accepting the verdict on Count II. The circuit court reconvened the jurors eight days later, questioned them regarding their votes, and accepted the guilty verdict as to Count II. Shortly thereafter, a juror contacted the circuit court regarding possible misconduct by the jurors during the trial. After questioning all twelve jurors, the circuit court determined that the jury deliberations had been tainted by juror misconduct. The circuit court granted Appellant’s motion to dismiss Counts I, III, and IV under State v.

Moriwake, 65 Haw. 47, 647 P.2d 705 (1982). The circuit court also granted Appellant’s motion to vacate Count II based on the juror misconduct but denied his motions to dismiss Count II under Moriwake. Instead, the circuit

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Zoning Appeal Pointers

11. A motion filed in the appellate court may be summarily denied without prejudice if the motion is not accompanied by proof that the motion was served on all parties at or before the time of filing. HRAP 25(b), 25(d), 27(a). court ordered a retrial on Count II. In addition, the circuit court rejected Appellant’s objections to recalling the jury. On appeal, the Intermediate Court of Appeals (ICA) affirmed the circuit court’s orders on Counts I through IV. The Hawaii Supreme Court also affirmed.

Torts

Ngo v. The Queen’s Medical Ctr., No. SCWC-30172, August 31, 2015, (McKenna, J.). At issue in this appeal was the extent of a plaintiff ’s burden of presenting expert medical evidence regarding the “materiality of the risk of harm” that occurred to support a prima facie case for a physician’s negligent failure to obtain informed consent. In this case, Plaintiffs’ experts testified on the risks of the anti-emetic medication Reglan generally, and also explained the significance of the information in the manufacturer’s insert. Moreover, pursuant to Craft v. Peebles, 78 Hawaii 287, 893 P.2d 138 (1995), although a manufacturer’s insert cannot, on its own, satisfy a plaintiff ’s burden of producing expert testimony to establish the materiality of a risk, it can constitute evidence that a fact finder may consider along with expert testimony on the issue. The Hawaii Supreme Court held that Plaintiffs presented sufficient expert medical evidence to advance their informed consent claim to the jury. In addition, Plaintiffs’ complaint clearly alleged sufficient expert medical evidence to advance their informed consent claim to the jury.

Surfrider Found. v. Zoning Bd. Appeals, No. SCAP-13-005781, September 23, 2015, (Pollack, J.; Recktenwald, C.J. concurring separately). In this case, the question was whether a variance granted for a proposed 26-story hotel and residential tower that permitted a 74 percent encroachment into the coastal height setback along the Waikiki shoreline was properly issued. After analyzing the variance test’s three requirements, the Director of the Department of Planning and Permitting made the following Conclusions of Law: (1) there is evidence that the Applicant would be deprived of a reasonable use of the land or building if the provisions of the zoning code were strictly applied; (2) the request of the applicant is due to unique circumstances and not to general neighborhood conditions, and it does not question the reasonableness of the neighborhood zoning; and (3) the request will not alter the essential character of the neighborhood nor be contrary to the intent and purpose of the zoning ordinance. Accordingly, the Director granted partial approval of Kyo-ya’s variance application to allow the Project to encroach approximately 74 percent into the Coastal Height Setback. The Director’s partial approval was conditioned on, inter alia, submission of revised plans “which show the [Project] shall comply with the 1-to-1 (45-degree angle) coastal height setback as measured from . . . (the approximate beach width intended in the [1965 Beach Agreement]).” Appellant argued that the circuit court erred in affirming the Zoning Board of Appeals (“ZBA”) Order and the Director’s Decision because the Director’s findings and conclusions did not demonstrate that Kyoya satisfied the three requirements for issuance of the variance. The Hawaii Supreme Court determined that for the Director to grant a variance request, the applicant must satisfy each requirement of the variance test. Here, none of the

requirements were met. Accordingly, the circuit court’s judgment, the ZBA Order, and the Director’s Decision were reversed. See Town v. Land Use Comm’n, 55 Haw. 538, 550, 524 P.2d 84, 92 (1974).

Recktenwald, C.J. concurred separately, concurring in the judgment because the Director clearly erred in concluding that Kyo-ya would be deprived of the reasonable use of the property. Recktenwald, C.J. agreed with the majority that the Director inappropriately relied on the 1965 Beach Agreement, and that the record did not support the Director’s conclusion that a variance was necessary to maintain economic viability. Moreover, Recktenwald, C.J. maintained that the evidence in the record on that point was inadequate.

Intermediate Court of Appeals Criminal

State v. Kalua, No. CAAP-120000578, September 2, 2015, (Nakamura, C.J.). The question presented in this appeal was whether the entry of judgment on Appellee’s non-criminal speeding infraction barred Appellant from prosecuting Appellee for the crime of excessive speeding. Based on Haw. Rev. Stat. § 291D-3(d), the ICA held that the answer to this question was no and the district court erred in dismissing the excessive speeding charge.

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EXPERT WITNESS AQUATIC SAFTEY EXPERT 28 years aquatic Experience. Qualified as an expert in state and federal courts. See our ad on page 56 of the HSBA Directory. Aquatics consulting Servies 808-960-9348 www.aquaticsconsulting.com DROWNING & TOUR BOAT SAFETY EXPERT Former Hawaii ocean lifeguard and tour boat captain Patrick Durkin. 30 plus years in Hawaii. Many local attorney references. www.aquaticexpert.com. 808.651.SURF

Torts

Schmidt v. HSC, Inc., Nos. 29454 and 29589, August 31, 2015, (Leonard, J.).

This case was revisited by the ICA on remand. Appellants defaulted on notes and mortgages for which real properties were sold. The foreclosing party used the sales proceeds for the benefit of its parent. Appellants claimed fraudulent transfers. The circuit court determined that Appellants’ claims were timebarred. The ICA remanded the case back to the circuit court to determine whether Appellants’ fraudulent transfers were time-barred and, if they were not, enter judgment in their favor. If timebarred, the circuit court should enter judgment in favor of Appellees.

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MCCANDLESS BUILDING at 925 Bethel St. Office spaces ranging in size from 297 sf to 343 sf (asking base rent is $1.00 psf).

Current operating expenses are $1.26 psf and include full service janitorial, security, air conditioning, and electricity. Storage space available at reasonable rates. Easy walking distance to courts. Check our website at www.waiponoinvestment.com or call Lee Miller (S) at (808) 548-3358.

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