Hawaii Bar Journal October 2016

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TA B L E O F C O N T E N T S VO L U M E 2 0 , N U M B E R 1 0

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

ARTICLES 44

Overview of Juvenile Justice Reform Efforts in Hawaii

by Hon. Catherine H. Remigio

13 19

Demystifying “Contractors� in the Hawaii General Excise Tax

by Thomas Yamachika

24

OF NOTE 14

Court Briefs

16

HSBA Happenings

18

Pro Bono Celebration 2016

19 20 24 22 27 28 28

Case Notes

Hawaii Federal Trial Academy

President Ryan Hew

30 30

Off the Record

Vice President/President-Elect Trejur Bordenave Secretary Catherine Taschner Treasurer Ryan Loeffers

31 31

Classifieds

President Jodi Kimura Yi President-Elect Nadine Ando Vice President Howard Luke Secretary Russ Awakuni Treasurer Mark M. Murakami YLD OFFICERS

IRS Email Schemes New Civil Pro Bono Panel Rules for Federal Court

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

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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.

f o w e i v r e Ov

e l i n Juve ce i t s Ju

Reform Efforts in Hawaii

by Hon. Catherine H. Remigio

The years from 2008 to the present have been marked by great positive change in juvenile justice policies and practice in Hawaii. No review of juvenile justice reform efforts is complete without first understanding the crisis that compelled such transformation. A crisis that brought concerned citizens, prosecutors, defense attorneys, law enforcement officers, judges, legislators, the governor, families, communities, agencies, and service providers to believe it was more important to join together than remain separate. What followed was years of determined progress and collaboration culminating in sweeping legislation restructuring policies on youth incarceration and juvenile probation. The outcomes thus far are positive and promising.

The Need for Juvenile Justice Reform Iatrogenic – of or relating to illness caused by medical examination or treatment.1 Criminogenic – tending to cause crime or criminality.2 In 2009, a study analyzing the negative effect that contact with the justice system has on youth concluded that 4 October 2016

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youth who were subject to juvenile court intervention were more likely to commit crimes as adults. It found that when judicial intervention involved an escalating series of consequences, from non-supervision, to probation, to lock up - “the stricter the measure in which this judicial course ends, the greater the criminogenic effect.” Placement in a correctional institution exerted the strongest criminogenic effect.3 In 2010, the Department of Attorney General in Hawaii published the “Hawaii Youth Correctional Facility Recidivism Study,” analyzing youth commitment4 and reoffending data for fiscal years 2005-2007 (HYCF 2005-2007).5 HYCF 2005-2007 reached similar alarming conclusions for Hawaii. Of the total 232 youth committed from 2005-2007, 161 were committed for short-terms (1 year or less), meaning they would most likely be returned or placed on probation upon release. Forty-five percent of the youth were in custody for unauthorized entry/control of a motor vehicle or lesser offenses. Seventeen percent of the youth were in custody for misdemeanors or petty misdemeanors.

Thirty-two percent were age 15 or younger when they first entered HYCF.6

Of the 200 youth released during the 3year study, 173 or 86.5% were re-arrested as juvenile or adult. 151 or 75.5% were re-adjudicated as juvenile offenders or convicted as an adult.7 At the time of the report, the average cost to house a youth at HYCF for one year was $131,713.90.8 In short, nearly half of the youth who were incarcerated for low level offenses were retained on probation when released. All were detained at a high cost to the State. The overwhelming majority were found guilty of committing new crimes within three years of release.

The 2009 study along with the results of HYCF 2005-2007 raised critical questions regarding the effectiveness of a juvenile justice system focused on a cycle of early detention of youth who pose little to no threat to public safety, followed by prolonged probation and increasingly punitive measures ending in commitment. Calls for sweeping change and juvenile justice reform had already started nationwide in the early 1990s.9 In Hawaii, there was a growing concern over crowded detention halls and increasing number of youth entering the system. At its center is an understanding that there is

limited time to address the issues that surround troubled youth since a court’s jurisdiction generally ends when a child turns 18.10 Underlying these statistical facts are important questions that affect the court’s ability to assist youth in its care.

How do courts address the complex and interrelated issues such as adolescent brain development, past trauma and trauma-informed care, substance abuse, mental health issues, concurrent child welfare cases, homelessness, cultural sensitivity, and gender responsivity among other issues? How do we address the social inequities that result from disparate treatment of youth from certain racial and ethnic groups?11 For those youth who represent a serious public safety concern, how do we provide them effective services without increasing the likelihood of future criminality?

Can judicial intervention ultimately be a source of healing rather than harm?

The Path to Juvenile Justice Reform These are our kids. They belong to our community. We as a community have to take ownership and have to do something about it. And we have to understand that if we take those steps, we as a community will be better. Our response as a community will define us for generations. The Honorable R. Mark Browning, Deputy Chief Judge, Family Court, First Circuit.

Juvenile Detention Alternative Initiative (“JDAI”) In 2008, Judge R. Mark Browning was one of two judges12 tasked with bringing juvenile justice reform to Hawaii.13 As a direct result, stakeholders began meeting to discuss specific elements of juvenile justice reform.

These early meetings focused on the eight core elements of the Annie E. Casey Foundation’s (Casey Foundation) Juvenile Detention Alternative Initiative (JDAI):

• Collaboration between the juvenile justice agencies, government entities and community organizations; • Use of accurate data to diagnose issues and assess reform impacts; • Objective admissions criteria and instruments to determine detention decisions; • New or enhanced non-secure alternatives to detention; • Case processing reforms to move cases quickly through the system, reduce confinement times, expand non-secure slots, allow timely and appropriate interventions; • Reduce confinement in special detention cases (youth in custody for probation violations, writs, warrants, or awaiting placement); • Improving conditions of confinement; and

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• Eliminate bias and reduce racial disparities (disproportionate number of youth of color in custody).14

for status offenses. For example, from 2010 to 2011 alone, admissions plummeted from 1072 to 775 – a 28% decrease.

See graph of Annual Admissions to Hale Hoomalu.

Efforts were also made to divert

JJRI focused on youth who were committed or incarcerated (“deep end” cases) and most importantly provided assistance to draft legislation addressing JDAI is currently being replicated deeper juvenile justice reforms. in almost 200 jurisdictions in 40 states In August 2013, Hawaii initiated and the District of the Juvenile Justice Columbia, representReform Project (JJRP). ing the national stanThe same year, the dard in juvenile justice Hawaii Juvenile Justice 15 reform.

Working Group (workIn 2009, the Casey ing group) was formed Foundation designated by Governor Neil Hawaii a JDAI site.

Abercrombie, Chief The site designation Justice Mark resulted in the state Recktenwald, Senate receiving expert techniPresident Donna cal assistance, model Mercado Kim, and site visits and mentorHouse Speaker Joseph ing needed to bring Souki. The 20-member stakeholders together working group18 was Source: Sadaya-Ibus, Maria N., Department of the Attorney General, Juvenile Justice Information System to formulate a cohesive tasked with analyzing and collaborative statethe juvenile justice syswide juvenile justice tem and recommending mission and goal and reach a consensus legislative reforms. youth adjudicated for their first law vioon the use of detention. The resulting On December 13, 2013, the worklations from initial detention to shelter policies and practices were reformative. ing group issued the “Hawaii Juvenile or back home to reduce unnecessary On July 30, 2010 Family Court Justice Working Group Final Report” reliance on secure confinement. eliminated the “valid court order” (Working Group Report). The Working In a short time, during the period (“VCO”).16 VCOs applied to status Group Report commended the 41% from 2008 to present, Hawaii witnessed offenders – juveniles whose actions condecline in HYCF commitments from a remarkable change in institutional stitute offenses because of their age 2003-2013. Those committed, howevculture away from punitive detention (truancy, runaway, beyond control).17 er, were more likely to be low level, nonand commitment to targeted, data drivStatus offenders cannot be detained or violent offenders with no prior felonies. en decision-making and communitysentenced to any term of detention or They were being held longer, at high based services. Juvenile justice stakecommitment. When a judge sentenced cost and were likely to reoffend upon holders in Hawaii formed a more cohea status offender, for example to comrelease.19 The working group observed: sive, unified state-scaled implementaplete community service, the terms of tion of JDAI principles including all cir[I]f more effective alternatives the sentence were called “valid court cuits. were available, many of these orders.” A status offender who violated By 2013, the need to sustain juve(committed) youth could be held a VCO (for example did not complete nile justice reform had hit a plateau of accountable and safely supervised community service work) would then be what could be accomplished with the in their communities at far lower subject to detention or commitment for resources available. JDAI coordinator cost. Every dollar spent on secure confinement is a dollar Hawaii the violation. Elimination of VCOs Carol Matsuoka noted, “Achieving state could otherwise use to build the kept these youth out of detention and scale implementation is significant, fully-resourced, evidence based required probation officers and courts however, we recognized the danger of continuum of supervision and servto look at other strategies to address the complacency and knew we needed to ices for delinquent youth that was youth’s behavior. take juvenile justice reforms deeper.” envisioned during the creation of Eliminating VCOs had a direct OYS (Office of Youth Services) in 1989.20 21 22 effect on admissions to Hale Hoomalu Juvenile Justice Reinvestment Initiative – the Juvenile Detention Facility for youth in short term detention. The City and County of Honolulu has over the past several years seen a decline in the average number of youths arrested

Remarkably, the PEW Charitable Foundation chose that moment to partner with the Judiciary through Deputy Chief Judge Browning via the Juvenile Justice Reinvestment Initiative (“JJRI”).

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The Working Group Report concluded, in part, that judges and probation officers lacked the necessary services to help children and that juvenile jus-

tice reform could not be achieved without substantial additional resources allocated by the Legislature.

In a speech about juvenile justice reform at the 2015 Access to Justice Conference at the William S. Richardson School of Law, Deputy Chief Judge R. Mark Browning noted: For juvenile offenders the fundamental issue is the lack of available and accessible services to assist the Court in its duty to help the youth.

This is self-evident when one considers the fact that 80 percent of the youth offenders are in need of drug treatment and often residential treatment and yet there is really only one residential treatment center for youth in the State.23 More than 60 percent of the youth suffer from mental health maladies.

Despite this fact there is a very limited array of mental health services for our children which leads to children who need more intensive care being sent to the mainland.

The Working Group made 24 recommendations under the general headings of: focus system resources on protecting public safety, strengthen community supervision and probation practices and sustain effective practices.24 Finally, the Working Group recommended that state leaders introduce legislation based on their recommendations.25 House Bill 2490 and Act 201 With the Working Group Report in hand, legislation was drafted and introduced to the 2014 Legislature in the form of House Bill 2490, Relating to Juvenile Justice with the assistance of the PEW Charitable Trust and in collaboration with relevant and interested stakeholders. In July 2014, the PEW Charitable Trusts published “Hawaii’s 2014 Juvenile Justice Reform” in support of Act 201’s specific goals and implementation tools (“PEW brief ”).26 Consistent with the Working Group Report, the PEW brief noted that nearly half of the youth committed to HYCF for new offenses had no prior felony record. Sixty-one percent were

incarcerated for misdemeanors, 72% for nonviolent crimes, and 41% for probation violations. The probation violators had spent an average of 8-20 months on probation before being committed.27 The average length of confinement at HYCF was seven to eight months.28 By 2013, the cost per youth per year at HYCF had risen to $199,319.20.29 The recidivism rate (from HYCF 2005-2007) was 75.5% within three years of release.30 On July 2, 2014, Governor Neil Abercrombie signed HB2490, HD2, SD2, CD2 into law, creating Act 201 Relating to Juvenile Justice. Act 201 represented a culmination of years of work geared towards reforming juvenile justice to address the goals of: (1) reducing juvenile crime and (2) reducing recidivism for juvenile law violators.

Its sweeping legislation called for “improving outcomes for youth in the juvenile justice system; maximizing the effectiveness of Hawaii’s correctional dollars and placement options; and grounding Hawaii’s policies in data and research.”

Act 201 was projected to reduce the population of HYCF by 60 percent, which would result in the closure of two facilities on campus. These closures were predicted to produce savings of $11 million by 2019 – to be used on effective community-based alternatives.

Act 201 also allocated $1.26 million for substance abuse and mental health treatment, delinquency interventions and reform implementation.31 Highlights of Act 201 HYCF Commitments Under Act 201, youth can only be committed to HYCF for a felony-level offense, violation or revocation of probation, or if committed by a judge through the Juvenile Drug Court or Girls Court. Judges must enter findings of fact stating the reasons why the youth is a public safety risk, warranting placement at HYCF, unless the youth has committed a felony against a person or a sex offense. HYCF is required to develop a reentry plan for youth exiting

the facility to prepare them to transition back to the community.

The Youth Assessment and Screening Instrument (“YASI”™) Decisions made at disposition, during probation, and to parole a youth would be guided by a single statewide standardized tool. Act 201 required the board of family court judges to provide the guidelines and procedures necessary to implement a risk and needs assessments tool subject to validation every five years. The Act defined a risk and needs assessment as: A determination, based on an actuarial tool validated on Hawaii’s juvenile justice system-involved population, of specific factors that predict a child’s likelihood of recidivating and criminogenic factors that, when properly addressed, can reduce the likelihood of recidivating.

The value of a single tool used by all judges, if applied with fidelity, will have the effect of standardizing dispositions of youth throughout the state. At the very least, similarly situated youth will be on an equal playing field.

Hawaii chose the YASI™ as its risk needs assessment tool after months of careful research and consideration by a working group subcommittee (discussed below).

The YASI™ assesses 10 domains32 that drive two components: a youth’s risk assessment and a youth’s needs assessment. The risk assessment predicts the likelihood of recidivism.33 The needs assessment identifies factors capable of change that can reduce the likelihood of recidivism (protective factors).

When a program is delivered with fidelity to the model, recidivism rates can be significantly decreased.

For example, a youth with substance abuse issues (indicating increased risk) who also has a steady job and a supportive family (indicating protective factors or lower needs) may be most successful at an in-community treatment program.

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Probation Practices As indicated by the Working Group Report, Act 201 focused some of its most sweeping reforms on Juvenile Probation. Terms of probation cannot be open-ended but can only be for a definite period of time stated in months or years, subject to modification.

Juvenile Probation Officers (JPOs) must use the validated risk and needs assessment tool to guide case planning and supervision decisions. If the assessment indicates substance abuse or mental health needs, JPOs may immediately refer youth to the Department of Health for eligibility determination and proceedings may be suspended so long as the youth will benefit from treatment (substance abuse or mental health) and doing so will advance the interest of justice. JPOs must conduct at least one home visit within 45 days after a youth is placed on probation (subject to exceptions).

Act 201 also provided JPOs with tools to modify probation specific to a youth’s behavior. For example, JPOs may impose graduated sanctions and provide incentives to youth on probation. Research has found that the use of sanctions and incentives are key probation tools, particularly when sanctions are not excessively weak or too punitive34 and incentives exceed sanctions by a ratio of 4:1.35 Incorporating incentives or rewards into probation can increase the rates of successful termination of probation and have longer-lasting effects.36 JPOs can also recommend a youth be granted earned discharge credit (reducing the length of probation by one month for every month of substantial compliance). JPOs have discretion to impose sanctions and give rewards on a case by case basis under the Behavioral Intervention Support System (BISS). JPOs may also use informal adjustments or other diversion options for new referrals to the court and administrative monitoring in lieu of placement on legal status.

JPOs are to undergo yearly training on juvenile justice or probation supervision best practice.

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The goal of probation is to deliver the right services to the right youth quickly and effectively, and within a short period of time (6-8 months). The research tells us that over-treating youth, including keeping them on probation for long periods of time, does more harm than good. William Maemori, Juvenile Probation Supervisor, First Circuit.

Reform Implementation For two years following the enactment of Act 201, a juvenile justice oversight advisory council37 met to guide implementation of the reforms. The advisory council also provided yearly reports to the executive, legislative and judicial branches evaluating implementation of Act 201 and the juvenile justice system effectiveness.

In its 2015 Report, the oversight advisory council reported that Hawaii was one of three states to receive technical assistance funded by the Office of Juvenile Justice and Delinquency Prevention (“OJJDP,” which is part of the U.S. Department of Justice) to help implement Act 201’s reform mandates.38 The technical assistance provider for Hawaii was the Crime and Justice Institute at Community Resources for Justice (“CJI”).

With CJI’s help, the Council immediately formed seven subcommittees to address priority areas.39 A graduated response system of rewards and interventions was developed and implemented. Core competency training for JPOs was established. Training on mental

Source: Sadaya-Ibus, Maria N., Department of the Attorney General, Juvenile Justice Information System, 2012-2016 Okumura, Stuart, Department of the Attorney General, Juvenile Justice Information System, 2008-2011

health and juvenile justice issues, funded by OJJDP and the MacArthur Foundation, continues. Improvements have been made to data reporting. The 2015 Report also identified the programs, reform activities and services provided by the Act 201 appropriation.

The Risk and Needs subcommittee worked for almost a year reviewing existing tools and speaking with other jurisdictions using certain tools.

Currently, 34 states have implemented a single tool statewide for the assessment of juveniles in the justice system.

Of the 34, four states (Illinois, North Dakota, Vermont and Virginia) and regions in New York use the YASI™ which was the tool selected in Hawaii for statewide implementation. 40 Training on the initial implementation of the YASI™ is almost complete.

JPOs will continue to receive training to maintain fidelity to the model and

interrater reliability. The YASI™ software capability will also enable the state to for the first time be able to easily collect aggregate data in describing the juvenile justice population in Hawaii.

It is anticipated this will help to develop and refine juvenile justice policy in the state and facilitate more efficient use of limited resources by targeting needs identified using the YASI™ and measuring outcomes.41 As provided in Act 201, the advisory council ceased to exist in May 2016.

Court administrators, the Executive Director of the Office of Youth Services and probation intake officers continue to provide annual reports on the progress of reform initiatives.

The Future of Juvenile Justice Reform in Hawaii While implementation of Act 201 (now Hawaii Revised Statutes section 571) continues, the progress that started in 2008 continues with the hope of even greater outcomes for the future. After an initial sharp decrease in the juvenile crime indicator of 52% from 2008 to 2013, the next three years from 2014 to 2016 have yielded an additional 34% decrease. The total decrease in petitions filed from 2008 to the present is 68.3%. See Juvenile Crime Indicator graph. Commitments to HYCF from 2008 to 2015 also decreased a total of 75% as of 2016.

See graph of Commitments to HYCF.

Source: Sadaya-Ibus, Maria N., Department of the Attorney General, Juvenile Justice Information System, 2012-2016 Hipp, David, Office of Youth Services, 2009-2015

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M e d i a t i o n

&

A r b i t r a t i o n

“e best way to cheer yourself up is to try to cheer somebody else up.’’ ~Mark Twain Dan Bent

Mediator & Arbitrator Former civil litigator & U.S. Attorney B.S. Mechanical Engineering & Georgetown Law 548-0080 | www.FairMediation.com

Dispute Prevention and Resolution, Inc. 1003 Bishop St., Suite 1155 | Honolulu, HI 96813

While reduction of youth in custody and effective probation is a cornerstone of JDAI, other programs launched independently of JDAI have also had positive effects on youth in the justice system. Family Court has two specialty courts focused on youth with substance abuse issues: Juvenile Drug Court and Girls Court.42 In an effort to affect early positive change, the Truancy Court Collaboration Project was launched as a pilot program at Waianae Intermediate for school year 2015-2016 with promising results.

Community groups and programs have stepped forward to partner with Family Court to provide, for example, pro social activities for youth at The Art of Fitness with Professor Matt Levi (kajukenbo), or Surfrider spirit sessions.

Puuhonua, a healing place With the decreasing number of youth committed to HYCF and the continuing need for youth-centered programs and training facilities, OYS who oversees HYCF - obtained funding to assess the feasibility of using the 400 plus. acres that comprise HYCF for `aina-based educational and cultural activities to support the emotional healing of youths and their families. In December 2015, the Department of Human Services and OYS published “Kawailoa Youth & Family Wellness Center – A New Direction for HYCF” (HYCF study).43 The HYCF study envisions a “puuhonua, a healing place” transforming youth in their care to be productive, responsible young adults by fostering and strengthening one family at a time. The proposals include: • Construction of a family healing parcourse with physical exercise stations that also ask a series of questions designed to help youth re-connect with their families on a mental, emotional, and spiritual level.

• Vocational training in the restoration

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of Kukuipilau heiau into an outdoor spiritual sanctuary.

• Forest restoration, educational hikes, and trail work, creation of restoration basecamps.

• Creation of edible forests and landscaping such as ulu, banana and avocado while teaching youth about ecology, farming, team work, cooking, and healthy eating.

• Caring for other living beings by raising rabbits, chickens, geese, and goats.

• Ranching and organic farming.

The HYCF study also envisions the creation of a mental health assessment center, special needs community shelter, multi-agency training center, and wellness center. Its long-term vision for HYCF is that of “a fully functional ranch, farm, and cultural piko that serves as a treatment center and sanctuary for the juvenile justice system – a puuhonua.” Merton Chinen, Executive Director of the Office of Youth Services, sees HYCF as a conduit for “the healing of relationships and trauma (including inter-generational) [that] will be enhanced through the Spirit Statute, HRS § 5-7.5, the guiding working philosophy of the native culture and state.” HRS § 5-7.5 (a) and (b) provide, in part: “Aloha” is the essence of relationships in which each person is important to every other person for collective existence.” Members of the legislative, executive and judicial branches “may contemplate and reside with the life force and give consideration to the “Aloha Spirit”” when “exercising their power on behalf of the people and in fulfillment of their responsibilities, obligations and service to the people[.]”

Conclusion According to Juvenile Probation Program Specialist Adriane Abe, “[w]e are at an exciting juncture now.” After two years of implementation planning, judges and JPOs recently started receiving their first YASI™ reports identifying each youth’s risks and needs assessment to aid in disposition and probation decisions. JPOs are forwarding requests for earned discharge credits, and exercising discretion to make certain adjustments to probation and to give out rewards and sanctions to youth (BISS). All judges and all JPOs in all circuits are using the same data-driven methods to encourage youth to succeed and exit the system as quickly as possible. Public safety still requires that youth who pose a danger to the community will be committed. Yet even in those circumstances, the focus remains on healing. How far we have come is testament to the will of this community and all who care about children and families and healing.

the general scope of this article. Id. 4 For the purpose of this article, “commitment” refers to a set term of secure confinement and “detention” refers to an initial or typically shorter term of secure confinement that is temporary in nature.

5 David Mayeda, PhD, Department of the Attorney

General,

Hawaii

Youth

Correctional Facility Recidivism Study (2010) [hereinafter HYCR 20005-2010], available at http://ag.hawaii.gov/cpja/ files/2013/01/HYCF-Recidivism-Study2005-2007.pdf.

6 HYCF 2005-2007, supra note 6, at 3, 60.

7 HYCF 2005-2007, supra note 6, at 1, 7.

8 Executive Director of the Office of Youth Services, Merton Chinen, as reported to the American Corrections Association (2010).

9 The Anne E. Casey Foundation, Juvenile Detention Alternatives Initiative Progress Report 2014, available at http://www. aecf.org/m/resourcedoc/aecf-2014JDAI ProgressReport-2014.pdf#page=12.

10 Haw. Rev. Stat. §§ 571-11(1) and 571-13.

11 The issue of social inequities as well as overrepresentation of youth in custody from

Family court is to be “a place of healing for children and families,” providing a justice system in which “all involved work for the best outcomes for children and families.”

2013 Mission and Vision Statement adopted by Family Court, First Circuit, State of Hawaii.

circuits outside the First Circuit (Oahu) is also indicated by the data but not fully addressed in this article. Its absence does not reflect a lack of importance.

12 The Honorable Michael F. Broderick (ret.) was the second judge. He retired in 2010 and became the President and CEO of

————————

the YMCA of Honolulu.

13 This was done under the direction of

1 Black’s Law Dictionary 457 (10th ed.

then Deputy Chief Judge of the Family

2009).

2 Oxford

Oxford

Court Frances Q.F. Wong (ret.)

14 JDAI Core Strategies Matrix, Juvenile

http://www.oxforddic-

Detention Alternatives Initiative Helpdesk

University

Dictionaries

at

Press,

tionaries.com/us/definition/american_engl

at

http://www.jdaihelpdesk.org/default.

ish/iatrogenic (last visited August 23, 2016).

3 Gatti, U., Tremblay, R. E. and Vitaro, F.

aspx (last visited August 20, 2016).

15 Casey Foundation, supra note 10.

(2009), Iatrogenic effect of juvenile justice.

16 This change was instituted under the

Journal of Child Psychology and Psychiatry,

direction of then Deputy Chief Judge of

50:

10.1111/j.1469-

Family Court Sabrina S. McKenna (now

The authors identify

Hawaii Supreme Court Associate Justice

several theories to explain their findings:

Sabrina S. McKenna).

17 Haw. Rev. Stat. §§ 571-2, 571-31.5 and

991-998.

Doi:

7610.2008.02057.x.

the labeling perspective, the deviant peercontagion perspective, and removal from protective factors – theories that are beyond

571-48(2).

18 The JJRP working group consisted of October 2016

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11

members of the following organizations:

School,

Peers,

39 The subcommittees were: Professional

Judiciary, State Legislature, Department of

Alcohol/Drugs, Mental Health, Aggression,

Development, Risk Needs Assessment,

Human Services, Office of the Public

Graduated Response and Earned Discharge

Defender, Attorney General’s Office, Office

Attitudes, Skills, Employment/Free Time.

33 Recidivism is now defined as “[a]n adju-

of Youth Services, Prosecutors Offices, Hale

dication of guilt in juvenile court or convic-

Kipa, Inc., Department of Health Child

tion in adult court for a new law violation

Data.

40 Statewide Risk Assessment in Juvenile

and Adolescent Mental Health Division,

within 12, 24, or 36 months of discharge

Probation, Juvenile Justice Geography,

Honolulu Police Department, Department

from juvenile probation, or final discharge

Policy, Practice & Statistics State Scan (May

of Education and Hawaii Friends of Justice

from the custody of the director of the

& Civic Education.

19 Hawaii Juvenile Justice Working Group

Office of Youth Services.”

2015).

41 Adriane

Juvenile Justice Reform Implementation

Program Specialist and Chair of the Risk

Final Report (December 13, 2013) [here-

Team.

34 Marlowe,

for

and Needs Subcommittee.

42 Family Court also convenes Family Drug

inafter Working Group Report], at 1.

20 Id.

Community

D.B.,

and

Statewide

Strategies

Credit, Interdepartmental Cluster and

Abe,

Juvenile

Probation

Administering Rewards and Sanctions,

21 Haw. Rev. Stat. § 571-2 (Supp. 2015)

Court and Zero to Three Court for parents

Drug

to

with substance abuse issues whose children

defines evidenced-based practices as “super-

Treatment and Rehabilitation (2007), at

have been removed, and Imua Kakou and

vision policies, procedures, and practices, as

317-336. Doi: 10.1007/978-0-387-71433-

Permanency Court to assist youth in perma-

well as treatment and intervention programs, that research demonstrates are likely

2_22.

35 Long, J. and Sullivan, C., Learning More

nency and exiting foster care.

43 Kawailoa Youth & Family Wellness

to reduce delinquency amongst children in

From Evaluation of Justice Interventions:

Center – A New Direction for HYCF

the juvenile justice system.”

22 The Office of Youth Services was creat-

Further Considerations of Theoretical

(December 2015), prepared by Townscape,

Mechanisms in Juvenile Drug Courts,

Inc. for the Office of Youth Services.

ed by the Legislature as a youth-focused agency with dual goals of administering and

Crime & Delinquency 1-25 (2016), at 6.

36 Susan A. Yeres, Ed.D. and Frances C.

overseeing HYCF, and creating a continu-

Gurnell, M.Ed., Making Sense of Incentives

um of services for youth. Working Group

and Sanctions in working with the

Report, supra note 20, at 2.

23 There is still only one residential treat-

Substance-Abusing Youth, Juvenile and

ment center for girls with substance abuse

citing interview with Marlowe, D.B.. Meyer,

Courts:

A

New

Approach

Family Justice Today (Spring 2012), at 15;

issues. It also accepts males and will only

William G., Developing and Delivering

treat substance abuse issues. There is a sec-

Incentives and Sanctions, National Drug

ond residential treatment center that only

Court Institute (April 3, 2007), at 2-3.

accepts males, but will treat substance abuse

Available at http://w2.georgiacourts.org

or substance abuse and behavior issues.

24 Working Group Final Report, supra note

/gac/files/Therapeutic

20, at 11-19.

25 Id. at 20.

Sanctions

and

Incentives.

37 The Juvenile Justice Oversight Advisory Committee is made of 17 members, 1 each

26 Hawaii’s 2014 Juvenile Justice Reform,

from the executive, house, senate, judiciary,

The

the four judicial circuits, OYS, Department

PEW

Charitable

Trusts

(July

2014)[hereinafter PEW Brief].

27 Id. at 1, 3, 4.

of Human Services, advocacy community,

28 Id. at 3.

enforcement;

29 Id. at 1.

Department

30 HYCF 2005-2007, supra note 6, at 5, 7,

Adolescent Mental Health Division and the

and 58. As noted in HYCF 2005-2007, the

Department of Education.

38 The provider was Smart on Juvenile

new offenses “severely declined” from the

juvenile crime victim advocate and law and of

two Health

each Child

from and

offense(s) prior to juvenile commitment.

31 PEW Brief, supra note 27, at 1.

Justice: A Comprehensive Strategy to

32 The domains are: Legal History, Family,

DOJ OJJDP.

12 October 2016

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Juvenile Justice Reform Initiative of the U.S.

The Honorable Catherine H. Remigio is a Family Court Judge of the First Circuit, currently assigned to the Juvenile Division.

She is the Presiding Judge of Imua Kakou and Per manency Court, and the Administrative Judge of the Truancy Court Collaboration Project.

Acknowledgements: Many thanks to all who contributed to this article and graciously gave of their time and knowledge. Special thanks to Deputy Chief Judge R. Mark Browning for his leadership and assistance, to Carol Matsuoka for her invaluable help, and to William Maemori and Adriane Abe for their expertise. Thanks also to Sandra Kato, Merton Chinen, Mark Patterson, Maria Sadaya-Ibus and Garrett Amimoto.

Demystifying “Contractors” in the Hawaii General Excise Tax

by Thomas Yamachika It’s often said that contractors enjoy a special benefit under the Hawaii General Excise Tax (“GET”) – a claim that is, for the most part, true. The way “contractors” are defined, plus conflicting and hard-to-find guidance has given rise to broad misunderstanding about how the GET is applied to contractors.

This article attempts to give an overview of this area and reconcile the authorities.

The GET, contained in Haw. Rev. Stat. Chapter 237, is a tax on “nearly every economic activity imaginable.”

Pratt v. Kondo, 53 Haw. 435, 496 P.2d 1, 2 (1972). It is a tax not only on retail sales to an end user; businesses selling goods and services to other businesses are exposed to the GET as well. If, for example, a lawyer sells legal services to an accounting firm’s client, the sale is

taxable, although the lawyer will probably qualify for the lower rate of 0.5% for wholesale sales. One of the many complaints against this tax is that it “pyramids,” meaning that goods and services passing through the economic chain from producer to end user may be subjected to tax multiple times.1 As applied to contractors, the tax is more favorable because pyramiding is reduced or eliminated. A “contractor” is allowed a deduction for general excise tax purposes for amounts paid to a subcontractor.2 Haw. Rev. Stat. § 23713(3)(B) (Sess. Laws 2015). For example, if a taxpayer pays a general contractor $1,000 to build a garage on taxpayer’s property and the general contractor brings in a garage door installer at a cost of $300, then the installer (subcontractor) is taxed at 4%3 on $300 and the general contractor is taxed at 4% on the remaining $700. Double taxation is avoided and the State receives 4% on the whole contract price of $1,000.

The disconnect from the common usage of the word “contractor” begins with a special statutory definition. Haw. Rev. Stat. § 237-6 (2001) defines ”contractor” as anyone contracting to improve real estate,4 i.e., an architect, a professional engineer, a land surveyor, a landscape architect, or a pest control operator. Id. One who builds or improves something other than real estate is not a contractor in this sense. In re Pacific Marine & Supply Co., 55 Haw. 572, 524 P.2d 890 (1974) (repairing ships or vessels doesn’t qualify). In addition, this article only considers improvements to real estate in Hawaii because if the real estate is located elsewhere, the GET doesn’t apply. 5 Even if a taxpayer has a license that is normally awarded only to contractors, the work that the taxpayer does on a particular project is critical. It is possible for work on one project to qualify as contracting and for work on another to be classified as something else. For example, “an architect or engineer is engaged in contracting when managing a construction project; and is engaged in a service business or calling [i.e., not contracting] when performing a feasibility study or other consultation that is unrelated to a specific construction job.”6 A license to perform the specific work helps qualify the work, but is not (Continued on page 21) October 2016

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13

COURT BRIEFS The conference focused, in part, on the unique work that Hawaii’s Big Island and Oahu Veterans Treatment Courts, and similar programs across the country, are doing to help restore veterans’ health, families, and futures, while also saving taxpayer dollars.

A 2016 study published by the Community Mental Health Journal found that veterans who participate in veterans treatment courts experience signifiPictured from left to right are: Dr. Brian L. Meyer, PTSD-SUD cant improvement in housSpecialist at H.H. McGuire VA Medical Center; Third Circuit ing, relationships and Judge Greg K. Nakamura; Third Circuit Chief Judge and social connection, overall Presiding Judge of the Veterans Treatment Court Ronald Ibarra; functioning and wellScott Swain, Justice for Vets Division Director; David Pelletier, being, depression, PTSD, Project Director for the Veterans Treatment Court Planning substance abuse, and menInitiative at the National Association of Drug Court tal and emotional health.

Professionals; and Hawaii Supreme Court Chief Justice Mark At the conference, Recktenwald at the Big Island Veterans Treatment Court national and local speakers Conference held at the Mauna Lani Bay Hotel. provided information and training on the latest findings in effectively working The Big Island Veterans Treatment with veterans and improving the success Court of the Third Circuit hosted the of Veterans Treatment Court programs. state’s first Veterans Treatment Court Sixteen veterans have enrolled in Conference on August 12, 2016, for prothe Hilo and Kona Veterans Treatment fessionals who work with veterans sufferCourts since the program’s inception in ing from posttraumatic stress disorder November 2014.

The Veterans (“PTSD”), traumatic brain injury, and Treatment Court program continues to substance use disorders (“SUDs”). grow, on both Oahu and the Big Island, Judges, law enforcement officials, probaas an increasing number of attorneys tion officers, attorneys, researchers, and submit applications for their clients to substance abuse treatment providers participate in the program. came to learn about the latest evidence“I’d like to thank the Friends of Big based best practices for effectively dealIsland Drug Court, the National ing with veterans struggling to readjust Association of Drug Court to life outside the military.

Professionals, the Big Island Drug and Soldiers returning from Iraq and Veteran’s Courts, the Hawaii State Bar Afghanistan have demonstrably higher Association, Hawaii County Bar rates of co-occurring PTSD, traumatic Association, West Hawaii Bar brain injury, pain, and SUDs, than the Association, and the County of Hawaii general population. Often, these issues Office of the Prosecuting Attorney for are compounded by family strife, unemtheir sponsorship of our first Big Island ployment, and homelessness, ultimately Veterans Treatment Court Conference,” leading to incarceration. said Chief Judge of the Third Circuit Judiciary Hosts Hawaii’s First Veterans Treatment Court Conference

14 October 2016

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and Presiding Judge of the Veterans Treatment Court, Ronald Ibarra.

“Their support is mission-critical in our efforts to help veterans and their families recover and regain their chance at a successful future.”

For more information on the Hawaii State Judiciary’s Veterans Treatment Court program, visit: www.courts.state.hi.us/special_projects/veterans_court.

Hawaii State Judiciary Website Voted #1 in the Nation

The Hawaii State Judiciary’s website has been voted number one in the National Association for Court Management’s (“NACM”) Top 10 Court Technology Solutions Awards for 2016. This year’s awards were presented during the organization’s annual conference in Pittsburgh, Pennsylvania, on July 12. The awards are given each year to courts that make the best use of technology to improve court services and access to the public.

Entries from across the United States were reviewed by the COSCA/NACM/NCSC Joint Technology Committee, a panel of judges appointed by the Conference of State Court Administrators (“COSCA”), NACM, and National Center for State Courts (“NCSC”).

Joint Technology Committee CoChair Kevin J. Bowling explained that the panel of judges used a variety of criteria for comparing the award submissions, including: interactive capabilities; ease of access to public records; user interface; optimization for mobile devices; and accessibility. He noted that in their assessment of this year’s nominees, the nine committee judges were uniformly impressed with the Hawaii State Judiciary website.

“In part, the success of the Hawaii State Judiciary’s website was due to the innovations Hawaii has used to signifi(Continued on page 18)

HSBA HAPPENINGS July Board Action Summary

The HSBA Board took the following actions at its meeting in July: • Voted to give HSBA/ABA Delegate James Kawachika the discretion to vote on ABA Resolution 109 that is in the best interest of the HSBA (This resolution recommends that the ABA Model Rules of Professional Conduct include an anti-discrimination and anti-harassment provision); • Adopted the recommendation of the Executive Committee to approve the proposed amendments to the HSBA questionnaire for judicial and executive nominees which clarify questions related to professional competency; • Adopted the recommendation of the Executive Committee to solicit member comments via email on the proposed new rules on unbundled legal representation.

August Board Action Summary

The HSBA Board took the following actions at its meeting in August: • Adopted the Executive and Finance Committees’ recommendation to approve the 2017 proposed project requests of Goal Groups 1, 2, 3, 5, and 6 totaling $22,050. Project requests of Goal Group 4 (Civic Education and YLD service projects) will be discussed at next month’s meeting; • Adopted the Awards Committee’s recommendation to present the following HSBA Awards at the Annual Meeting Luncheon at the Bar Convention: Golden Gavel Award (for outstanding service to the state or federal judiciary in Hawaii) - Debi Tulang-De Silva Ikena Award (for outstanding service to 16 October 2016

HAWAII BAR JOURNAL

the profession or the public towards legal education) - Robert S. Toyofuku Kie Kie Award (for outstanding provision of pro bono legal services) - Daniel R. Foley HSBA Bar Convention

Come to the 2016 Annual Meeting and Bar Convention at the Hawaii Convention Center on Friday, October 14, 2016. Join us for CLE seminars on legal updates and topical issues, credits, the Exhibitors’ Expo, and networking opportunities. Honor HSBA award recipients at the business luncheon with keynote speaker, Linda Klein, 20162017 ABA President, and welcome the new 2017 HSBA and YLD officers.

Vacancies on Special Committee on Judicial Performance

The Special Committee on Judicial Performance (Rule 19 Committee) will have four attorney positions expiring on their committee. The duty of the committee is to implement a judicial performance program approved by the Supreme Court. Apply by November 30, 2016. For more detail, please go to www.hsba.org; hover over “News & Events;” click on “Calendar;” scroll down to “November 30;” and click on “Deadline to Apply.”

Member Benefits Spotlight

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Visit NPP: http://bit.ly/2bSjP7r to find out more and to enroll.

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enroll in premier Office Depot pricing.

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Visit http://www.lenovo.com/hsba.

HSBA members also receive: • Direct access to Lenovo’s skilled and trained sales specialists who can assist customers with placing orders, questions, needs assessment, and any other inquiries.

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HSBA members receive a 23% lifetime discount on their annual RightSignature subscription. Start your free trial or sign up for the subscription at https:// rightsignature. com/p/hsba.

CLE Corner

COURT BRIEFS

I am a newly admitted member of the Bar electing active status, what is my mandatory continuing legal education (“CLE”) requirement for 2016?

(Continued from page 14)

Each person who elects active status in the year in which he or she is licensed to practice shall not be required to comply with the required three CLE hours mandated by the Rules of the Supreme Court of the State of Hawaii (RSCH) Rule 22(a) for that year. However, pursuant to RSCH Rule 1.14, this waiver does not modify the requirement that each person must complete the Hawaii Professionalism Course mandated by the Hawaii Supreme Court no later than December 31 of the following year of election of active status.

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

18 October 2016

HAWAII BAR JOURNAL

cantly improve access to the courts – especially for self-represented litigants and those with limited English proficiency,” said Bowling. “Hawaii certainly includes information in more languages than the majority of U.S. courts and the website is easy to navigate. While some sites have lots of ‘bells and whistles,’ Hawaii’s website is clear, concise, and information is easy to find.”

In addition to the significant range of court process information, the community outreach information contained in the Hawaii State Judiciary’s YouTube Channel impressed the judges.

The Judiciary remains committed to providing meaningful access to court processes and services to all persons, including those with limited English proficiency, those with disabilities, and selfrepresented litigants.

Pro Bono Celebration 2016 Save the Date: Thursday, October 27, 2016, 4:00 p.m.

The Hawaii Access to Justice Commission (“Commission”) is sponsoring the 2016 Pro Bono Celebration on Thursday, October 27, 2016 at 4:00 p.m. The event will take place at the Hawaii Supreme Court Courtroom at Ali`iolani Hale.

Outstanding pro bono attorneys will be recognized by legal services providers and law firms and individual attorneys who have staffed and will be staffing the Access to Justice Rooms at the Kapolei Family Court and at the Honolulu District Court will be acknowledged. The final essay award recipients of the essay contest sponsored by the Commission for high school students in grades 10 to 12 will also be honored.

CA S E N OT E S Supreme Court Criminal

State v. Godines, SCWC-No. 140000384, August 5, 2016 (Recktenwald, C.J.). In her application, Petitioner presented three questions: (1) Whether the [ICA] gravely erred when it misinterpreted Hawaii Revised Statutes § 431:10C-117(a)(6), then misapplied it to the ruling in this matter in its Summary Disposition Order of December 21, 2015; (2) Whether the [ICA] gravely erred under Haw. Rev. Stat. § 602-59 when it denied Petitioner the required waiver to facilitate the procurement of vital written transcripts based upon the finding that the violation of offense “constitutes a traffic infraction” as defined by Haw. Rev. Stat. § 291D and supporting case law, then turned and ruled in favor of Respondent based upon the complete opposite finding that the violation or offense “not be deemed . . . a traffic infraction as defined by chapter 291D”; and (3) Whether the ICA gravely erred when it failed to surmise that the lower court should have disposed of this case on May 14, 2013 had it complied with Haw. Rev. Stat. § 805-13, the proper procedure for violations under Haw. Rev. Stat. § 431:10C104, and that other contributing factors, including the requirement of actual operation of a motor vehicle prior to being cited for said moving violation, would deem Haw. Rev. Stat. § 291D the proper application in this matter. In short, Petitioner argued that the ICA (1) incorrectly concluded that Haw. Rev. Stat. Ch. 291D did not apply to her case and (2) improperly denied her requests to waive transcript costs. The Hawaii Supreme Court concluded that the ICA correctly determined that Haw. Rev. Stat. Ch. 291D did not apply to Petitioner’s case, since Haw. Rev. Stat. § 431:10C-117 clearly states that first time

Appeal Pointers

A motion to consolidate a newly docketed appeal with an appeal for which briefing is almost complete will normally be denied without prejudice to seeking consolidation after the completion of briefing in the newly docketed appeal. violations of Haw. Rev. Stat. § 431:10C–104 “shall not be deemed to be a traffic infraction as defined by chapter 291D.” Haw. Rev. Stat. § 431:10C-117(a)(6). However, the ICA did err in denying Petitioner’s request for transcript costs on the basis that she was not a “criminal defendant” under Haw. Rev. Stat. § 802-7. Although the punishment of a first time violation of Haw. Rev. Stat. § 431:10C-104 does not include imprisonment, Haw. Rev. Stat. § 431:10C-104 cases are adjudicated pursuant to criminal procedure in a criminal proceeding. Further, the legislature sought to impose harsher penalties for Haw. Rev. Stat. § 431:10C-104, as evidenced by the fact that multiple convictions under Haw. Rev. Stat. § 431:10C104 authorize imprisonment. Haw. Rev. Stat. § 431:10C-117(a)(5).

Thus, Petitioner should be considered a “criminal defendant” for the purposes of Haw. Rev. Stat. § 802-7.

State v. Paris, No. SCWC-140000427, August 8, 2016, (McKenna, J.; Recktenwald, C.J., concurring and dissenting with whom Nakayama, J. joins).

At issue in this appeal is whether Petitioner (“Paris”), a furloughee on extended furlough in the community, who failed to check in with his case manager at Laumaka Work Furlough Center (“LWFC”), could be convicted of escape in the second degree, in violation of Haw. Rev. Stat. § 710-1021. The Hawaii Supreme Court held that, under the facts of this particular case, failure to

check in while on extended furlough was not punishable as escape in the second degree. Haw. Rev. Stat. § 710-1021 states, “A person commits the offense of escape in the second degree if the person intentionally escapes from a correctional or detention facility or from custody. Escape in the second degree is a class C felony.” The State proceeded on a theory that Paris escaped from “custody” (i.e., not from a correctional or detention facility). Haw. Rev. Stat. § 710-1000 (2014) defines “custody” as “restraint by a public servant pursuant to arrest, detention, or order of a court.”

On certiorari, Paris contended that the ICA gravely erred in affirming his conviction and rejecting his arguments that (1) the charge was deficient for failing to define “custody”; (2) insufficient evidence supported his conviction; and (3) the Circuit Court erroneously instructed the jury on “custody.” Central to this appeal was what constituted “custody” for the purpose of the offense of escape in the second degree. The Hawaii Supreme Court agreed with Paris that the meaning of “custody” shifted throughout the proceedings below. First, the circuit court defined “custody” with reference to state case law; next, the circuit court nevertheless concluded that the term “custody” was a term susceptible to common understanding; lastly, the circuit court stated “custody” meant “confinement.” The Hawaii Supreme Court clarified that, for purposes of escape in the second degree, “custody” meant “restraint by a public servant pursuant to arrest, detention, or order of a court.” Haw. Rev. Stat. § 710-1000.

“Custody,” thus defined, is not “an unmistakable term readily comprehensible to a person of common understanding”; therefore, the statutory definition of “custody” should have been included in the charging instrument. Further, the State was required to prove, beyond a October 2016

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19

reasonable doubt, that Paris intentionally escaped from custody, as defined in Haw. Rev. Stat. § 710-1000, not just that he violated the terms of his furlough agreement and extended furlough agreement by failing to check in with his LWFC case manager. Lastly, although the circuit court properly instructed the jury on the statutory definition of custody, it also submitted another jury instruction on custody that was inconsistent with the statutory definition, erroneous, and misleading.

Recktenwald, C.J., joined by Nakayama, J. concurred and dissented.

Recktenwald, C.J. concurred with the Majority’s holding that the jury instruction was erroneous and misleading insofar as it stated Paris “may be deemed to be in custody” when released on furlough. Recktenwald, C.J. would hold that Paris was entitled to a new trial on this basis. Recktenwald, C.J. dissented from the Majority’s conclusion regarding the sufficiency of the evidence. Based on the testimony presented at Paris’ trial, there was sufficient evidence to support his conviction of escape in the second degree under Haw. Rev. Stat. § 7101021.

State v. Krstoth, No. SCWC-140001143, August 9, 2016, (McKenna, J.).

Petitioner entered a plea of guilty to one count of Murder in the Second Degree, in violation of Haw. Rev. Stat. § 707701.5. Before sentencing, Petitioner requested that the court allow him to withdraw his plea and go to trial, then filed a motion requesting the same, asserting that his plea was not entered knowingly, intelligently, or voluntarily, and that he felt pressured by his public defender and interpreter to plead guilty.

The circuit court denied the motion and sentenced him to life imprisonment with the possibility of parole. Petitioner raised the following question on certio-

20 October 2016

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rari: “Whether the ICA gravely erred in holding that the Circuit Court did not abuse its discretion in denying Krstoth’s Motion to Withdraw Plea?” “[A] more liberal approach is to be taken” when a defendant moves to withdraw his or her plea prior to sentencing such that “the motion should be granted if the defendant has presented a fair and just reason for his request and the State has not relied upon the guilty plea to its substantial prejudice.” State v. Jim, 58 Haw. 574, 576, 574 P.2d 521, 523 (1978).

Moreover, “[a] ‘language barrier’ between the defendant and the court is a ‘salient fact’ that puts the trial court on notice that a defendant’s waiver may be ‘less than knowing and intelligent.’” State v. Phua, 135 Hawai‘i 504, 513, 353 P.3d 1046, 1055 (2015) (quoting State v. GomezLobato, 130 Hawai‘i 465, 471, 312 P.3d 897, 903 (2013)). In this case, the circuit court’s colloquy did not establish that Petitioner voluntarily, intelligently, and knowingly entered his plea with an understanding of the nature of the charge against him and the consequences of his plea.

Intermediate Court of Appeals Labor

In the Matter of Kuamoo, No. CAAP13-0001579, August 18, 2016, (Foley, J.; Nakamura, C.J., concurring).

On appeal, Appellants argued that the circuit court erred by: (1) affirming the findings of fact (FOF) of Appellee State of Hawaii Merit Appeals Board; (2) holding that Appellee’s conclusions of law were supported by the FOFs and were not made in violation of constitutional or statutory provisions or made upon unlawful procedure; and (3) upholding Appellee’s determination that the recruitment and examination process of the Department of Public

Safety (DPS) was fair and impartial.

The ICA concluded that: (1) Appellants’ opening brief failed to provide an argument to support their blanket assertion and did not demonstrate how the Board clearly erred in its factual findings; (2) PSD was not required to disclose its suspension policy to the Union under applicable law, its suspension policy did not violate the merit principle; and its suspension policy was not a rule subject to rule-making requirements; and (3) PSD considered Appellants unsuitable for two reasons, not one.

Nakamura, C.J., concurred separately to explain his analysis. Nakamura, C.J.’s decision largely turned on the limited authority of the Board to evaluate challenges to the examination process filed by applicants who are not selected for civil service positions and the standard of review applied by courts in evaluating agency decisions, which accords a presumption of validity to such decisions.

Land

Robert D. Ferris Trust v. Planning Comm’n of the County of Kauai, No. CAAP15-0000581, August 9, 2016, (Foley, J.).

On appeal, the Ferris Trust contended the circuit court erred in upholding the interpretation of the Kauai Planning Department (Planning Department) of the Kauai County Comprehensive Zoning Ordinance as requiring an applicant for a nonconforming use certificate to have authorization from at least a seventy-five percent interest of the equitable and legal title of the lot. The ICA agreed with the Ferris Trust based on its interpretation of the Kauai County Ordinance as permitting the “owner, operator, or proprietor of any single family transient vacation rental” who had been operating before March 7, 2008, to apply for a nonconforming use certificate.

Demystifying “Contractors” (Continued from page 13)

necessary. Although the Department of Taxation’s (“DOT”) current administrative rules state that a specialty contractor must be licensed by the Department of Commerce and Consumer Affairs (“DCCA”) in order to qualify (unless the work is exclusively on federal property),7 the DOT has since repudiated that position, stating that it is sufficient if the contractor is “as defined in section 237-6.”8 Thus, in the garage door installer example, even if the installer had no DCCA license, the subcontract deduction is still proper because the installer is improving real estate.9 However, there seems to be confusion about this principle, even among auditors employed by the DOT. In contrast, a license under the GET is always necessary. Both the contractor and subcontractor need a GET license for the deduction to be honored.10 The contractor is required to list the subcontractor’s GET number on Form G-45/ G-49, and Schedule GE when claiming the deduction.11 Taxpayers who do not work on a particular construction job but merely sell building materials and supplies do not qualify as subcontractors either. In this case, the purchaser is not allowed a subcontract deduction but the supplier is entitled to the 0.5% wholesale rate. Tax Facts 99-3, supra note 5, Q&A 11-12. In such a case, the contractor should give the supplier a resale certificate such as Form G-17, G-18, or G-19 to document that the purchased items were resold.

TIR 94-6. If, however, a supplier or materials house not only furnishes materials and supplies but also installs them, the work qualifies as subcontracting. In that case, the supplier should not claim the wholesale rate because its customer can take the subcontract deduction. Tax Facts 99-3, supra note 5, Q&A 11.

Taxpayers who only provide services, as opposed to furnishing materials and services, also might not qualify as contracting but may be eligible for the wholesale rate. Services, including transportation services but not including contracting work, that are rendered upon the order or request of a contractor are October 2016

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21

eligible for the 0.5% wholesale rate. See Haw. Rev. Stat. § 237-4(a)(10)(A)(iii) (Sess. Laws 2015). Services may sometimes be provided on a job site yet not be “contracting” – for example security guard services or interior decoration.

Note also that services that constitute “overhead” are not eligible for the reduced rate.12 Overhead is also specifically defined in the GET, and can be considered services that are not specific to a construction project.13 To document the wholesale sale of services in this context, the contractor should give the supplier a resale certificate such as Form G82 to document that the purchased items were resold. Haw. Rev. Stat. § 23713(6)(B).

Much confusion arises in “government contracting.” Although a business that enters into a contract with the federal government is commonly called a contractor, if the business does not improve real estate, it is not considered a contractor or subcontractor for GET purposes, and should not be reporting its income as contracting on its GET returns. The DOT may have added to the confusion by adding to its Tax Facts on contracting a discussion on the “scientific contracts” exemption.14 However, scientific work qualifying for this exemption rarely qualifies as “contracting” because it does not result in improvement of real estate, and work qualifying as contracting rarely fits the definition of scientific work, although it is possible.15 “Federal cost-plus contracting” is a subset of contracting16 that is allowed even more generous tax treatment than regular contracting because the GET law allows a deduction for “reimbursement of costs incurred for materials, plant, or equipment,”17 which would include costs of vendors who are not contractors. However, a contractor seeking to deduct vendor costs needs to have a statement from each vendor saying that the vendor elects to report its sales to the contractor for the particular project at the 4% retail rate.18 This is to prevent the State from getting “whipsawed.”

Finally, contractors sometimes procure goods, services, or contracting that 22 October 2016

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is incorporated into the construction project from a vendor not subject to tax in Hawaii. The Use Tax is designed so that if GET would have been imposed on a local seller but the buyer decides to buy from an out-of-state source, the purchaser is taxed to the same extent, thereby leveling the playing field between local and remote sellers.19 Thus, if a contractor procures goods that are to be incorporated into a project, the Use Tax (reported on the GET returns) would be 0.5%. Haw. Rev. Stat. § 238-2(2)(C) (2015 Supp.). The same would be true for services other than contracting,20 except that services classified as overhead would be taxed at 4%.21 If the contractor procures contracting for incorporation into the project, which may happen if design professionals such as architects or engineers are brought in, there is no Use Tax,22 but no subcontract deduction can be taken because the remote subcontractor has no GET license.23 The exclusion from Use Tax is reported by checking the “Other” box in section II of Schedule GE, entering the description as “Contracting,” and citing Haw. Rev. Stat. § 238-2.3(1)(C).24 The construction industry is the fourth largest private industry in Hawaii, as measured by percentage of state GDP, with an estimated $7.7 billion of projects in 2013 alone.25 Taxpayers contributing to the local economy in this industry should understand the complex rules that apply; it is hoped that this article is a step in that direction. ________________

4 Haw. Rev. Stat. § 237-6 (2001) states that a “contractor” includes every “person engaging in the business of contracting to erect, construct, repair, or improve buildings or structures, of any kind or description, including any portion thereof, or to make any installation therein, or to make, construct, repair, or improve any highway, road, street, sidewalk, ditch, excavation, fill, bridge, shaft, well, culvert, sewer, water system, drainage system, dredging or harbor improvement project, electric or steam rail, lighting or power system, transmission line, tower, dock, wharf, or other improvements.”

1 Legislative Reference Bureau, LRB Notes 2002-7, available at http://lrbhawaii.org/lrbnotes02/0207notes.pdf.

12 Tax Facts 99-3, supra note 5, Q&A 14-16.

See Haw. Rev. Stat. § 237-4(a)(10).

2 Haw. Rev. Stat. § 237-13(3)(B) (Sess. Laws 2015).

3 On Oahu, there is a 0.5% surcharge. Haw. Rev. Stat. § 237-8.6 (Sess. Laws 2015). The surcharge is imposed on any transaction on which a 4% General Excise Tax or Use Tax is imposed. In the contracting context, the surcharge would be imposed on gross income attributable to real property on Oahu. Haw. Admin. Rules §18-237-8.6-07. This article omits any further mention of the surcharge.

5 Department of Taxation, Tax Facts 99-3, Q&A 2-3 (rev. 2007). A revised version of Tax Facts 99-3 is expected to be released later this year.

6 Department of Taxation, Tax Information Release (“TIR”) 2009-02, at 5; Tax Facts 99-3, supra note 5, Q&A 5.

7 Hawaii Administrative Rules Rule § 18-23713-03(c), Example 12. This rule was last amended in 1990 and does not reflect statutory changes since then such as Act 169, Sess. Laws of Hawaii 1998.

8 Department of Taxation, Announcement 9925. Footnote 3 explicitly states that the Department would amend the rules, but that has not happened to date.

9 Id. at 2 (Example). DCCA might have a problem with such a business if it did not have a contractor’s license, but such an issue would not impact the tax treatment.

10 Id.; Haw. Rev. Stat. § 237-13(3)(B).

11 This information is reported in Section VII of Schedule GE (Form G-45/G-49).

13 Haw. Rev. Stat. § 237-1 (2001) states, “‘Overhead’ means continuous or general costs occurring in the normal course of a business, including but not limited to costs for labor, rent, taxes, royalties, interest, discounts paid, insurance, lighting, heating, cooling, accounting, legal fees, equipment and facilities, telephone systems, depreciation, and amortization.”

14 Tax Facts 99-3, supra note 5, Q&A 18. The scientific work exemption is in Haw. Rev. Stat. § 237-26 (2001).

15 See TIR 35-71, Examples 5 and 6 (1971). A

notable exception is improvement of a scientific facility, which can qualify for the exemption.

See id. Example 2.

16 A federal cost-plus contractor is defined in the same statute that defines “contractor,” quoted supra note 4, as “a contractor having a contract with the United States or an instrumentality thereof, excluding national banks, where, by the terms of the contract, the United States or such instrumentality, excluding national banks, agrees to reimburse the contractor for the cost of material, plant, or equipment used in the performance of the contract and for taxes which the contractor may be required to pay with respect to such material, plant, or equipment, whether the contractor’s profit is computed in the form of a fixed fee or on a percentage basis; and also means a subcontractor under such a contract, who also operates on a costplus basis.”

17 Haw. Rev. Stat. § 237-13(3)(C)(i) (Sess. Laws 2015).

18 Tax Facts 99-3, supra note 5, Q&A 27.

19 Stewarts’ Pharmacies, Ltd. v. Fase, 43 Haw. 131 (1959); Henneford v. Silas Mason Co., 300 U.S. 577, 57 S.Ct. 524, 81 L.Ed. 814 (1937).

20 Haw. Rev. Stat. § 238-2.3(2)(C) (2015 Supp.).

21 Haw. Rev. Stat. § 238-2.3(3) (2015 Supp.).

All of the lower rate classifications in Haw. Rev. Stat. § 238-2.3(1) and (2) expressly exclude overhead.

Job Opening: Civil Rights Attorney Hawaii Disability Rights Center 1132 Bishop Street, Suite 2102 Honolulu, HI 9681 Hawaii Disability Rights Center (HDRC) seeks to hire an attorney in its Honolulu office to advocate for people with intellectual, sensory, mental health, and physical disabilities in Hawaii.

HDRC is looking for one attorney with 7-10 years of experience.

The ideal candidate has personal and professional experience working on behalf of marginalized communities generally or for people with disabilities specifically. This could, for example, be through civil rights advocacy, the criminal justice system, or public and private benefits work. A law degree from an accredited school of law and current good standing with the Hawaii State Bar Association at the time of assuming the position are required. The attorney must be an organized, self-motivated professional, able to litigate, who works collaboratively with other HDRC staff.

About HDRC: HDRC is a private nonprofit organization that advocates for the rights of people with disabilities across Hawaii.

HDRC is designated by the governor as the independent federally-mandated protection and advocacy system for Hawaii. HDRC promotes, expands, and protects the human and civil rights of people with disabilities.

To Apply: Please send a cover letter, resume, writing sample, and three reference contacts to the attention of Ann E. Collins at Hawaii Disability Rights Center, 1132 Bishop Street, Suite 2102, Honolulu, HI 96813 or email ann@hawaiidisabilityrights.org. The first deadline for submissions is September 15, 2016. We would like to fill this position as soon as possible. Submissions will be accepted until the position is filled.

• Position Title: Attorney • Company Name: Hawaii Disability Rights Center • Location: Honolulu • Posted: August 29, 2016 • Job Function: See description • Entry Level: No • Education and Experience required: A Juris Doctor degree from an accredited school of law and a member in good standing of the Hawaii State Bar Association at the time of assuming the position.

• Job Type: Full-time For a job description, please visit our website @ www.HawaiiDisabilityRights.org

disputes

Resolving

equitably

22 Haw. Rev. Stat. § 238-2.3(1)(C); Tax Facts 99-3, supra note 5, Q&A 28.

Experienced in mediating and deciding complex family law, wills, trusts and probate cases including family business disputes.

Also experienced in commercial, corporate, personal injury, HR and business mediations and arbitrations.

23 See supra note 10 and accompanying text.

24 “Contracting” is the title of the paragraph in the instructions describing this fact pattern.

Department of Taxation, General Instructions for Filing the General Excise/Use Tax Returns at 22 (2015).

25 DBEDT Research and Economic Analysis Division, “Construction and Hawaii’s Economy” 2 (Feb. 20, 2014), available at http://files.hawaii.gov/dbedt/economic/data_ reports/construction_industry.pdf.

Thomas Yamachika is President of the Tax Foundation of Hawaii. The author wishes to thank Ron Heller, Ray Kamikawa, and Ted Shiraishi for their comments on a draft of this paper.

Michael A. Town Circuit Court Judge (Retired) Trial judge from 1979 to 2010 in Family and Circuit Court. Graduate of Stanford University (A.B), Hastings Law (J.D.) and Yale School of Law (LL.M).

523-1234 • 285-2408 Dispute Prevention and Resolution “Let justice be done though heavens may fall”

1003 Bishop St., Suite 1155 • Honolulu, HI 96813

October 2016

HAWAII BAR JOURNAL

23

IRS Email Schemes

The Hawaii Bone Marrow Donor Registry partners with the National Marrow Donor Program® to help patients in Hawaii and all over the world find healthy and willing bone marrow or blood stem cell donors.

Only 30 percent of patients will find a familial donor match; therefore, others need to find unrelated matches. Bone marrow matches are more easily found between people of the same ethnic background.

You can help save a life! Hawaii Bone Marrow Donor Registry is seeking potential donors between the ages of 18-44 and in good general health. It only takes 5-10 minutes to fill out a form and do a couple cheek swabs.

You can register online for free and have a swab kit delivered to you: https://join.bethematch.org/ALOHA Follow the Hawaii Bone Marrow Donor Registry on Social Media!

Facebook: https://www.facebook.com/hawaiibonemarrowdonorregistry Instagram: @hbmdr808

To learn more about the Hawaii Bone Marrow Donor Registry, visit:

www.bonemarrowhawaii.com 24 October 2016

HAWAII BAR JOURNAL

The Internal Revenue Service renewed a consumer alert for email schemes after seeing an approximate 400% surge in phishing and malware incidents so far this tax season. The emails are designed to trick taxpayers into thinking these are official communications from the IRS or others in the tax industry, including tax software companies. The phishing schemes can ask taxpayers about a wide range of topics.

Emails can seek information related to refunds and filing status, and may attempt to confirm personal information, verify PIN information, or order transcripts.

Variations of these scams can be seen via text messages, and the communications are being reported in every section of the country.

“This dramatic jump in these scams comes at the busiest time of tax season,” said IRS Commissioner John Koskinen.

“Watch out for fraudsters slipping these official-looking emails into inboxes, trying to confuse people at the very time they work on their taxes. We urge people not to click on these emails.”

This tax season, the IRS has observed fraudsters more frequently asking for personal tax information, which could be used to help file false tax returns.

When people click on these email links, they are taken to sites designed to imitate an official-looking website, such as IRS.gov. The sites ask for Social Security numbers and other personal information. The sites also may carry malware, which can infect people’s computers and allow criminals to access files or track keystrokes to gain personal information.

The IRS has seen an increase in reported phishing and malware schemes.

For example:

• There were 1,026 incidents reported in January 2016, up from 254 from a year earlier.

• The trend continued in February 2016, nearly doubling the reported number of incidents compared to a year ago. In all, 363 incidents were reported from February 1 through February 16, compared to the 201 incidents reported for the entire month of February 2015.

• This year’s 1,389 incidents have already topped the 2014 yearly total of 1,361, and they are halfway to matching the 2015 total of 2,748.

(Numbers provided are for phishing and malware incidents combined.)

As the email scams increase, the IRS is working on this issue through the Security Summit initiative with state revenue departments and the tax industry.

Many software companies, tax professionals, and state revenue departments have seen variations in the schemes.

For example, tax professionals are also reporting phishing scams that are seeking their online credentials to IRS services, such as the IRS Tax Professional PTIN System. Tax professionals are also reporting that many of their clients are seeing the email schemes.

As part of the effort to protect taxpayers, the IRS has teamed up with state revenue departments and the tax industry to make sure taxpayers understand the dangers to their personal and financial data.

If a taxpayer receives an unsolicited email that appears to be from either the IRS e-services portal or an organization closely linked to the IRS, report it by sending it to phishing@irs.gov.

It is important to keep in mind the IRS generally does not initiate contact with taxpayers by email to request personal or financial information. This includes any type of electronic commu-

nication, such as text messages and social media channels. The IRS has information online that can help protect taxpayers from email scams.

What to look for in these scams Taxpayers receive an official-looking email from what appears to be an official source, whether from the IRS or from someone in the tax industry.

The underlying messages frequently ask taxpayers to update important information by clicking on a web link. The links may be masked to appear to go to official pages, but they can go to a scam page designed to look like the official page. The IRS urges people not to click on these links but instead send the email to phishing@irs.gov.

Recent email examples the IRS has seen include subject lines and underlying text referencing: • Numerous variations about people’s tax refund.

Mediator, Arbitrator, and Special Master Services, Employment Investigations

Jerry M. Hiatt • Creative and highly focused mediations in all areas with diligent followup when needed. Successful in mediations for clients of most of Hawaii’s major law firms • 39 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 and Employment Law-Individuals, 2017.

• Hiatt & Hiatt has also performed detailed neutral employment investigations and fact finding for some of Hawaii’s largest companies.

For ADR work, please contact

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

• Updating the taxpayer’s filing details, which can include W-2 references.

• Confirming the taxpayer’s personal information.

• Getting an IP PIN. • Geting an E-file PIN. • Ordering a transcript.

• Completing the taxpayer’s tax return information.

October 2016

HAWAII BAR JOURNAL

25

New Civil Pro Bono Panel Rules for Federal Court

by Hon. Leslie E. Kobayashi Recently, the Washington Post published an article about an 80-year old woman who, for more than a dozen years and despite being homeless, kept her paperwork in the hope of proving that the government owed her more than $100,000 in social security benefits.

She was eventually helped by an attorney and recovered $99,999 in benefits.

While heartwarming, this result is, unfortunately, not typical in pro se litigant cases. What has been referred to as “‘the flood of unrepresented litigants’ in courts nationwide” is an access to justice crisis.

Lois Bloom, Federal Courts, Magistrate Judges, and the Pro Se Plaintiff, 16 NOTRE DAME, 478, n.12 (2002) (citation omitted). Access to justice includes providing counsel to a litigant who cannot afford legal representation as well as providing a court structure which provides assistance to those who lack the legal knowledge to present or defend their cases effectively.

The District of Hawaii has an average of 90 new pro se litigant civil cases filed every year. In addition, there are currently 158 filed prisoner pro se cases (that is, incarcerated persons claiming constitutional violations). The goal to improve access to justice led to the recently approved District of Hawaii Rules for Civil Pro Bono Panel. These rules can be found on the court’s website.

An exciting component of these rules is that attorneys as well as law firms can apply to serve on the panel and accept appointment for limited purpose representation. This means representing the pro se litigant only for a specific aspect of his or her case, such as in a settlement conference or to file an opposition to a motion, and for oral argument at the hearing.

When an attorney or law firm

accepts an appointment, the federal judges have agreed to hold a court proceeding in the case. It is the ultimate win-win: for law firms who want more court exposure for their associates or for lawyers who want the experience.

Serving as a panel member will bring invaluable court work, and for pro se litigants, having a lawyer appointed to assist in a specific assignment will bring legal expertise and knowledge. In addition, the court has made funds available to pay for pro bono counsel’s anticipated litigation costs (such as deposition and filing costs).

The District of Hawaii’s new Pro Bono Counsel Panel would never have seen the light of day without the encouragement and support of Chief Judge J. Michael Seabright, and the excellent work by our Pro Bono Counsel Committee members - R. Brian Black, Sharon Lovejoy, Charles Crumpton, and Wayne Parsons. The district and myself, as committee chair, are most grateful to all of them.

So, get your application in today to be a panel attorney. Applying is simple and easy to do - just fill out and send in the form letter provided in the rules (which are located at www.hid.uscourts.gov under the “Orders” tab). ________________ The Honorable Leslie E. Kobayashi was nominated by President Barack Obama on April 21, 2010 and confirmed by the United States Senate as a United States District Judge in the District of Hawaii on December 22, 2010.

Thank you to "Al" Konishi for donating his time, expertise, and good humor to the Hilo Self Help Center many times during the last few months. His presence has helped keep the SHC open on a couple of days when we had no other volunteer attorneys. Al brings over 34 years of experience working in real estate to the SHC and his favorite part of volunteering is "meeting people and talking to them."

He credits his commitment to volunteer service to his parents Itsuo and Takeyo Konishi and former partner, Daniel H. Case. Mahalo nui loa Al! Contact Sergio Alcubilla Director of External Relations (808) 527-8063 · sealcub@lashaw.org www.legalaidhawaii.org October 2016

HAWAII BAR JOURNAL

27

Hawaii Federal Trial Academy The Hawaii Chapter of the Federal Bar Association, in partnership with the United States District Court for the District of Hawaii, proudly announces the launch of the first Hawaii Federal Trial Academy on January 11-13, 2017.

This comprehensive, three-day program to be held at the federal courthouse, is designed to help newer attorneys develop trial skills and experience in federal court. The program will begin on Wednesday morning with an introduction and presentation by Chief Judge J. Michael Seabright. On Wednesday and Thursday mornings, the program will feature a series of lectures, panel discussions, and live presentations by the federal judiciary and some of the most experienced and dynamic trial lawyers in the district.

On Wednesday and Thursday afternoons, the participants will be assigned to trial teams and will prepare for trial with the help and guidance of an experienced practitioner. On Friday, the program will culminate in a

half-day mock trial in federal court before a federal judge. Following the mock trial, the participants will be invited to join the judges for lunch.

For the inaugural year, the Hawaii Federal Trial Academy will be open to twelve participants. This program is designed for newer attorneys who practice in federal court and wish to develop their trial advocacy skills. The program is offered to attorneys in all types of practice, including public and private sector, civil and criminal law, and any firm or practice size. The program will be offered at no cost; however membership in the Hawaii Chapter of the Federal Bar Association will be required at the time of entering the program (special rates available for program participants).

Reimbursement for travel expenses and lodging will be available to participants from the neighbor islands.

Graduates of the Hawaii Federal Trial Academy will be given preference for appointment to represent a pro se plaintiff or defendant in the upcoming District of Hawaii Pro Bono Program.

Through the new Pro Bono Program, attorneys will have increased opportunities to take on pro bono cases in federal court, with the option for limited representation.

Online applications are scheduled to become available on October 15, 2016, and will be due November 15, 2016. More information is available by visiting the District Court’s website. If you have any questions about the program, please feel free to contact the program chair, Michael Albanese (michael.albanese@usdoj.gov; 808-4409253).

The Hawaii Chapter of the Federal Bar Association is committed to serving the needs of federal practitioners throughout the State of Hawaii, offering opportunities to learn, to foster collegiality, and to network. For more information on the Hawaii Chapter of the Federal Bar Association, or to find out how to join, please visit www.fedbar.org/hawaii.

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HAWAII BAR JOURNAL

KAHALA MALL, UPPER LEVEL, 4211 WAIALAE AVE. BOX 9050, HONOLULU, HI 96816 ©

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is pleased to announce

Nicole Kalakau and Sharon Paris have joined the firm as associate attorneys.

Nicole Kalakau joins the firm after five

Sharon Paris is a 2015 cum laude

years as a Deputy Prosecutor for the City and County of Honolulu where she was Captain of the Domestic Violence Felony Division. Nicole has tried over 15 jury trials to verdict. She received her Juris Doctorate degree from Gonzaga University School of Law and was a judicial extern for United States District Court Judge Leslie E. Kobayashi.

graduate of the William S. Richardson School of Law, University of Hawai‘i. Sharon served as a judicial extern to Hawai‘i Supreme Court Chief Justice Mark E. Recktenwald and law clerk to Hawai‘i Intermediate Court of Appeals Associate Judge Alexa D.M. Fujise.

Leavitt, Yamane & Soldner 737 Bishop Street, Suite 1740, Honolulu, HI 96813 • (808) 521-7474 • http://www.lyslaw.com/

OFF THE RECORD Robert LeClair has completed four years of service as a member of the Board of Directors of the National Association of IOLTA Programs (“NAIP”). He has just been elected Secretary of NAIP, which makes him one of five members of the NAIP Executive Committee. From 2003 to the present, LeClair has served as Executive Director of the Hawaii Justice Foundation, which administers the IOLTA program along with other civil access to justice funding sources.

Erin M. Kobayashi is an associate at Kleintop & Luria, LLP. She received her law degree from the William S. Richardson School of Law where she was a Hoenig Scholar and a member of the school’s winning Client Counseling Team.

Joseph Dane joined the Clay Chapman Iwamura Pulice & Nervell law firm as an associate.

Stacy Y. Ma is an associate at Goodsill Anderson Quinn & Stifel and concentrates her practice in the areas of personal injury, premises liability, commercial litigation and medical malpractice defense. Prior to joining Goodsill, she was an associate at an Am Law 100 firm in New York and currently holds licenses in both Hawaii and New York.

She is a graduate of Boston University and received her law degree from The George Washington University Law School.

Melinda Weaver has joined Bronster Fujichaku Robbins as an associate. She is a graduate of Brooklyn Law School in New York City. Weaver practiced in Nevada before joining the firm.

Alicia Mears, HSBA YLD delegate, and Judge Margaret Masunaga, ABA Hawaii State Delegate, carried the Hawaii flag in the parade of states and territories at the ABA General Assembly in San Francisco.

Daniel Gluck was named executive director and general counsel of the Hawaii State Ethics Commission. He 30 October 2016

HAWAII BAR JOURNAL

was formerly Legal Director for the American Civil Liberties Union of Hawaii. He received his law degree from Harvard Law School.

The National Association of Attorneys General awarded Supervising Deputy Attorney General Hugh Jones its Senior Staff of the Year Award, which award was shared with another deputy attorney general in Georgia.

The award is presented to a member of an attorney general’s management staff who has distinguished himself nationwide by showing exemplary expertise and achievement. Jones oversees the Tax and Charities Division of the Department of the Attorney General.

He drafted at least five pieces of legislation to improve the state’s regulation of charitable organizations and their professional fundraisers. Under his tenure, the Department’s regulation of charities and their fundraisers has become paperless, and all registration and financial reporting data is publicly accessible on the Internet.

The Conference of Western Attorneys General (“CWAG”) awarded Charleen Aina the Jim Jones Public Service Award, which annually recognizes a lawyer on the staff of a CWAG Attorney General. The award honors the leadership and contributions of former Idaho Attorney General Jim Jones.

The recipient must demonstrate a commitment to public service, an ability to advance multi-state and CWAG goals, a sustained commitment of time, talent, and energy to achieve identifiable results of significance to CWAG, and achievement of significant results on issues affecting member states. Aina joined the Department of the Attorney General in 1976. Over her distinguished career, she has advised the Department’s clients and represented the State of Hawaii in as many diverse areas as the Department practices.

The CWAG has chosen Hawaii Attorney General Doug Chin to be its new Chair for 2016-2017. He is the first Attorney General from Hawaii to serve

as the chair of this conference. As Chair, Chin will also be on the Executive Committee of the National Association of Attorneys General, representing Western states. Attorney General Chin will host CWAG members from March 14-16, 2017 in Honolulu for his Chair’s Initiative Meeting and Western Pacific Attorneys General Summit. The topics of the meetings will include open government and sustainable energy solutions.

News for “Off the Record”

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

Articles Wanted

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

The longer law-review type articles are published in a special issue. The Cades Foundation has been gracious and generous in funding this special issue. These articles exceed 6,000 words. The Hawaii Bar Journal reserves the right to edit or not publish submitted material.

ATTORNEY REFERRALS REBECCA S. LESTER, is accepting referrals in the areas of criminal defense, workers' compensation, estate planning and trust litigation. Rebecca has practiced law for over 17 years.523-9900 rlesteratty@gmail.com

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