Hawaii Bar Journal - October 2021

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BAR JOURNAL A N O FFICIAL P UBLICATION

OF THE

H AWAII S TATE BAR A SSOCIATION O CTOBER 2021 $5.00

Under the Hawaii Public Procurement Code, Haw. Rev. Stat. Chapter 103D, and the Revised Charter of the City and County of Honolulu, the City Council of the City and County of Honolulu is responsible for securing legal services from licensed private attorneys to provide legal advice and representation as special counsel for the Honolulu City Council and its officers and employees. The Honolulu City Council invites attorneys licensed in Hawaii and practicing on Oahu to submit Statements of Qualifications and Expressions of Interest for evaluation. Those private attorneys who are deemed qualified will be included on a list which will be used by the Honolulu City Council to select attorneys to provide necessary legal services.

Following are the areas of law in which research and other legal services may be required by the Honolulu City Council during the period of November 1, 2021 to June 30, 2022. Attorneys may list other areas of practice, but are limited to no more than four areas.

• Appellate Practice • Bond Counsel • Charter Authority • City Charter • Civil Rights • Condemnation • Constitutional Law • Criminal Law • Election Law • Employment Law, including Employee Benefits • Environmental Law • Government Contracts and Procurement, including Bid Protests, and State and Federal Procurement • Government Ethics • Home Rule

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Hawaii licensed attorneys interested in providing legal services in one or more of these areas are invited to submit a Statement of Qualifications and Expression of Interest. Attorneys from the same law firm wishing to be considered must submit separate statements.

TO APPLY: Statement of Qualifications and Expression of Interest forms are available for download at http://www.honolulu.gov/ocs/default.html and may also be requested by telephone at 808-768-3875 or email at ocs@honolulu.gov.

ALL MATERIALS must be emailed to ocs@honolulu.gov. Please indicate "Application for Attorney Services" in the subject line. HARD COPIES, CDs, or USBs WILL NOT BE ACCEPTED. Completed forms will be accepted through December 15, 2021 and should be submitted no later than 4:30 p.m., to receive full consideration for the above-stated period. Late submittals that meet all applicable criteria will be accepted, but will only be available for consultant selections conducted after the submittals have been reviewed and the service category qualification(s) determined.

TABLE O F C ON TE NTS VO LUM E 25 , N U M B E R 10

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

ARTICLES 44

Highlights of the Rural Districts’ Family Court Judges

by Hon. Adrianne N. Heely

22 19

Fair Debt Collection Practices Act: Prepare for New Rules

by Thomas J. Berger

24 26

It is Time to End the Unconstitutional Filibuster

by James N. Duca

HSBA OFFICERS President Levi Hookano President-Elect Shannon Sheldon Vice President Rhonda Griswold Secretary Russ Awakuni Treasurer Alika Piper YLD OFFICERS President Christopher St. Sure Vice President/President-Elect Jasmine Wong Secretary Nelisa Asato Treasurer Leo Shimizu

OF NOTE 15

HSBA Happenings

16 20 18 22 20

Case Notes

28 30

Notice of Restraint from the Practice of Law Following the Criminal Conviction of Noah D. Fiddler

30 31 31

Federal Trial Academy Court Briefs

Classifieds

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

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

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On the cover: Back Yard, oil on canvas by Yuan Y. Shaw. Shaw incorporates bright and joyful colors into her beautiful paintings, with rich and romantic flairs. For more information, email:shawy001@hawaii.rr.com.

Notices and articles should be sent to Edward C. Kemper at edracers@aol.com, Cynthia M. Johiro at cynthia.m.johiro@hawaii.gov, or Carol K. Muranaka at carol.k.muranaka@gmail.com. All submitted articles should be of significance to and of interest or concern to members of the Hawaii legal community. The Hawaii Bar Journal reserves the right to edit or not publish submitted material. Statements or expressions of opinion appearing herein are those of the authors and not necessarily the views of the publisher, editorial staff, or officials of the Hawaii State Bar Association. Publication of advertising herein does not imply endorsement of any product, service, or opinion advertised. The HSBA and the publisher disclaim any liability arising from reliance upon information contained herein. This publication is designed to provide general information only, with regard to the subject matter covered. It is not a substitute for legal, accounting, or other professional services or advice. This publication is intended for educational and informational purposes only. Nothing contained in this publication is to be considered as the rendering of legal advice.

Judge Ste p swearing hanie Char with -in cerem her ‘ohan ony a at her

Judge isit with v m o o A courtr

The Family Court judges who were interviewed for this article are: Judges Stephane Char and Edmund Acoba, Fifth Judicial Circuit (Kaua‘i), Judges Darien Nagata and Jeffrey Ng, Third Judicial Circuit (Hawai‘i island), and Judges James R. Rouse and Adrianne N. Heely, Second Judicial Circuit (Maui, Molokai, and Lana‘i).

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Oahu but raised on the island of Kaua`i. I am a product of the public school system on Kaua`i. I was awarded my Bachelor of Business Administration from the University of Hawai`i at Manoa in 1984 and my Juris Doctor Degree from Whittier Law School in 1987.

I worked as a Deputy

by Hon. Adrianne N. Heely Prosecuting Attorney for the County of Kaua`i from October 1987 to July 1989. In July Please provide a short biography of yourself.

1989 I joined the Office of the Public Defender. From 1999 to May 2011, I was the supervisor of the Office of the PubJudge Stephanie Char: Kapa`a High School gradulic Defender on the island of Kaua`i. In May 2011, I was ate, 1992. BA from University of Denver 1996. MA from appointed as a District Family Court Judge by Chief Justice University of Denver 1999. JD from University of San Mark Recktenwald.

Diego 2002. Employed as a Deputy Public Defender, State of Hawaii from 2003-2020. Took the bench in December Judge Darien Nagata: I was appointed as a District 2020.

Family Court Judge to the Third Circuit in 2016 by Chief Justice Mark E. Recktenwald. I currently preside over civil Judge Edmund Acoba: I was born on the island of

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HAWAII BAR JOURNAL

Highlights of the Rural Districts’ Family Court

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and criminal matters in the Family Court in Hilo. I am Hawai`i’s Statewide Child and Family Services Program Improvement Plan Judge. I also serve on a number of committees: Co-Chair for the Family Court Subcommittee for the Committee on Operational Solutions Enhancing Court Access through Remote Proceedings; Permanent Committee on Family Court Rules; Hawaii State Bar Association Nominating Committee; Statewide Standing Committee on Family Court Forms; CJA; and Children in Family Courts Committee. In 2018, I was the lead Judge in the creation of the Chronic Absenteeism Prevention Program (aka Truancy Court) for the Island of Hawai`i. I also was Vice President of the Hawai`i State Trial Judges Association from 2017-2019. Prior to my appointment to the bench, I served as a Deputy Prosecuting Attorney for the County of Hawai`i Office of the Prosecuting Attorney from 1998 to 2016. My first legal job was working with my father, Darwin L.D. Ching, at his law firm. I am a proud graduate of the William S. Richardson School of Law, and was admitted to the Hawaii State Bar in 1997. I am a graduate of Santa Clara University.

Judge Jeffrey Ng: I was born in Hong Kong and my family moved to New York shortly thereafter. I graduated from the Bronx High School of Science, then attended the University of Michigan. In 1999, I moved to Hawaii to enroll at the William S. Richardson School of Law. After graduating from law school, I worked as a law clerk for the Honorable Derrick H. M. Chan and then became a deputy public defender. I was appointed District Family Court Judge in 2021.

Judge James Rouse: I was born in the Bay Area. I moved to Hawai‘i in 1987. I left for law school in 1989 and back to Hawai`i in 1992 after graduating from law school. I call Hawai’i my home now with my wife Mona and stepson Tyler Stevensen and his ‘ohana. I have two grandchildren.

Judge Adrianne Heely: I am married to Leo Kaniela Caires, and we are blessed, proud parents of four beautiful children. I grew up in Kailua, O`ahu, and graduated from Kamehameha in 1991. I obtained my Bachelors of Arts Degree in Sociology from the University of California Santa Barbara in 1994 and my Juris Doctorate from the William S. Richardson School of Law in 1998. Prior to being sworn in for the District (Traffic/Criminal/Civil/Environmental Court) Bench in 2012; I clerked for the Honorables Michael A. Town and Virginia L. Crandall, and Federal Court Magistrate Francis Yamashita; I also served the State of Hawai`i, as Deputy Public Defender; and was a Litigation Associate for Ashford & Wriston and the Law Offices of Frank K. Goto, Jr.; and served the County of Maui,

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Deputy Corporation Counsel. I currently serve on a number of committees that relate to the legal profession including the Board of Bar Examiners; Children in Family Courts Committee; Operations & Solutions Sub-Committee Family court; Bench Bar Planning Subcommittee Family court; Child Justice Act Committee; and Hawaii State Trial Judges Association-Secretary 2017-2019; Judicial Education Network; Maui County Bar Association (2006-2012); HSBA’s Government Lawyers Section (2006-2012).

What are your duties in your respective circuit?

Judge Stephanie Char: I sit as a District Family Court Judge in the Fifth Circuit. I preside over Civil TRO cases in both family and district court, divorce cases, civil union cases, adoptions, guardianships, and the district court civil calendar answer days.

Judge Edmund Acoba: Currently I preside in the Family Court in the Fifth Circuit. My docket includes the juvenile delinquency calendar, family court criminal calendar, child welfare calendar, and part of the domestic calendar (child custody, visitation, and support).

Judge Darien Nagata: I am one of two Family Court Judges located at the Hale Kaulike courthouse in Hilo. I am assigned to both civil and criminal Family Court cases.

Judge Jeffrey Ng: Currently, Judge Nagata, Judge Hiatt, and I share the Family Court responsibilities for the Third Circuit.

Judge James Rouse: I sit as a District Family Court Judge in the Second Judicial Circuit. I preside over all Family Court calendars with the exception of CPS/CWS cases and Involuntary Commitment/Hospitalization cases, because of my recent employment with the Department of the Attorney General’s Office. I reached out to the Judicial Ethics Commission who issued an informal advisory opinion to hold off on presiding for at least six months for the involuntary commitment hearings and two years for the child welfare matters to avoid any appearance of impropriety.

Judge Adrianne Heely: My duties are that of a District Family Court Judge in the Second Judicial Circuit.

Judge Keith Tanaka retired in 2017, and I had the honor of being requested by the Chief Justice, pursuant to H.R.S. §571-8 1 to be assigned to the Family Court Bench as of 2017. I preside over all of the calendars in Family Court, including: Divorce; Paternity; Child Protective Services; Juvenile; T.R.O. and Order to Show Cause Hearings; Adoptions; Guardianships; Involuntary Commitment hearings

and Family Court Juvenile and Family Court Drug Courts.

What is your proudest or most memorable accomplishment in Family Court?

disputes

Resolving

equitably

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.

Judge Stephanie Char: My proudest or most memorable accomplishment in Family Court, so far, has been my swearing in and getting through that entire process, interviews with the Judicial Selection Commission, Chief Justice, Judiciary Labor Committee meetings, HSBA interviews, and Senate confirmation hearings.

Judge Edmund Acoba: My proudest accomplishment in the Family Court has been able to collaborate with different service providers to effect change in our juvenile justice system on Kaua`i. We established a Truancy Court system where students who had attendance issues were provided with services to assist them without having the families come to court.

Also, when a petition against a minor is filed, the minor is assessed as soon as practicable and if services are recommended the minor and his or her family can choose to participate in the services in lieu of prosecution.

Judge Darien Nagata: During my first judicial education conference a judge proudly told me that she adopted a child. Something about that conversation stuck with me and made me realize how important it is to have children and families in permanent and loving homes. Having this realization and being able to work with partnering agencies to establish an annual Adoption Day for the Hilo Family Court is one of most rewarding accomplishments I have in Family Court.

I, along with our staff and partnering agencies and families, look forward to this day every year.

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”

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Judge Jeffrey Ng: As a new family court judge, I look forward to having many memorable experiences.

Judge James Rouse: Anytime I can settle a case.

Judge Adrianne Heely: Besides being sworn in and retained for a second term, my proudest or most memorable accomplishment in Family Court was being nominated and recognized as Maui Non Profit Community Directors’ Association’s Humanitarian of the Year Award in 2020. I was extremely honored and humbled for being nominated amongst the other great individuals and organizations who were nominated, all of whom have a passion for serving youth, families in the community. I wouldn’t have been nominated if it weren’t for the many agencies in the community that the Family Court collaborates with, including but not limited to: Friends of the Children’s Justice Center; Mediation Services of Maui; UH Maui College; Hui No Ke Ola Pono; Hale Ho`omalu; Maui Girls Shelter; Kanehoalani; HYCF; Child Family Services; Job Corp; Youth Challenge; Bobby Benson; Aloha House; Department of Health; Department of Education; EPIC Hawaii; HI HOPES Board; Liliuokalani Trust; Maui United Way; Imua Kakou; KALO Program, Maui Police Department; Adult Protective Services; HI State Coalition Against Domestic Violence; Dept. of Prosecuting Attorney; Dept. of Public Defenders; Women Helping Women; Parents and Children Together; Malama Family Recovery; and Molokai Alternatives to Violence.

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What is your proudest accomplishment in life?

Judge Stephanie Char: My two children, Naia and Sullivan.

Judge Edmund Acoba: My

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proudest accomplishment in life is being able to afford sending my two sons to the college of their choice. I was a single parent when my they started college. Both of my sons earned their college degrees and are successful in their respective careers.

Judge Darien Nagata: I am fortunate to have many things in life that I am proud of such as my work and career. However, my proudest accomplishment in life is my three teenage children who all keep active in sports and in student government at Kamehameha Schools Hawai`i. As proud as I am of them, they will likely be embarrassed to read this!

Judge Jeffrey Ng: Raising two children with my wife Jen.

Judge James Rouse: My family is my proudest accomplishment in life.

Judge Adrianne Heely: My proudest accomplishment in life definitely has to be being blessed with four children and guiding and parenting them my husband.

What do you love most about serving in Family Court?

Judge Stephanie Char: I really enjoy sitting on the divorce calendar.

While recognizing that emotions sometimes run very high, at its core, litigants in these cases only want what is best for them and their children, if any are involved. It is easy to see how emotions often times cloud their logical judgment, but with the help of their attorneys, or with a little encouragement from the bench, they are able to work through and past these difficulties and find common ground. Of course, not all cases will resolve in that manner, and for that reason we have our contested hearings or divorce trials. During these hearings, I especially enjoy dealing with the mechanics of property division. To me it seems that

10 October 2021

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property division is fairly formulaic.

Not easy, to say the least, but the outline is there for the courts to use their discretion and fill in the colors. I also really enjoy speaking to the children of divorcing parents pursuant to HFCR 45.1 and H.R.S. 571-46. It really amazes me how resilient these children can be when their parents are embroiled in a highly contested divorce.

Oftentimes, it appears that they are the more reasonable and logical members of the family. It also opens my eyes to see how greatly divorce affects them.

Judge Edmund Acoba: Early in my career, First Circuit Chief Judge Mark Browning informed all of the Family Court judges that one of the greatest powers that we have as a judge is the “power to gather.” He told us that we can get people to the table to effect change if change is needed. I took what he said to heart. Before the pandemic, I called many meetings with various agencies and stakeholders to discuss the needs of a child and how we can best serve the family, how we can implement systemic changes in our juvenile justice system to allow for early intervention without compromising the safety of our community, and discussing ways in which our system can best protect victims of domestic violence.

Judge Darien Nagata: I love that I have the ability to make decisions to make positive impacts on the lives of children and families in our community.

Judge Jeffrey Ng: One of the most rewarding experiences is presiding over adoptions, guardianships, and other cases that celebrate the importance of family.

Judge James Rouse: The best part of being a Family Court Judge is twofold, on a personal level, working with the Family Court clerks and

bailiffs has been the best part. I’ve known all the clerks and bailiffs for years in may capacity as a Deputy Public Defender and Deputy Attorney General. Now that I am their coworker, I get to see up close how great they are at their jobs. I wouldn’t be able to do my job without them. Secondly, at a professional level, getting parties to come to an agreement is by far the greatest part of any day or week.

Judge Adrianne Heely: I enjoy being able to help protect and heal abused and neglected children and helping families to receive services to strengthen their family unit; and of course inspiring children, teens and young adults to have dreams and do their best to accomplish those dreams and goals. I also love being able to have a hand in returning children and reunifying children and families to their safe family home environments, and if that is not the case, then to find a forever safe, loving home environment for said children. I also enjoy going to Family Court Symposiums and trainings to network with other Family Court Judges and learn about issues that Family Courts are faced with.

What do you enjoy least about serving in Family Court?

Judge Stephanie Char: What I find most challenging is sitting on the TRO calendar. More often than not, these individuals appear pro se. Emotions are charged, there are allegations of physical abuse, and children are sometimes involved. In conducting these trials, one has to be mindful of the fact that these are lay people, with no experience in law – from courtroom etiquette, to the procedures, and to the law itself. A judge has to be extremely patient and allow some latitude, while maintaining courtroom decorum and

the orderly functioning of the court.

The pain seen on one parents face when confronted with the possibility of not seeing their children (on a temporary basis), or when they are attempting to explain the effect the temporary order has had on their relationship with their children can really strike a chord. It is important for the judge to keep his or her emotions out of the ultimate decision, based on what has been presented to the court.

Judge Edmund Acoba: What I enjoy least about serving in the Family Court is hearing how children are harmed through abuse or neglect.

Those are the most painful cases to preside over. Children are innocent with a whole lot of life ahead. The best we can do for them is to hopefully make the best decisions to protect them so that they are not scarred for life.

Judge Darien Nagata: One of

the more challenging aspects of serving in family court are the limitations of services available for the children and families in our community. Despite this, the quality of services that are available and our innovative ways to provide more for our families is indicative of the dedication and commitment by the judiciary and our community.

Judge Jeffrey Ng: One of the more challenging aspects of serving as a family court judge is presiding over cases involving child abuse and neglect and knowing what obstacles some of our youth face. At the same time, however, I am grateful for the opportunity to be involved in these cases to do the best we can to provide services and support for these children.

Judge James Rouse: The most challenging component of the job is

dealing with the high emotion and often the lack of logic or critical thinking during the litigation. People with Family Court matters are faced with circumstances that are trying on the soul and it shows up in the court room.

Judge Adrianne Heely: What I find most challenging is sitting on the child protective services/child welfare services calendar and seeing how many innocent children are abused or neglected by the actions or decisions of those closest to them, their parents.

How has the COVID pandemic affected your calendar in Family Court?

Judge Stephanie Char: I came to the bench while COVID restrictions were still in place, so I really couldn’t speak to how my calendar was affected.

Judge Edmund Acoba: For the

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Family Court we lost many services that served the youth in our community. We lost our funding and providers for our Truancy Court and Girls Court. A big part of the Family Court was to assess the needs of the youth and the family. Home visits were a big part of that assessment.

However, due to the pandemic the Family Court Administration suspended home visits.

Many cases had to be continued due to the pandemic. We had to find ways of conducting business without compromising the health and safety of the parties

involved and court personnel. Many of our hearings were conducted virtually, our courtrooms were retrofitted with plexiglass dividers, our seats were marked to allow for proper social distancing, and face masks were mandatory for everyone in the courthouse.

Judge Darien Nagata: In some shape or form the COVID pandemic has affected each and every one of us in negative but also positive ways. An effect of the pandemic is the increased use and acceptance of the use of technology in my courtroom.

Because of the need and popularity for remote proceedings we, with partnering agencies, were able to establish and are still developing remote and online projects for my Family Court

calendar such as: (1) a Third Circuit Child Welfare Mediation Program (remote mediation for C.P.S. cases); (2) a VSM paternity project (remote mediation for paternity cases); and (3) an online “Kids First” program for the Third Circuit for parents and children in divorce and paternity cases.

Judge James Rouse: I was sworn in as a Family Court Judge in the middle of the pandemic. I am blessed to be surrounded by a great group of co-workers and staff and technology department to assist with the remote hearings.

Judge Adrianne Heely: The COVID Pandemic brought emergency proclamations and/or administrative and court orders which have focused primarily on the health and safety of the judiciary community and community as a whole. The orders affected calendars in ways that restricted large in house gatherings, allowed more remote hearings, placed a pause on travel to Molokai and Lana‘i for over a year.

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Judge Jef fr swearing ey Ng with his ‘o -in cerem hana at h ony is

Judge Adrianne Heely with Paul Tonnessen, Director of Friends of the Children’s Justice Center and HI HOPES board and Dream Day attendees

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Even though the many orders in place restricted in person gatherings, however, court was not closed, we were open and continue to remain open and provide access to justice. We have staggered calendared times to allow people to still attend in person, while limiting the amount of people in courtrooms at one time; we have also allowed parties; witnesses; and attorneys to appear remotely depending on their equipment and the court’s technology as well. In the Second Circuit, we’ve also worked with First Circuit and JCSFB to allow Kids First Program to be an online in lieu of in person attendance requirement, making it the first time since the 34-year history of having Kids First, that Molokai and Lana’i pare nts and family could participate.

Is there anything you’d like to remind or recommend to attorneys or parties appearing in your circuit?

Judge Edmund Acoba: I would like to remind attorneys or parties to check with the circuit in which

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Rouse

in Japan

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you are appearing for any special rules or local practices. For example, in some circuits certain hearings are primarily conducted virtually and if you want to appear in person you will need to receive permission from the court.

In other circuits, hearings are conducted all in person, unless you are granted permission to appear virtually.

Another difference that I have experienced is that in the Fifth Circuit, when people address the court they are required to stand, unless the court permits them to remain seated. Whereas, in other circuits, people are allowed to remain seated when addressing the Court. Please do not say: “In the ______ Circuit, we do it this way.”

Know the local rules and practices.

Judge Darien Nagata: Quoting from the preamble of the Guidelines of Professional Courtesy and Civility for Hawai`i Lawyers, “The practice of law is an honorable and dignified profession. It is filled with clients in need, busy schedules, and crowded dockets.”

With this in mind, I would encourage attorney and non-attorneys to extend professional courtesy and civility to not only opposing parties but also ancillary agencies, court staff, and members of the public because court can be and is a stressful and daunting experience for many who come through our doors.

Treat everyone with respect.

Judge Jeffrey Ng: I have been impressed with the attorneys’ overall professionalism and dedication to their clients. Similarly, pro se litigants generally conduct themselves respectfully and thoughtfully while in court.

Judge James Rouse: There is no limit to greatness in the practice of law when you do it with civility and good manners.

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Judge Adrianne Heely: Focus in on the issues of the case, not each other; be guided by the Rules of Court and Guidelines of Professional Courtesy and Civility; and to focus, like the court, on fairness and what’s in the best interest of the children.

Describe your top three inspiring quotes that you have used while in Family Court.

Judge Edmund Acoba: With many of the youth that I have met, I remind them that the Family Court is present in your life to help you be the best person you can be. If you need help, your PO can help guide you to your destination. I always remind them that education will open doors for them and to dream big.

Judge Darien Nagata: For family juvenile cases we want our youth to always try their best, to grow and to flourish. While we want our youth to be perfect, a common theme that we inform our juveniles of is that “we expect progress, not perfection.” I hope our youth can strive and reach for the stars yet know that if they miss, fail or just cannot reach those stars at first, to never give up and never give up hope.

Judge James Rouse: In my courtroom, I’ve hung a poster with the first stanza of George Harrison’s “All Things Must Pass” on the wall. The lyrics go: “A sunrise doesn’t last all morning. A cloud burst doesn’t last all day seems my love is up and has left you with no warning but it’s not always going to be this grey. All things must pass. All things must pass away....” If everyone in Family Court can remember this, they would realize that the pain will go away.

Judge Adrianne Heely: One of my mentors, Judge Michael A. Town used to have the `Olelo No`eau (Hawaiian Proverbs) book in his chambers and used to pull that out any time he needed some inspiration or a quote.

I have continued with his tradition at times, and I have found quotes in the ‘Olelo No‘eau, but also from other humanitarians and leaders, like Maya Angelou, Martin Luther King Jr., and even Bill Clinton. Here are some quotes I found and have used in Family Court: (1) He Paka Ua Au which translates into “Be That Raindrop,” “He Punawai Kakou”-Be That Spring to Make a Difference. I use it to inspire others that even a raindrop when dropped into a puddle of water or lake can make a difference and have rippling affects, so go out there and be that spring that makes a difference; (2) Maya Angelou’s quote that I have used in Family Court, is: “When you Get, you Give”; “When you Learn, You Teach”; and (3) I have also quoted the global humanitarian, Mahatma Gandhi, “I shall pass through this world but once. Any good therefore that I can do or any kindness that I can show to any human being, let me do it now. Let me not defer or neglect it, for I shall not pass this way again.” _________________ 1 H.R.S. §571-8 entitled District family courts; district family judges; appointment; sessions, at (b) explains “[w]hen in the discretion of the chief justice of the supreme court the urgency or volume of cases so requires, the chief justice may appoint one or more district family judges for each judicial circuit. In addition, with any circuit, the chief justice may designate any district judge of the district court to act as a s district family judge within that circuit; the judge when so designated shall exercise the powers of a district family judge appointed pursuant to this section.”

H SBA HAP PE NIN GS Board Actions The HSBA Board took the following actions at its meeting in July: • Adopted the Executive Committee’s recommendation to revise the annual attorney registration, as requested, wherein the Ethnicity/Race category is expanded and revised to more accurately reflect Hawaii’s population, and the Gender category is expanded to allow for an option “X”; • Ratified President Levi Hookano’s appointment of Leighton Hara as one of the HSBA representatives on the Supreme Court Nominating Committee; and • Adopted the Nominating Committee’s recommendation to appoint Judge Rowena Somerville to the Certified Shorthand Reporters Board for a 3-year term beginning August 2021.

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CAS E NOTES Supreme Court Attorneys’ Fees Association of Owners of Kalele Kai v.

Yoshikawa, No. SCWC-16-0000812, August 12, 2021, (McKenna, J.). This certiorari proceeding addressed attorneys’ fees and costs awarded to the Association of Owners of Kalele Kai (“Association”) by the circuit court in connection with a dispute over whether Hitoshi Yoshikawa (“Yoshikawa”) was allowed to moor his boat in the Kalele Kai marina. The circuit court granted the Association’s motion for summary judgment, awarded attorneys’ fees and costs, and entered final judgment in favor of the Association. On appeal, the ICA vacated the summary judgment but affirmed the related attorneys’ fees and costs awards because Yoshikawa had not specifically addressed them in his appellate briefs.

Yoshikawa’s application for certiorari (“Application”) presented a single question: “Did the ICA commit grave error in vacating the Circuit Court’s Final Judgment Order, thereby reversing summary judgment and remanding the case for further proceedings to the Circuit Court but refusing to vacate the underlying attorneys’ fee award?” The Hawaii Supreme Court held as follows: (1) when a judgment upon which attorneys’ fees and costs were based has been vacated, attorneys’ fees and costs arising out of that judgment should also be vacated; and (2) the ICA abused its discretion by limiting the issues on remand to prevent the circuit court from considering attorneys’ fees and costs awarded based on the vacated summary judgment.

Appeal Pointer An appeal may be dismissed or other sanctions may be imposed if the Civil Appeals Docketing Statement (“CADS”) is not filed for a required case. HRAP 3.1(b), 3.1(f). The CADS will be stricken if a copy of the judgment or order appealed from is not attached to it.

Intermediate Court of Appeals Criminal State v. Park, No. CAAP-20-0000552, July 28, 2021, (Hiraoka, J.). DefendantAppellee Yoonjung Park was indicted by a grand jury for violation of the Organized Crime law, Haw. Rev. Stat. Chapter 842. Park moved to dismiss the indictment. The circuit court granted Park’s motion. The circuit court concluded that Plaintiff- Appellant State “failed to produce evidence of an enterprise[,]” citing State v. Ontai, 84 Hawaii 56, 929 P.2d 69 (1996). The State appealed.

The ICA distinguished Ontai, which involved an alleged associated-in-fact enterprise; the ICA held that a limited liability company qualified as a legal-entity “enterprise” as defined by Haw. Rev. Stat. § 842-1. The ICA also held, however, that the State failed to present evidence that Park “conduct[ed] or participate[d] in the conduct of the affairs of the enterprise” within the meaning of Haw. Rev. Stat. § 842-2.

Family In the Interest of J.M. and Z.M., Mi-

nors, No. CAAP-20-0000748, July 27, 2021, (Leonard, J.). In many ways, this termination of parental rights case follows an unfortunate, but familiar, pattern. Parents are both on drugs and are unable to provide their children with a safe family home. The State gets involved, but parents do not comply with mandatory drug testing, continue to test positive for drugs, otherwise fail to complete or delay getting through a substance abuse treatment program and other services, and skip court hearings.

The parents’ parental rights are then terminated and permanent custody of their children is awarded to the State. No matter what circumstances bring parents before a court, however, indigent parents are guaranteed the right to court-appointed attorneys in termination proceedings under the due process clause of the Hawaii Constitution, as well as the Fourteenth Amendment of the United States Constitution. Here, the ICA held that such an attorney is essential throughout proceedings that could result in the termination of parental rights. As the Hawaii Supreme Court recently held, representation is so essential that failure to provide counsel to indigent parents facing possible termination of their parental rights is structural error that cannot be deemed harmless error.

The ICA further held that, in this case, the discharge of the father’s attorney during the pendency of these proceedings, prior to the family court’s decision on a motion to terminate his parental rights, violated the father’s due process rights and was structural error.

THE HAWAII FEDERAL TRIAL ACADEMY Returning January 12 to 14, 2022

by Michael Albanese The Hawaii Chapter of the Federal Bar Association, in partnership with the United States District Court for the District of Hawaii, announces the return of the Hawaii Federal Trial Academy (HFTA), January 12 through 14, 2022.

The HFTA, now in its fifth year, is a comprehensive, three-day program held at the Federal Courthouse, designed to help attorneys with fewer than 15 years of experience develop trial skills in federal court. On Wednesday and Thursday mornings, the program will feature a series of lectures, panel discussions, and hands-on exercises, led by members of

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the federal judiciary and some of the most experienced and dynamic trial lawyers in the district. On Friday, the program will culminate in a half-day mock trial in federal court before a federal judge.

The Hawaii Federal Trial Academy will be open to twelve participants. 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, provided that the attorney practices in federal court.

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

CLE credit will be available for all participants and instructors.

Applications will be open from Friday, September 30, 2021 through Friday, October 28, 2021. Applicants will be notified of a selection decision by early December. If you have any questions about the program, please feel free to contact the program co-chairs, Michael Albanese (michael.albanese@usdoj.gov) or Sara Ayabe (sara.ayabe@usdoj.gov).

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.

C O URT BR IEF S Uale Appointed Per Diem Judge Bode A. Uale was recently appointed per diem judge of the District Court of the First Circuit, and designated to act as District Family Judge. His term will be August 24, 2021 to August 23, 2022.

Access to Justice Continues Throughout the Pandemic “Access to Justice and the Time of COVID” was the theme of the 2021 Hawaii Access to Justice Conference held on June 25. The conference resumed this year after a hiatus due to the pandemic. It was held mostly virtually, with just a few speakers present at the William S. Richardson School of Law, all socially distanced and masked when not speaking.

Prof. Aviam Soifer, former Dean of the law school, and Robert LeClair, Executive Director of the Hawaii Justice Foundation, were co-emcees for the day. Chief Justice Mark E. Recktenwald and Hawai‘i Access to Justice Commission Chair Judge Joseph E. Cardoza (ret.) gave impassioned opening remarks about the importance of continued advocacy on behalf of those who may find it difficult to access justice in meaningful ways.

Keynote speaker U.S. District Judge Nancy Gertner (ret.) of Harvard Law School inspired attendees with lessons from a pandemic about access to justice. A morning panel discussion followed on “Impact of the Coronavirus Pandemic on Access to Justice,” featuring Chief Justice Recktenwald, Judge Cardoza, Heather Lusk, executive director of the Hawai‘i Health and Harm Reduction Center, and Nalani Fujimori Kaina, executive director of Legal Aid Society of Hawai‘i and facilitated by former Dean Soifer.

There were three concurrent workshops for the first afternoon session: “Lifting Stoppers, Lifting Barriers” (Re-Entry and Community Service Program) with Angela Kuo Min, executive director of Volunteer Legal Services Hawai‘i (facilitator), First Circuit District Court Judge Melanie Mito May, and Clarissa Malinao, volunteer attorney, discussed the program whereby outstanding traffic citations are handled by converting fines into community service. “Different Dispute Resolution Approaches: Modifying the Process for the Issues and the People” with Tracey Wiltgen, facilitator, executive director of The Mediation Center of the Pacific; Michelle Acosta, Deputy Chief Court Administrator for the First Circuit; Katie Ranney, Special Programs Coordinator for The Mediation Center of the

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Pacific; Laurie Tochiki, Executive Director of EPIC ‘Ohana, and Katie Bennett, mediator of Family Mediation Hawai‘i, discussed the challenges of the pandemic for mediation.

The workshop on “Working Together to Provide Immigration Legal Services to the Low-Income Clients” with Corey Park, facilitator, board president of The Legal Clinic; Esther Yoo, staff attorney at The Legal Clinic, and Taylor Brack, Law Fellow at the Refugee and Immigration Law Clinic, discussed the issues facing immigrants.

For the second part of the afternoon, another set of concurrent workshops were scheduled as follows: The workshop on “The Civil and legal Rights or People Experiencing Homelessness in the Times of COVID” with Mateo Caballero, facilitator, principal attorney of Caballero Law LLLC; Wookie Kim, Legal Director at the ACLU of Hawai‘i; Deja Ostrowski, staff attorney with the MedicalLegal Partnership Hawai‘i; and Janet Kelly, senior attorney, Homeless Specialist, Legal Aid Society of Hawai‘i, Summer Sylva, facilitator, executive director of the Native Hawaiian Legal Corporation (“NHLC”); David Kauila Kopper, Director of Litigation at NHLC; Ashley Obrey, Legal Practice Administrator and Staff Attorney at NHLC; and Henderson Huihui, Equal Justice Works fellow and staff attorney at NHLC, discussed access to justice and the Hawaiian Home Lands trust in their workshop.

A discussion of the impact of the pandemic on domestic violence was the focus on the family law workshop with Gemma-Rose Poland Soon, facilitator, solo practitioner; First Circuit District Family Court Judge Rebecca A. Poland; Tom Farrell, founder and managing attorney of Farrell & Perrault; and Angelina Mercado, Executive Director of the Hawai‘i State Coalition Against Domestic Violence.

Scott Suzuki, solo practitioner, discussed the need to help older individuals and the barriers to this need in the workshop, “Access to Justice in Elder Law and Special Needs Planning.”

The plenary closing session with Professor Calvin G.C. Pang and Nancy Gertner shared reflections of the day’s conference.

Veterans Treatment Court Grad Ready for New Life

Keoni Barr said he is ready to be the person he knows he can be after successfully completing the Big Island Veterans Treatment Court program.

He told judges, court staff, family, and friends that he was struggling in life when he began the program, but thanks to their never-ending support, he got the confidence to get himself back on track.

During the June 28 graduation ceremony, Third Circuit Chief Judge Robert D.S. Kim said that the BIVTC utilizes a holistic approach to help veterans address substance abuse and mental health issues. The program also helps with housing and employment, and gives the vet a chance to have a successful life.

BIVTC Judge Wendy DeWeese said, “Keoni has proven to be an asset to this program, his family and his community. He is a shining example of what can be accomplished if we come together to help veterans, in a non-adversarial way.”

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Fair Debt Collection Practices Act:

Prepare for New Rules

By Thomas J. Berger

Consumer debt collectors should take notice that the Consumer Financial Protection Bureau (CFPB) has issued a final rule to amend regulations that implement the FDCPA.1 The final rule is effective November 30, 2021.2 Some of the new regulations are discussed below.

Debt Validation Notice and Safe Harbor “Model Notice” The final rule clarifies the validation information a debt collector must provide a consumer in the initial communication or within five days of that initial communication.3 The final rule adopts section 1006.34(c) which sets forth expressly the information the debt collector must include in the validation notice. This article does not cover all the information that must be included in the initial communication and only covers some of the important changes. The final version of section 1006.34 is available at 86 F.R. 5854 to 5855.

One of the more significant additions is the requirement for the validation notice to include “dispute prompts.”4 Specifically, the notice must include in an area segregated from the

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validation information and under the headings “How do you want to respond?” and “Check all that apply:” the following dispute prompts: (A) “I want to dispute the debt because I think:”; (B) “This is not my debt.”; (C) “The amount is wrong.”; and (D) “Other (please describe on reverse or attach additional information).”5 The final rule includes a safe harbor Model Form B-1 that contains the validation information required by section 1006.34(c). “A debt collector who uses Model Form B-1 complies with the information and form requirements” of section 1006.34(c).6 There are other provisions that should be studied within the final rule related to the model form, including on the consequences of omitting optional disclosures, or using a separate page to provide certain disclosures.7 The Model Form is available at 86 F.R. 5766.8 Time-Barred Debt The final rule adopts section 1006.26 which provides, in

pertinent part, that “[a] debt collector must not bring or threaten to bring a legal action against a consumer to collect a time-barred debt.”9 A time-barred debt is defined as “a debt for which the applicable statute of limitations has expired.”10 The commentary on the rule changes explains that a “debt collector who sues or threatens to sue a consumer to collect a time-barred debt explicitly or implicitly misrepresents to the consumer that the debt is legally enforceable[.]”11 In addition, “the Bureau concludes that bringing or threatening to bring a legal action to collect a time-barred debt is a deceptive practice under FDCPA section 807[.]”12 The new final rule imposes a strict liability standard.13 The commentary to the final rule explains, The Bureau is not finalizing the proposed knows-or-shouldknow standard and is instead finalizing a strict liability standard.Although determining whether a debt is time barred can be challenging or costly in certain circumstances, the Bureau concludes that the proposed knows-or should-know standard is generally inconsistent with FDCPA section 807, which does not include an exception or exclusion for debt collectors whose deceptive statements are unintentional or for whom ensuring that a statement is not deceptive is burdensome. The Bureau also concludes that a strict liability standard is more consistent with FDCPA section 807’s prohibition on deception-. . . .14 The Bureau went on to state: “Whether a particular action or statement constitutes a threat of legal action depends on the facts and circumstances of the particular case.”15 Deceased consumer The definition of a consumer is clarified under the final rule to include deceased natural persons.16 The commentary to sections 1006.34(a)(1) and 1006.38 are amended to clarify that “a person who is authorized to act on behalf of the deceased consumer’s estate, such as the executor, administrator of personal representative, operates as the consumer[.]”17 As stated in the official interpretation of the final rule, “individuals trying to resolve a deceased consumer’s debts have the same legal right to receive the validation notice, and to dispute the debt and request information about the original creditor, as the deceased consumer[.]”18 For consumer mortgage loans, the official interpretation states, “a person who is authorized to act on behalf of a deceased consumer’s estate for purposes of Regulation F may or may not also be a successor in interest under Regulations X and Z, depending on whether an ownership interest in a property securing a mortgage loan or a dwelling securing a closedend consumer credit transaction is transferred to that person under the circumstances specified in Regulations X and Z.”19 For debt validation notices, the official interpretation states that the Bureau shares the view of the Federal Trade Commission stated in its Policy Statement on Decedent Debt 24 October 2021

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and, therefore, ‘‘communication[s] addressed to the decedent’s estate, or an unnamed executor or administrator, [are] location communication[s] and must not refer to the decedent’s debts.”20 The Bureau declined to adopt the suggestion made in the rule making process to allow the validation notice to be addressed to the deceased consumer or “the estate of ” the deceased consumer.21 For more information, please review the final rule and the citations in this article. __________________ 1

Bureau of Consumer Financial Protection, 12 CFR Part 1006, Debt Collection Practices (Regulation F) 86 F.R. 5766 (Jan. 19, 2021); see https://www.consumerfinance.gov/rules-policy/final-rules/debt-collection-practicesregulation-f-2020-12/ (Final Rule) (link last checked July 4, 2021); see also 12 CFR Part 1006 (FDCPA, Reg. F). See e.g., 15 U.S.C. 1692, et seq. (FDCPA).

C.f., Hernandez v. Williams, Zinman & Parham PC, 829 F.3d 1068, 1071 n.1 (9th Cir. 2016) (noting that the FDCPA applies to attorneys who regularly engage in consumer debt collection activity) (citing Heintz v. Jenkins, 514 U.S. 291, 299 (1995)).

2 86 F.R. 5766 (Jan. 19, 2021).

3 86 F.R. 5854-5855.

4 86 F.R. 5855.

5 Id. 6 Id. 7 Id. 8 See also https://files.consumerfinance.gov/f/documents/cfpb_model-validation-notice_2020-12.pdf (electronic copy of Model Form) (link last checked July 5, 2021).

9 86 F.R. 5854. This rule does not apply to proofs of claims filed in bankruptcy proceedings. 86 FR 5777.

10 Id. 11 86 F.R. 5778.

12 86 F.R. 5779.

13 86 F.R. 5781.

14 Id. 15 Id. 16 86 F.R. 5853-5854.

17 86 F.R. 5772. See e.g., 12 C.F.R. § 1006.34 (“Notice for validation of debts.”); 12 C.F.R. § 1006.38 (“Disputes and requests for original-creditor information”).

18 86 F.R. 5772.

19 86 F.R. 5774 (citing 12 C.F.R. §§ 1024.31, 1026.2(a)(27)).

20 86 F.R. 5774 (citing Fed. Trade Comm’n, Statement of Policy Regarding Communications in Connection with the Collection of Decedents’ Debts, 76 F.R. 44915 at 44920 (July 27, 2011), https://www.ftc.gov/sites/ default/files/ documents/federal_register_notices/statementpolicy-regarding-communications-connectioncollection-decedents-debts-policy-statement/ 110720fdcpa.pdf (link last checked July 5, 2021).

21 86 F.R. 5774.

Thomas J. Berger is a Deputy Attorney General for the Department of the Attorney General, State of Hawaii. This article represents only the view of the author and not that of the Department or the state. This article was completed prior to Thomas Berger joining the Department of the Attorney General and does not reflect his work at or the view of the Department or the state. Prior to joining the Department, he practiced in collection and foreclosure law since 2010.

It is Time to End the Unconstitutional Filibuster

Senator Manchin has a mistaken view of the Constitution he has sworn to defend. Speaking of his opposition to eliminating the filibuster, on CBS’s “Face the Nation” he said “We need to work within the framework of what we have … We have to keep striving to make sure we can get to that 10 (Republican votes needed to overcome a filibuster).” The Senator appears to be unaware that the framework he is committed to defending is an unconstitutional one, as can be seen from both the history and the text of the Constitution.

The historical study begins with the first document to establish a federal government, the Articles of Confederation, ratified in 1781.1 The powers of its legislature were limited.

Each of the thirteen original colonies had one vote in the unicameral legislature.2 Even with many limitations on the authority of the legislature, the states further protected their sovereignty against incursion by requiring a supermajority of votes (9 out of 13) for many of the matters over which the legislature had authority. These included declaring war, coining, borrowing, and appropriating money, and determining the size and leadership of an army or navy.3 Within less than a decade, the Articles’ serious flaws became apparent and were replaced by the United States Constitution. Before examining the relevant provisions of the Constitution, it is useful to consider what the Founding Fathers had to say about the filibuster, although it was not then called a filibuster.4 The Founders did not view supermajority requirements as useful tools to foster deliberation, but rather as a de facto veto power by which a minority can prevent the majority’s enactment of legislation without a supermajority of supporting

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votes. This is something both Alexander Hamilton and James Madison opposed. Madison, in Federalist 58,5 wrote: It has been said that more than a majority ought to have been required for a quorum and in particular cases, if not all, more than a majority of a quorum for a decision. That some advantages might have resulted from such a precaution, cannot be denied. … But these considerations are outweighed by the inconveniences in the opposite scale. In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority.6 Madison’s concern about diminishing the right of the Congressional majority to rule existed despite his previously stated concern about the potential for a tyranny of the majority, as set forth in Federalist 10. He saw the latter as a problem of a pure democracy, as opposed to the bicameral and republic form of government with checks and balances that was created by the Constitution for which he was advocating.7 Like Madison, in Federalist 22 Hamilton denounced the minority veto: To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is in its tendency, to subject the sense of the greater number to that of the lesser number… The necessity of unanimity in public bodies, or of something approaching towards it, has been formed upon a

Solutions Start Here supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the energy of government, and to substitute the pleasure, caprice or artifices of an insignificant, turbulent or corrupt junto, to the regular deliberations and decisions of a respectable majority.8 A plain reading of the Constitution reflects that this viewpoint was embraced. For the most part, the Constitution does not address procedural matters, but there are exceptions that make its import clear. It provides that a simple majority of each House comprises a quorum.9 A few specific instances set forth a supermajority requirement: a two-thirds vote for conviction on impeachment charges,10 the approval of treaties,11 the expulsion of a member of Congress,12 the amendment of the Constitution13 and for the overriding of a presidential veto.14 It also includes an actual power to veto legislation adopted by the majority – the one held by the President.15 The Constitution would itself be ineffective until a supermajority (nine of the thirteen original states) ratified it.16 If the Framers had intended to create a right of a legislative minority to prevent the enactment of laws by the majority, they knew how to create such a requirement or a veto power, as evidenced by the examples just cited. When we attempt to establish the meaning of the Constitution, the failure of the Framers to condition the enactment of legislation upon a generally applicable supermajority voting requirement should be considered determinative.

Similarly, the Framers enacting the Constitution to replace the Articles of Confederation would have been aware there were supermajority requirements in those Articles. Yet they failed to incorporate these, even while creating a federal government whose powers (and, therefore, the potential for legislative

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abuse by the majority in Congress) greatly exceeded those of the legislature under the Articles.

It has been argued the filibuster is constitutional because the Constitution authorizes each house of Congress to determine the rules of its proceedings.17 This argument must fail because it proves too much. No one would argue the Constitution permits the Senate to adopt a rule disqualifying the votes of Senators of a disfavored gender, race or religion, or those lacking a qualifying amount of property. The ability of Congress to make its own rules is constrained by the explicit or implicit requirements of the Constitution itself.

The authority of Congress is governed by the Constitution; the Constitution is not governed by the decisions of Congress. The argument based on the rulemaking power of Congress turns fundamental principles upside down.

When used properly and sparingly, the extended debate envisioned by the filibuster might encourage thoughtful and full consideration of legislation that might otherwise arise from momentary passions and concerns. This was sometimes a benefit of speaking filibusters, which required the filibusterer to be addressing the chamber. In its current incarnation, the filibuster does not provide even this benefit and instead more closely resembles the efforts of the “insignificant, turbulent or corrupt junto” of which Hamilton spoke. Those invoking the present-day version of the filibuster need not remain present in the Senate chamber, physically or virtually, to offer debate on the legislation they wish to block. They can simply leave for friendlier or sunnier shores while no actual debate occurs, confident that the 60 votes needed to end the (non-existent) debate that they invoked are not available. Indeed, the threat of a filibuster is often the reason bills lacking the support of the 60 Senators needed to invoke closure of the debate do not even make it to the floor, thereby making it unnecessary

for obstructionists to formally invoke the filibuster process.

The naiveté in the assumption that the filibuster fosters useful and intelligent debate is illustrated by one commentator who discusses its use in 1935 by Senator Huey Long. In a 15-hour speech, Senator Long addressed the legislation under consideration, but also several less pertinent subjects, including the life of Frederick the Great and Roquefort cheese salad dressing. Others have used their filibuster time at the podium to present discourses on Unitarianism, William the Conqueror and horses.18 The most that can be said for the abandonment of the speaking filibuster is that it spares us all from such nonsense at the price of making filibusters far easier to invoke.

Further diminishing any supposed benefit from the interminable and sometimes fatuous “debate” the filibuster makes possible (but currently does not require) is the commonplace fact that, while some debate may be instructive, endless debate is not the best way to assure well-conceived legislation. In Congress, as in life, getting to the point is the best way of making a point, assuming that persuading other legislators or educating the electorate was actually the goal of the filibusterer.

What, then, of the claim relied on

by Senator Manchin - that the preservation of the filibuster is necessary to foster bipartisanship? Recent history, both where the filibuster has been utilized or threatened (the Affordable Care Act and HB1, to name a few) and where it has been deleted (the appointment of Supreme Court justices) has provided little evidence that the right to filibuster has advanced bipartisanship. The filibuster has, instead, been used for the very partisan purpose of frustrating the ability of the majority party to accomplish what the voters elected them to do, and for creating the appearance that the Senators of the majority party, and the Senate and Congress as a whole, are ineffectual and incompetent. Not

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surprisingly, an ineffectual Congress paves the way for an expansion of the powers of the executive branch, which was another concern of the Founding Fathers.19 Even if the claim that the filibuster promoted bipartisanship was neither an illusion nor a transparent rationalization, it would not be justified. However desirable the goal of bipartisanship may be, it is not a principle embodied in or protected by the Constitution, which makes no mention of parties, of any general right of minorities to thwart the enactment of legislature or of the filibuster, in particular. Indeed, the filibuster was not actually used before 1837, five decades after the Constitution was enacted.20 Many Republicans and some Democrats claim to favor the original meaning and text of the Constitution; abolishing the filibuster would be an opportunity for both parties to put this dogma into practice.

In sum, the problem with the filibuster goes beyond the fact that it is commonly used as a weapon of partisan warfare with the goal of obstruction. Its supposed justifications are unconvincing.

Bipartisanship, which is a worthy but elusive thing, is not significantly fostered by the filibuster and cannot be a reason to ignore the processes embodied in the Constitution, nor can the right of Congress to make its own rules. The Constitution does not authorize what amounts to a legislative minority’s veto power over pending bills, but this is the effect of a supermajority requirement for closing debate before legislation can be voted upon. “Mr. Smith Goes to Washington” is an entertaining movie in which the filibuster was used for 24 hours by actor James Stewart to thwart a corrupt majority. Hollywood movies do not have to conform to sound Constitutional principles, but United States Senators of all political persuasions should. _________________ 1

The text of the Articles is available at http://memory.loc.gov cgi-

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bin/ampage?collId=llsl&fileName=001/llsl001.db& recNum=127.

2 Articles of Confederation, Art. 5, §4.

3 Id., Art. 9, §6.

4 The United States Supreme Court has repeatedly turned to the Federalist Papers as authority on the meaning and intent of the U.S. Constitution. See, e.g., U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) (citing Hamilton, Madison and Jay); Nixon v. Administrator of General Services, 433 U.S. 425 (1977) (citing Madison); N.L.R.B. v.

Canning, 573 U.S. 513 (2014) (citing Hamilton).

5 The complete text of the Federalist Papers is available at https://www.thefederalistpapers.org/wpcontent/uploads/2012/12/The-Complete-FederalistPapers.pdf 6 Punctuation is from the original.

7 “A republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking.” Federalist 10.

Federalist 51 makes the same point. .

8 Punctuation is from the original.

9 U.S. Const., Art. I, §5.

10 Id., Art. 1, §3.

11 Id., Art. 2, §2.

12 Id., Art. 1, §5.

13 Id., Art. 5.

14 Id., Art. 1, §7.

15 Id. 16 Id., Art.7.

17 https://www.heritage.org/politicalprocess/report/the-filibuster-protects-the-rights-all-senators-and-the-american-people. The rule with respect to ending a filibuster is Senate Rule 22.

18 W. Blake, “The Filibuster, the Constitution and the Founding Fathers,” located at https://scholarworks.iupui.edu/bitstream/handle/180 5/5528/blake-2003-the-fillibuster.pdf ?sequence=1 19 See https://www.nytimes.com/2007/07/23/ opinion/23mon4.html, which focuses on the war power.

20 https://www.history.com/topics/us-government/history-of-the-filibuster. Another good discussion of the history of the filibuster is found at https://www.brookings.edu/policy2020/votervital/wh at-is-the-senate-filibuster-and-what-would-it-take-toeliminate-it/

James N. Duca is a graduate of Harvard Law School, an amateur historian and a lawyer with more than 50 years of experience. He wishes to acknowledge the inspiration and ideas provided by William Blake in “The Filibuster, the Constitution and the Founding Fathers,” which he has expanded upon.

Notice of Restraint from the Practice of Law Following the Criminal Conviction of Noah D. Fiddler On July 16, 2021, the Hawai‘i Supreme Court, following a petition by the Office of Disciplinary Counsel under RSCH Rule 2.13, ordered that Honolulu lawyer Noah D. Fiddler be immediately restrained from the practice of law in Hawai‘i, pending disposition of a disciplinary proceeding. ODC v. Fiddler, SCAD-2100000398.

The restraint order was based on Fiddler’s deferred acceptance of guilt in State of Hawai‘i v. Fiddler, 1CPC18-0000632, to five felony counts of the willful failure to collect and pay over a tax, and twelve misdemeanor counts of willful failure to file a tax return, all of which the Hawai‘i Supreme Court concluded were crimes involving dishonesty. The court then referred the matter to the Disciplinary Board for formal proceedings to determine the professional sanction appropriate under the circumstances.

On August 12, 2021, the Supreme Court clarified that the RSCH Rule 2.13 “restraint” in this case constitutes a suspension from the practice of law under RSCH Rule 2.16, and that Fiddler has 20 days from entry of that clarifying order to give notice to courts, clients, and opponents of his change in status and otherwise wind-up his law practice.

0Fiddler, age 66, was admitted to the Hawai‘i bar in 1982, and is a graduate of the Southwestern School of Law, in Los Angeles, California.

See: https://dbhawaii.org/disciplined-hawaii-attorneys/ for copies of the orders.

ATTORNEY WANTED ASSOCIATE ATTORNEY POSITIONS (real estate and civil litigation). Rush Moore LLP A Limited Liability Law Partnership seeks a mid-level real estate associate attorney and a civil litigation associate attorney. Admission to Hawaii Bar required. Excellent benefits; Salary commensurate with experience. Remote and in-person hybrid position(s). Please send your resume in confidence to: Shawn M. Nakoa at 737 Bishop Street, Suite 2400 Honolulu, HI 96813.

ATTORNEY POSITION for Employee Benefits Practice Group in Hawaii involving all aspects of employee benefits law, including pension and profit sharing, ESOP transactions, executive compensation. Also advice in general business, income tax, and estate planning.

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FARRELL & PERRAULT LLLC has a full-time family law attorney position open for immediate hire.

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State pension; $60,000+/year. Email oip@hawaii.gov with resume, 3 references & writing sample.

SETTLE MEYER LAW is in search of a transactional associate attorney with at least 2-4 years’ business and/or real estate legal experience, and a commercial litigation/intellectual property associate with 2-4 years’ experience. This is an exciting opportunity to work at a firm tackling a number of pressing issues facing Hawaii, including affordable housing and high-tech/IP business development. Qualified candidates must have distinguished academic credentials, strong research, writing and analytical skills, and be self-starters with a commitment to excellence. Please submit resume, writing sample and salary requirement to info@settlemeyerlaw.com.

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