Hawaii Bar Journal

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BAR JOURNAL A N O FFICIAL P UBLICATION

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H AWAII S TATE BAR A SSOCIATION S EPTEMBER , 2020 $5.00

TABLE O F C ON TE NTS VO LUM E 24 , N U M B E R 9

ARTICLES

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 HSBA OFFICERS President P. Gregory Frey President-Elect Karin Holma Vice President Levi Hookano Secretary Russ Awakuni Treasurer Paul Naso YLD OFFICERS President Addison Dale Bonner Vice President/President-Elect Christopher St. Sure Secretary Kyleigh Nakasone Treasurer Tiffany Kaeo

44

Mediation, Its Roots, and Its Future in a Post-Pandemic World

by Lou Chang

20 19

The Confrontation Clause and the COVID-19 Pandemic

by Ben Lowenthal

24

OF NOTE

17

Notice of Discipline

18

HSBA Happenings

24

Case Notes

30

Court Briefs

31 20

Classifieds

22 28 30 31

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.

Periodical postage paid at Honolulu, Hawaii and additional mailing offices. POSTMASTER: Send address changes to the Hawaii Bar Journal (ISSN 1063-1585), 1100 Alakea St., Ste. 1000, Honolulu, Hawaii 96813.

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

On the cover: Alala Hawaiian Crow by Claudia Wallace. Wallace’s art is a mixture of realistic and abstract.

She is interested in texture which leads to the use of whatever she finds or create that will add to the interest of the art piece. All are Mixed Media, consisting of either acrylic paints, acrylic inks, paper, office supplies, sand, pencils, charcoal, oil pastels, stencils, stamps pretty much anything shecan get my hands on. Wallace also looks for writings that convey something about either how she feels or what the art is about. To see more of her art visit Louis Pohl Gallery at 1142 Bethel St. in downtown Honolulu or www.louispohlgallery.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.

MEDIATION,

Its Roots, and Its Future in a Post-Pandemic World

By Lou Chang

Virtually all native and traditional cultures have systems for conciliation, management, and resolution of disputes within their cultures. In America, for much of its early history, such conciliation and mediation systems existed as a private, non- governmental process within cultural communities, guilds, trade groups, and religious communities.

Over the last four decades, America has undergone a quiet revolution in the field of dispute and conflict resolution. Mediation has fundamentally revolutionized and altered the American judicial process. Because of its speed, economy, effectiveness, and enhancement of party control of mediated resolutions, mediation as an alternative to litigation is now commonplace and widely integrated into judicial and dispute resolution processes throughout the country.

The early adoption of mediation as a component process for the management and resolution of large-scale public conflict can be found in the labor management or collective bargaining field.1 Early examples involved rare occasions of ad hoc intervention by government leaders to resolve disruptive labor strikes and work stoppages. One of the earliest instances of such intervention was the facilitation of a settlement of a workplace strike by shipyard workers by President Martin Van Buren in 1838. In a similar vein, in 1902, President Theodore Roosevelt interceded to mediate a settlement of a strike by coal miners.

The industrial revolution and the technological ability to mass produce goods and products turned human labor into a commodity, one of several components of mass production along with capital and raw material. Workers were treated as dispensable and dependent cogs in the wheels of industry. Industrialized workers and those who represented

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labor began to agitate for fair and better treatment and for the formation of trade unions. During that time, trade unions were considered illegal labor monopolies. Work stoppages and strikes by collective labor were illegal and were brutally broken by the use of violence, police power, and court injunctions. Courts increasingly became an institutional tool used by the barons of industry to restrain and punish workers and worker unions.

Around the end of the 19th century, there became a growing popular dissatisfaction with the legal system and its administration of justice. In 1906, Roscoe Pound, later to become the Dean of the Harvard Law School, presented an influential address to the American Bar Association expressing concern regarding society’s growing dissatisfaction with the court system. In his address to the ABA, Roscoe Pound noted the growing popular unrest and dissatisfaction with how courts had become institutions and tools for the wealthy and powerful rather than institutions for the administration of justice. He observed that: The courts have not been able to do the work which the common law doctrine of supremacy of law imposed on them. A widespread feeling that the courts are inefficient has been a necessary result. But, along with this, another phase of the individualism of the common law has served to increase public irritation. At the very time the courts have appeared powerless themselves to give relief, they have seemed to obstruct public efforts to get relief by legislation. The chief concern of the common law is to secure and protect individual rights. “The public good,” says Blackstone, “is in nothing more essentially interested than in the protection of every individual’s private rights.” Such, it goes without saying, is not the popular view today. . . . But the common law guaranties of individual rights are established in our constitutions, state and federal. . . . in America they stand continually between the people, or large classes of the people, and legislation they desire. In consequence, the courts have been put in a false position of

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doing nothing and obstructing everything, which it is impossible for the layman to interpret aright.

Justice, which is the end of law, is the ideal compromise between the activities of all in a crowded world. The law seeks to harmonize these activities and to adjust the relations of every man with his fellows so as to accord with the moral sense of the community. When the community is at one in its ideas of justice, this is possible. When the community is divided and diversified, and groups and classes and interests, understanding each other none too well, have conflicting ideas of justice, the task is extremely difficult.

The effect of our exaggerated contentious procedure is not only to irritate parties, witnesses and jurors in particular cases, but to give to the whole community a false notion of the purpose and end of law. Hence comes, in large measure, the modern American race to beat the law. If the law is a mere game, neither the players who take part in it nor the public who witness it can be expected to yield to its spirit when their interests are served by evading it. . . . .

Thus the courts, instituted to administer justice according to law, are made agents or abettors of lawlessness.

For I venture to say that our system of courts is archaic and our procedure behind the times. Uncertainty, delay and expense, and above all the injustice of deciding cases upon points of practice, which are the mere etiquette of justice, direct results of the organization of our courts and the backwardness of our procedure, have created a deep-seated desire to keep out of court, right or wrong, on the part of every sensible business man in the community. 2 Responsive changes to the institutional disfunction observed by Dean Pound did not come swiftly. During times of war, the press for the rights of workers to negotiate collectively through labor unions and to strike, if necessary, needed to give way to the overriding priorities of a nation at war.

At the time of World War I, America established in 1918 a War Labor Board to prevent strikes in critical defense industries. The War Labor Board handled about 1,200 such cases. Also in 1918, America established a U. S. Conciliation Service under its Department of Labor, which began a mediation function on the federal level. The Railway Labor Act of 1926 established a National Mediation Board with jurisdiction over disputes occurring in the railroad industry.

It was also in 1926 that the first non-governmental, non-profit organization, the American Arbitration Association (“AAA”), was established to provide independent and neutral arbitration services for collective bargaining and for general civil and commercial disputes. In the ensuing

Solutions Start Here decades, arbitration, the consensual resolution of disputes by private, independent and neutral non-judicial adjudicators grew to become the primary alternative dispute resolution (“ADR”) process utilized in the collective bargaining arena and in certain segments of private industry such as the construction industry, insurance and a few other commercial segments.

Gradually, in the collective bargaining arena, controls and limits were placed upon the power of the courts to issue injunctions in labor disputes beginning with the adoption of the Norris-LaGuardia Act. Growing out of the Great Depression in America in the 1930s, the National Industrial Recovery Act was adopted which created a National Labor Board (later to become known as the National Labor Relations Board) that had the authority to mediate labor disputes. In 1935, the federal government adopted the National Labor Relations Act (“NLRA”) under its power to regulate interstate commerce. It explicitly granted employees the right to collectively bargain and join trade unions. It applied to most private non-agricultural employees and employers engaged in some aspect of interstate commerce. A majority of States further regulate collective bargaining and make collective agreements enforceable under state law. They also provide legal guidelines for those employers and employees not covered by the NLRA, such as agricultural laborers and public sector (state and municipal government) workers not covered by federal collective bargaining laws.3 Then, again in wartime, America in 1941 established a National War Labor Board to prevent labor strikes in the defense industries. Gradually, the rights of workers to form unions and to bargain collectively became recognized, first at a national level, and later, at the state level.

With the adoption of collective bargaining laws, arbitration and mediation were adopted as the preferred means for the resolution of labor conflicts rather than

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Crumpton Collaborative Solutions

1251 Heulu St. #1001 Honolulu,HI 96822 Charles Crumpton 808.284.9209 crumpton@chjustice.com s crumptoncollaborativesolutions.com

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Mediator, Arbitrator,

Receiver, and Special Master Services, Employment Investigations

Jerry M. Hiatt • Creative and highly focused mediations in all areas through persistent follow up with all parties. Successful in mediations for clients of most of Hawaii’s major law firms.

• 41 years of practice in complex civil litigation. Listed in Best Lawyers in 8 areas, including Mediation and Arbitration. Hawaii Lawyer of the Year for Mediation, 2014, Employment Law-Individuals, 2017, and Arbitration, 2018.

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

• Mr. Hiatt has also served as a court appointed Receiver For ADR work, please contact

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

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wildcat strikes, work stoppages, and court injunctions. In post-war America, the Labor Management Relations Act was adopted in 1947. It authorized the federal courts to enforce collective bargaining agreements and favored the use of arbitration to resolve labor conflicts instead of litigation and strikes and work stoppages.

This Act created the Federal Mediation and Conciliation Service (“FMCS”) as an independent agency of the U.S. government. The FMCS gradually began to provide mediation and conciliation services for collective bargaining in the private (non-governmental) sector. Over time, the authority of the FMCS was increased to provide mediation services to public sector agencies, first to the Federal government in 1978, then to the U.S. Postal Service in 1979.

Expansion in the use of mediation in the non-labor arenas found impetus from a civil rights revolution beginning in the 1950s and 1960s with the growing recognition of racial equality and voting rights for African Americans. The civil rights revolution began as a social movement to recognize and protect the housing, education, voting, and racial equality rights of African Americans. The civil rights revolution grew to include the recognition of rights for women and other racial and ethnic minorities. The civil rights revolution, the equal rights gender equality movement, and the anti-Vietnam war protests of the1960s and 1970s was a time of tremendous civil unrest in America. This unrest and the explosive growth of rightsbased expectations underlay a concomitant expansion of demand for the prompt and fair adjudication of such rights. This significant demand for the recognition and adjudication of rights threatened to overwhelm the American judicial system.

The American judicial system increasingly became a system that favored the wealthy. Court calendars became clogged and legal disputes took two to five years to be processed through the court system, resulting in an increasing threat

that the judicial system could no longer provide reasonable access to justice for many but the wealthy.

The alarm sounded by Harvard Law Dean Roscoe Pound at the start of the 20th century gained resonance in the tumultuous times of the 1970s. In 1976, a National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice was conducted. The Conference was organized by the American Bar Association, the Judicial Conference of the United States, and the Conference of Chief Justices. After this Conference, a task force was formed to explore suggestions on the reform of the judicial system. The task force was chaired

by Griffin Bell, the then U.S. Attorney General. One of the recommendations made by the task force was to develop Neighborhood Justice Centers (“NJC”).

Such NJCs were to “make available a variety of methods of processing disputes, including arbitration, mediation, referral to small claims courts as well as referral to courts of general jurisdiction” handling both civil and criminal matters.4 NJCs were to be community-based, non-governmental organizations which would provide

alternative dispute resolution (“ADR”) services for disputes involving family, neighbor-neighbor, and merchant-customer conflicts.

In 1977, Attorney General Bell’s Department of Justice funded an experimental NJC program to be established in six cities around the country (Boston, Columbus, New York, Rochester, Miami and San Francisco) to serve as models.

From such experiments, communitybased mediation centers came to be formed in over 200 agencies in 45 of the 50 states of the country.

By 1984, the American Arbitration Association (“AAA”) had become the leading non-governmental, non-profit provider of arbitration and ADR services to private industry and the commercial public. The AAA recognized the value and potential of mediation for the resolution of private and court referred disputes and thus began to offer mediation services to lawyers, courts, and the broader commercial public. The AAA identified and selected some of its top arbitrators in Hawaii and other states and regions across the country and provided mediation training to these experienced neutral arbitrators.

The AAA then began to offer mediation as an additional ADR service to the courts and to the legal community. The use of mediation among lawyers and litigators began to soar as it became recognized that mediation with its general resolution rates of 70% to 80% was proving to be an effective and successful process for the prompt and economical resolution of civil disputes.

Courts began to note the effectiveness of mediation as a means for the resolution of disputes being handled in the judicial system. Courts quickly viewed mediation as a welcome opportunity to reduce the judicial caseload and an opportunity to remove identified types and categories of civil disputes that were clogging the judicial system.

State legislatures also began to recognize the efficacy and value of encouraging greater use of mediation as a process for the earlier resolution of disputes. Recognizing the effectiveness and value of mediation as an ADR process for the economical and prompt resolution of broad ranges and types of disputes, many state jurisdictions began to encourage and compel parties to mediate disputes rather

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Judge Daniel R. Foley (ret.) wMediation wArbitration wMoot court wMock trial

Dispute Prevention and Resolution 1003 Bishop Street Suite 1155 Honolulu, HI 96813

Phone:

808.523-1234

judgefoley2000@hotmail.com

www.dprhawaii.com

than to litigate such matters.

Many, if not most, states now have provisions encouraging or requiring parties to consider and attempt mediation to resolve general legal disputes. Adoption of such rules permitting the court to require and order parties to proceed with mediation gradually expanded from courts of general civil jurisdiction to other courts of special jurisdictions including small claims, family and divorce court, probate and estate court, some criminal restitution courts, as well as appellate court matters.

Today, mediation is encouraged, available and often ordered at nearly all levels of the judicial system.

At the state level, the growth in use of mediation by the courts and the legal community rapidly expanded. In Hawaii, mediation has been embraced and implemented throughout the judicial system.5 The use of mediation also quickly grew to become a substantial and material part of the private sector business services provided by arbitration service providers.

Additional for-profit and non-profit providers of ADR services began their ascendency in regional markets to provide arbitration, mediation, and other ADR services. Today, a vibrant free market now exists for professional mediators in America. There are now literally thousands of individuals and enterprises seeking to provide mediation services. They exist in every state of the country.

The Mediation Process The parties and the mediator should confer and determine how best to conduct a safe, confidential, productive, and fair process. The mediation process is completely flexible. Customarily, parties will have discussions and exchanges of information in preparation for an in-person meeting of the principals, representatives, and their advocates to discuss their respective views, positions, and concerns with the objective to achieve a mutually agreeable resolution to existing claims and issues. During one or more mediation

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sessions, parties can meet jointly with the mediator. More frequently, parties separate into private rooms for confidential discussions, and the mediator shuttles between the different rooms to meet with the parties. Parties are free to customize and adapt the process to fit their preferences, needs, and the specific circumstances of each case.

In a business community and in challenging economic times, protracted business and construction disputes can be particularly destructive where valuable time, energy, and resources are directed away from positive, productive purposes and business relationships and reputations being jeopardized.

Mediation has proven to be an effective means of addressing, managing, and resolving construction disputes, allowing the principal parties in the construction process to maintain control over the resolution of their disputes. Mediation, when timely engaged and sensitively performed by trained, experienced business and construction mediators empowers parties to achieve maximum mutually beneficial resolutions that meet their real needs and interests.

Any major business and construction dispute can become a complex mixture of personalities, relationships, contracts, and law. The added interplay of changed circumstances, changing science and technology, government regulations, insurance, surety bonds and legal procedures can make the reasonable resolution of disputes challenging. In such complex matters, disagreements may be inevitable.

If not promptly and efficiently managed, these disagreements become intractable disputes with a life and dynamic all their own. Business and construction disputes often involve multiple parties – principals, partners, design professionals, owners, contractors, manufacturers, suppliers, sureties, insurers, and consultant professionals. The number of parties, issues, and insurers make the resolution of such disputes extremely complicated, costly,

and slow. Arbitration and litigation can take months and years to reach final resolution. Quite often, the cost of litigating or arbitrating business and construction disputes exceeds the value of the issues involved and the cost of reasonable solutions.

Styles of Mediation Interestingly, perhaps surprisingly, providers of mediation services are unlicensed and largely unregulated. Parties and legal counsel need to be aware of the different mediation styles and strategies that are available and offered by providers of mediation services. The principal or more common styles of mediation include the following: Facilitative. A facilitative mediator structures a process to facilitate negotiations and to assist parties to reach a mutually agreeable resolution. The mediator asks questions, validates, and normalizes parties’ points of view, searches for needs and interests underneath the positions taken by parties and assists parties in finding and analyzing options for resolution.

The facilitative mediator does not provide any recommendations to the parties nor predict what a judge, jury, or arbitrator would do in the case. The mediator generally designs and structures the process while the parties remain in charge of decisions and the outcome of the process. Facilitative mediators seek to ensure that parties come to agreements based on information and understanding.

Evaluative. An evaluative mediator assists parties to reach resolution by pointing out the weaknesses of their cases and predicting what a judge, jury, or arbitrator would likely do. The evaluative mediator may make recommendations to the parties for resolution. Evaluative mediators help parties and attorneys evaluate their legal position, and the costs versus the benefits of pursuing a legal resolution rather than settling in mediation. Evaluative mediators are concerned with the legal rights of parties rather than their needs and

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.

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

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interests and evaluates matters based upon legal concepts and principles.

Transformative. A transformative mediator focuses upon the relationship of the parties and their abilities to understand and communicate with each other. Transformative mediators seek to transform parties and enable parties in conflict to develop a greater degree of self-determination, understanding, and responsiveness to each other while they explore solutions to specific issues. The goal of a transformative mediator is to empower parties to see, consider, and recognize the perspectives of others and to strengthen their capacity to analyze situations and to make effective decisions. The guiding philosophy that underlies transformative mediation is the belief that as parties have strengthened capacity to understand each other and to communicate, parties will be empowered to make their own agreements and decisions now and into the future.

For most civil judicial disputes, a facilitative mediator, one who seeks to encourage party communications, the understanding of party needs, exploration and identification of multiple and creative options for resolution and preservation of party-controlled decisions would be appropriate. Seasoned and experienced advocates often seek a mediator with an evaluative style, preferring a mediator who is a retired judge or highly experienced litigator who has “seen it all before” who will “bang heads” and “twist arms” in order to get a resolution. The choice is a matter of strategic judgment and preference, based upon an advocate’s assessment as to what will be most effective and likely to achieve in a favorable resolution. There are other styles, strategies, and variants of mediation.

Master mediators will often blend and adapt their styles and strategies to suit and fit the dynamics presented by different cases, personalities, and situations. Parties can have different and sometimes conflicting expectations of mediators and the mediation process. It is important, therefore, that parties and their counsels discuss and inquire with prospective mediators as to the style or strategy of mediation that would be appropriate to the personalities of the parties and the characteristics of their dispute.

Tips for Advocates and Attorneys in Mediation The greatest advantage of mediation is the flexibility of the process to adapt to the special facts and needs of the parties. Parties resolve their disputes in a private, confidential, and informal manner with direct involvement of the disputing parties. In representing a client in a mediation, an attorney should keep these points in mind: (1) Be proactive. Take advantage of the flexibility of the

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process. Contact and communicate with the mediator to shape and design a process that most efficiently fits the circumstances and needs. Discuss whether joint sessions are desirable where position statements can be presented and all parties meet to exchange information and discuss positions, ideas, and options for resolution or whether parties would be better served by being in separate rooms. The mediation process can and should be adapted to suit the needs and circumstances of the case. Determine if review and presentation of key information, testimony, or even expert opinions will be helpful to develop focus on the critical issues and establish the strength of the case. Parties do not need to agree on the facts to settle. The key is that parties appreciate the risks and benefits of various settlement options and how they meet their particular needs and interests.

(2) Meet early with the selected mediator. Discuss and clarify expectations as to the structure, format, and style of the mediation that is desired and will be most productive.

Confirm that all parties agree to general protocols and ground rules for productive mediation discussions, such as the following: (a) All participants will treat others with civility and courtesy. It is not a requirement that participants agree on every matter. Given the goal to reach a mutual agreement, it is necessary that parties agree to listen and understand the views and concerns of others. If a party disagrees, the party will do so with civility. (b) All ideas and options for resolution are to be encouraged. Parties will be open to creative ideas and options for resolution. (c) When additional facts and information come to light during the mediation, parties will commit to be open to reassessing their views in light of new facts and information. (d) Mediation commonly involves negotiations concerning multiple issues. As agreements are reached on individual issues, parties should understand that such agreements are contingent upon reaching agreement on all issues needed for a complete mutual agreement. The parties recognize and acknowledge the right of all parties to consult their advisors and counsels before entering a binding agreement. (e) Mediation is a voluntary and consensual process.

Parties agree that for the time, effort, and energy committed by the participants to the mediation effort, no party will terminate or walk out of a mediation without first giving the mediator an opportunity to discuss the matter with all parties. No

R

party shall declare an impasse until the mediator determines that an impasse truly exists.

(3) Determine whether all potential and necessary parties have been identified and are actively participating with full and flexible authority to agree to solutions and packages proposed.

(4) Be strategic in timing. Assess whether the time is right and the parties are ready to settle. Earlier may be better than later.

However, parties need to have sufficient information to make sound and proper business decisions. Certain exchanges of information and discovery may be needed.

Engage the assistance of the mediator to accelerate discovery and the exchange of pertinent information. It is usually unnecessary to wait to mediate until all formal discovery has been completed. There are many examples of cases, even complex, multiparty, and multi-issue cases being resolved in mediation without having to incur the cost and delay associated with formal depositions. Advocates should look for that “sweet spot” in time when parties have sufficient information to make an intelligent evaluation of the case and before incurring the costs associated with completion of all formal discovery.

Robert B.

FRIJA For Early Case Evaluation, Arbitration and Mediation Areas of Expertise: General Civil, Injury Torts, Insurance/Personal, Product Liability, Premises Liability With a reputation for detailed analysis, professionalism and early case resolution based on fair case evaluation

DISPUTE PREVENTION AND RESOLUTION 808.523.1234 or 542-5422 • dprhawaii.com

(5) Know one’s case. Be prepared to give a brief and succinct statement of the critical facts and claims. A mediation session can be a valuable opportunity to present a summation of the case to the mediator and the other party. Unless the case is a simple one, prepare a concise and focused pre-mediation submission to the mediator to educate and arm the mediator with the critical facts, document excerpts, and issues involved. Identify whether there are special business or personal relationships, personalities, procedural problems, or other considerations that may impact the negotiations.

(6) Be creative and open to possibilities.

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Be prepared to listen and look for all possible options and packages of possible solutions. Understanding the stated and unstated needs, hopes and dreams of one’s client and of the other party(ies) can help to fashion resolutions tailored to meet their special needs and interests. Mediation allows for “win-win” resolutions. Identify multiple options that might be the basis for a mutually negotiated resolution.

Many times, the ultimate resolution is not one that was considered prior to the mediation.

(7) Identify and understand the strengths and weaknesses of the case and that of the other party(ies). Discuss this fully with the client and the mediator. Identify and understand the barriers to settlement and the factors (economic, psychological, relational, legal, procedural) driving the controversy.

(8) Keep the mediator’s role and function distinct from that of an adjudicator. Combining mediation and arbitration functions in a single person is not generally recommended. Parties need to have trust and confidence in the mediator. Mediation works best when no one fears that something said in mediation to a mediator might be prejudicial if the matter later goes before the same neutral then serving as an arbitrator.

(9) When an agreement is reached, document it immediately. Be prepared to and insist that an enforceable agreement or memorandum of agreement is prepared and signed. Consider incorporating a fast-track dispute resolution process, such as appointing an arbitrator to resolve differences over language of settlement agreements.

Through mediation, parties maintain a greater degree of control over the outcome and resolution of their conflict and usually with substantial savings of costs, time, and aggravation. When parties are willing to mediate in a good-faith attempt to search for resolutions to mutual problems, they nearly always succeed.

Video-Assisted Mediation Mediations conducted in person and in real time are dynamic and effective. There are, however, times and situations where in-person meetings are difficult to arrange and coordinate. Mediations conducted utilizing videoconference technologies may be a necessary or desirable alternative when there are health and safety considerations or when early or immediate mediations are needed or there is an interest in minimizing travel expenditures. Distance, busy schedules, costs, and health and safety considerations may require consideration of conducting mediations

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through the use of telephone and videoconferencing technologies.

The use of video and telephone technologies for online mediations has been done effectively for many years. Improvement and advances in telephone and videoconferencing tools have helped to make meetings, collaborations, hearings, and group activities easier and effective. Given recent concerns, the conduct of mediations through the use of video and telephone technologies will likely become even more mainstream.

Videoconferencing is conducted via web-based software that generally comes at no cost to the parties. There are several ways to participate in a videoconference: by desktop computer, laptop, tablet, smart phone, or by regular landline phone. Those who have computers, tablets, or smart phones can participate fully. Those who do not have video capability can participate as though it were a regular telephone conference call. Persons participating by desktop computer, laptop, tablet, or smart phone can participate at no cost. Persons participating by telephone may, if they are calling long distance, incur telephone long distance charges.

All parties and witnesses can be in the same location, just as if the mediator was there in person or parties and witnesses can participate from multiple separate locations.

The videoconferencing technology allows all participants in the mediation to be seen and heard, and it also allows parties and their representatives or counsels to meet and work in separate caucus or breakout rooms.

Video Conferencing Features There are many publicly and readily available videoconferencing technologies. They include Zoom, Microsoft Team, Bluejeans, Skype, Go To Meeting, and others.

The one that appears to be most popular is Zoom. Zoom offers many features that can be adapted and tailored to accommodate various needs and situations. Some of its primary features that are suitable for the conduct of mediation meetings and conferences include the following: 1. Meeting Room. A general meeting space where all participants can see and hear each other; 2. Breakout Rooms. Private meeting spaces for private and confidential discussions with only the parties in the breakout room. For example, breakout rooms can be set up for each party, allowing counsel and the client to have confidential discussions. Participants in a breakout room can speak freely with each other and use the Chat feature. These messages and communications cannot be seen or heard outside of their breakout room. Additional breakout rooms can be utilized for

the mediator, parties, and counsels to have private and confidential discussions and for witnesses awaiting their time to testify; 3. Waiting Room. A meeting space where persons who wish to join the conference can be placed until it is appropriate for that person to enter the general meeting room; 4. Screen Share. Allows participants to share a document, video, photo, or website that is on their computer for all parties to see; 5. Chat. A messaging utility that allows participants to share a comment with all participants or with only a designated participant; 6. Raised Hand. An indicator that a participant wishes to make a comment or ask a question; and 7. Announcements. The host of the videoconference, generally the mediator, has the ability to communicate a general announcement to all participants, issue a notification for all participants to return to the general meeting room or to request an opportunity to enter a breakout room (like a knock on the door) where participants may be having a private discussion.

There are numerous additional security features in the Zoom video conferencing platform. The attendance and participation of persons can be controlled.

Participants are provided with a unique meeting conference number which will allow them to join the videoconference.

Participants are given a second password which will be required to gain access to the videoconference as an additional layer of security. All participants should be informed and advised to only provide the meeting conference number and second password to persons whose participation is desired. The host of the meeting can additionally monitor and control a party’s entry into the general meeting room and assign the participant to a private breakout room until it is appropriate

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for the participant to enter the general video meeting room or another breakout room.

Advance Preparations Before any scheduled videoconference proceeding, all participants should conduct an equipment check and pretest to confirm the suitability and appropriate operation of the computers, cameras, microphones, and internet connections to be used. It is recommended that participants should pretest their systems at least twice, once well in advance of any proceeding and again just prior to any planned proceeding. Pretests should include checking the video quality, lighting, background, sound performance, and camera angle. Practice session or sessions with advocates, parties and witnesses should be considered. A pretest should also be conducted with the court reporter if one is contemplated. This permits the key individuals to experience how the videoconferencing works. The practice sessions are an excellent opportunity to try out the different features, e.g., breakout rooms, excluding a witness, communicating during a breakout session, privacy issues, recording, exchange of documents, and the Chat feature.

It is good practice to have contingency plans to accommodate any technological glitches or other problems that may occur during the course of the proceeding.

Parties should have the direct email, text, and phone numbers of the person(s) to contact in the event of a problem.

Advocates may want to consider using two monitors during videoconference proceedings. One monitor can be used to display the videoconference proceedings and the other used to display documentary and demonstrative exhibits. Exhibits should be listed, paginated, organized, and distributed in advance of the proceedings. Where advocates have a tactical, impeachment or rebuttal concern with regard to certain potential exhibits, disclosure of such documents may be withheld from early distribution.

Conflict resolution agencies and practicing professionals are developing suggestions, guidelines, and protocols for the effective and productive use of virtual conflict management tools and technologies. Major conflict management agencies such as the American Arbitration Association-International Center for Dispute Resolution website has developed three new guides for the conduct of virtual hearings. They include the following: Guide for Arbitrators and Parties https://tinyurl.com/y25sxhq2

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AAA Virtual Hearing Guide for Arbitrators and Parties Utilizing ZOOM https://tinyurl.com/y25sxhq2 and AAA Order and Procedures for a Virtual Hearing via Videoconference https://tinyurl.com/y25sxhq2.

Similarly, the International Institute for Conflict Prevention and Resolution has also introduced its new Model Procedural Rule on Remote Videoconferencing. Here is its link: https://www.cpradr.org/resource-center/protocols-guidelines/modelprocedure-order-remote-video-arbitration-proceedings The world’s current struggle to manage the pandemic crisis and the tremendous stress and financial and social disruption caused has resulted in an exponential increase in the use of virtual technologies. All segments of society including the legal, judicial, and conflict management communities are being challenged and compelled to adapt and embrace such technologies. The legal community is learning, adapting, and responding to the challenges presented by the current pandemic. With practice and good preparation, having productive and successful mediations and conflict management processes will be assured. __________________ 1

Judith A. Saul, The Legal and Cultural Roots of Mediation in the United States, Op. J., Vol. 1/2012, Paper n.8, pp. 1-12, http://liderlab.ssup.it/opinio.

Stanley D. Prowse, A Brief History of Mediation; stanprowse.com/history-of-mediation.

2 Roscoe Pound, “The Causes of Popular Dissatisfaction with the Administration of Justice”, Address Before the Annual Convention of the American Bar Association (Aug. 29, 1906).

3 Legal Information Institute, Cornell Law School, https://www.law.cornell.edu/wex/collective_bargaining See also, State Employee Collective Bargaining, Fred W. Welden, Legislative Counsel Bureau, Nevada, https://www.leg.state.nv.us/Division/Research/Publications/Bkground/BP95-03.pdf.

4 The Mediation Center of the Pacific, A Brief History, Robert M. Kamins and Robert E. Potter, 2005, p. 5.

5 Elizabeth Kent and Lou Chang, “ADR in Hawaii’s Courts,” Vol. 12 Hawaii Bar Journal Nov. 2008, 6.

Lou Chang, a graduate of the University of Hawaii, Manoa and the University of California, Berkeley Law School, serves as an independent and neutral mediator and arbitrator for business, commercial, construction, employment, real estate, insurance, probate, personal injury, and civil disputes.

Notice of Discipline On June 29, 2020, the Hawaii Supreme Court imposed upon Attorney Suzanne T. Terada (Bar No. 2797), an 18-month suspension from the practice of law in Hawaii.1 In a consolidated disciplinary case involving three separate matters, a majority of the Hawaii Supreme Court found that Terada violated multiple rules of professional conduct. Terada was found to have violated the rules of professional conduct that require an attorney to act with competence; diligence and promptness; to consult with, and keep the client informed; to notify the client on receipt of funds, to keep client’s funds separate from the lawyer’s funds, to promptly deliver funds to the client, to protect a client’s interest upon termination, and to not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. Additionally, the

court found that Terada “acted with willful intent in two of the client matters, and caused, or threatened to cause, financial and other injuries to all three clients.” After balancing factors in aggravation and mitigation, the court found sufficient circumstances to “mitigate against a more severe discipline,” and concluded that an 18-month period of suspension was warranted. A minority of the court filed a separate dissenting opinion indicating a lesser 6-month suspension was indicated.2 Upon entry of the June 29, 2020 suspension order, Terada shall not accept any new retainer or engage as attorney for another in any new case or legal matter of any nature. However, between June 29, 2020 and July 29, 2019, Terada may wind up and complete, on behalf of any client, all matters that were pending on June 29, 2020. During that time, Terada is required to promptly notify all

of her clients and any attorneys for any adverse party in any pending litigation of her suspension and consequent inability to act as an attorney. By July 29, 2020, Terada shall surrender to all clients all papers and property to which the clients are entitled and any advance payments of fees that have not been earned.

Terada, age 66, was admitted to the Hawaii bar in 1980 and is a graduate of the University of Hawaii, William S. Richardson School of Law. _________________ 1

See Office of Disciplinary Counsel v. Terada, SCAD19-0000416 (Haw. Sup. Ct. June 29, 2020).

2 Associate Justices Richard Pollack and Michael Wilson dissented and in their order stated that the 18-month suspension imposed by the majority was excessive under the circumstances.

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H SBA HAP PE NIN GS Board Action The HSBA Board took the following actions at its meeting in May: • Voted to respond to HSBA member who objected to the HSBA sending an eblast on behalf of the Attorney General’s office that provided information on procedural changes for service of process; • Voted to approve of HSBA efforts to coordinate a statewide legal community fundraising project in partnership with the Hawaii Foodbank to assist local residents in meeting their nutritional needs; and • Voted to remove the Volunteer Legal Services Hawaii (“VLSH”) donation check box from the 2021 attorney license registration form.

• Voted to move forward with the legal industry survey to measure the impact of COVID-19 by identifying the survey recipients, utilizing a survey instrument for the questions, and presenting a draft to the Executive Committee.

2021 SCD Board Nominees In accordance with Article VI, Section 1 of HSBA Senior Counsel Division Bylaws, the SCD Nominating Committee publishes the following list of nominees for 2021 HSBA SCD Officer and Director Positions. Ballots will be distributed in early October, and the election results will be announced at the HSBA Bar Convention in October 2020.

Vice President/President Elect Gilbert C. Doles

The HSBA Board took the following actions at its meeting in June:

Secretary Ian Lorne Sandison

• Voted to retain the VLSH donation accommodation on the 2021 attorney license registration form as follows: • The VLSH donation check box will be listed as an “opt-in” choice.

• HSBA will recoup bank credit card fees for contributions collected for VLSH. • HSBA staff time will not be charged to process and reconcile contribution amounts, and manage quarterly checks, as similar accommodations are made for the Disciplinary Board, Attorneys and Judges Assistance Program, and Lawyers Fund for Client Protection. With respect to VLSH, the HSBA staff also provides a spreadsheet of donor mailing addresses for mahalo/tax letters.

• The form will include a suggested amount of $75 and the following text: “For more information, please see www.vlsh.org.”

Treasurer Michael Lilly

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Director: Oahu Rosemary T. Fazio Gregory Lui-Kwan Scott Makuakane Michelle Alarcon

Vacancies on Commission on Professionalism The Hawaii Supreme Court will have vacancies on its Commission on Professionalism for two HSBA representatives. Those interested in the position should possess the following qualifications: be willing and able to devote time to perform necessary duties; and be conscientious, studious, thorough, and diligent in learning methods and problems of the organization. These positions have 4-year terms to begin on March 14, 2021. Please refer to this link for more information on the Commission on Professionalism: http://www.courts.state.hi.us/courts/supreme /professionalism.

Anyone interested in serving in this capacity should submit a resume, including their area of concentration, and a reason for wanting to serve to: nominations@hsba.org or HSBA Nominating Committee, 1100 Alakea Street, Suite 1000, Honolulu, HI 96813. Please note that these positions are uncompensated, and that applicants need to disclose all public disciplinary sanctions. If there have been none, then state that such is the case. Applications must be received by the HSBA no later than October 30.

Nominations will be made at the February 2021 HSBA Board meeting.

Member Benefits Spotlight The following Board Members are currently serving two-year terms set to expire at the end of 2021: Kenneth K.P. Wong (Oahu), Michael J.Y. Wong (Oahu), Charlene Y. Iboshi (Big Island), Jonathan J. Chun (Kauai), and David Raatz (Maui). Carole Richelieu will serve as SCD President in 2021.

Senior Move Managers, LLC / De-clutter Hawaii (New Benefit) Senior Move Managers, LLC / Declutter Hawaii understands that there are many physical, psychological, and emotional issues that arise when downsizing our lives. De-clutter Hawaii’s caring and compassionate consultants serve seniors and their family with the goal of minimizing stress for everyone. It is a

one-stop shop that helps seniors make a stress-free move from their old house to their new home, assists in the downsizing and decluttering of personal belongings and assists families after a loved one has passed away and needs to clear out their estate. De-clutter Hawaii understands your needs are unique and its consultants are trained to create a customized plan that addresses your specific situation. Senior Move Managers, LLC / De-clutter Hawaii will provide five percent services when you show your HSBA Bar Card.

Verde on Kauai (New Benefit) Verde Restaurant continually strives to celebrate the essence of local food and a vibrant community valuing the support of local farmers, producers and businesses. Eat clean. Eat local. Verde offers 100% grass fed Kaua’i beef, antibiotic-free, hormone-free chicken and pork with gluten-free and vegetarian options. Visit their website (http://www.verdehawaii.com/) for more information. HSBA Members receive 10% off of any food purchases at Verde Restaurant when presented with the HSBA Membership Card.

Adore Clothing Adore is a local women’s boutique with two locations, on the island of Oahu. Adore is located in the Ka Makana Ali’i Shopping Mall and Kahala Mall. They offer complimentary styling, and HSBA members will receive 20% off a regular priced item when they show their HSBA Membership Card.

Enterprise / National / Alamo For available member benefits, please visit the links below or contact Nadine Cunningham at (808) 543-1508 with any questions, concerns or assistance.

• Emerald Club enrollment: https://bit.ly/3jqrQTT

• HSBA custom booking for Enterprise / National / Alamo: https://bit.ly/2OGD4pg • Emerald Club Benefits Flyer: https://bit.ly/30vYLOt (brief overview of the benefits) • Account Reps: https://bit.ly/32EKSjs (HSBA’s dedicated local team to assist with questions, concerns, and or sold out requests) Heaven on Earth A tranquil oasis in the heart of downtown Honolulu, Heaven on Earth Salon and Day Spa is Hawaii’s best-kept secret among locals. Offering an array of blissful body wraps, rejuvenating massages, aromatherapy, calming and deepcleansing facials, waxing, deluxe manicures, ultimate pedicures, natural or permanent make-up, and a full-service hair salon, Heaven on Earth caters to your every indulgence.

Show your HSBA Membership Card to enjoy 10% off any single service and 15% off any spa package.

Island Olive Oil Company Island Olive Oil Co., is a locally owned and operated olive oil and balsamic tasting room. Island Olive Oil Co. proudly features over 50 unique oils and vinegars on tap, which are perfect for the simplest of home cooks to the most discerning chef. They carefully curate a variety of locally sourced, as well as imported gourmet products, and specialize in creating custom and specialorder gourmet gift baskets, which are perfect for corporate, client gifts, and special occasions.

Conveniently located in Ward Center next to the Paul Brown Salon and in Kailua Town Center between California Pizza Kitchen and Miyoshi Ramen.

Visit their website (https://www.islandoliveoil.com/) for more information.

Bar members will receive 15% off All Gift Baskets. Visit or email info@islandoliveoil.com for pre-orders.

Orangetheory Fitness Orangetheory helps you live a longer, more vibrant life.

Orangetheory Fitness combines three aspects into one workout: science, coaching, and technology. One cannot work without the other. This trifecta is essential for their workout, and essential for you. This is what makes them stand out among the rest. More science, more technology, more coaching. More life.

Orangetheory is a science-backed, technology-tracked, coach-inspired group workout designed to produce results from the inside out. They make it simple to push yourself to be your personal best and give you more. More results. More confidence. More life.

Because you shouldn’t live to exercise— you should exercise to live. For more information, please visit their website.

HSBA Members will receive $10 off of monthly membership rates for the life of their membership, $20 off of heart rate monitors, complimentary sweat towel, reusable water bottle and gym cinch bag. Offer valid at their Kakaako, Kapiolani and Waikiki locations.

Skechers Direct Receive 30% off select Work and Corporate Casual styles including OSHA Compliant footwear and work boots. Visit https://mynpp.com/association/hsba/ to enroll with NPP and start saving today.

Visit https://hsba.org/memberbenefits to obtain more information on the more than 70 member benefits available.

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9 1 D COVI Pandemic

The Confrontation Clause and the

by Ben Lowenthal The COVID-19 pandemic has changed the way people go to court.

Lawyers, clients, jurors, witnesses, and judges now sit before screens from home, at desks in their offices, or in a jail cell and “appear” on a monitor in a near empty courtroom. Microphones, webcams, and computers have recreated arraignments, pretrial conferences, and status hearings with a degree of success and comfort. The justice system has found a way to function and practice social distancing at the same time; at least for now.

Jury trials have been suspended for months, but are scheduled to resume soon. Will they resemble the trials before COVID-19 turned the world upside down? Must witnesses for the prosecution enter the courtroom and literally take the stand in order to testify? Will jurors sit in the courtroom, a windowless, enclosed space for hours as they hear testimony, argument, and instruction?

For practitioners of criminal law, the answer has to be yes. The criminal trial is so critical that the United States and Hawaii Constitutions mandate no other way.

Witnesses for the Prosecution must Testify in Person.

The Confrontation Clauses in the federal and state constitutions1 guarantee the accused “the right physically to face those who testify against him [or her.]”

State v. Apilando, 79 Hawai’i 128, 131, 900 P.2d 135, 138 (1995) (quoting Coy v. Iowa,

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487 U.S. 1012 (1988)). This right, however, was once far from absolute.

In Ohio v. Roberts, 448 U.S. 56 (1980), the Supreme Court of the United States held that although face-to-face confrontation was “preferred,” it was not always required. Id. at 63. The Confrontation Clause was not offended so long as the prosecution could ensure that out-ofcourt testimony bore some “indicia of reliability.” Id. at 66.

Maryland v. Craig, 497 U.S. 836 (1990), typified the Roberts era. In Craig, the Court upheld a state statute allowing child complainants to testify by way of closed-circuit television whenever the trial court found it “necessary to protect the welfare of the particular child witness who seeks to testify.” Id. at 855. The Court characterized face-to-face confrontation as a mere constitutional “preference” and held that live testimony must sometimes give way “to further an important public policy and only where the reliability of the testimony is otherwise assured.” Id. at 850.

In 1997 the Hawai’i legislature promulgated Hawai’i Revised Statutes (H.R.S.) § 801D-7, which affords witnesses the statutory “right to testify at trial by televised two-way closed circuit video to be viewed by the court, the accused, and the trier of fact.” The provision is a legislative attempt to “ensure that all victims and witnesses of crimes are treated with dignity, respect, courtesy, and sensitivity[.]” HRS § 801D-1.

The Roberts era’s deference to public policies and state rules removing witnesses from the courtroom had its critics. Justice

Antonin Scalia dissented in Maryland v.

Craig because he believed that legislation cannot overrule the constitutional mandate in the Sixth Amendment:2 Seldom has this Court failed so conspicuously to sustain a categorical guarantee of the Constitution against the tide of prevailing current opinion. The Sixth Amendment provides, with unmistakable clarity, that “in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” The purpose of enshrining this protection in the Constitution was to assure that none of the many policy interests from time to time pursued by statutory law could overcome a defendant’s right to face his or her accusers in court.

Id. at 859-860 (Scalia, J., dissenting).

The Roberts era ended in 2004 with Crawford v. Washington, 541 U.S. 36 (2004).

Justice Scalia, writing for a commanding majority,3 exalted the supremacy of the Confrontation Clause: [T]he Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in crucible of cross-examination. The Clause thus reflects a judgment, not only about the desirability of reliable evidence (a point on which there could be little dissent), but about how reliability can best be determined.

Id. at 61.

Courts4 have not looked back. In Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), for example, the Court held that certified documents from a forensic laboratory cannot substitute live testimony: [T]he Constitution guarantees one way: confrontation. We do not have license to suspend the Confrontation Clause when a preferable trial strategy is available.

Id. at 318.

While it is undeniable that virtual testimony is convenient, efficient, and cost effective for the prosecution, and even though it advances the compelling public policies of preventing the spread of a dangerous virus like COVID-19, Crawford and its progeny demand live testimony.

Confrontation “may not be disregarded at our convenience and the predictions of dire consequences . . . are dubious.” Bullcoming v. New Mexico, 564 U.S. 647, 655 (2011). It seems that for government witnesses to testify by video to withstand a constitutional challenge,5 courts would have to retreat from Crawford and revive a Roberts era deference to public policy.

Their willingness to do that in the wake of COVID-19 remains to be seen.

Jurors must be there too.

If government witnesses must be physically present, the same goes for the jury. Confrontation comes down to cross-examination: The [accused] demands confrontation, not for the idle purpose of gazing upon the witness, or of being gazed upon by him, but for the purpose of cross-examination, which cannot be had except by the direct and personal putting of questions and obtaining immediate answers.

Davis v. Alaska, 415 U.S. 308, 315-316 (1974). Cross-examination is “the principal means by which the believability of a witness and the truth of his testimony are tested.” Id. at 316. There is little point in

cross-examining a witness without a jury to observe it: The primary object of the constitutional provision . . . was to prevent depositions or ex parte affidavits . . . being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.

Mattox v. United States, 156 U.S. 237, 242243 (1895). Confrontation encompasses the right “to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” Davis v. Alaska, 415 U.S. at 318.

Federal courts indicate that “exposing the facts” to the jury cannot be done by video conferencing: The virtual “confrontations” offered by closed-circuit television systems fall short of the face-to-face standard because they do not provide the same truth-inducing effect. The Constitution favors face-to-face confrontations to reduce the likelihood that a witness will lie. . . .Given the ubiquity of television, even children are keenly aware that a television image of a person (including a defendant in the case of a two-way system) is not the person—something is lost in translation. Thus, a defendant watching a witness through a monitor will not have the same truth-inducing effect as the unmediated gaze across the courtroom. We are not alone in noting that something may be lost when a two-way closed-circuit television is employed . . . . ....

[We are not] persuade[d] . . . that “confrontation” through a twoway closed-circuit television is

constitutionally equivalent to faceto-face confrontation because it neglects the intangible but crucial differences between a face-to-face confrontation and a “confrontation” that is electronically created by cameras, cables, and monitors.

United States v. Bordeaux, 400 F.3d 548, 554555 (8th Cir. 2005).

Moreover, the need for jurors and prospective jurors to be in the courtroom is concomitant to the accused’s “right to be present at all stages of his trial[,]” a right guaranteed by both the Confrontation and Due Process Clauses, State v. Okumura, 58 Haw. 425, 427, 520 P.2d 848, 851 (1977), and is “scarcely less important . . . than the right of trial itself.” State v.

Kaulia, 128 Hawai’i 479, 492, 291 P.3d 377, 390 (2013) (quoting Diaz v. United States, 223 U.S. 442, 455 (1912)). The right to be physically present at one’s trial necessarily includes the right to “be seen by the jury.” Bustamante v. Eyman, 456 F.2d 269, 274 (9th Cir. 1972).

The Hawai’i Intermediate Court of Appeals has observed that the “right to be seen” works both ways. Not only must the jury see the accused, but the accused must be able to see the jury: [A] defendant’s physical presence in the courtroom, without the ability to hear what is said or observe the facial expressions of the persons being examined during these proceedings would frustrate the purpose of the rule.

State v. Hilario, 138 Hawai’i 546, 554, 394 P.3d 776, 784 (App. 2017).

Jurors must be physically present in the courtroom to see and be seen by the accused and to observe the confrontation of government witnesses. Anything less would render the accused’s Confrontation and Due Process rights meaningless.

What About Face Masks?

Nearly thirty-five years ago, John Coy was on trial for abusing two 13-yearold girls camping in a tent next door to

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his house earlier that summer. Coy v.

Iowa, 487 U.S. 1012, 1014 (1988). The prosecution shielded the girls as they testified against Coy. Id. at 1015. Although Coy (and perhaps the jury) could dimly perceive them, the witnesses could not.

Id. Coy was convicted and his appeal was heard by the Supreme Court of the United States.

The Court held that “the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact.” Id. at 1016. Justice Scalia writing for the majority6 observed that there was something almost magical in physical confrontation: [T]here is something deep in human nature that regards face-to-face confrontation between accused and accuser as essential to a fair trial in a criminal prosecution. What was true of old is no less true in modern times. President Eisenhower once described face-to-face confrontation as part of the code of his hometown

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of Abilene, Kansas. In Abilene, he said, it was necessary to met anyone face to face with whom you disagree.

You could not sneak up on him from behind, or do any damage to him, without suffering the penalty of an outraged citizenry. In this country, if someone dislikes you, or accuses you, he must come up in front. He cannot hide behind the shadow. The phrase still persists, “Look me in the eye and say that.” . . .

The perception that confrontation is essential to fairness has persisted over the centuries because there is much truth to it. A witness may feel quite differently when he has to repeat his story looking at the man whom he will harm greatly by distorting or mistaking the facts. He can now understand what sort of human being that man is. It is always more difficult to tell a lie about a person “to his face” than “behind his back.”

In the former context, even if the lie is told, it will often be told less convincingly. The Confrontation Clause

does not, of course, compel the witness to fix his eyes upon the defendant; he may studiously look elsewhere, but the trier of fact will draw its own conclusions.

Id. at 1017-1019 (quotation marks, citations, and brackets omitted).

If a covering protecting the witness from seeing the accused and the jury violates the Confrontation Clause, what about a mask covering up half of the witness’s face? Will that pass muster?

It can be argued that it can. After all, the Supreme Court reversed the judgment in Coy’s case because the lower court allowed the witnesses to avoid viewing Coy as they testified against him. Id. at 1020. A masked witness can still see the accused. Jurors—provided they are not too far away from the witness stand— could certainly determine for themselves if the witness can “fix his eyes upon the defendant” or “studiously look elsewhere[.]” Id. at 1019.

The argument, however, ignores the other key aspect of the Confrontation Clauses. There is more to a criminal trial than looking at a witness’s eyes. The Confrontation Clauses command “reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” State v. Grace, 107 Hawai’i 133, 141, 111 P.3d 28, 36 (App. 2005) (quoting Crawford v. Washington, 541 U.S. 36, 62 (2004)). The trier of fact and the defendant must be able to see witnesses in their entirety as they are subjected to cross-examination to assess the reliability of their testimony. Ironically, the safer practice would be unmasking prosecution witnesses while testifying.

recreated on a screen. The criminal justice system demands that even in the “new normal” that is taking shape, government witnesses, the accused, and the jury must still come together. ___________________ 1 “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against the accused[.]” Haw. Const.

Art. I, Sec. 14. See also U. S. Const. Am. VI (“in all criminal prosecutions the accused shall enjoy the right . . . to be confronted with the witnesses against him.”).

2

The often perceived “liberal” justices on the Court, William Brennan, Thurgood Marshall, and John Paul Stevens, joined.

3

Conclusion The COVID-19 pandemic has caused society to re-evaluate its institutions, practices, and traditions. As courts rely on video conferencing as a substitute for physical appearances, key components of the criminal jury trial cannot be

There were no dissenters. Chief Justice William Rehnquist and Justice Sandra Day O’Connor concurred in the result and would have preferred a narrower ruling within the Roberts framework.

4

The Hawai’i Supreme Court has recognized the sea change brought on by Crawford. “[T]he primary object of the right of confrontation lies in securing for the criminal defendant a

basic procedural guarantee: that he be entitled to confront and cross-examine ‘witnesses’ who bear ‘testimony’ against him.” State v. Fields, 115 Hawai’i 503, 513, 168 P.3d 955, 965 (2007).

5 Virtual testimony may still be available for defense witnesses. The Confrontation Clauses only speak to witnesses for the prosecution.

Moreover, the accused has the “constitutional right to present any and all competent matters in his [or her] defense.” State v. Horn, 58 Haw. 252, 255, 566 P.2d 1378, 1379 (1977). This includes “not only the power to compel attendance of witnesses, but also the right to have those witnesses heard.” State v. Mitake, 64 Haw. 217, 224, 638 P.2d 324, 238 (1981). Trial courts should accommodate defense witnesses by allowing them when necessary to testify through video conferencing.

6 Scalia was joined by the “liberal” justices, William Brennan, Thurgood Marshall, John Paul Stevens and moderates like Byron White and Sandra Day O’Connor.

Ben Lowenthal is a trial and appellate lawyer. He is a deputy public defender on Maui.

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CAS E NOTES Hawaii Supreme Court Civil Procedure McKenna v. Association of Apartment Owners of Elima Lani, No SCWC-160000284, June 25, 2020, (Nakayama, J.).

This case arose from settlement negotiations between Appellant McKenna and Respondents/Defendants-Appellants Association of Apartment Owners of Elima Lani, Certified Management, Inc., Wells Fargo Bank, and Ross Andaloro (collectively, “Defendants”) relating to a dispute between the parties about water and mold damage to McKenna’s condominium. At the close of an October 21, 2014 settlement conference, at which McKenna was represented by counsel, the circuit court and the parties acknowledged that the parties had reached a settlement and went on the record to identify the “essential terms” of the agreement. Thereafter, McKenna refused to sign the settlement documents. On November 5, 2014, Respondents filed a motion to enforce the settlement agreement (“Motion to Enforce”) in the circuit court and attached a proposed written settlement agreement and stipulation. McKenna opposed the Motion to Enforce. After a November 24, 2014 hearing on the Motion to Enforce, McKenna filed a Motion for an Evidentiary Hearing. The circuit court denied McKenna’s Motion for an Evidentiary Hearing and issued an order granting Defendants’ Motion to Enforce. In its order, the circuit court found that the proposed written settlement agreement contained terms beyond those that had been agreed to at the settlement conference. The circuit court therefore struck those terms and created a revised settlement agreement.

Genuine issues of material fact existed as to whether the parties reached a valid settlement agreement and as to which terms the parties agreed to at the settlement conference. As such, pursuant to the ICA’s holding in Miller v. Manuel, 9 Haw. App. 56, 64, 828 P.2d 286, 292 (App. 1991), the circuit court should have granted McKenna’s motion for an evidentiary

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Appeal Pointer Omissions from the record by error or accident may be corrected by the trial court or agency before or after the record on appeal is transmitted to the appellate court and without remand from the appellate court. HRAP 10(e)(2)(B). hearing to resolve these issues. Instead, the circuit court revised the proposed settlement agreement itself before issuing an order enforcing the revised settlement agreement.

Criminal State v. Alkire, No. SCWC-170000638, June 25, 2020, (McKenna, J., with Nakayama, J. dissenting as to Section IV.A., with whom Recktenwald, C.J., joins). This certiorari proceeding arose out of Lisa E. Alkire’s (“Alkire”) conviction for the offense of operating a vehicle under the influence of an intoxicant (“OVUII”) in violation of Hawaii Revised Statutes § 291E-61(a)(1) on Likelike Highway in the early morning hours of October 15, 2016. Alkire raised four questions in her application for writ of certiorari.

The four questions raised on certiorari were: I. As a matter of first impression, did the ICA gravely err in finding that the Tachibana admonishment was sufficient where Petitioner was not informed of her right to testify in her consolidated suppression hearing without that testimony being used to determine guilt or innocence and/or where the court specifically declined to inform Petitioner of her right to remain silent? II. As a matter of first impression, did the ICA gravely err in rejecting Petitioner’s Hawaii Rules of Penal Procedure Rule 48 and/or constitutional speedy trial challenges, where the trial “commenced” with one state witness but was subsequently continued for eight months at no fault of Petitioner? III. Did the ICA gravely err in holding that Hawaii Rules of Penal Procedure Rule 16 usurped United States Supreme Court

precedent that requires individual prosecutors to obtain and disclose impeachment materials rather than merely relying on representations of the police to determine whether and what materials should be disclosed to Defendants? IV. Did the ICA gravely err in finding that discovery, requested for its potential exculpatory value, was not material because the evidence of guilt was “overwhelming” and/or in affirming the conviction where Ms. Alkire was deprived of an opportunity to establish an appropriate record as to the existence of the video? The first question on certiorari was resolved through the opinion in State v. Chang, 144 Hawaii 535, 445 P.3d 116 (2019). With respect to the second question on certiorari, the Hawaii Supreme Court adopted the California Supreme Court’s reasoning in Rhinehart v. Municipal Court, 677 P.2d 1206, 1211-12 (Cal. 1984), and held that, in order to effectuate its intent, Haw. R. of Penal P. Rule 48 required a “meaningful” commencement of trial. A trial is “meaningfully” commenced when a trial court reasonably commits its resources to the trial. As this is a “new rule,” it will only apply prospectively to events occurring after publication of this decision, i.e., to trials that commence after the date of this opinion. With respect to the third question on certiorari, the Hawaii Supreme Court held that, under the circumstances of this case, the prosecutor was not required to personally review files of the testifying police officers. As to the fourth question on certiorari, the Hawaii Supreme Court held that because the video recording showing Alkire at the police station after her arrest was material to Alkire’s defense and her request was reasonable, the district court abused its discretion in denying her motion to compel.

Recktenwald, C.J., joined by Nakayama, J. concurred with the majority’s holdings that (1) the prosecution was not required to personally review files of the testifying police officers to satisfy its burden to disclose any favorable evidence to the defense; and (2) the defendant was

entitled to discovery of the video recording of herself at the police station. However, Recktenwald, C.J. wrote separately because he disagreed with the majority’s interpretation that Haw. R. Penal P. Rule 48 requires a “meaningful” commencement of trial. Haw. R. Penal P. Rule 48 requires a trial court to grant a defendant’s motion to dismiss the charge “if trial is not commenced within 6 months [] from the date of arrest[.]” The majority’s holding effectively amended Haw. R. Penal P. Rule 48 without following the usual procedure for amending the court rules. In addition, the majority offered no practical guidance to trial courts regarding what constitutes a meaningful commencement.

State v. Conroy, No. SCWC-120000537, June 30, 2020, (Wilson, J., with Recktenwald, C.J., dissenting with whom Nakayama, J., joins). Petitioner/Defendant-Appellant Sean Conroy (“Conroy”) was convicted following a jury trial of assault in the second degree. The prosecutor made at least eight improper statements during closing argument in violation of Conroy’s right to a fair trial.

The misconduct affected the issue central to Conroy’s self-defense claim: whether he acted with the intent to protect himself.

The only witnesses to the incident at the time of the injury were Conroy and his wife (hereinafter “CW”). Therefore, in the circumstances of this case, the violation of Conroy’s due process right to a fair trial was not harmless beyond a reasonable doubt.

Recktenwald, C.J., joined by Nakayama, J., dissented. Recktenwald, C.J. stated that the majority vacated Sean Conroy’s conviction for causing life-altering and painful injuries to his wife, for which there was overwhelming evidence of Conroy’s guilt, based on statements the prosecutor made in closing argument.

Contrary to the suggestion of the majority, this was not a mere credibility contest.

According to Conroy’s own testimony, he punched CW in the face twice. Conroy’s blows broke CW’s nose in two places, her

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cheekbone, and a tooth, and caused a blood clot to form, which permanently restricted the movement of the left side of her face. Despite the fact that Conroy was eight inches taller than CW and twice her weight, Conroy contended that punching CW was justifiable because he believed “that such force [was] immediately necessary for the purpose of protecting himself ” from CW, who Conroy alleged had kicked him in the groin and slapped the side of his head. Haw. Rev. Stat. § 703304(1) (2014). Although he agreed with the majority that the prosecutor’s statements were improper, the statements were harmless beyond a reasonable doubt.

There was overwhelming evidence that the amount of force Conroy used was not “immediately necessary” for his self-protection, and there is no reasonable possibility that the prosecutor’s improper statements might have contributed to his conviction. If a prosecutor’s conduct is found to be improper, the reviewing court must determine whether a new trial is warranted under a three-part analysis that considers: (1) the nature of the alleged misconduct; (2) the promptness or lack of a curative instruction; and (3) the strength or weakness of the evidence against defendant. State v. Agrabante, 73 Haw. 179, 198, 830 P.2d 492, 502 (1992) (citation omitted). In Conroy’s case, proper application of the three-part test made clear that the evidence against Conroy was overwhelming, and the nature of the misconduct was not so egregious as to require a new trial.

Although the trial court did not correct all of the instances of misconduct, on balance, the three factors weigh against granting Conroy a new trial.

State v. Glenn, No. SCWC-160000604, June 30, 2020, (Recktenwald, C.J.). In order to commit a crime, a defendant must be capable of intending to act wrongfully. For this reason, if a mental illness or impairment results in a defendant lacking substantial capacity to appreciate the wrongfulness of their conduct or to conform their conduct to the law, then the defendant cannot be held criminally

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responsible. Haw. Rev. Stat. § 704-400 (2019). When, after a mental evaluation, an examiner opines that the defendant lacked penal responsibility, Haw. Rev. Stat. § 704-408 (2019) provides that the court “shall” instruct the jury on the penal-responsibility defense. This case arose from a confrontation between Michael Glenn (Glenn) and the Complaining Witness (CW), which escalated when Glenn allegedly began threatening to strike CW with a baseball bat. Glenn was arrested and charged with one count of Terroristic Threatening in the First Degree. Early in the proceedings, the circuit court ordered evaluations on Glenn’s mental health.

Two of the three examiners concluded that Glenn was unfit to proceed and that he lacked penal responsibility. However, Glenn told his examiners that he did not believe he was mentally ill and that he did not want to assert a defense based on lack of penal responsibility. After further evaluations and hearings, the circuit court found Glenn was fit to stand trial, despite mixed conclusions by his examiners.

Rather than raise lack of penal responsibility as a defense, Glenn asserted a theory of self-defense at trial, but was found guilty. Glenn argued that the circuit court should have either sua sponte instructed the jury about the defense of lack of penal responsibility, or conducted a colloquy to ensure that Glenn knowingly and voluntarily decided not to raise the defense.

The Hawaii Supreme Court agreed with the ICA that the trial court was under no duty to sua sponte instruct the jury under the circumstances of this case; however, it disagreed that courts have no duty to obtain a knowing, intelligent, and voluntary waiver of a penal-responsibility defense.

Lack of penal responsibility is not merely a statutory affirmative defense; it reflects a precept that is fundamental to due process under the Hawaii Constitution. Accordingly, the Hawaii Supreme Court prospectively held that once the court receives notice, pursuant to Haw. Rev. Stat. § 704407.5(1), that a defendant’s penal responsibility is an issue “there exists a reasonable basis to question Defendant’s

current fitness to proceed and penal responsibility during the time in question.”

State v. Jones, No. SCWC-16-0000345, June 30, 2020, (McKenna, J., with Recktenwald, C.J. concurring in part and dissenting in part with whom Nakayama, J., joins). This appeal arose from Maxwell Jones’s (“Jones”) conviction by the district court for the offense of operating a vehicle under the influence of an intoxicant (“OVUII”) in violation of Haw. Rev. Stat. § 291E-61(a)(1). Jones’s certiorari application raised four questions: 1. Did the ICA gravely err as a matter of law in finding that “it was not error for the [d]istrict [c]ourt to allow Officer Wong to express an expert opinion that Jones ‘failed’ the HGN [horizontal gaze nystagmus] test, the walk-and-turn test, and the one-leg stand test”? 2. Did the ICA gravely err as a matter of law in finding that “even if the [d]istrict [c]ourt erroneously allowed Officer Wong to opine that Jones failed the HGN test and other SFSTs, the error was harmless because there was other substantial evidence supporting Jones’s OVUII conviction”? 3. Did the ICA gravely err as a matter of law in finding that “Officer Wong was properly allowed to express an expert opinion that Jones was intoxicated”? 4. Did the ICA gravely err as a matter of law in determining that “Officer Wong’s observations of Jones’s operation of his car, the strong odor of alcohol coming from Jones’s breath, Jones’s red and bloodshot eyes, Jones’s fumbling with his driver’s license, and Jones’s dropping his license in his lap, was sufficient to support Jones’[s] conviction”? The Hawaii Supreme Court answered the first two questions “yes.” The third question had three components. On certiorari, Jones reasserted questions he raised to the ICA regarding (a) whether Officer Joshua Wong’s (“Officer Wong”) expert opinion testimony regarding Jones’s performance on the standardized field sobriety tests (“SFSTs” or “FSTs”) was admissible as substantive evidence of intoxication and not just as to probable cause for arrest; (b) whether Officer Wong’s expertise permitted

him to draw a correlation between the test results and sobriety to render an expert opinion that Jones was intoxicated; and (c) whether Officer Wong’s expertise permitted him to testify that Jones had a blood alcohol level of 0.08 or above. The Hawaii Supreme Court answered question 3(a) “yes.” Based on State v. Toyomura, 80 Hawaii 8, 26, 904 P.2d 893, 911 (1995) (setting out evidentiary foundation required for admission of a police officer’s expert opinion testimony about whether a defendant was intoxicated based on performance on SFSTs), the Hawaii Supreme Court answered question 3(b) “yes.”

Based on State v. Vliet, 91 Hawaii 288, 296–97, 983 P.2d 189, 197–98 (1999) (ruling in OVUII case that any error in the officer’s legal conclusion testimony that defendant’s state of sobriety “would have been over the legal limit” was harmless beyond a reasonable doubt), the Hawaii Supreme Court answered question 3(c) “no.” Based on the reasons discussed herein, however, the Hawaii Supreme Court also prospectively held that for trials occurring after the date of this opinion, police officers may no longer testify, whether in a lay or expert capacity, that a driver appeared “intoxicated.” Finally, because there was substantial evidence supporting Jones’s OVUII conviction, the Hawaii Supreme Court answered the fourth question “no.”

Recktenwald, C.J., with whom Nakayama, J. joined, dissented from Part IV.D. Recktenwald, C.J. stated that the majority upended more than twenty years of precedent by holding that police officers, whether testifying as lay witnesses or experts, cannot opine as to whether a defendant was intoxicated. This categorical ban sounded not in the Hawaii Rules of Evidence, statute, or another legal principle, but in hypothetical concerns arising in hypothetical cases.

State v. Means, No. SCWC-160000810, June 29, 2020, (Wilson, J.). This case arose from the arrest and conviction of Petitioner/Defendant-Appellant Mark Edward Means (“Means”) for theft in the

second degree by Shoplifting. The circuit court sentenced Means as a repeat offender to a mandatory minimum of five years’ incarceration without the possibility of parole. In sentencing Means to a mandatory minimum as a repeat offender, the circuit court did not require a jury to find that Means qualified as a repeat offender beyond a reasonable doubt as required by State v. Auld, 136 Hawaii 244, 361 P.3d 471 (2015). In Auld, it was held “that a jury is required to find that the defendant’s prior conviction(s) have been proved beyond a reasonable doubt to trigger the imposition of a mandatory minimum sentence under [HRS § 706-606.5].” Id. at 257, 361 P.3d at 484.

Although Auld was given “prospective effect only,” it was published one day before Means was convicted and nearly a year before he was sentenced as a repeat offender. Therefore, pursuant to Auld, Means’ sentence violated his right to a jury determination as to whether he qualified to be sentenced as a repeat offender pursuant to Haw. Rev. Stat. § 706-606.5.

Hawaiian Home Lands Kalima v. State, No. SCAP-1800000068, June 30, 2020, (Nakayama, J.).

In 1990, Senator Michael Crozier observed, “[b]oth the length of the list and the length of the wait make the vast majority of Native Hawaiian people despair of ever receiving an award of land.” Senator Michael Crozier, Testimony before the Hawaii Advisory Committee, United States Commission on Civil Rights (Aug. 2, 1990). In the thirty years since Senator Crozier’s statement, the State of Hawaii has done little to address the ever-lengthening waitlist for lease awards of Hawaiian home lands. In light of the circuit court 2009 ruling that the State breached its duties as trustee of the Hawaiian Home Lands Trust (the “Trust”), the Hawaii Supreme Court reviewed the circuit court’s decision granting and apportioning monetary damages to those Native Hawaiian beneficiaries who, as a result of the State’s mismanagement of the Trust, have languished on the waitlist – some for

decades. Constrained by the provisions of Haw. Rev. Stat. Chapter 674, the circuit court adopted a Fair Market Rental Value model (FMRV model) by which the circuit court can estimate the actual loss each individual beneficiary incurred. The interests of justice and the extent of the State’s wrongful conduct support a liberal interpretation of Haw. Rev. Stat.

Chapter 674 and a generous construal of the circuit court’s damages model. The Hawaii Supreme Court held that the FMRV model was an adequate method for approximating actual damages.

Labor Cadiz v. QSI, Inc., No. SCWC-140000594, June 30, 2020, (Wilson, J.). This case concerned a workers’ compensation claim by an employee for an injury-by-disease stemming from his exposure to pervasive mold in his work environment over a four-year period and the subsequent breakdown of his health. The employee, Jay D. Cadiz (“Cadiz”), worked different jobs at various Times Supermarket stores in different locations on Oahu for several years. Cadiz then transferred to Times Supermarket in Kaneohe, owned by QSI, Inc. (“employer”), where he worked for four years in the meat department as a “meatcutter.” Prior to working at the Kaneohe store, Cadiz was healthy and exercising daily, including engaging in martial arts. Shortly after moving to the Kaneohe store in 2004, he “began to feel sick all the time.” Cadiz filed a workers’ compensation claim for injury-by-disease, and the Labor and Industrial Relations Appeals Board (“LIRAB”) rejected Cadiz’s claim, concluding that the employer’s reports based on three Independent Medical Examinations (“IME”) provided sufficient substantial evidence to overcome the statutory presumption in favor of compensability. The Hawaii Supreme Court held the employer’s IME reports failed to provide substantial evidence to meet its burden to produce evidence that, if true, would overcome the statutory presumption that the injury was work-related.

That evidence was never rebutted by the

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employer’s IME reports. Indeed, the employer’s IME reports never addressed the scientific evidence of elevated levels of mycotoxins in Cadiz’s body in relation to the presumption in favor of compensability. In addition, although the LIRAB’s decision and order included the boilerplate language that “all reasonable doubts have been resolved in favor of Claimant,” in fact, the LIRAB failed to do so. Based on the laboratory evidence confirming elevated levels of harmful mycotoxins in Cadiz’s body, and based on the employer’s failure to meet its burden of production, the Hawaii Supreme Court concluded that the employer failed to overcome the presumption in favor of compensability.

Intermediate Court of Appeals Criminal State v. Langdon, No. CAAP-180000002, July 24, 2020, (Chan, J.). Defendant-Appellant David R. Langdon (“Langdon”), self-represented, appealed from the Notice of Entry of Judgment and/or Order and Plea/Judgment, filed on December 19, 2018, in the District Court. Langdon was found to have violated Haw. Rev. Stat. § 286-25, Operation of a vehicle or moped without a certificate of inspection, and Haw. Rev. Stat. § 24914.1, Number plates for mopeds. On appeal, as he did below, Langdon challenged the legality of Act 200 of the 2016 Session Laws of Hawaii, that enacted Haw. Rev. Stat. § 249-14.1 and amended Haw. Rev. Stat. § 286-25. The ICA affirmed the district court’s ruling that Langdon violated Haw. Rev. Stat. § 286-25 and reversed the ruling that Langdon violated Haw. Rev. Stat. § 249-14.1. The record on appeal reflected that Langdon admitted at trial that he did not have a new license plate or safety inspection. Langdon also conceded on appeal that he “did freely admit that he did not have a newly required Safety Inspection and new License plate, though he had a Permanent Moped Sticker.” The ICA concluded that Langdon was not required to have a license plate under Haw. Rev. Stat. § 249-14.1

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C O URT BR IEF S Celebrating Justice Richard W. Pollack Day

Candy and Richard W. Pollack After 40 years of dedicated service to the legal community and people of Hawaii, Supreme Court Associate Justice Richard W. Pollack was honored with a proclamation issued by Chief Justice Mark E. Recktenwald declaring July 1, 2020 Associate Justice Richard W. Pollack Day in the Courts of the State of Hawaii.

The proclamation stated, in part, that “[d]uring his tenure on the Supreme Court, Justice Pollack was extraordinarily productive, authoring more than 150 opinions, all of which were meticulously researched and clearly written. He shaped the court’s jurisprudence in areas including public trust resources and the environment, criminal procedure, evidence, and public access to governmental proceedings. He was always respectful in his decisions, even when others held different points of view.”

The pandemic prevented a more sizable retirement celebration, but guests enjoyed the intimate event that included masks and social distancing.

Justice Pollack intends to continue his duties on the Commission on Professionalism and as a law professor.

Judges Castagnetti and Tootoo Retained Judges Jeannette H. Castagnetti and Faauuga L. Tootoo were recently retained as First Circuit Court judges.

Judge Castagnetti’s new term will be from September 30, 2020 to September 29, 2030. Judge Tootoo’s new term will be from October 7, 2020 to October 6, 2030.

West Hawaii Bar Association and HSBA’s YLD donate books for students The West Hawaii Bar Association (“WHBA”) and the Young Lawyers Division (“YLD”) of the Hawaii State Bar Association (“HSBA”) in April donated books personally

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autographed by U.S. Supreme Court Associate Justice Sonia Sotomayor for students in Hawaii. The books “Turning Pages, My Life Story” (also in Spanish), “Just Ask! Be Different, Be Brave, Be You,” and “The Beloved World of Sonia Sotomayor,” were all written by Justice Sotomayor.

As part of their distance learning homework assignment in conjunction with Law Week 2020 and the National Judicial College Reading and Robes program, Konawaena Elementary School had the students watch a video of Judge Wendy DeWeese and Judge Margaret Masunaga reading “Turning Pages” and “Just Ask!” In addition, Konawaena Middle School held a contest for the best essay about Justice Sotomayor. Students, teachers, and members of the public voted for the winners. The top four entries received a book signed by Justice Sotomayor, as well as a certificate signed by Judges DeWeese and Masunaga.

Other schools that received books include Kealakehe Elementary School, Honaunau School, and Kahakai Elementary.

Special thanks to YLD/HSBA West Hawaii Board Member Nicole Kanetoku Bowman, WHBA Board Member Britani Barker, and HSBA Board Member Carol Kitaoka for their assistance. Benes Aldana from the National Judicial College helped obtain the autographed books from Associate Justice Sonia Sotomayor.

Challenging Racism in the Pacific: Context, History, and Experience in Hawaii and Oceania The King Kamehameha V Judiciary History Center hosted a live webinar on July 9 in which Dr. Akiemi Glenn, Executive Director of the Popolo Project, retired Judge Sandra Simms representing the African American Lawyers Association of Hawaii, and Education Director Keahe Davis talked candidly about the context, history, and experience of implicit and explicit bias in America, Hawaii, and the Pacific.

The webinar is now available for viewing on the Judiciary History Center’s YouTube channel at: https://www.youtube.com/user/jhchawaii

Grand Jury Counsel for the Fifth Circuit The Circuit Court of the Fifth Circuit is seeking applicants for an independent Grand Jury Counsel. If you are interested in being considered for the one-year appointment, please submit a resume by Friday, October 16, 2020, to Chief Judge Randal Valenciano, at 3970 Kaana Street, Suite 306, Lihue, Hawaii, 96766, fax number (808) 482-2662.

ATTORNEY WANTED BIG ISLAND personal injury firm seeking an associate attorney for Hilo office. Must be an active Hawaii Bar member in good standing.

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Position is open to graduating law students or candidates with 1-2 years of legal experience, including clerkships. Candidates must have strong research and writing skills.

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LYONS, BRANDT, COOK & HIRAMATSU seeks civil litigation attorney to join and grow our team of lawyers. Responsibilities include all aspects of case investigation and discovery, legal research and writing, court appearances and oral arguments, trial preparation and participation, and appellate briefing and arguments. Preferred applicants have litigation experience, excellent verbal and written communication and advocacy skills, are highly detail oriented and organized, have solid judgment and strong integrity, and are able to work independently and as part of a team. Applicants must be licensed to practice law in Hawaii and in good standing. Salary commensurate with experience. Benefits offered. Please send letter of interest and resume to hr@lbchlaw.com.

MORIHARA LAU & FONG LLP seeks a lateral attorney with at least 5 years of real estate development/land use experience. Candidates must be licensed to practice in Hawaii, and should be a team player and possess excellent writing, strategic and organizational skills.

Interested candidates should submit their resume, salary history and writing sample to: khiga@moriharagroup.com.

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Depositions & Arbitrations during the

Pandemic

At Ralph Rosenberg Court Reporters we have a whole new range of options to provide depositions and arbitrations that are Safe, Secure, and Seamless.

Oral Depositions & Arbitrations:

Can be accomplished in a variety of ways depending on the situation. Remote depositions via video conferencing can be easy even for the techno challenged.

In conjuction with Certified Legal Video, everything is set up beforehand and each party receives a link.

We are also offering attorneys free training sessions to make sure everyone is comfortable with video conferencing. If an attorney has a question or concern, our experts can assist. All of our reporters have recently received extensive training on conducting remote video depositions. The only requirement is that participants have a computer, laptop, or phone with a camera and access to the internet.

If attorneys are more comfortable with in-person depositions, our conference rooms can be properly set up to comply with current social distancing directives. We can arrange for a mix of in-person and remote participation.

Records Depositions: The Records Department

continues to follow-up regarding the status of subpoenaed business and medical records. Our team is out there picking up records and preparing transcripts for electronic delivery to attorneys and their staffs.

While we all face changes during this time, one thing stays the same: our commitment to our clients and their needs. Regardless of the challenges this pandemic presents, we’ll be there for you!

RALPH ROSENBERG COURT REPORTERS, INC. A Full-Service Court Reporting Firm Tel: 808-524-2090 • Web:

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