Hawaii Bar Journal - April 2022 by Hawaii Bar Journal

BAR JOURNAL A N O FFICIAL P UBLICATION

OF THE

H AWAII S TATE BAR A SSOCIATION A PRIL 2022 $5.00

In Memory of Peter Starn Attorney, friend, and beloved colleague, Peter Starn, passed away on March 2, 2022 after a brief illness. He was 78 years old, and continued to work until his death. Peter was truly one of a kind. He was a formidable attorney and a bold leader, with all the confidence and courage one would expect from a former Naval Aviator and Marine Corps Officer. His professional accolades would fill volumes. But, what will be remembered most is the profound impact he had on each of his friends, family and colleagues. His loss leaves a huge hole in the real estate bar.

Peter was born on January 28, 1944, in Fulton, Missouri to William Elbert Starn, and Margaret Elizabeth (Muggs) Helm. He attended Depauw University, where he received a Bachelor of Arts degree in Political Science, with Honors. He was proud of his service in Vietnam, flying CH-53 Sea Stallion helicopters as a Captain in the U.S. Marine Corps. He believed strongly in both the American system of governance, and a citizen’s duty to serve.

After 4 years in the Marine Corp Peter attended and graduated from Stanford Law School, and became a partner at the Carlsmith law firm in Honolulu. In 1994 he started his own law firm, which grew into Starn O’Toole Marcus & Fisher. The firm now has 45 employees, and 23 attorneys.

Peter was the heart of Starn O’Toole Marcus & Fisher. He worked hard to ensure not only a first-class legal representation of the firm’s clients, but also maintained a

deep connection to his clients and their work, and a happy working environment for everyone at the firm. Peter took care of the people he cared about. His voice and presence brought a certain gravitas. He was a tough lawyer with high expectations. Earning his trust meant having him in your corner as a fierce advocate.

Peter was always a gentleman and a class act. He took the time to get to know people. At his favorite restaurants he knew the valet, the bartender, and the waiters’ names. Words cannot adequately express what Peter meant, and still means, to so many people. He was a generous and caring friend and a devoted father. He had a great sense of humor, and knew how to have a good time. He is gone, but will never be forgotten.

Peter is survived and missed by his sons, Sean, Andy, and Wyatt, his daughter Paris, and is now with their sister Mindy. He was very proud of his grandchildren, Vincent, Mylah, Ka’ae, Poetry, and Coco. At the end of his life, he was blessed to be deeply in love with his girlfriend Donna Yamagishi. On his last day he shared these words, “I love all of you, and I don’t want to leave anyone out.”

Donations can be made to The Pearl Harbor Aviation Museum in support of the Peter Starn Educational Endowment. https://www.pearlharboraviationmuseum.org/joingive/donate/scholarship-support/peter-starn-educationalendowment/

TABLE O F C ON TE NTS VO LUM E 26 , N U M B E R 4

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

ARTICLES 44

Report of the 2021 Bench-Bar Conference by the Hawaii State Bar Association Committee on Judicial Administration

OF NOTE 24 32

Court Briefs

Case Notes

President Shannon Sheldon

HSBA Happenings

President-Elect Rhonda Griswold Vice President Jesse Souki Secretary Lanson Kupau

Classifieds

HSBA OFFICERS

Treasurer Alika Piper YLD OFFICERS President Jasmine Wong Vice President/President-Elect Lisa Yang Secretary Nelisa Asato Treasurer Kelcie Nagata

20 22 28 30 31

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

On the Cover: Having Everything Revealed by Florani Camacho. Camacho is a young adult artist born 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

and raised in Cebu, Philippines, and has found Oahu, Hawaii as her home for the last six years. She embraces the beauty and struggles of womanhood through the manifestation of empathy and vulnerability in her paintings. To see more of her work, visit www.floranicamacho.myportfolio.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.

ACKNOWLEDGMENTS The Hawaii State Bar Association Committee on Judicial Administration was established for the purpose of maintaining a close relationship with the Judiciary on matters of mutual concern to the bench and bar. Since 2012, the Bench-Bar Conferences, Criminal Law Forums, Civil Law Forums, and Family Law Forums have been positive and constructive because of the participation of Hawai‘i Supreme Court Chief Justice Mark Recktenwald, of other members and staff of the Judiciary, and of the bar. Chief Justice Recktenwald is an enthusiastic supporter of these events, and the committee appreciates his dedication in making these efforts a priority. The committee acknowledges the

REPORT OF THE

2021

Bench-Bar Conference by the Hawaii State Bar Association Committee on Judicial Administration

day of the conference and others in the Judiciary’s IT department. The committee is also grateful for the those who assisted as lead judges, reporters, or facilitators at the conference: Second Circuit Chief Judge Richard T. Bissen, Jr., First Circuit Deputy Chief Judge Melanie Mito May, Second Circuit Judge Peter Cahill, Ernest DeLima, Teri-Ann Nagata, Dawn Sugihara, Keani Alapa, Kurt Kagawa, Jill Hasegawa, and Paula Nakata. I.

INTRODUCTION The Hawaii State Bar Association’s (“HSBA”) Committee on Judicial Administration’s (“Committee”) goals are: Maintains a close relationship with the judiciary on matters of mutual concern to the bench and bar, monitors and formulates recommendations to the Board concerning legislation affecting the judiciary, studies and reports on subjects of judicial conduct and discipline, and coordinates activities of the HSBA relating to improvement of the judiciary and administration of justice.1

Lihue

many hours that Lisa Lum, Special Assistant to the Administrative Director of the Courts, contributed to facilitating the conference via Zoom, and to Kanani Kawika, who provided her technical expertise on the

4 April 2022

HAWAII BAR JOURNAL

Hilo

Which Court Reporting Firm? ROSENBERG!

ROSENBERG !

ROSENBERG!

It’ s Un an im ous! A ttorn ey s, Pa r ale g als, a nd Le ga l Se cr eta ri es Al l A g re e.. .

When selecting a court reporting firm, Ralph Rosenberg Court Reporters is the right choice.

As the largest reporting firm in the state, with conference rooms statewide, we will make you feel as though you are our only client. Our responsive staff always comes through. resident court reporters, on all major islands, are experts at Zoom oral depositions and arbitrations. We are backed by a staff of litigation support specialists, notaries, and sheriffs that are all working together to make your case run smoothly.

RALPH ROSENBERG COURT REPORTERS, INC

Telephone 808-524-2090 • Fax 808-524-2596 1001 Bishop Street, Suite 2460, Honolulu HI 96813 Email: andrew@hawaiicourtreporters.com Website: www.hawaiicourtreporters.com A referral service

The 2021 Bench-Bar Conference was held on Friday, October 22, 2021, via Zoom because of the COVID-19 pandemic. The conference of judges, lawyers, court administrators, and Judiciary staff were separated into the following groups: Civil Circuit Court Groups 1 and 2, Criminal Circuit Court Groups 1 and 2, Civil District Court Group, Criminal District Court Group, and Family Court Group. A. WELCOME AND OPENING REMARKS Hawai‘i Supreme Court Associate Justice Simeon R. Acoba (ret.), co-chair of the Committee, welcomed the participants. With the advent of vaccines and targeted controls instituted nationwide, it seemed we were moving into a more normal period for our society and our legal system. But the Delta variant and the inability to maximize vaccinations in the national and local populations required a renewed effort and perhaps new approaches to counter the continuation of the pandemic. That topic, we anticipate, will constitute a major part of the discussion in our groups today. Justice Acoba noted that “the participants in the conference will benefit from sharing knowledge, experiences, and practices with each other. At the same time, the participants are themselves resources for advancing the professional development of colleagues and the legal process as a whole.” Hawai‘i Supreme Court Chief Justice Mark E. Recktenwald noted “the incredible commitment that the participants have in improving the administration of justice.” He described the Bench-Bar Conference as a “critical event in terms of assessing how we are doing and understanding opportunities to be able to do better” and was grateful for the constructive dialogue between the bar and the judiciary. Chief Justice Recktenwald noted that the “centerpiece” of his response to the

6 April 2022

HAWAII BAR JOURNAL

pandemic was the Committee on Operational Solutions, which was the planning body that created a “transformative experience” of moving the hearings remotely to keep everyone safer by having fewer inperson proceedings. There were almost 290,000 remote hearings since the judiciary moved to remote platforms in late spring of 2020. He acknowledged First Circuit Court Judge Paul Wong and Second Circuit Chief Judge Richard Bissen as jurists of 2021 for their leadership during the pandemic.2 The Committee on Operational Solutions has been reconstituted, with Judge James Ashford as chair, to plan for the future. Some of the ideas and proposed rule amendments from that committee were discussed at the conference. Chief Justice Recktenwald also mentioned the judiciary’s efforts on access to justice: Although the self-help centers were restructured to adapt them to a remote format, it has kept going forward at full speed, continuing to provide services to people who cannot afford an attorney in civil cases. Since the first center was created on Kaua‘i ten years ago, we have helped over 32,000 people and I thank each and every one of you who have volunteered your time at these centers across the state. I also want to thank our Access to Justice Commission, Justice Acoba, and now Chief Judge Cardoza who have done a wonderful job of leading the Commission and focusing our efforts on access to justice. Another program that has increased access to the courts is our Online Dispute Resolution pilot program (“ODR”), which was launched this summer in the First and Second Circuits. ODR allows self-represented litigants in small claims cases to file their documents online and resolve their disputes without physically coming to court, and also provides the option for online negotiation and mediation. Two other matters referenced by

Chief Justice Recktenwald were the significant amendments to the civil procedure and circuit court rules and the Report of the Hawai‘i Task Force on Lawyer WellBeing, which was co-chaired by Justice Sabrina McKenna and Louise Ing. In closing, Chief Justice Recktenwald said: I want to thank each and every one of you for being here. As I said, this event has evolved into something I think defines us as a judiciary, defines us as a legal community, which is that we listen respectfully to each other, we try to be as transparent as we can, we try to identify ways in which things that we are doing well and ways in which we can improve. We, at the judiciary, are absolutely committed to that discussion. HSBA President Levi Hookano remarked: The court system is what the public immediately thinks of when the topic of the law comes up and looking at your agenda, I feel confident that the good and reasonable recommendations will come from this benchmark conference to help our judicial system run smoothly, efficiently, and most importantly, fairly so that the public knows that we serve are reassured that we have their best interests at heart. Vlad Devens, co-chair of the Judicial Administration Committee, expressed his gratitude to the attendees and said: The conference is a unique opportunity to see what we can produce collectively to address and hopefully solve some of the pressing issues facing all of us during these strenuous times. It is not just about the judiciary -- what it can do for us practitioners -but what we, as practitioners, can do for the system, given the limited judicial resources stretched thin by COVID. B. COMMON TOPICS Each group initially discussed certain topics that were common to all groups,

Solutions Start Here followed by specific topics within each practice group. The 2021 common topics were as follows: 1. What processes or practices do you (judges, attorneys, and court staff) believe worked well during the pandemic? What did not work well? 2. What constructive suggestions do judges generally have for lawyers appearWithWhat the equipment in suging before them? constructive p gestions do lawyers have for judges before whom they appear? They could easily and safely p 3. Compare the benefits that accrue to the public in remote proceedings and in in-person proceedings. T II. REPORT OFThe THEnumber CIRCUIT of court COURT CIVIL GROUPS r A. COMMON TOPICS 1. Processes and Practices That Did and Did Not Work Well during the Pandemic The Circuit Court the Civilannual Groups first Because faddressed the processes and practices that judges, attorneys, and court staff believed worked well (and not so well) during the Severe Acute Respiratory Coronavirus 2 (popularly known as COVID-19) pandemic. The continued administration of civil justice in the face of a highly communicable and deadly virus required several relatively rapid adaptions. While measures such as masking and social distancing are purely due to circumstance, others, such as remote participation, have the potential for continuing and broader application.

Specializing In Resolving Your Challenging Civil Cases For 35 years, Chuck Crumpton has offered quick and flexible mediation and arbitration scheduling customized to your needs, utilizing not only in-person meetings, but videoconference and online platforms as well. Take advantage of personally tailored mediation and arbitration processes so that you receive cost-effective, innovative, fair and durable resolutions for your clients. Through dialogue focused not only on the legal and factual issues, but also the underlying human concerns and values, Chuck works with you to craft creative, practical, and sustainable solutions that are based on respect and understanding of the parties’ best interests and values, so that they can move forward unburdened by legal disputes. If you have a particularly complex, multi-party case, Chuck offers co-mediation at blended rates with top neutrals.

Crumpton Collaborative Solutions

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

Remote Participation The consensus was that the COVID19 pandemic necessitated remote participation, whether in hearings, status conferences, settlement conferences, depoT sitions, or otherwise, which facilitated the orderly and continuing functioning of the Judiciary and improved the process of civil law in the State of Hawai‘i. Virtual

April 2022

HAWAII BAR JOURNAL

appearance is the future, and that future is now. Participants generally cited convenience and cost savings as major benefits. Beyond the obvious advantages of minimizing commuting and related logistics, judges in the Second, Third, and Fifth JudiKeahuolu cial Circuits noted that many civil matters are handled by attorneys based on O‘ahu and remote participation has given all parties greater flexibility in terms of scheduling matters. O‘ahu-based attorneys appearing in the other circuits agreed. One attorney’s lament of the six-to-eight hours involved in getting up early, departing on a predawn flight, finding transportation between the airport and the courthouse, and returning from a thirty-minute hearing

8 April 2022

HAWAII BAR JOURNAL

was a commonly shared refrain. Both judges and attorneys observed that remotehearing participants seem to be more respectful, and there has been fewer instances of speaking over each other. Reduced cost and convenience factors extended to witnesses, as well, particularly in large civil proceedings where witnesses may not be located in Hawai‘i. Finally, the health and safety benefits of remote participation in a time when there is still significant community spread of COVID-19 for

the unforeseen future are clear. Conversely, participants highlighted common challenges associated with remote participation. Some courts have allowed a mixture of appearances in a hearing – some remotely and some in person - and those who experienced this hybrid approach describe this approach as disjointed at times. Judges indicated that on occasion, those who appear remotely have claimed to be at a disadvantage because they do not have the same physical presence as opposing counsel who appears in person. Some attorneys noted that appearing via a screen precludes them from being able to observe all decision-makers in a proceeding and to notice nonverbal cues. In that sense, some judges did note

that a virtual platform can hinder development of litigation skills and hamper the growth of those skills in junior practitioners. One judge poignantly explained that there is an unquantifiable value in being able to see one’s opponent face-to-face and to know that each is taking the other person seriously with the deference and solemnity that a courtroom requires. Appearing in proper attire was also noted as something that should not be neglected as remote participation becomes more common. Overall, remote proceedings were deemed beneficial and efficient; however, there was concern raised that a balance was needed to avoid losing the in-person connection that occurs with live proceedings and the decorum of being physically in a courtroom. At this point, purely remote litigation has not been universally embraced. Both the bench and the bar raised fundamental concerns about the limits that virtual presence has on zealous advocacy. However,

many elements of the litigation process can benefit from the efficiency that remote technology affords. There was a general consensus that the incorporation of virtual participation, where appropriate, is an advancement in the practice of civil litigation and will continue to be an integral part of the process. Efiling Participants largely agreed that technology has been a critical element in adapting to the limitations imposed by the pandemic. In addition to remote participation, efiling has presented a significant technological change in the practice of civil litigation. Both judges and attorneys felt that the October 2019 introduction of efiling for civil matters demonstrated tremendous foresight on the part of the judiciary. Notwithstanding inevitable technical glitches and disruptions in the rollout of efiling, it has been a critical

element of remote participation in the litigation process throughout the pandemic and the early glitches seem to have been successfully remedied. ECourt Kokua and its related platforms have also allowed clients to keep themselves informed and current with the evolution of their cases. In turn, this allows attorneys to have more meaningful communication with their clients. Participants felt that efiling has been a significantly positive advancement in the judicial process. 2. Constructive Suggestions for Lawyers and Judges Within the context of the impact that COVID-19 has on the practice of law, judges participating in the conference were asked to provide constructive suggestions for attorneys appearing before them. Likewise, attorneys were invited to give suggestions to judges before whom they appear. “Be prepared” is a judicial axiom that the judges participating in the conference

Streamline your long-term care planning cases with Krause Financial Services. Being an attorney is hard work. Allow us to make it easier. Beyond selling Medicaid Compliant Annuities and other planning products, our main priority is supporting you and your practice with specialized insurance solutions, cutting-edge HGXFDWLRQDO UHVRXUFHV DQG ŃUVW FODVV FXVWRPHU VHUYLFH

Krause rause ause Report Report—our Get sstarted tarted by by ordering ordering your your 2022 2022 Kr —our all-encompassing all-enc ompassing guide for for attorneys, attorneys, complete complete with popular planning sstrategies trategies and advanced advanced pr practice actice tips. Scan the QR c code ode or visit medicaidannuity.com/hawaii-report medicaidannuity dannuity y.com/hawaii-report tto o claim your your free free copy! copy!

essentials Crisis planning nin es sentials

Long-term Long-term care care solutions

Real-life Real-life case studies studies April 2022

HAWAII BAR JOURNAL

expounded upon. Focusing on preparation in terms of technology, various judges urged attorneys (and their clients) to test their equipment before the hearing is called. Testing should include the attorney ensuring that he or she has the proper equipment and connections in place. For trials or significant contested motions, several judges extended an invitation for attorneys to coordinate with the court staff well in advance of the hearing and even participate in mock hearings or trial runthroughs. Judges also noted that certain equipment may not be compatible with the Zoom platform used by the court and so attorneys should confirm compatibility by calling the court beforehand. Judges noted that their law clerks are generally well versed in technology and are willing to troubleshoot with attorneys. The judges explained that part of being prepared for remote appearances includes observing courtroom etiquette and decorum. Signing into the hearing at least five minutes prior to the case being called, being dressed, and groomed appropriately (with an appropriate screen background versus being in a car), ready to advocate, and prepared for common technological glitches are all fundamental aspects of practicing law in this time. Several judges provided further suggestions: • Irrespective of the manner of appearance, court is a formal proceeding and not an extension of social media. Unilaterally emailing a judge is considered an ex parte communication and should be avoided. Emails in general should not be used like social media. • Factual assertions should be supported with citations to the record. • Know the rules and follow the rules. For example, there is an entire body of law relating to discovery meet and confer conferences, which go beyond merely reading the rule. Not following such rules burdens the courts and can become abusive. • Testing of technological equipment in advance is critical to making a clear record.

10 April 2022

HAWAII BAR JOURNAL

• Follow all of the rules and standards as if you are physically present in court. • Even if a judge waives the requirement that exhibits be filed as separate documents, each exhibit should be bookmarked if it is lengthy. • Proofread and be familiar with your documents. Ensure that all names and information are correct. • Ensure that each person in an attorney’s party appearing on screen includes their full name (especially if they are appearing on another person’s device). Attorneys did not have collective or overarching suggestions for the bench, but several did voice advice that was generally supported by those in attendance. These included: • A request that microphones and headsets be mandated for remote appearances as audio quality varies greatly among devices used by attorneys. • Attorneys rely on visual cues and often tailor their arguments according to a judge’s expression and tone. Ensuring that the judge’s camera and audio are optimally transmitting clearly aids this practice. • Certain practitioners are obstinate in their refusal to adapt to technology, which is disruptive to a remote proceeding. This could be remedied by the court requiring that they obtain training on how to effectively use remote platforms. • A judge’s inclinations help the attorneys focus on pertinent arguments and provide clear answers to questions. 3. Benefits of Remote Proceedings and In-Person Proceedings There are common and unique benefits that accrue to the public in remote proceedings versus in-person proceedings, particularly with respect to efficiency and accessibility. Participants were asked to reflect upon both in terms of the fair dispensation of justice in civil matters. Several judges shared that even prepandemic, teleconferencing in certain situations was made available to parties as an

alternative to in-person appearances. Given the heavy caseloads across the circuits and the combined civil and criminal calendars of courts in the Second, Third and Fifth Judicial Circuits, remote appearances by telephone were useful in expediting matters such as status conferences to the benefit of more consequential hearings. Remote participation by O‘ahubased attorneys makes sense from an economic perspective when circumstances are appropriate, especially for non-substantive matters. Telephonic (and now web) appearances benefit the public by allowing greater access to the courts. Judges made it clear that mixed appearances by counsel do not lend an advantage to one side over the other, even though some attorneys may feel otherwise. Nonetheless, some judges require that if one party appears remotely, all must do so. There was general agreement among attorneys about the benefit of allowing parties to appear remotely (including pre-pandemic), with several explaining that their clients are comfortable using web platforms for remote participation versus the intimidation that being in court physically often poses to lay people. The convenience and efficiency of remote participation also results in a reduction in cost, for which clients are universally happy. For significant substantive matters such as dispositive motions and trials, many judges require in-person attendance by all parties (and, to a slightly lesser extent, witnesses). This requirement is driven by the earlier observations among the bench and bar that face-to-face contact and the ability to see, first-hand, the demeanor or other non-verbal cues presented by individuals in the courtroom is an integral part of trying a case. B. SPECIFIC TOPICS 1. Implementation and Transition to the New Civil Reform Rules On October 8, 2020, the Hawai‘i Supreme Court issued an order

promulgating amendments to Rules 16, 16.1, 26, and 29 and adopting new Rule 16.1 of the Hawai‘i Rules of Civil Procedure. These changes, collectively referred to as the civil reform rules, were originally intended to become effective on January 1, 2021. The pandemic’s impact on the civil litigation process in Hawai‘i necessitated extending the civil reform rules effective date, first to July 1, 2021, and, most recently, to January 1, 2022. Participants engaged in discussion on the implementation and transition to the civil reform rules, focusing particularly on the way the courts will apply the new requirements for scheduling conferences under Rule 16. As a member of the court’s Implementation Committee, Judge Jeannette Castagnetti began the discussion by briefing the group on the amended rule. Noting the most recent Hawai‘i Supreme Court order setting a new effective date of January 1, 2022, Judge Castagnetti shared that the committee is proceeding on the understanding that the current effective date is firm. Judge Castagnetti explained that there is no retroactive effect to the amended Rule 16 unless the parties stipulate as such, or the court orders its application to cases filed prior to the effective date of January 1, 2022. The Implementation Committee has created draft standard forms as appendages to the rule that are intended to ensure uniformity across the circuits. The committee is working on creating a model scheduling order to be used by courts across all circuits for uniformity. The committee envisions that the order will look similar to the scheduling order used by the United States District Court for the District of Hawai‘i with additional information such as designating the case as expedited or non-expedited pursuant to the new trial track system. Following the public comment period, the committee will ask the Hawai‘i Supreme Court to adopt the forms. The committee is also coordinating with the Hawaii State Bar Association to hold a series of meetings intended to educate practitioners about the rule.

Judge Castagnetti answered the following questions about the new civil rules: Q: How will judges implement the new requirement for scheduling conferences? A: As a practical matter, HRCP Rule 16(b) already requires a plaintiff to request that the court set a scheduling conference. A new form created by the committee is intended to serve as the notice of that request. The plaintiff must include information concerning service of the parties to assist the court in determining when the scheduling conference should be set. The plaintiff must submit a proposed order that conforms to the requirements stated on the form. The rule will also require the submission of a joint report of the parties and a scheduling conference statement from each party. Q: Certain claims within actions may be exempt from the new requirements of Rule 16. If there is an action that includes both an exempt and an applicable claim, how will the court handle the matter? A: If an action has a combination of applicable and inapplicable claims, the attorney should evaluate the action holistically and determine if, overall, Rule 16 should apply. The parties are also free to seek a status conference on the applicability of Rule 16 to such mixed claims prior to proceeding under the rule. Q: Given the perennially heavy caseloads of all circuit courts, adhering to the nine- and twelve-month trial deadlines under the rule may be difficult. This concern is compounded by the fact that the Second, Third, and Fifth Judicial Circuits have combined calendars, with criminal trials taking precedence due to Hawai‘i Rules of Penal Procedure Rule 48 considerations. How are judges expected to accommodate the new timing requirements? A: The committee understands that the timing requirements of Rule 16 present a challenge in both contexts. Judges have always worked diligently to follow these types of timing requirements. The

expectation is that counsel and the court will work collaboratively to accommodate these new timelines. This is also an area where the time-savings resulting from remote participation for certain matters can afford the parties greater scheduling flexibility with respect to availability for trial. This discussion expanded to individual judges’ expectations concerning the practical application of Rule 16. Members of the bar expressed concern about how realistic it was to expect trials to proceed on expedited trial tracks under the new rules given the current backlog of cases caused by the pandemic, and they had further concerns about incurring the expenses required to be trial-ready for a trial that does not proceed as scheduled. Judges voiced their commitment to the rule but noted that double, triple, and even more settings are currently not uncommon and will be necessary to ensure compliance and to dispose of cases efficiently. If a case’s trial date occurs and there are older cases in the trial queue, the judge will have to weigh the needs and potential consequences of each case when deciding how to proceed with the calendar. Practically speaking, multiple trial settings will necessitate more status conferences to determine which matters are truly ready to proceed to trial. A collateral consideration was also raised about the availability of jurors. The Fifth Circuit is having problems summoning jurors due to wariness about potential exposure to COVID-19. If this constraint continues, it will be impossible for the Fifth Circuit to run more than one jury trial concurrently. Finally, participants observed that the changes to Rule 16 were crafted pre-pandemic but that the underlying goal has always been to have cases resolved more quickly and maximize cost efficiency. To that end, many judges envisioned the initial scheduling conference being held in person so that the court and parties may have a clear sense of the issues early on and possibly advance settlement discussions. The social distancing limitations

April 2022

HAWAII BAR JOURNAL

caused by the pandemic may preclude appearing in person for the initial scheduling conference, but the parties will be encouraged to make the best use of this time with the expectation that the efficiencies gained under the rule will help ease the backlog. 2. Appearance by Telephonic or Video Conference Call The pivot to remote appearances for most matters was swift, but in large part members of the bench and bar have adapted and even embraced the change in format. Proposed modifications to HRCP Rule 16.1 would make an appearance by telephonic or video conference call presumptively allowed in certain matters. The groups explored the possibilities and constraints associated with the proposed changes to Rule 16.1. The discussion over proposed changes to Rule 16.1 began with the intended application of the phrase “presumptively allowed.” Practitioners noted that currently, if a party wishes to participate in a hearing remotely, he or she must contact the court beforehand to obtain approval and make the logistical arrangements. The proposed change to Rule 16.1 appears to dispense with obtaining the court’s approval for remote participation in certain matters but further clarification by the rules committee may be needed. As a practical matter, however, the requesting participant must still make arrangements with the court to facilitate the remote appearance. A request by email garnered support because it is an efficient way to create a written record with the expectation that parties have coordinated the matter between themselves before approaching the court. However, practitioners and judges alike seem to be affected by a constant flood of emails in general, and requestors should take steps to ensure that the intended recipients have received their emails. Attorneys have employed other methods such as a phone call or a written letter to the chambers, but those methods seem to have greater drawbacks than an email.

12 April 2022

HAWAII BAR JOURNAL

A majority of the participants encouraged making status conferences presumptively remote, and some judges remarked that they support doing so. In fact, remote status conferences are the normal practice in some divisions if all parties are in agreement. In order to maximize efficiency, those courts direct that prior to scheduling the conference remotely, the parties must stipulate in an email to the court describing the issues to be addressed. Unless there is a reasonable objection, some courts also allow a diversity of appearance in person and virtually. Although there was also vocal support for settlement conferences becoming presumptively remote, some participants expressed hesitancy in this approach. Members of the bench pointed out that convening face-to-face is invaluable when there are delicate, intricate, or critical matters to be addressed. While it is easy to say “no” via a screen, the appearance of all parties in person seems to promote a more reasonable and cooperative atmosphere, particularly in the presence of a presiding judge. Attorneys echoed that perspective, even noting that the physical presence of some judges can be a factor in motivating a party to settle. In large part, attorneys appreciated the savings in both time and money that can come from remote settlement conferences but acknowledged that negotiating in person with an opposing party creates a dynamic that can promote resolution. In addition to the proposed change making virtual appearances presumptively allowed in certain matters, the group discussed situations where participating virtually should be presumptively not allowed. For those circumstances, the committee would possibly add a revision requiring all parties to stipulate to remote appearances with the permission of the court. Although some opined otherwise, the majority of participants felt that trials and evidentiary hearings are examples of matters where appearing virtually should presumptively not be allowed. However, even

under a presumption that remote participation will not be allowed, judges expressed a willingness to compromise. For example, if, even after pursuing a stipulation, one or more parties objects to remote participation, courts may be willing to entertain a status conference to address the issue and render a decision. The underlying point is that the possibility of remote participation is now an important element of the judicial process. As long as the court can establish parameters to ensure that remote participation is fair, it should be used to advance justice. 3. Challenges in Conducting Trials under Pandemic Restrictions The pandemic has made a tremendous impact on trials across the state. As with society in general, attorneys, litigants, and the courts are faced with constructing a “new normal” that must strike a balance between physical safety and the fundamental right to due process of law. The groups examined changes made over the last two years to the trial process and the lasting impact those changes will have as Hawai‘i seeks a path out from the shadow that COVID-19 has cast. The consensus among judges was that jury trials will need to recommence soon, if only to avoid crushing backlogs, particularly given the impending implementation of the new rules. Nationally, many jurisdictions have fully reopened, and it does not appear that the threat from COVID19 will entirely disappear in the near future. With that said, the courts are mindful of the physical limitations necessitated by COVID-19 and have attempted to adjust accordingly with the overarching principle of putting safety first. In planning for the resumption of trials (and jury trials, in particular), the Judiciary consulted with the State of Hawai‘i Department of Health on crafting social distancing and sanitary standards. Resulting modifications to the trial courtroom may include: • spacing the plaintiff and defense tables at opposite sides of the courtroom and

limiting the number of people allowed at each table • encouraging parties to stipulate to a smaller panel of jurors • requiring potential jurors to return a COVID-19 risk screening questionnaire prior to being called for service • requiring the use of masks by all individuals in the courthouse • requiring jurors to wear face shields in addition to masks while in the courtroom • maintaining transparent barriers in front of the bench, witness stand, and clerk’s desks • situating jurors in both the jury box and the gallery to adhere to social distancing requirements • allowing witnesses to use a face shield in place of a mask while giving testimony • compiling written documentary exhibits (such as medical reports) into a single binder with identical copies for the parties, judge, and witnesses as an easy reference • providing each juror with a sanitation packet, including a pen, paper, hand sanitizer, and face shield • providing jurors with ear protection headphones to be used as an alternative to excusing the jury if the court needs to address a matter outside of its presence. • sanitizing commonly used surfaces prior to a change in user and during all recesses and breaks • installing large video screens to simulcast witnesses clearly while testifying • allowing attorneys to position themselves at different angles in order to face jurors during voir dire, and opening and closing arguments • using other spaces in the courthouse to house potential jurors if social distancing cannot be accomplished in the courtroom • livestreaming certain proceedings on the Judiciary’s YouTube channel to provide greater public access while adhering to social distancing requirements • allowing witnesses to testify remotely. In addition to the above measures, the Judiciary has worked to accommodate

14 April 2022

HAWAII BAR JOURNAL

individual juror concerns about COVID19. Many judges shared that they will readily excuse potential jurors who raise a legitimate concern (such as pre-existing conditions) about contracting COVID-19 while serving as a juror. When polled following trial, judges noted that most jurors expressed satisfaction with these COVID19 related measures. Ultimately, although these adaptations can be inconvenient, the Judiciary is committed to placing safety first and fully complying with all applicable government health and safety requirements. One judge noted that the Judiciary has been closely following certain safety protocols outlined by the State of Hawai‘i Department of Health, which has limited the court’s discretion in modifying such safety measures. Participants who have gone to trial during the pandemic also shared their experiences and the measures that were undertaken by the courts to facilitate a smooth trial process. Some of the practical concerns that arose during jury trials were the fogging up of witnesses’ plastic face shields while testifying, jurors being spaced out and seated in the jury box and gallery so that some of the jurors were looking at the backs of the attorneys, jurors having difficulty viewing exhibits due to their seated positions, and jurors not being able to hear everything being said in the courtroom. It was noted that the federal courtrooms have protective shields installed around the witness boxes so that a witness need not wear a mask or face shield while testifying. The judges were asked why counsel for the same party could not sit closer than six feet apart at the same counsel’s table during trial because of the coordination difficulties such distance created for the attorneys. It was further pointed out by a participant that students in schools are allowed to sit three feet apart. To prepare for trial, some judges encouraged attorneys to meet with the court a few days prior to the trial and to run through the process, including testing

technology that the attorneys intend to use and confirming the expected cadence of the trial. Judges also noted that some attorneys retain their own IT support staff to facilitate remote participation or digital presentation of evidence. To that end, one participant noted that effective litigation in light of the many challenges posed by COVID-19 boils down to preparation. Attorneys also proposed that the Judiciary explore the use of alternate larger facilities, especially for multi-party litigation, to facilitate a traditional courtroom trial set up where, while maintaining social distancing, jurors are collectively situated to face the parties, witness stand, and bench. While the judges in attendance were not averse to this suggestion, funding for such alternate spaces has not been allocated. Cost concerns were recognized as an obvious obstacle, but it was suggested that willing parties could consider sharing the cost of a venue as an alternative approach. Additionally, the security measures employed at the courthouses could not be easily adapted to an alternate facility. Noting a measure employed by at least one jurisdiction, the potential to conduct a completely remote jury trial (or, in the alternative, a trial where jurors participate remotely) was raised. Several participants expressed hesitancy at such a notion with at least one participant noting it would have to be a last resort, but some courts may be willing to consider opportunities for limited hybridization of jury participation if the parties desire it and they are willing to assume the risk of technical difficulties, lack of in-person communication, and juror commitment. 4. Transcript Requests Attorneys have been unable to obtain expedited hearing transcripts from the assigned court reporters although some of the judges and attorneys indicated they had not heard it was a widespread problem. The judges in the First Judicial Circuit explained that the court reporter’s office is experiencing a shortage due to

several retirements and general attrition. In addition, Kapiolani Community College has discontinued its court reporter training program, and there are fewer trained applicants to fill open positions within the Judiciary. The Third Judicial Circuit also reported a shortage of court reporters and noted that even for trials, reporting is conducted via electronic recording. Priority for in-person recordation is given to grand jury proceedings, although if parties anticipate a need for an expedited transcript, they should make the request to the trial judge beforehand, and the court will attempt to secure a reporter. In lieu of live recordation by the court’s reporter, some judges will allow a party to retain a private court reporter but advance notice to the court is required. Absent a live reporter, the best course to secure expedited transcripts is to obtain the official audio recording of the proceedings and retain a private reporter to prepare the transcript. III. REPORT OF THE DISTRICT COURT CIVIL GROUP Chief Justice Recktenwald joined the District Court Civil Group and thanked the District Court Judges and attorneys for their professionalism and cooperative response during the pandemic. In particular, those who work on behalf of landlords, tenants, and other interested parties have helped the Judiciary prepare to provide a fair and effective forum as increasing numbers of eviction cases come before the courts. A. COMMON TOPICS 1. Processes and Practices That Did and Did Not Work Well During the Pandemic The District Court Judges provided a summary of process and practices that worked well during the pandemic and those that did not work well. The process and practices that worked well include the following:

• Attorneys have been patient and flexible. Attorneys have acclimated well to remote hearings and to changes in the court’s operating status. The District Court Judges receive regular feedback on remote hearings and attempt to respond to issues with training for judges, attorneys, and staff, as needed. • The Access to Justice Room at the Honolulu District Court has been invaluable for self-represented litigants, who have provided positive feedback on the assistance they received. • The Courts’ partnership with the Legal Aid Society of Hawai‘i (“LASH”) has been helpful, particularly in summary possession cases in which LASH has been representing litigants and facilitating resolution. • Act 57’s3 use of mediation and phased approach to evictions has assisted in managing the summary possession caseload. The District Court Judges have responded to the increase in returns in Honolulu and Ewa with calendaring strategies. • Efiling has allowed attorneys to continue to manage their cases remotely. The Court’s drop box has worked well for selfrepresented litigants who are not Judiciary Electronic Filing System (“JEFS”) users. • Online dispute resolution in small claims cases has allowed litigants to resolve cases without needing to access the courts. • Zoom instructions and phone numbers for the District Court Courtrooms have been posted at the Judiciary website at: https://www.courts.state.hi.us/remotecourt-hearings-via-zoom-or-webex. The process and practices that have been more challenging include the following: • The absence of in-person hearings may make it more difficult to discuss settlement. • Hearings and trials have been challenging in more remote areas such as Molokai and Lanai. The courts are working on setting up the equipment needed to support hearings and trials on these islands. The attorneys generally concurred with the District Court Judges as to the

processes that have worked well and discussed the following challenges: • Attorneys may have return days set in multiple cases at the same times. District Court Judges explained that the current court calendars reflect the limited number of staff and courtrooms. District Court Judges suggested that attorneys with multiple matters set at the same times consider switching between the remote proceedings, checking in early, and explaining the issue to the court staff, or asking another attorney to cover one or more matters. Attorneys suggested posting or sharing the court calendar with numbers assigned to the cases to be called and having greeters available to assist parties with determining the number of the parties’ cases on the calendar and the likely duration of the parties’ wait. • In summary possession and TRO trials, the ability to call witnesses via Zoom has increased the numbers of proposed witnesses. Attorneys suggested that a rule or guidance from the courts would assist in streamlining these trials. • There is some concern about how seriously parties take remote hearings. Attorneys should set the standard. Although hearings over Zoom may be a little less formal, attorneys should demonstrate appropriate respect through their dress, demeanor, and attention. Consensus Participants agreed that it would be helpful to have greeters available during remote proceedings and to have the court post or share a calendar of cases with assigned numbers corresponding to the order in which the cases will be called. 2. Constructive Suggestions for Lawyers and Judges The District Court Judges prepared and shared a list of suggestions for the attorneys appearing before them as follows: 1. Be on time and be ready to handle your case as soon as it is called.

April 2022

HAWAII BAR JOURNAL

2. Be prepared. No matter the type of hearing, you should know everything about your case, including the procedural history, so that you can answer any questions the court might have. 3. Know the court rules. For practitioners who regularly practice in Circuit Court and only infrequently in District Court, make sure you know the District Court Rules of Civil Procedure. 4. Never misrepresent or mislead the court in any way. 5. Meet and confer in a meaningful way before filing discovery motions. Confer with opposing counsel again after the discovery motion and opposition are filed. If you and your opposing counsel are able to narrow or resolve the issues prior to the hearing, it will reflect well on both sides. 6. Do not argue with opposing counsel during a hearing or trial. Instead, direct your arguments to the court. 7. If you are new to District Court, read the rules, and consult with seasoned practitioners about District Court procedure and practice before you file your first document or make your first appearance in District Court. For practitioners, whose practice is typically limited to one judicial circuit but who occasionally appear in other circuits, consulting with local practitioners is particularly helpful. While the court rules are common to all circuits, the custom and practice in each circuit sometimes varies. An oral argument that begins with the phrase, “well, in the other circuits . . . ” is not likely to be persuasive. 8. Carefully review all documents before submitting them to the court. 9. Until your motion to withdraw as counsel has been approved and the order is filed, you are still attorney of record.

16 April 2022

HAWAII BAR JOURNAL

Attorneys observed that there may be subtle differences among judges in inquiring whether a tenant admits or denies the allegations in the complaint or asking whether the tenant is ready to move out and suggested that review and assistance from more experienced judges and court staff could assist in promoting consistency.

Kaahumanu

10. Be courteous to court staff. 11. Be civil to opposing counsel, parties, and witnesses. Specific suggestions regarding remote hearings: 1. Check into Zoom hearings early, before the scheduled court time, especially if you have hearings in multiple courtrooms. The judge may agree to excuse you to appear for another court hearing and return later and checking in early helps the court manage the calendar. Checking in early also allows you to test your microphone and camera connection with the online greeter, to avoid unnecessary delay when your case is called. 2. Familiarize yourself with Zoom and prepare your clients as well. Every attorney should have a basic working knowledge of the Zoom application and should have addressed any problems with their electronic devices prior to any hearing. 3. Zoom hearings are still court proceedings. Please dress properly and show proper court decorum. 4. Although telephonic appearances may be permitted in certain cases, attorneys are

encouraged to appear by video and to turn their cameras on. If you are late and decide to appear by telephone, please do not interrupt the court proceedings. You should wait silently until you hear your case called or until the judge asks you to identify yourself. 5. Attorneys should refrain from discussing confidential matters with their clients in open court during Zoom hearings. If you need to speak with your client, please ask the judge to pass your case so you can discuss the matter privately with your client via a breakout room or telephone call and return to the court session later. Final thoughts: • Remember that the District Court is the people’s court. Most litigants are pro se. • Pro se litigants will take their cues from observing the attorneys. As an attorney, you are a reflection of the entire bar – you are either one more example of all of the negative stereotypes about attorneys, or you are living proof of the important and noble role that attorneys play in a democratic society. Each time you appear in court, you shape public opinion about attorneys in general and the system of justice as a whole.

3. Benefits of Remote Proceedings and In-Person Proceedings The District Court Judges provided background on the court’s evolving mix of remote, hybrid, and in-person proceedings. The judges stated that remote proceedings are convenient and safe. The proceedings pose challenges for judges, who must manage technical difficulties and assess witnesses’ credibility. For this reason, judges prefer in-person proceedings for evidentiary hearings or trials. The attorneys agreed that there are far fewer defaults in remote proceedings because the hearings are much more convenient. This is particularly true for parties who have left Hawai‘i and now reside elsewhere. Certain parties may prefer in-person proceedings, however, because they facilitate resolution. Parties may find it easier to trust opposing parties when meeting face-to-face, and defendants may come to in-person proceedings with a payment or payment plan in hand. B. SPECIFIC TOPICS 1. Further Discussion of the Impact of Covid on District Court Proceedings The participants focused on the following questions: • What are the similarities in how court proceedings are being conducted in the Honolulu District Court vis a vis the rural District Courts on Oahu and the neighbor island District Courts? • What are the differences in how court proceedings are being conducted in the Honolulu District Court vis a vis the rural District Courts on Oahu and the neighbor island District Courts? In the Second and Third Circuits,

April 2022

HAWAII BAR JOURNAL

District Court proceedings are a hybrid of in-person and remote. In the Fifth Circuit, all District Court proceedings are in-person. Attorneys observed that the circuits may vary in the length of dialogue permitted or invited during District Court proceedings and in the availability of mediation in residential and commercial summary possession cases. 2. Proposed Rule 16.1 of the District Court Rules of Civil Procedure The Committee on Operational Solutions proposed a new Rule 16.1 of the District Court Rules of Civil Procedure that would provide for telephonic or video conferencing for (1) answers and returns; (2) status and pretrial conferences; (3) settlement conferences; and (4) non-evidentiary motions. Telephonic or video conferencing should be allowed “absent good reason.” Unless permitted by the court, statute, or court rule, the proposed new Rule 16.1 also does not provide that telephonic or video conferencing will be allowed for trials and evidentiary hearings. The question that was discussed was whether the proposed rule would provide for uniformity in practice and procedures. The District Court Judges reported that permitting appearance by telephone or video conferencing for the proceedings outlined by the proposed rule is already the normal practice in the First and Second Circuits. Telephonic and video conferencing has been particularly helpful in settlement conferences. Parties can be placed into confidential breakout rooms to discuss resolution. Lawyers considered the effect of the proposed rule on self-represented litigants but expressed a general feeling that most self-represented litigants are able to access email and use Zoom to participate. In addition, the new summons for residential landlord-tenant matters includes both the Zoom meeting number and a sheet with legal resources. Attorneys noted that remote proceedings make it more convenient for lawyers

18 April 2022

HAWAII BAR JOURNAL

and the public to observe. Attorneys asked whether the proposed rule would have a sunset date. The District Court judges expressed a desire to implement a rule for the long term that takes the best of what the Judiciary has learned during the pandemic and allows sufficient flexibility for the future. Attorneys noted that the proposed rule does not address the process for seeking authorization to appear by phone or video. The District Court Judges explained that the proposed rule was intended to give the circuits discretion, but the judges have discussed creating a uniform form for seeking authorization. Consensus Attorneys expressed support for the proposed rule and suggested that the Judiciary expedite implementation so that the proposed rule takes effect after the pandemic orders expire. Attorneys also suggested that the Judiciary consider a similar rule for the Small Claims Division. 3. Status of Cases Affected by the Eviction Moratorium and Older Eviction Cases The District Court Judges explained that the anticipated wave of eviction cases did not occur because of the great work on the part of many parties. In particular, the Mediation Center of the Pacific (“MCP”) has been incredibly busy resolving eviction cases and obtaining rent relief funds. With MCP’s assistance, 80 to 90% of cases have been resolved. LASH has also assisted in managing these cases. Other helpful factors include the federal and state moratoriums, and the phased approach to eviction required under Act 57. The Honolulu District Court likely has the highest case load, with returns set all day on Fridays. On an average Friday, 10 to 20 returns are set in the morning, and another 15 returns are set in the afternoon. This is a busy calendar, especially when the court factors in time for LASH to give advice to self-represented parties and for opposing parties to be placed into

breakout rooms to discuss resolution. The number of eviction cases in the rural District Courts on Oahu has been stable. In Honolulu District Court, the District Court Judges set settlement conferences before trial and find that matters can often be resolved, at least as to possession. Settlement conferences are set on Tuesdays and Wednesdays. Trials are set on Thursdays, and the court’s trial calendar is currently full for several months. On this issue, attorneys asked whether the court has considered setting back-up trial dates or setting multiple matters for trial since the assignment of a trial date facilitates resolution. In the Second and Third Circuits, District Court Judges and attorneys have not seen many eviction cases due to the eviction moratorium, although cases have been brought on grounds other than unpaid rent. Regarding mediation and case management, the District Court Judges explained that cases may be placed on one of several tracks: (1) an Act 57 track for cases based on unpaid rent (MCP mediators are paid with federal funds and mediation can be scheduled within one to two weeks); a regular track for cases based on issues other than unpaid rent (mediation can be set within approximately four weeks); and a safety track in which there is a potential threat to persons or property (trial is set immediately). District Court Judges recommended that attorneys ensure that they receive current cell phone numbers and email addresses for tenants so MCP can contact tenants and refer tenants who do not participate in mediation promptly back to court for trial setting. If a tenant intends to retain LASH, LASH requires a short time to perform intake, after which LASH frequently facilitates resolution. 4. The Landlord-Tenant Mediation Process The participants discussed the impact of the landlord-tenant mediation process implemented pursuant to the recent revisions to Haw. Rev. Stat. § 521-68. The

District Court Judges stated that Act 57 has been helpful. MCP and LASH have both been instrumental in assisting the courts and litigants. The District Court Judges noted that, in addition to mediations, settlement conferences and trials are being set. Settlement conferences have greatly facilitated resolution. The District Court Judges regularly review and analyze data on the numbers and types of cases filed and actively manage the cases and calendars in an effort to avoid issues and facilitate resolution. Attorneys stated that they have had positive experiences in landlord-tenant mediations when mediators have been well versed in Act 57 and able to recommend resources to tenants to obtain rental assistance. 5. Grace Period to Obtain Certified Documents Currently, to obtain a free certified document after filing, the document has to be taken to the District Court clerk on the day of it being approved and filed. If the document is uploaded in the late afternoon, it is a challenge to arrive timely in court for that free certified copy, and it becomes necessary to pay a $5 per certified document on the next day. The questions discussed were: is there support for limiting, via statutory revision, the mandatory certification requirement or is there a compelling need for a certified judgment when the Judgment is on file and can be verified online? District Court Judges explained that issues with the certification requirement would require a statutory revision. As to the charge for certification, the District Court Judges stated that they would look into the rationale for such fee.

DEPUTY PROSECUTING ATTORNEY AND LAW CLERK VACANCIES

The Department of the Prosecuting Attorney, City and County of Honolulu, is looking to fill vacant deputy prosecuting attorney positions at all experience levels. Applicants must be licensed to practice law in the State of Hawaii and in good standing before the Hawaii Supreme Court at the time of hire. Those waiting for bar exam results are encouraged to apply. The ideal applicant should have strong analytical skills, be comfortable with both oral and written communications, exhibit high ethical standards, and show a commitment to public safety. Salaries start at $75,588. Great benefits package including pension, health coverage, and defined-contribution plans.

The Department is also recruiting law clerks who intend to take the bar exam in February 2022. Law clerks would be in excellent position to be hired as deputy prosecuting attorneys upon passage of the bar exam. Salary is $50,880. Position comes with full benefits.

To apply, please visit our website at: https://www.honoluluprosecutor.org/employment-opportunities.

6. Increasing the Civil Jurisdictional Limit The District Courts currently have jurisdiction over civil actions in which the debt, amount, damages, or value of the property claimed does not exceed $40,000. Participants discussed the last increase of

April 2022

HAWAII BAR JOURNAL

the jurisdictional limit from $25,000 to $40,000. One limitation was that the increased jurisdictional limit did not apply to replevin. The District Court Judges stated that they are neutral on this topic and will manage the increased caseload if this jurisdictional limit is further increased. Attorneys discussed how an increased jurisdictional limit might affect or be affected by incentives to settle, approvals for settlements, the Court Annexed Arbitration Program, and demands for jury trials. 7. Judgment Debtor Examinations Conducted via Zoom Currently, the district courts in the First Circuit have allowed judgment debtor examinations via Zoom. The discussion topic was whether this should be continued and expanded to include other circuits. Attorneys who practice in other circuits stated that the practice seemed similar to conducting remote hearings via Zoom. In the First Circuit, remote judgment debtor examinations have been executed by swearing in the judgment debtor, placing the parties in a confidential breakout room, or asking the judgment debtor to provide the opposing party with a cell phone number, and instructing the judgment debtor to answer all of the questions. 8. Return Dates for Summary Possession Cases In the First Circuit, return dates for summary possession matters are scheduled on certain dates. The discussion question was whether this process is working and whether it should be continued. The District Court Judges explained that the assignment of dates certain was necessary because of the anticipated wave of eviction cases. The court needed a way to manage the number of returns set for a single day. In the court’s view, the process generally has been working well. Attorneys identified two challenges with the assignment of return dates. Often the assigned dates do not allow sufficient time for traditional service or to file

20 April 2022

HAWAII BAR JOURNAL

an ex parte motion to serve by posting and by certified mail. In these situations, attorneys may choose to file an ex parte motion to continue the return date to allow additional time for service. Attorneys also discussed the benefits of assigned return dates and stated that the certainty is a significant benefit to tenants. The certainty assists in avoiding defaults, preserving housing, and promoting faith in the fairness of process. 9. Good Cause Standard to Set Aside An Entry of Default The Supreme Court of Hawaii’s opinion in Chen vs. Mah, 146 Hawai‘i 157 (2020), held HRCP Rule 55(c) motions are governed only by the “good cause” standard explicitly stated in the rule and that movants seeking to set aside an entry of default pursuant to Rule 55(c) need not satisfy the three-prong test applicable to HRCP Rule 60(b) motions to set aside default judgments. The participants discussed their awareness of the opinion and their experiences in dealing with setting aside default judgments. The District Court Judges stated that, in their view, both the bench and bar are aware of Mah. The judges stated that defaults will be liberally set aside. Furthermore, the District Court Judges stated that stipulations to set aside default can keep the case moving toward resolution by including statements that the defendant enters a general denial and that the parties jointly request placement on the pretrial calendar on a particular date. IV. REPORT OF THE FAMILY LAW GROUP A. COMMON TOPICS 1. Processes and Practices That Did and Did Not Work Well during the Pandemic The consensus of the group was that remote appearances worked well during the pandemic. The group acknowledged and appreciated the Judiciary’s quickness to recognize the importance of Family

Court and its need to remain open especially during the global pandemic. Once procedures were in place, the Judiciary was able to continue serving the community in a safe manner. The court procedures have been so well-received that the group believes the Judiciary should retain remote appearances for certain court proceedings, but ultimately it is believed there are other proceedings that must be held in person. The group appreciated the staggered scheduling of hearings. Before the global pandemic, most circuits scheduled their daily hearings at the same time. This meant everyone came to court at the same time, but the court would only be able to hear one case at a time. While one case was being addressed by the judge, the other parties would have to wait in the hallway until their cases were called. This delay caused great anxiety for litigants and attorneys. With remote appearances, the number of individuals appearing in-person and the amount of wait time have been reduced. The courts now schedule hearings a half-hour to an hour apart. Overlap of hearings still occurs, but it is generally less of a delay for all involved. More importantly, because of the remote proceedings, attorneys are usually at home or at their offices, and can do other things until their cases are called. Litigants can take less time off from work and to arrange for childcare. Some parties who did not work were still able to save money and stress by being able to appear remotely from their private residences. Another useful tool of remote technology that worked well is the use of “breakout rooms.” The ability to assign the parties to breakout rooms helped to facilitate settlement and negotiations while the judge was busy with another case in the actual courtroom. It also afforded the judge a means to shuttle between parties during settlement conferences or negotiations. Another practice that was rarely allowed prior to the pandemic was virtual testimony or participation by third party

witnesses. This changed when the Judiciary limited in-person contact in the courthouses. The result was increased virtual participation from third party witnesses, who previously had to take time off from work; or had to drive or fly to the court venue; or had to arrange for childcare; or had to wait at the courthouse unless they obtained the court’s approval to testify remotely. Witnesses, including third party providers such as therapists or Custody Evaluators are more willing to virtually participate in cases. The Second, Third and Fifth Circuits commented that allowing people to participate remotely opened the pool of providers to them. Previously, it was difficult to find providers who would travel to remote locations. More access to providers gave litigants a “fair chance” in obtaining experts, which had been cost prohibitive prior to the pandemic. Mediation and arbitration, two alternative dispute resolution methods commonly used in family law cases, were also more readily accessible because they were offered remotely. The Kapolei Access to Justice Room also became virtual. This was well-received by the volunteer attorneys as well as the public. It offered a safe, affordable, and convenient means to access legal information for the public. The attorneys appreciated not having to drive to Kapolei to perform this much needed public service. The participants also shared their appreciation for submission of electronic signatures. The Family Court’s participation in JEFS is scheduled for April 2022. Previously, Family Court pleadings and orders had all needed to be sent physically to the courts in all circuits. Early on, the courts also allowed e-mail or drop box submissions, but that was short-lived. Recently, the courts have allowed attorneys to waive their client’s signatures. Opposing counsel were allowed to sign electronically or provide a scanned copy of their signatures. This helped to expedite the submission and the court’s return of filed pleadings

and/or orders. Becoming accustomed to the new technology and procedures took patience and perseverance. While the family law practice is much improved, everyone agrees that the procedures for effective and efficient remote appearances is still a work in progress. For the First Circuit, the inability to file in downtown Honolulu and obtain the documents back the same day was a concern. Some felt the processing of final orders was faster with in-person courtroom appearances. This belief was the result of attorneys simply waiting at court for the dissemination of the orders. The court, at times, would also not receive exhibits or pleadings on time. However, most of the concerns relating to the filing and processing of pleadings are anticipated to be eliminated next year with the introduction of the efiling system for the Family Court. Additional concerns related to settlement conferences and/or mediation, which attorneys believed may have been more successful if they were conducted in-person. Attorneys felt their clients could benefit from face-to-face meetings with a judge to resolve issues. The lawyers missed the bailiff when appearing remotely. No one checks counsel in on-line. Sometimes that causes anxiety as to whether the party and attorney is in the right room or if they were experiencing technical problems such that the court may not be aware they signed on and are standing by. There were also instances where the parties were not notified in advance of the requirements relating to signing on to Zoom. One attorney suggested having the hearing notices include the Zoom meeting information. Social distancing has proven to be difficult in the smaller courtrooms when a larger number of parties/participants are involved and situated in the limited space of the courtroom. Due to required social distancing and COVID protocols, the physical logistics of getting a witness processed from outside of the courthouse

into the courtroom takes additional time and has caused delays in completing cases in a timely manner. Consensus: Experiencing a global pandemic for over a year, the participants agree that there are significant benefits to remote court appearances, which has overall also increased the public’s access to justice. While there have been significant growing pains adapting to and utilizing the new technology that facilitates the remote proceedings, participants have over time become more accustomed and familiar with remote court appearances. The clear preference is that remote proceedings should continue to be used in some capacity as the consensus was that remote appearances are convenient for everyone and significantly reduces the costs incurred by the parties. 2. Constructive Suggestions for Lawyers and Judges Suggestions from the bench to the bar included: • Update equipment and technology: Ensure that counsel and client’s equipment are up-to-date and are compatible with Zoom. This includes testing the internet connection where the remote appearance is intended to be made. It was also suggested that counsel practice ahead of time and become familiar with the technology prior to the scheduled court proceedings. Additionally having “back-up” equipment is helpful in the event equipment fails. • Procedural preparation: Judges reminded participants to please sign-on to the remote proceeding at least ten minutes prior to the scheduled time of the hearing/proceeding. Parties should also include their first and last names so the court can easily identify who is logged on and call counsel when the court is ready. • Hearing and trial preparation: Counsel should prepare for remote appearances as they would for in-person appearances by confirming with the court that it has

April 2022

HAWAII BAR JOURNAL

received necessary documents prior to the scheduled hearing day and time. Exhibits should be readily available for the client and for witnesses, as well as for counsel. Exhibits should be ready to “screen share” on the computer during the hearing or trial. These exhibits should be scanned individually so they can be opened at the time of the hearing or trial. • Attorney preparation: Conferring with opposing counsel prior to a scheduled hearing is required pursuant to the Hawai’i Supreme Court’s current Emergency Order. It is beneficial to confer with opposing counsel or a party to facilitate mutual agreements on substantive and procedural issues. Counsel can stipulate to the admissibility of exhibits; to retaining other experts, i.e., mediators, custody evaluators; or to decide how to proceed with a contested hearing, including using offers of proof. • Hearing and trial practice: Judges reminded attorneys that remote appearances are formal court proceedings. Parties should first and foremost dress appropriately. Moreover, the location from where the remote appearance will be conducted is important due to various factors. A quiet place with a strong internet connection free from third parties or other distractions is critical to having a successful court proceeding. Attorneys were reminded to present their cases succinctly. Exhibits should be relevant and not cumulative. One judge reminded attorneys to refer to exhibits and their significance even if the exhibits are admitted by stipulation. The suggestions from the attorneys to the bench included: • A request for the First Circuit to adopt standardized procedures among the various courtrooms. Attorneys expressed their belief that predictability and expectations relating to consistent procedures will help to alleviate unnecessary anxiety for clients and the attorneys. • Informing attorneys or clients as to their place on the court’s calendar. This advisement would also relieve stress and anxiety.

22 April 2022

HAWAII BAR JOURNAL

• Attorneys, particularly in the First Circuit, shared their overwhelming appreciation for the court’s willingness to schedule Hawaii Family Court Rules (“HFCR”) Rule 16 conferences more often. HFCR Rule 16 conferences now are even more important because the bar lost “contact” with the courts due to the global pandemic. Prior to COVID-19, attorneys at court could ask the bailiffs to see the judge about various matters, including scheduling conflicts, discovery deadlines, and conflicting written orders. • Using Google Docs or Screen Share during remote settlement conferences. • A Second Circuit attorney suggested obtaining waivers from the parties and consent to having a judge serve as both the settlement judge and the trial judge if a settlement is not reached. 3. Benefits of Remote Proceedings and In-Person Proceedings The prevalent theme of the benefits accruing from remote proceedings was it saved litigants time and money. Eliminating in-person court appearances saved the travel to court houses, which, in turn, resulted in the saving of travel expenses. In addition, remote proceedings reduced the amount of time people took leave from work and reduced childcare costs. During remote proceedings, attorneys could also remain in their offices or their homes where they could work on other matters while waiting for their case to be called. The ability to appear remotely also expanded the pool of providers for those who live in remote geographical locations. It was noted that very little resources are available to those who live in the Second, Third, and Fifth Circuits compared to the First Circuit with respect to the availability of attorneys, mediators, custody evaluators, and other third-party providers. However, during the pandemic and with the implementation of remote platforms such as Zoom, the judges commented that there were more providers available, i.e.,

custody evaluators or Best Interest Fact Finders who appeared before them for the first time. Attorneys and providers were more willing to take cases in different locations because there were no additional costs of travel and wait time. Litigants were also able to access legal assistance with less costs incurred. As for actual courtroom appearances, there were some benefits to appearing remotely. Some felt that appearing remotely made for a better record during the pandemic because participants did not have to wear masks as they would have to had they appeared in the courtroom. Some attorneys commented that litigants also felt a little less intimidated when appearing remotely. This was extremely helpful for victims of domestic violence who often do not want to “face” the accused face-to-face. Another attorney commented that in child welfare cases the remote proceedings are helpful for the children who are required to testify. With the discovery of the benefits of remote appearances there also came a renewed appreciation for in-person proceedings. Remote appearances only work well when the technology is optimally working. Unfortunately, that is one factor that cannot be made uniform or controlled. For that reason alone, there is value to in-person appearances. There was further discussion that led to identifying the pros and cons of having in-person hearings or trials in the middle of the pandemic. Limiting the number of people in the courtrooms and having protective plastic barriers present their own problems. Some commented that there is difficulty hearing people clearly with the plastic barriers and having them talk with a mask on. It was further noted that too much time was being used waiting for witnesses to walk from their cars into the courtroom. Other problems were also experienced such as cases involving multiple interpreters who appeared remotely, which made it more difficult to control and

prevent everyone talking over each other. There is no question that there is value in being able to speak to one another face-to-face. This brought on the discussion of what the impact on the outcome of the cases is when they are remotely held compared to cases held in-person. A judge commented that the actual impact the pandemic has caused to Family Court is not known. For example, how is one’s presentation or credibility affected by appearing in-person versus appearing remotely? The group expressed concerns about cultural issues with the utilization of technology or even the ability to access it. The group also worried about over-utilizing Zoom hearings at the expense of fulfilling the needs of the public to provide justice. Attorneys were concerned that empathy is lost or diminished when someone testifies remotely. Camera angles, the lack of eye contact, and watching one’s mannerisms can all affect credibility. Consensus: Despite having a positive outlook on maintaining remote appearances, the group believed there is always room for improvement. Remote appearances allowed Family Court to remain open for the public, but at what cost? It appeared the consensus was that remote appearances and providing access to justice to all is a work in progress that was indeed worthwhile. B. SPECIFIC TOPICS 1. In-Person or Virtual Proceedings First, the group discussed what hearings should be scheduled as remote hearings versus in-person hearings. For many of the reasons stated above, the group agreed that contested evidentiary matters should be heard in-person as opposed to remotely. Having a witness testify in-person optimizes the assessment of the witness’s demeanor and credibility. The attorneys expressed that the issues

addressed in Family Court deserve the most favorable conditions for presenting their cases and as such they should not have to rely on technological equipment that cannot be controlled even in the best of circumstances. Everyone has different equipment and set-ups for appearing remotely. This disparity causes added and unnecessary stress on individuals, thereby possibly affecting their ability to present their cases. The group also discussed that Motions to Set hearings should be held before a judge face-to-face. Again, this is the best way parties may make one last good faith attempt to resolve their case without a contested trial. Requiring attorneys to appear in-person also affords them the ability to freely speak with one another more effectively and more frequently. For the same reasons noted above, the group agreed parties should come to court for settlement conferences. Settlement conferences afford the court and the parties to speak with one another directly, often in a shuttle mediation format. Particularly in Family Court, parties sometimes just need to be heard by the judge to release resentment and resolve their cases. Remote hearings would be ideal for procedural hearings or hearings where parties need to simply place a stipulation on the record. Initial return hearings should be done remotely because there will be no evidence received or testimony taken. Other specific hearings that could be held remotely included: • Guardianship proceedings • Custody evaluator/Best Interest Fact Finder Returns • Calendar calls • Pre-trial conferences • Motions to withdraw • Motions to compel The group welcomed suggestions from the bench for best practices in trial or hearing presentation when appearing both remotely and in-person. One simple suggestion was that all parties should select a quiet room with no distractions when

signing on remotely. For both in-person or remote hearings, all phones should be silenced or turned off. For remote hearings, the same should be done for computer and e-mail notifications. Attorneys should remind clients that whether the clients are appearing from home or elsewhere: (1) they should dress appropriately for court; (2) that no other person or child should be in the same room with him/her during the court proceeding; and (3) that they are not to record the hearing. The court reminded attorneys that the same formality and demeanor that apply in in-person proceedings are expected of all parties and witnesses. The testifying witnesses should be prohibited from reviewing documents that have not been entered into evidence and be held to the same rules/standards as a witness testifying in-person, such as being under oath and telling the truth. Attorneys should always ensure exhibits are exchanged and provided to the court in advance of a hearing. The judges reminded attorneys to be mindful of the number of exhibits used and to be judicious about selecting exhibits, including avoiding duplicates. However, attorneys raised concerns that clients might claim they did not prevail because an exhibit was not provided in advance. Attorneys commented that they include everything because they do not know in advance if a hearing will be held or moved to another day, particularly in the First Circuit. Everyone agreed it is best that parties be prepared to proceed with a hearing and not expect that it will be continued for an evidentiary hearing. The court requested to be informed beforehand of stipulations made in advance of a hearing, particularly if the parties agree a hearing is not necessary. Attorneys requested that practices be consistent within the same circuit so they can better prepare clients. To help resolve matters in virtual proceedings, attorneys have utilized cell/phone discussions with opposing

April 2022

HAWAII BAR JOURNAL

counsel while in the waiting room. It is also helpful for attorneys to be able to discuss matters in pretrial conferences with the court prior to a hearing. The judges then shared the social distancing policies in place in their respective courtrooms, expecting that counsel courtroom use will resume soon. All courtrooms have installed plastic barriers. The court staff, including judges are required to wear masks even with the plastic barriers in place. Anyone entering the Judiciary buildings are required to wear masks. Concerns were raised about clear voices being muffled, the record not being clear, difficulty hearing each other and the inability to communicate effectively with all of these various protections. The courtrooms are also adjusted to ensure people are socially distanced in the gallery. Particularly in the First Circuit, no one is allowed in the building unless he or she is a party to a case for that day. Witnesses must wait outside until called. Some commented this procedure presented delays in hearings and trials. The other circuits do not have many concerns about waiting for witnesses. Everyone agreed the First Circuit may need to work on procedures to better streamline the presentation of witnesses during in-person hearings and trials while adhering to social distancing requirements. Some suggestions included allowing witnesses to enter in “batches,” notifying witnesses (i.e., via text) that they are next and to start entering the courthouse, instructing bailiffs to queue witnesses up earlier while the prior witness is still on the witness stand, and allowing multiple witnesses to enter at the same time if their testimonies are expected to be short. Many appreciated allowing third party witnesses to appear remotely, but some were concerned that the ease of this procedure would result in overuse allowing witnesses to present cumulative testimony. For virtual proceedings, the group suggested utilizing the bailiffs as they are used in-person by having them update

24 April 2022

HAWAII BAR JOURNAL

attorneys on when their case will be called. The communication could be reciprocal as attorneys could inform the bailiffs when they were ready for the court. The judges shared their best practice tips on making objections and presenting evidence. One judge said that one should just unmute oneself and make a short legal objection. Another suggested using the “Raise Hand” feature on Zoom. As far as exhibits a party may wish to use during a remote proceeding, everyone should familiarize themselves with “Share Screen.” Attorneys should bookmark the page(s) they intend to share so it is easily accessible when the time comes to share the document. The benefit of having current technological equipment was reinforced because a slow internet bandwidth may cause problems with transmitting audio or video evidence. With remote court hearings, there is no need to request audio-visual equipment from the court. The court expects the attorney or party to share their documents or evidence from their own media, not the court’s equipment. Other comments regarding trial presentation and preparation included inquiring of the specific court, ahead of time, its preferences, if there is a disagreement as to the organization of exhibits, witnesses, etc., including use of binders or prongs for the exhibits. Witnesses should be placed on a staggered schedule, so they are not waiting unnecessarily for their turn to testify. The court appreciates a brief opening statement as a roadmap on the presentation of witnesses and evidence at the onset of a hearing or trial. For the Second Circuit continuances will be liberally granted so long as they are requested in advance and particularly if settlement is being discussed. Given that it is sometimes an impediment to require original signature(s) before a matter is taken off the calendar, a suggestion was made to have only counsel appear remotely to continue the matter and to

excuse parties. Suggestions from First Circuit attorneys included having the Volunteer Settlement Master (“VSM”) communicate with the judge prior to a settlement conference or a next scheduled hearing. One attorney and others concurred that in years past, a VSM if asked would be present at the settlement conference to assist the judge in final settlement discussions. Consensus: A lively discussion was held sharing comments, suggestions, and opinions about the use of virtual technology compared to the “normal” way. Attorneys appreciated the opportunity to discuss with and to hear from the judges their perspectives and suggestions on how to best conduct oneself in court either virtually or in person. 2. Mediation or Alternative Dispute Resolution in Light of the Pandemic Alternative dispute resolution methods such as mediation have always been encouraged by the courts even before the pandemic. However, with the requirement of social distancing and limitations on coming to court there seemed to be an increased direction from the courts to resort to mediation. While Family Court was open, the number of persons physically in courtrooms at any given time was restricted. This restriction meant mediation providers who were invited to court to work with patrons were no longer able to do that in-person service. Similar to Family Court, the mediation centers statewide switched to virtual mediation services. In the First Circuit, it appeared the court was automatically referring parties to mediation before they could have a hearing. This was done partially to cure the backlog and partially to promote the amicable and expeditious resolution of family law issues through alternative dispute resolution remedies. Attorneys expressed a concern that sometimes a legal issue needs to be resolved before the parties are ready for

mediation. The court recognized some cases do need to have a hearing or trial rather than mediation. Some of the circuits mentioned the lack of services available in their jurisdiction to serve the increased needs of their communities. Mediation services are being expanded in the Third Circuit in its Child Welfare Services calendar. In addition, the Third Circuit is starting its own VSM program, first for the paternity calendar, and possibly with the hope of expanding the program to the divorce calendar. The Fifth Circuit requested information about and expressed a desire to create its own VSM program as the program has been successful in the First Circuit. The First Circuit shared that it has even had success with ordering mediation for contested guardianship and adoption cases. The Second Circuit expressed interest as well in developing its own VSM program or other ADR programs. The Second Circuit suggested using the current judges as settlement judges and having clients waive any conflicts should their cases proceed to trial. Consensus: Overall, mediation has been successful in most types of cases and is strongly encouraged by the courts, especially in the First Circuit. Additionally, the other circuits are hoping to or working to expand mediation programs, including a VSM program in their circuits. 3. Judiciary Information Management System and Judiciary Electronic Filing System The Family Court practitioners are anxiously awaiting the incorporation of Family Court into the Judiciary Information Management System (“JIMS”) and Judiciary Electronic Filing System (“JEFS”) efiling system. Family Court efiling will start on April 25, 2022. From April 25, 2022, attorneys will be required to file documents online through the JEFS.

Self-represented litigants can also be JEFS users but will be assisted by Judiciary staff in efiling documents. Once Family Court is incorporated into the JEFS system, its records will no longer be found on Ho’ohiki. Attorneys will have access to filed pleadings through JEFS and can research cases and find pleadings on eCourt Kokua. In anticipation of the rollout of efiling for Family Court Civil, JEFS training for attorneys and their staff will be conducted starting in March 2022. The training will also be recorded and available online for those who miss the training or for those who need a refresher course. Everyone is encouraged to sign-up for training even if one has previously efiled documents in the other courts in the state. Attorneys and their staffs were encouraged to sign up for a JEFS log-in account now if they lack one. It was suggested that attorneys should consider upgrading their computer equipment in preparation for efiling. Documents that are uploaded onto JEFS must be in a pdf format. Attorneys will also need to have scanning capability. Attorneys should familiarize themselves with the Hawaii Electronic Filing and Service Rules. In addition, family court practitioners should review Hawaii Court Records Rules (“HCRR”) Rule 94 regarding court deemed confidential records rules. First Circuit Court practitioners, in particular, should be mindful that the court will not allow a “Confidential Pursuant to HCRR 9” stamp on the documents. The procedures in HCRR must be followed. The Hawaii Family Court Rules are also being revised to include rules regarding efiling. The Judiciary already anticipates issues related to converting from actual paper to electronic documents. It is working to adjust the workflow system within the Family Court. A “war room” will be set up for Family Court efiling for at least the first month. V. REPORT OF THE CIRCUIT COURT CRIMINAL GROUPS

A. COMMON TOPICS 1. Processes and Practices That Did and Did Not Work Well during the Pandemic There was consensus that remote proceedings generally worked well and facilitated safety. It was suggested that this practice continue beyond the pandemic. Advance distribution of court calendars to the attorneys in the First Circuit is helpful, especially since hearing times often change and the calendars specify whether a hearing will be held in person or remotely. The Circuit Court-Criminal Group 1 (“Group 1”) highlighted the efficiency of remote proceedings for attorneys, which allows them to continue in-office work instead of expending time waiting in court and is beneficial for defendants as they avoid lengthy commutes to court. The Circuit Court-Criminal Group 2 (“Group 2”) believes the health and safety procedures, including screening and other measures, were successful in limiting the potential spread of COVID in the courthouse. However, the importance of accommodating in-person proceedings remains important, as some parties do not have the equipment to participate remotely. Both Groups agreed that inadequate access to defendants by defense counsel was a significant concern. The correctional facilities have limitations on visits, phone calls, and court transports thereby making consistent communication with defendants difficult. In the Third Circuit, there have been ongoing issues with the correctional facility disregarding transport orders, and with transports altogether stopping as of May 2021. There is a sense that the facility has control over the court’s calendar. In the First Circuit, judges will sometimes order defendants to be transported to court to facilitate attorney communications. However, those conversations occur in the cellblock with little privacy and are not conducive to lengthy discussions. Group 2 suggested it would be helpful when custody defendants appear remotely to afford attorneys an

April 2022

HAWAII BAR JOURNAL

opportunity to speak privately with their clients. This can be done via a breakout room prior to being on the record. Group 1 emphasized that barriers to communication and to consistency in use of remote proceedings for custody defendants are often caused by technology limitations within the correctional facilities. In the Third Circuit, lack of bandwidth and staff shortages are of concern and create limitations. The First Circuit also reported connectivity issues and discussed the need for Oahu Community Correctional Center (“OCCC”) to increase wi-fi capabilities and bandwidth. Currently, there are only two feeds for OCCC video hearings, one of which is dedicated to preliminary hearings. As a result, only one Circuit Court courtroom at a time can conduct video proceedings. Group 2 raised concerns as to whether the Adult Client Services Branch has been adequately monitoring probationers. There was a lengthy period of time when drug tests were not being administered, and there seemed to be an overall lack of supervision of the defendants. Clarity is lacking on what is expected of probationers, and there is a need for better communication when probation officers are changed. Both Groups discussed the issue of lengthy wait times while logged on for remote proceedings. It was suggested that staggered hearing times and enabling attorneys to remotely chat with court staff would help. Currently in the First Circuit, if an attorney is logged in for a remote hearing at Circuit Court, the attorney is placed in a waiting room and is unable to watch the other proceedings. The waiting room only allows the court staff to transmit messages to those who are logged on but does not permit the parties to send messages to the court. This is an issue when attorneys have multiple hearings scheduled at the same time. A suggestion was made to follow the District Court’s practice of allowing attorneys into the remote courtroom so attorneys can track

26 April 2022

HAWAII BAR JOURNAL

how the calendar is progressing and of permitting the attorneys to chat with the court staff. Increased communication (through advance distribution of calendars and enabling the chat function for attorneys) would be beneficial, especially since the various courtrooms often have different procedures. While there appears to be a gradual return to some pre-pandemic practices, Group 1 emphasized that the pandemic is not over, and there should be a commitment to remote proceedings at all levels within the system. The suggestions proposed below will increase efficiency and continued court access to all participants. 2. Constructive Suggestions for Lawyers and Judges The judges suggested improved decorum on the part of the attorneys and defendants. Improper courtroom attire, inappropriate environments for remote proceedings, and overly casual behavior have been problematic. All parties should remember that remote hearings are the equivalent to being in the courtroom and should act and comport themselves accordingly. Increased attention to creating and preserving a clean record was recommended. Suggested practices for attorneys from Group 2 judges included: (1) attorneys should remain muted until their turn to speak, (2) an audio-test with the court should be requested in advance of the proceeding, and (3) parties in the courtroom should be directed to speak clearly and close to the microphone to ensure remote parties are able to hear what is being said. Attorneys suggested that judges permit remote appearances or a waiver of a defendant’s presence for certain substantive hearings when a defendant is out of the state. In the First Circuit, there was a concern about the practice of those in the courtroom removing masks during the identification process of a defendant. Witnesses have expressed discomfort with that practice. It was noted that the Second

Circuit uses a similar practice without any problems. 3. Benefits of Remote Proceedings and In-Person Proceedings. There was a consensus that remote proceedings have increased access and flexibility for all parties. The prosecutors reported the convenience to complainants and witnesses for allocution purposes, and defense counsel discussed the ability of a defendant’s family members and other supporting parties to easily attend remote proceedings. Defense counsel in Group 2 noted a benefit of remote proceedings for defendants with mental health concerns or disabilities. Additionally, there was consensus that the ability to remotely observe proceedings and trials is valuable. The attorneys suggested continued expansion of remote access to proceedings, even to those who are not parties to a case. B. SPECIFIC TOPICS 1. COVID and the Criminal Courts a. Trials (bench and jury): What are the biggest concerns? What has worked well? What are the biggest challenges to the state, defense, and the court? What can we do to improve? Judiciary COVID-19 policies adhere to the State of Hawai‘i Department of Health guidelines that require compliance with social distancing and mandatory masks for all parties, including jurors. While these practices have enabled jury trials to move forward, there was consensus that these procedures risk adverse effects on trials as explained below. The inability of counsel to see all jurors during voir dire and throughout trial was a concern. It would be helpful to have all jurors in the same area of the courtroom or to have the jurors on camera if they must be seated behind counsel. Attorneys in Group 1 discussed the need for more time for voir dire. The time restrictions on voir dire were imposed with juror and participant safety in mind, and jurors have reported to the Judiciary general

satisfaction with their trial experience. However, attorneys expressed the need for longer periods of time to conduct voir dire in order to explore pandemic-related issues and to cope with the logistical difficulties presented when selecting jurors who cannot be observed throughout the entire proceeding. In response, judges in the same group expressed a willingness to consider requests for additional time. The social distancing requirement has significantly limited the number of people permitted in the courtroom, making it impracticable to have the assistance of a second-chair or paralegal and to enable defendants and complainants to have inperson support throughout trial. Additionally, traditional bench conferences are not possible, and if matters need to be addressed outside the jury’s presence, they are accommodated by the judge and counsel exiting the courtroom. To help alleviate the need for numerous conferences, it was suggested that emphasis be placed on resolving motions in limine and other potential issues well in advance of the trial. There was a strong consensus in Group 1 that the use of clear masks is problematic. Although a clear mask allows jurors to see more of a witness’s face, attorneys reported that masks are distracting and make testimony difficult to hear. Because masks remain mandatory at Judiciary facilities and face shields alone are insufficient, it was suggested that better microphones or other methods to increase the sound volume of the testimony be implemented. There was concern whether the compromises made and procedures in place are adequate to ensure a fair trial process. Group 2 questioned the ability to effectively represent the defendants under these conditions, and if the defendants are convicted, whether such conditions would result in post-conviction challenges against counsel. b. Large panel juries Selection of large panel juries share the same challenges discussed in the

previous section. However, large panels pose their own complications due to social distancing requirements as the number of prospective jurors is significantly increased. Questions discussed were: • What are the specific challenges of large jury panels? • Do the current methods compromise the jury selection process? • Should use of pre-selection questionnaires be expanded? Due to budget constraints, the First Circuit does not have sufficient space to accommodate big panels, thus requiring prospective jurors to be positioned throughout the jury pool room, the atrium, and the multi-purpose room. Counsel’s inability to observe jurors throughout the selection process was noted as it was in the previous section. The Third Circuit reported an effective system of staggering jurors for jury selection. There was consensus that the use of pre-selection questionnaires has been beneficial. It has facilitated positive juror turnout and has helped to remove jurors who would have likely been excused or deferred. Cases requiring large numbers of prospective jurors have effectively used questionnaires specific to the type of crime charged to further assist in the pre-selection process. There was concern about the lack of attorney input in the pre-selection process. The attorneys do not see the COVID questionnaire and are not provided information about the jurors who have been excused. There was discussion as to whether this practice raises constitutional issues or ensures a fair process that secures a jury representative of a cross-section of the community. c. Expansion of Remote Proceedings for Evidentiary Hearings The general preference was for inperson evidentiary hearings. The reasons discussed were: (1) preserving the right to physically confront witnesses, (2) avoiding the possibility that a witness will behave

differently if appearing remotely, (3) the risk of excessive hearsay when witnesses are unable to appear remotely, (4) preventing a witness from reading from notes or accessing prohibited materials during testimony, (5) eliminating the difficulty of introducing and sharing exhibits remotely, and (6) reducing the risk of an unclear record for transcript and appellate purposes. In response to the exhibit issue, it was suggested that the screen share function on Zoom could be used, or an investment be made in a camera that could share exhibits and documents remotely. Additional infrastructure to support effective remote proceedings may be necessary. It was noted that in the Fifth Circuit, attorneys were given the option to either appear remotely or in person for examination of witnesses, and witnesses were given exhibit packets in advance of the hearing. d. Challenges regarding custody defendants There was overwhelming consensus that many of the concerns regarding custody defendants are connected to issues with the Department of Public Safety (“DPS”) and the policies of the various individual correctional facilities in each circuit. Although collaboration with DPS is an integral part of the system, efforts to facilitate expansion of attorney communication with defendants throughout the pandemic has been challenging and often unsuccessful. All circuits reported ongoing concerns with attorney access to custody defendants and difficulties in having defendants transported to court. In the First Circuit, phone communication with clients at OCCC is unreliable and often dependent on the willingness of the corrections officer to either allow the call or pass a message to the defendant. Haw. Rev. Stat.§ 704 examinations regarding mental fitness and capacity are routinely delayed as doctors report a lack of access to defendants. There is also concern that DPS has not always been

April 2022

HAWAII BAR JOURNAL

transparent about the number of COVID cases within the facilities and whether its representations about safety issues can be relied upon. The Second Circuit also reported ongoing difficulty with phone calls and raised safety concerns with the practice of having attorneys appear in the cellblock with custody defendants. The Third Circuit reported that DPS refused to transport custody defendants for over five months. It appears that the warden and DPS have total control over how custody cases are proceeding and when attorneys may have access to their clients. The Fifth Circuit has had ongoing issues with the timely completion of bail studies. There was also a month and a half period where attorneys were unable to speak to their clients. Recently, the facility set up Zoom access, so the attorneys now are able to meet with their clients remotely, and the court is able to conduct remote proceedings. Given the issues of access to custody defendants, protection of the attorneyclient privilege is often compromised because conversations with clients are occurring during a remote proceeding when other parties are present. It was suggested that the courts provide breakout rooms for confidential communications between custody defendants and their counsel in advance of court hearings.

Group 1 continued the prior discussion about court decorum and suggested the possible need to create specific rules because of increased remote proceedings. Support for the continued use of remote proceedings was favored, but emphasis was placed on the need for parties to demonstrate appropriate respect for the process. Parties should not participate in proceedings while inappropriately dressed, while driving, while in an inappropriate environment, or while in a location without sufficient bandwidth to facilitate smooth proceedings. Group 2 suggested minor edits to the HRPP Rules 43 and 11, which dictate when a defendant can appear via video for sentencing and a change of plea. Minor changes in the rules to help facilitate increased use of video conferencing for these hearings would be beneficial. There was also discussion whether Hawaii Court Records Rules (“HCRR”) Rule 9 applies to remote proceedings and if the confidentiality of documents is adequately protected. Although participants and the public are prohibited from and warned that they cannot record remote proceedings, there is no way to ensure compliance. It was also noted that attorneys on both sides need to have access to technology that will enable the remote presentation of redacted evidence.

2. Rules for Remote Proceedings a. Proposed changes to HRPP Rule 58: Appearance by Telephone or Video Conferencing There was consensus in support of the proposed changes to Hawai‘i Rules of Penal Procedures (“HRPP”) Rule 58.5 There was a concern raised about the ability to accurately identify parties if participation is via telephone rather than video conferencing.

3. Impact of State v. David, (SCWC19-0000319) (September 9, 2021) During a manslaughter trial, the defense sought to introduce evidence of the decedent’s 0.252 level of blood alcohol concentration (“BAC”) to support the defendant’s theory of self-defense. The trial court ruled the presence of alcohol in the decedent’s blood was admissible, but the actual BAC level could not be introduced absent expert testimony to explain its meaning. In holding that the trial court erred in requiring an expert, the Hawai’i Supreme Court in State v. David (SCWC19-0000319) (September 9, 2021) discussed the highly probative value of a

b. Are there other rules that should be implemented or changed?

28 April 2022

HAWAII BAR JOURNAL

0.252 BAC level and the common understanding adults have in regard to high BAC levels, intoxication, and aggressive behavior. Questions for discussion were: • What impact, if any, does this case have on the necessity of experts for other scientific evidence? • In what way, if any, will this impact OVUII cases? • Are there concerns regarding this ruling? There was a general consensus that the case will not meaningfully impact OVUII cases. There was input that OVUII cases are distinguishable from other types of cases because the BAC level is an element of the offense. As to other types of scientific evidence, Group 2 discussed the role of the internet and a juror’s increased access to information. It was questioned whether this case supports the argument that a juror’s “common knowledge” is broader than previously believed, thus eliminating the need for experts in other fields. Examples discussed included late reporting in sexual assault cases and the impact of domestic violence on the abused. There was discussion about how “common knowledge” is defined, and whether this case opens the door for future debate on that topic. 4. Bail Reform In 2017, the Criminal Pretrial Task Force was created to examine and make recommendations regarding criminal pretrial practices and procedures to maximize public safety, court appearances, and pretrial release of the accused. Questions for discussion were: • Is the COVID pandemic taken into consideration at the time bail is set? • Are we still actively working toward bail reform? • Are defendants afforded a meaningful opportunity at supervised release or bail reduction at the early stages of their case? • Are increased bail amounts in Weed & Seed locations effective? What are the concerns with this practice?

In regard to COVID-related bail issues in the First Circuit, it was reported that the Family Court judges in particular, routinely factored in the pandemic, which has resulted in lower bail amounts and increased frequency in releases. The Honolulu Department of the Prosecuting Attorney reported it does not consider COVID in bail requests because the infection rates at OCCC have dramatically decreased, a significant number of inmates are being vaccinated, and the safety of the public must be balanced against bail and release decisions. It was expressed that the prosecutor’s office is particularly concerned with defendants who pose a risk of dangerousness, but their office does not oppose release as a policy. The office is willing to engage in bail reform and suggested possible systemic changes including: (1) immediate release for certain misdemeanor charges with short-set court dates, and (2) an on-duty judge to make expedited decisions about release, supervision, or a signature bond for certain felony offenses. The flaws of the cash bail system included discrimination against the indigent and in favor of those who can afford bail who are then released and may remain unsupervised during the pretrial process. Group 1 questioned whether bail reform was still an ongoing priority. It was noted that there has been significant improvement in the timeliness of bail reports along with opportunities to make meaningful bail arguments earlier in the process. However, some believed the number of releases has noticeably decreased, and judges who handle preliminary case matters such as initial appearances, preliminary hearings, and arraignments are often unwilling to consider meaningful bail reductions or release and instead automatically defer decisions to the trial judges. A defense attorney in Group 2 suggested a policy change about setting bail in re-charged cases. It was noted that if a case is dismissed without prejudice, and subsequently recharged, bail is again set and is usually similar to the

amount set in the first case. This requires the defendant to post bail a second time for the same charge, without consideration of the defendant’s demonstrated compliance throughout the initial case. In the Second Circuit, although it is unclear whether bail amounts have been directly impacted by the pandemic, some attorneys reported seeing bail at lower amounts than amounts previously set. Earlier in the pandemic, the judges were consistently releasing custody defendants in an effort to keep the COVID case numbers low. Recently, however, it appears the courts have returned to pre-COVID practices despite the ongoing pandemic and are not considering the issue of overcrowding at the Maui Community Correctional Center nor the two prior COVID outbreaks in the facility. Participants from the Second Circuit discussed existing bail practices and possible improvements. First, while bail studies are usually prepared for pretrial cases, it was suggested that studies (that also incorporate the defendant’s ability to pay) should also be prepared for defendants in custody on probation violations, especially since high bail amounts in such cases are common. Second, there is now an option to issue a penal summons rather than a warrant for probation revocations, with this option proving to be beneficial for defendants. It was stated, however, that the language on the penal summons often creates confusion about the court date, and it would be helpful to specify the exact date and time of the court hearing or to refer the defendant to the Office of the Public Defender to confirm the court date. Defense attorneys from the Third Circuit stated that pretrial bail reports are timely filed, and the judges have been reasonable when considering the defendant’s individual circumstances in ruling on release requests. The courts have also been diligent about monitoring the COVID situation in their correctional facilities. A prosecutor expressed concern over the increased number of persons released

without electronic monitoring devices. It was suggested that if COVID-related releases continue, an increase in resources to obtain such devices would aid in ensuring the public’s safety. The Fifth Circuit similarly reported that the courts were mindful of COVIDrelated situations, and many defendants were released on their own recognizance, especially because of ongoing closures at the jail. Previous members of the Criminal Pretrial Task Force shared that although not all of their recommendations related to bail reform were codified by the legislature, there have been several positive changes, which include: (1) the inclusion of the defendant’s financial circumstances in bail reports, (2) a reduction of First Circuit bail amounts (in part because of comparison with bail amounts in the other circuits), and (3) the addition of the Ohio Risk Assessment System: Pretrial Assessment Tool (“ORAS-PAT”) numbering system to bail reports. These changes have improved the evaluation process and have enabled judges to set appropriate terms and conditions of release while complying with the “least restrictive” requirement. It is hoped that other recommendations of the task force will be considered by the state legislature, and perhaps a renewed emphasis on bail reform is necessary through establishment of another task force or committee. The purpose of the First Circuit’s Weed & Seed program is to address increased crime rates in certain areas by imposing increased bail amounts for crimes committed in these locations, in conjunction with geographical restrictions on defendants. The prosecutor’s office discussed the benefits of the program, which include reduced crime, increased safety, and overall community improvement. Concerns were raised about the potentially burdensome impact of a geographic restriction for many defendants, and the State clarified that it will not request the restriction if the defendant lives, works, or receives treatment or services in

April 2022

HAWAII BAR JOURNAL

that area. A question was raised about the reasoning for increased bail amounts. The prosecutor’s office stated bail amounts are set by the Honolulu Police Department who has increased enforcement in the Weed & Seed areas. Ultimately, the prosecutor’s office believes many defendants in these areas need mental health and/or substance abuse treatment and will otherwise return to the location of their arrest absent necessary intervention. There are ongoing efforts to collaborate with the DOH to make these services more accessible. 5. Court-Appointed Attorney’s Fees Pursuant to Haw. Rev. Stat. § 802-5, the current court-appointed rate is $90 per hour, with a maximum fee of $6,000 for a felony case. In comparison, the current federal court-appointed rate is $155 per hour and was increased in January 2021 to account for inflationary adjustments. The questions for discussion were: • Should the state hourly rate be increased? • Should the maximum fees take into consideration the type of charge and number of counts per case? There was overwhelming consensus from both groups that the hourly rate be increased. The rate has not been increased in over 10 years, and there are many attorneys who are unwilling to accept court-appointed cases at the current rate. All circuits discussed the decreased number of qualified attorneys willing to accept court-appointed cases and emphasized that unless the rate increases, the shortage will become worse. It was also noted that court-appointed cases often involve difficult clients who have fired attorneys from the Public Defender’s office. The increased rates are necessary to maintain a pool of attorneys who are experienced and willing to deal with those cases. There was also consensus that the maximum fee either be eliminated or increased. The current maximum makes it financially impractical for many private

30 April 2022

HAWAII BAR JOURNAL

attorneys to do court-appointed work and does not accurately contemplate the amount of time and work required for many of the complex cases. Additional suggestions proposed were: (1) consideration for cases that require a paralegal or second-chair, (2) increased maximum fees for attorneys willing to accept 704 cases (as mental health clients often present additional challenges), and (3) increasing the maximum fees for appellate attorneys. 6. Impact of the Amendment to Rule 28(b)(4) of the Hawaii Rules of Appellate Procedure (“HRAP”) If a case will be decided in whole, or in part, on an issue of plain error not previously raised by the parties, the amendment to HRAP Rule 28 (b)(4) requires that prior to disposition, the appellate court give the parties an opportunity to brief the potential plain error issue. Group 2 expressed differing opinions whether the amendment was necessary. One position was that the scope of plain error review has expanded, and the amendment now gives the parties the chance to specifically address issues that are the focus of the appellate court. The other position expressed was that the amendment is unnecessary since the appellate courts already have the inherent power to decide cases on plain error without prior briefing by the parties. The change will slow down the appellate process. 7. Compliance with Haw. Rev. Stat. § 353-6.2: Periodic Reviews of Pretrial Detainees In the Matter of Individuals in Custody of the State of Hawaii, SCPW-21-0000483 (2021), the Hawai’i Supreme Court ordered DPS to comply with Haw. Rev. Stat. § 353-6. In part, HRS § 353-6.2 requires DPS to conduct periodic reviews (at least every three months) of pretrial detainees to reassess their appropriateness for continued incarceration or release, and those

findings and recommendations are to be transmitted to the court, prosecuting attorney, and defense counsel. The Circuit Court-Criminal Group 2 reported that the majority of the circuits are not conducting periodic reviews in accordance with the statute. The First Circuit was aware that surveys had been distributed to certain inmates but had no information beyond that. The Third and Fifth Circuits have had no response from the facilities. The Second Circuit was informed that reviews were being conducted and requested the attorneys provide information that would change the existing bail study. Only upon receipt of new information would the facility conduct an additional study. VI. REPORT OF THE DISTRICT COURT CRIMINAL GROUP A. COMMON TOPICS 1. Processes and Practices That Did and Did Not Work Well during the Pandemic Remote hearings and video conferences have worked well and have had several advantages. Fewer in-person appearances have facilitated safety and has made the court system more accessible to those who have transportation challenges. It was noted that public defender clients often do not have access to devices that enable virtual appearances, so many must still attend in person. The Zoom chat feature is effective because it allows the court clerk to communicate with attorneys about the order in which cases are called and allows attorneys to communicate with the clerk about how cases will proceed. Documents can also be shared via the Zoom chat feature, which makes information sharing instantaneous. Staggered court hearings have been helpful because holding virtual hearings can be time-consuming. Scheduling virtual hearings later in the court calendar has worked well by allowing in-person participants’ cases to be heard first and

concluded, avoiding lengthy wait times. Out-of-state parties also benefit from remote proceedings as cases may be resolved without returning to Hawai’i or having to transmit the required court documents through the mail. In response to what did not work well, a major area of concern is the transport of in-custody defendants to court. Due to the pandemic, custody transports have been inconsistent and unreliable. The Second Circuit noted a four-week period where transports did not take place. This was compounded by the fact that the jail did not initially have remote capabilities. The First Circuit has not transported defendants for preliminary hearings since late May 2021, and transports for other district court proceedings are unpredictable. This has caused repeated continuances of cases and often result in defendants being incarcerated for periods that exceed the statutory maximum penalty. Remote hearings with custody defendants present challenges for defense counsel who are unable to speak confidentially to their clients during the hearing. The same issue exists in preliminary hearings. There was a recommendation that procedures be created to allow defense counsel to speak with their clients in a timely manner before the hearings, and that the custody defendants be permitted to confer with counsel in a meaningful way throughout the hearings. In the First Circuit, there has been a significant increase in the number of preliminary hearings due to the suspension of grand jury proceedings. Due to significant background noise at the OCCC the defendant must remain muted during remote proceedings. However, the court allows the defendant to raise his or her hand to indicate the defendant needs to speak with the defendant’s attorney. A private breakout room is made available so attorney and defendant can communicate confidentially. The Third Circuit judges have tried to accommodate the need for attorney-client communications by clearing the courtroom (except for staff). It was

noted that this procedure is cumbersome and only allows for quick and brief conversations. There was concern about the possible violation of a defendant’s constitutional rights if the defendant is not physically present next to counsel. The dicta from De La Garza v. State, 129 Hawai’i 429, 302 P.3d 697 (2013), indicates the Hawai’i Constitution may have been violated when a defendant was not present with counsel at a minimum term hearing. Other than for preliminary hearings, defense attorneys are reluctant to consent to other remote evidentiary hearings. For remote preliminary hearings, the courts obtain the necessary consent on the record from the defendants and advise defendants of their right to be present. Another issue was the lack of consistency among courtrooms, judges, and clerks in the First Circuit. Each has a different process for remote proceedings, therefore, expectations are unclear. The inability to move among multiple courtrooms is problematic, and it was suggested that defense counsel be made a co-host to enable movement and provide the ability to create breakout rooms for confidential communications with clients. The Third Circuit agreed that movement among courtrooms would be beneficial as attorneys often have hearings in multiple courtrooms scheduled at the same time. Generally, there was a consensus that the use of remote proceedings has certain advantages but there are limitations and concerns, especially for defendants in custody. 2. Constructive Suggestions for Lawyers and Judges In all hearings, judges want the attorneys to be adequately prepared. The attorneys should be familiar with the procedural history, the law, and facts of their cases to efficiently provide the court with any requested information. The importance of attorneys being on time was emphasized. It was also proposed that the

attorneys communicate and check-in early with the courts so that possible accommodations can be made in the case of any scheduling conflict. It was suggested that defense attorneys consider using a separate device for confidential communications with clients. Most importantly, defense counsel should refrain from those types of conversations while on the record. There was also a concern that an attorney’s attire and decorum remain appropriate for a courtroom, even if the hearing is remote. The attorneys recommended consistency among the judges. For instance, some judges require written forms, while others do not require them, or are satisfied with an oral colloquy. Oral proceedings eliminate the need for in-person meetings with clients to review paperwork, and many indigent defendants do not have the ability to print, sign, and return forms digitally. It was suggested that if courts require written forms, it would be helpful to have fillable pdf forms online. Specifically, it was urged that fillable mental health forms and orders related to 704 examinations and proceedings be created for the State. It was also suggested that the court staff notify attorneys, who appear remotely, that parties in their cases are present in the courtroom as attorneys may be unable to see the people present. 3. Benefits of Remote Proceedings and In-Person Proceedings During the pandemic, benefits of remote proceedings were increased safety, decreased cost, and increased convenience for the public. Virtual proceedings resulted in reduced travel and wait times and eliminated the need for a party to take off from work to appear physically in court. It was suggested that remote access locations be established for those who are unable to participate in a virtual hearing because they lack the necessary equipment or technology. Remote hearings have helped those with children, as they do not need to (Contiued on page 40)

April 2022

HAWAII BAR JOURNAL

COURT B RIEF S Hawaii State Judiciary 2021 Annual Reports Available Online Hawaii State Judiciary 2021 Annual reports are available for online viewing and download. Visit www.courts.state.hi.us and click News and Reports » Reports. The web page provides access to current and past reports to the Legislature, including the Criminal Justice Research Institute 2021 Annual Report, annual statistical supplements, along with reports of the Commission on Judicial Conduct, judicial performance review reports, judicial financial disclosure statements, and various initiatives.

Innovations in Public Safety and Justice

The completion of court-ordered community service work enables individuals to have their cases closed, license stoppers lifted, and make a fresh start. During the COVID-19 pandemic, all traditional programs for offenders to fulfill community service in-person were suspended. In response, the Virtual Community Service Program was created to help individuals complete court-ordered community service in a socially distanced, safe manner.

32 April 2022

HAWAII BAR JOURNAL

Team members of the First Circuit Adult/Juvenile Community Service and Restitution Unit (A/JCSRU) took a forward-thinking approach to the problem, using the pandemic pause as an opportunity to expand the available options for completing community service, while also using community service models to equip clients with entrepreneurial skills. Hawaii’s first Virtual Community Service Program launched October 19, 2020, featuring a new Virtual Learning Program (VLP) as well as a Virtual Volunteer Program (VVP). Both provide inventive ways for individuals to complete court-ordered community service remotely. In the VLP, national and Hawaii statistics and information of importance to our communities are reviewed, and clients are tested on videos and written materials that are embedded into a post-presentation survey. It includes educational tracks on community service, restitution, criminal littering, restorative justice, resume writing, and information on employment opportunities, food and housing assistance, community resources, and places to volunteer. In the VVP, participants transcribed documents that help the Smithsonian Institution keep pace with the need to create searchable text for items in its collections databases. As of October 2021, 179 offenders completed their courtordered obligations with more than 1,736 hours of community service work. A/JCSRU’s work on the Virtual Community Service Pilot Project has enhanced the Judiciary’s ability to ensure that individuals continue fulfilling the conditions of sentencing during a variety of emergency situations by providing valuable new options for completing sentencing requirements. The program has further proven to be a viable alternative for completing court-ordered community service by individuals who face transportation or physical challenges. It has also provided opportunities for fulfilling community service obligations afterhours and on weekends and created meaningful ways for people to give back to their community. The A/JCSRU was recognized for their innovative work on the Virtual Community Service Pilot Project. At the Hawaii State Judiciary’s 2021 Incentive Awards Ceremony in October, Saifoloi Aganon, MSW, LSW, accepted the Group Meritorious Service Award on behalf of the team.

CAS E NOTES Supreme Court Contract Prudential Locations, LLC v. Gagnon, No. SCWC-16-0000890, February 17, 2022, (McKenna, J. with Recktenwald, C.J. concurring in part and dissenting in part, with whom Nakayama, J. joins). This case addressed the enforceability of a non-compete agreement restricting Lorna Gagnon (“Gagnon”), a former employee of Prudential Locations, LLC (“Locations”), from “establishing her own brokerage firm in the State of Hawaii within one year after terminating her employment with Locations” and from soliciting persons “employed” or “affiliated with” Locations. At issue were two restrictive clauses within the non-compete agreement: a non-compete clause and a nonsolicitation clause. The Hawaii Supreme Court held as follows: (1) the ICA erred in failing to address whether the non-compete and solicitation clauses were ancillary to a legitimate purpose not violative of Hawaii Revised Statutes Chapter 480, as required by Haw. Rev. Stat. § 480-4(c) (Supp. 2015); (2) restricting competition is not a legitimate ancillary purpose, as Haw. Rev. Stat. § 480-4(a) prohibits contracts in restraint of trade or commerce in the State; (3) to establish a violation of a nonsolicitation clause, there must be evidence that the person subject to the solicitation clause actively initiated contact; and (4) summary judgment was properly granted in favor of Gagnon as to the non-compete clause, but summary judgment should not have been granted for one agent as to the non-solicitation clause due to a genuine issue of material fact regarding whether Gagnon actively initiated contact. Recktenwald, C.J., with whom Nakayma, J., joined, agreed with the Majority that a restrictive covenant must, as a threshold matter, have a legitimate purpose other than stifling competition. Recktenwald, C.J. also agreed that Loca-

34 April 2022

HAWAII BAR JOURNAL

Appeal Pointer In cases where the transcript of any part of the proceeding is unavailable and a statement of evidence is prepared in accordance with HRAP Rule 10(c), a party is not required to file a motion for remand in the appellate court. The court appealed from retains jurisdiction to settle and approve the statement of evidence and objections or amendments. Upon the settlement and approval of the statement of evidence, the clerk of the court appealed from, pursuant to HRAP Rule 10(c), shall include the statement of evidence in the record on appeal or in a supplemental record. The party is not required to file a motion to supplement the record in the appellate court. tions introduced sufficient evidence to raise questions of material fact as to whether the non-solicitation clause had the legitimate purpose of maintaining the stability of Locations’ workforce and whether Gagnon initiated contact in soliciting one of Locations’ employees. However, Recktenwald, C.J. would further hold that Locations introduced sufficient evidence to raise questions of material fact as to whether the non-compete clause had the legitimate purpose of preventing the use of Locations’ confidential information to unfairly compete. Unlike the Majority, Recktenwald, C.J. would therefore hold that Locations made a showing sufficient to withstand summary judgment as to the non-compete clause. Criminal State v. Satoafaiga, No. SCWC20=0000067, February 7, 2022, (Recktenwald, C.J.). Victoria I. Satoafaiga, a former employee of the Central Maui Boys & Girls Club (the Club), was in-

dicted for the sexual assault of a twelveyear-old member of the organization (“CW”). Initially charged with four counts, including Sexual Assault in the First Degree for the “sexual penetration” of CW, she accepted a plea agreement allowing her to plead no contest to an amended charge of Sexual Assault in the Fourth Degree and one count of Custodial Interference in the Second Degree. Satoafaiga moved for a deferred acceptance of no contest (DANC) plea. The circuit court denied the DANC motion and sentenced her to a one-year prison term. Satoafaiga’s appeal required the Hawaii Supreme Court to decide whether it was proper for the circuit court to take into account an alleged act of “sexual penetration” when the only sexual- assault charge she pleaded to by definition excluded acts of sexual penetration. The Hawaii Supreme Court held that the circuit court’s consideration of sexual penetration under these circumstances constituted an abuse of discretion. Satoafaiga pleaded no contest to Sexual Assault in the Fourth Degree, which criminalizes “sexual contact.” Haw. Rev. Stat. § 707-733(1)(a) (Supp. 2016). “Sexual contact” is defined as “any touching, other than acts of ‘sexual penetration’, of the sexual or other intimate parts of another.” Haw. Rev. Stat. § 707-700 (Supp. 2016) (emphasis added). Thus, Satoafaiga’s no contest plea to Sexual Assault in the Fourth Degree excluded any allegation of sexual penetration. Under these circumstances, the circuit court abused its discretion when it improperly considered an allegation of sexual penetration in denying her DANC motion. Hawaii Supreme Court vacated the ICA’s judgment on appeal to the extent it affirmed the denial of the DANC motion and vacated the circuit court’s judgment of conviction inasmuch as it denied the motion for a DANC.

Land Keep The North Shore Country v. Board of Land and Nat. Resources, No. SCAP-190000449, February 22, 2022, (Nakayama, J.). This appeal arose from a challenge to the Na Pua Makani Wind Farm (the “Wind Farm”), an eight-turbine wind power plant proposed for the North Shore of Oahu. To operate the Wind Farm, Appellee-appellee Na Pua Makani Power Partners, LLC (“Applicant”) must obtain an incidental take license as part of a habitat conservation plan approved by Appellee-appellee Board of Land and Natural Resources (“BLNR”). After years of study and collaboration with state and federal agencies, Applicant submitted a proposed habitat conservation plan and requested BLNR’s approval. However, Appellant-appellant Keep the North Shore Country (“KNSC”) opposed the application, citing the Wind Farm’s potential impact on ‘ pe‘ape‘a, the Hawaiian hoary bat. Following significant state and federal agency review, numerous public meetings, and a contested case hearing, the Board approved Applicant’s habitat conservation plan, and authorized Applicant to take up to fifty-one ‘ pe‘ape‘a over the course of twenty-one years, or fewer than two and a half bats per year. On appeal to the circuit court, KNSC argued the Board unlawfully approved the habitat conservation plan because of alleged procedural irregularities and because the habitat conservation plan does not comply with Hawaii’s endangered species statute, Haw. Rev. Stat. chapter 195D. KNSC’s arguments were unavailing and the Hawaii Supreme Court affirmed the circuit court’s May 23, 2019 Final Judgment.

awards, which were issued in favor of Respondent-Appellant/Cross-Appellee Knox Hoversland Architects, Ltd. and Respondent-Appellee/Cross-Appellant ConstRX, Ltd. (collectively, “Respondents”) and against Claimant-Appellee/CrossAppellee Association of Apartment Owners of the Palm Villas at Mauna Lani Resort (“AOAO”). KHA appealed and CRX cross-appealed from the April 3, 2017 Amended Findings of Fact, Conclusions of Law and Order, entered in the circuit court, which: (1) granted AOAO’s October 31, 2014 motion to vacate the September 16, 2014 Interim Arbitration Award; (2) granted AOAO’s April 1, 2015 motion to vacate the February 9, 2015 Final Arbitration Award; and (3) denied CRX’s February 13, 2015 motion to confirm the Final Award, which KHA joined on March 10, 2015. On appeal, Respondents contended that the Circuit Court erred in vacating the Interim Award and

the Final Award due to evident partiality. In particular, Respondents contended that the Circuit Court erred in concluding that: (1) the arbitrator, Judge Riki May Amano (Ret.) (the “Arbitrator”), failed to make reasonable inquiries and failed to make full and appropriate disclosures of her relationships with the parties and counsel prior to and during the arbitration; and (2) AOAO did not waive its right to object to the Arbitrator. The ICA held that under the circumstances of this case, the Arbitrator’s failure to timely disclose to the parties that she recently had been appointed as an arbitrator in another matter, involving an attorney who also had been involved in the present matter, could reasonably have been perceived as likely to affect the Arbitrator’s impartiality in the arbitration underlying this appeal. Thus, the circuit court did not clearly err in ruling that a reasonable impression of partiality, and thus evident partiality, was

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.

Intermediate Court of Appeals Arbitration Association of Apartment Owners of the Palm Villas at Mauna Lani Resorts v. ConstRX, Ltd., No. CAAP-17-0000161, January 31, 2022, (Wadsworth, J. with McCullen, J., dissenting). This appeal arose out of a dispute concerning two arbitration

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

April 2022

HAWAII BAR JOURNAL

established on this ground. The ICA further held that the circuit court did not clearly err in ruling that AOAO did not waive its right to challenge the Arbitrator on this ground. McCullen, J. dissented, stating that notwithstanding an arbitrator’s duty to disclose, Haw. Rev. Stat. § 658A-12 (2016) requires that an objection be timely. Here, the Association of Apartment Owners of the Palm Villas at Mauna Lani Resort’s objection was not. Collection Bank of New York Mellon v. Larrua, No. CAAP-17-0000904, January 31, 2022, (Leonard, J.). This appeal stemmed from the contention that an apartment owners association, after having nonjudicially foreclosed upon an assessment lien and thereby taking title to an apartment unit, has the right to maintain possession and retain rental proceeds from the unit even

after a subsequent foreclosure decree and judgment has been entered against its ownership interest. The ICA held that the circuit court herein did not abuse its discretion in appointing a foreclosure commissioner to take possession and control of the subject unit upon the entry of the foreclosure decree and judgment. Under Hawaii law, a judgment entered on a foreclosure decree is a final determination of a foreclosed party’s ownership interests in the subject property – in other words, the property owner’s ownership rights in the property are foreclosed, notwithstanding that further proceedings are necessary to enforce and otherwise effectuate the foreclosure decree and judgment. An association may nevertheless have the right to a special assessment against the purchaser of the foreclosed property, including when the foreclosing mortgagee is the purchaser.

Constitutional For Our Rights v. Ige, No. CAAP-210000024, February 25, 2022, (Leonard, J. with Nakasone, J. concurring in part). This case primarily addressed whether Hawaii Governor David Ige exceeded his statutory authority when he issued a series of proclamations declaring a state of emergency in response to the Covid-19 pandemic. The ICA held that Hawaii’s Emergency Management Act authorized the Hawaii Governor to declare the existence of a state of emergency whenever, in his or her sole judgment, the Governor finds that circumstances giving rise to a declaration of a state of emergency have occurred (or that there is imminent danger or threat of an emergency), regardless of whether a prior emergency proclamation has been issued based on the same, continuing, and/or otherwise related circumstances. On that basis, the ICA affirmed in part the trial court’s judgment,

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 36 April 2022

HAWAII BAR JOURNAL

but vacated the trial court’s judgment to the extent it was based on mootness. Health Nitta v. Department of Human Servs., No. CAAP-17-0000432, February 11, 2022, (Leonard, J.). This is a secondary appeal from an administrative proceeding regarding a physician’s eligibility for enhanced payments through Medicaid’s Primary Care Physician Program. Appellant-Appellant Frederick Nitta, M.D. appealed from the circuit court’s judgment and the underlying decision and order in favor of Appellee Department of Human Services, State of Hawaii. On appeal, Dr. Nitta challenged the Circuit Court’s finding that he was ineligible to participate in the PCP Program, thereby entitling DHS to monetary recoupment for Medicaid enhanced payments. In this appeal, Dr. Nitta raised three points of error challenging the finding that he was disqualified from the PCP Program. Dr. Nitta contended that: (1) his staff completing the Attestation Form was a “mere technical defect;” (2) the statutory and regulatory framework was vague and ambiguous, the CMS regulations and guidance were arbitrary and capricious, and the DHS Attestation Form and Memoranda included misleading and incorrect statements; and (3) “the [sixty-percent] billing threshold and overpayment calculations were based upon redacted data that [he] was not able to fairly address.” Starting with Dr. Nitta’s challenge to the validity of CMS’s Final Medicaid Payment Rule, the ICA looked to the federal courts for guidance. The ICA concluded that: (1) CMS’s final Medicaid payment rule was invalid; and (2) DHS’s attestation form was invalid. Land U.S. Bank Trust, N.A. as Trustee for LSF9Master Participation Trust v. Association of Apartment Owners of Waikoloa Hills Condominium Phase I, Nos. CAAP-18-0000486 and CAAP-18-0000963, February 25, 2022, (Leonard, J.). This appeal

April 2022

HAWAII BAR JOURNAL

addressed various issues raised by an apartment owners association, after having nonjudicially foreclosed upon an assessment lien and thereby taking title to an apartment unit, concerning its rights and interests after a subsequent foreclosure decree and judgment had been entered against its ownership interest. Many of the issues raised herein were resolved in accordance with a recent opinion of the ICA in which it held, in relevant part: [T]he circuit court herein did not abuse its discretion in appointing a foreclosure commissioner to take possession and control of the subject unit upon the entry of the foreclosure decree and judgment. Under Hawaii law, a judgment entered on a foreclosure decree is a final determination of a foreclosed party’s ownership interests in the subject property – in other words, the property owner’s ownership rights in the property are foreclosed, notwithstanding that further proceedings are necessary to enforce and otherwise effectuate the foreclosure decree and judgment. Bank of New York Mellon v. Larrua, No. CAAP-17-0000904, 2022 WL 277671, *1 (Haw. App. Jan. 31, 2022). The ICA addressed, inter alia, the further issue of whether a foreclosure commissioner is vested with legal and equitable title to the foreclosure property. The ICA held that a foreclosure commissioner is not granted vested rights or interests in the subject property. Rather, the commissioner merely acts as an agent or arm of court, acting on the court’s behalf, and is vested only with the particular legal and/or equitable powers over the subject property that the court deems necessary to exercise the court’s legal and/or equitable powers. Any powers vested in the commissioner by the court – such as the power to take possession and control, collect rents, preserve value, and offer the property for sale – remain subject to further orders of the court.

38 April 2022

HAWAII BAR JOURNAL

HSBA HAPPENINGS HSBA Board Action The HSBA Board took the following actions at its meeting in January: • Approved the Executive Committee’s recommendation to ratify President Shannon Sheldon’s appointment of the following 2022 committee chairs: -Attorney/Client Relations: Charles Crumpton and Peter Lenhart -Awards: Tristan Andres and Kristin Izumi-Nitao -Civic Education: Troy Andrade, Ryan Hamaguchi, and Ruth Oh -Consumer Protection: Paul Alston -CLE: Brian Black -Delivery of Legal Services to the Public: Micah Smith -Diversity Equality and the Law: Tricia Nakamura and Kaliko Fernandes -Judicial Administration: Justice Simeon Acoba and Vladimir Devens -Legislation: Noah Gibson -Nominating: Calvin Young -Professional Responsibility and Risk Management: Hayley Cheng, Judge Kevin Morikone, and Judge Jill Otake -Publications: Cynthia Johiro and Carol Muranaka -Transitioning Lawyers: Geraldine Hasegawa -Well-Being: Summer Kaiawe • Approved the Executive Committee’s recommendation to ratify President Shannon Sheldon’s appointment of the following individuals as 2022 HSBA Nominating Committee members: Calvin Young (chair), Trejur Bordenave, Rhonda Griswold, Judge Darien Nagata, Judge Michael Soong, Jesse Souki, Elmira Tsang, and Mark Valencia; • Approved the Executive Committee’s recommendation to ratify President Shannon Sheldon’s appointment of the following individuals as 2022 HSBA representatives to the Supreme Court Nominating Committee: Sherry Broder,

P. Gregory Frey, Leighton Hara, and Levi Hookano; • Approved the Executive Committee’s recommendation to ratify President Shannon Sheldon’s appointment of the CoChair of the HSBA Committee on Diversity Equality and the Law (Kaliko Fernandez) to serve as the HSBA representative on the Judiciary’s Committee on Equality and Access to the Courts; • Approved the Executive Committee’s recommendation to change the name of the Professional Responsibility and Risk Management Committee to the Professional Responsibility Committee; • Voted to authorize Duane Seabolt to update his 2013 study on HSBA member demographics (Mr. Seabolt has offered his services free of charge); • Approved the Executive Committee’s recommendation to eliminate health as a criterion in HSBA’s evaluation of judicial nominees; • Determined that the Judiciary’s operating and CIP budget requests meet the Keller analysis (i.e., is germane to the purposes of the unified bar and would generally be supported by HSBA members); • Voted to support the following top priorities of the Judiciary’s legislative budget request for FY 2023, as identified by Chief Justice Mark Recktenwald, when the bills are scheduled for hearings at the Legislature: -General Funds Requests - Essential staffing for court/administrative operations -CIP Requests - Building repair and maintenance • Determined that legislation relating to the Zero to Three Court in the Third Circuit meets the Keller analysis; • Voted to support the legislation that establishes a coordinator position for the Zero to Three Court in the Third Circuit;

• Determined that legislation relating to a Women’s Court and an ICA position meet the Keller analysis; and • Voted to support the legislation that establishes a three-year Women’s Court pilot program within the Judiciary’s First Circuit and legislation that funds an additional position on the ICA bench.

Be a Candidate for the 2023 HSBA Board We are looking for enthusiastic attorneys who care about improving the legal profession and making a difference. Consider running for the HSBA Board as an officer (1-year term) or director (2year term). The following officer positions will be available beginning January 2023: Vice President, Treasurer, and Secretary. The following director positions will be available: six for Oahu, one for Maui, and one for East Hawaii. The HSBA/ABA Delegate position will also be available. Board members from Kauai and West Hawaii are currently serving a 2-year term set to expire in December 2023. If interested, email a cover letter and resume to the HSBA Nominating Committee at nominations@hsba.org by April 29. The Committee will have a slate ready by the end of May, and discourages any campaigning before that time.

Member Benefits Spotlight Watanabe Floral Studies show that flowers impact happiness. Watanabe Floral celebrates its 75th year of floral service to Hawaii. What started as a “mom and pop” business by Ernest and Shizue Watanabe in 1946 has transformed into a multi-tiered company with 70 team members focused on sharing the spirit of aloha and keeping people first. They cherish the blessing of being able to assist clients in expressing their feelings through flowers. Watanabe Floral is Hawaii’s largest retail

florist with 2 showrooms on Oahu. They provide a spectacular and unequaled variety of the freshest florals, greens and fillers to the public in its refrigerated coolers. And they have assembled a team of award-winning designers capable of making any special event one to remember. With well over 100 years in combined experience, the designers specialize in weddings, sympathy, prom, conventions/events and all other important occasions. They were recognized as “Hawaii’s Best” Florist every year since 2003. For all your floral needs and occasions, the Watanabe Floral team can team can assist you. Just present your HSBA card at your time of purchase in the store to receive your 5% discount on any product or service. For more information, please visit their website at watanabefloral.com. Cosmo Sweets Cosmo Sweets is making the universe sweeter. Cosmo Sweets’ tasty, beautiful and unique assortment of baked goods will help you celebrate any occasion. Customize your order of cakes, cupcakes, macaroons, and sugar cookies. Business logos and special messages may be incorporated in baked good decorations. Perfect for holiday gifts to clients, family, and special friends. All HSBA members will receive a discount of 10% off with a minimum order of $50. This discount is not included in delivery fees. To redeem the discount, members must state that they are an HSBA member in the ‘Other Notes’ category when submitting an order form. For more information, visit them on Instagram @cosmosweets or visit cosmosweetshawaii.com for more information.

allows one to unplug from the world. Each experience is unique; however, in general, it is deeply relaxing, meditative, and beyond interesting. With 2 float tanks, we can accommodate up to 2 people at a time. Use the discount code “HSBA” for $20 off Single and Couple’s Floats. This code is also good for $5 off a Cold Plunge. Book online at dreamfloathi.com or via phone/text at 808-386-5997. Verizon Wireless Receive significant discounts on wireless calling plans, as well as other discounts on accessories, devices, smartphones and text message plans. Eligibility requirements apply. Visit mynpp.com/association/hsba to find out more and to enroll. HSBA Newsstand Get free timely updates from around the U.S. and the world about subjects that matter to your practice. Newsstand is powered by innovative newsfeed service Lexology, which utilizes its global legal knowledge base to deliver essential know-how and market intelligence in concise digestible form to keep you informed across legal issues in your area. Please activate your account with Lexology at bit.ly/3saLBW9 to select the work areas and/or jurisdictions you would like to be kept up-to-date on. Change your settings (which include receiving the newsfeed weekly instead of daily) or cancel your subscription at any time. Your personal details will remain confidential at all times.

Dream Float Hawaii Become weightless as you float in Epsom Salt water. Floats are about an hour. The low sensory environment

April 2022

HAWAII BAR JOURNAL

(Contiued from page 31) arrange child care. Communicating remotely also increased the ability of parties to retain attorneys on neighbor islands, where it would have been cost prohibitive to do so in the past. A particular benefit at sentencing hearings was that people were still able to appear remotely in support of the defendants and be heard, even if they were not located on the same island as the court. One benefit of in-person proceedings is that a full record is made without the risk of discrepancies caused by a faulty remote connection. There are also some who believe it is more beneficial to appear before the judge in person to adequately plead one’s case. Finally, in-person proceedings eliminate the risk that a witness is impermissibly using notes or reports to assist during the witness’s testimony. B. SPECIFIC TOPICS 1. COVID and the Criminal Courts a. Trials (bench and jury): What are the biggest concerns? What has worked well? What are biggest challenges to the state, defense, and the court? What can we do to improve? Although the outcome of bench trials does not appear impacted when conducted remotely, attorney-client communication during trials is challenging. Even when the defendant is present in court, the social distancing requirements make meaningful attorney-client communication difficult and impede the ability of counsel to humanize the client. For all trials, the mask mandate makes it difficult for attorneys and witnesses to hear each another. It was reported that conditions in certain courtrooms, such as loud air conditioning, contributes to the inability of people to hear everything. Of concern is the likelihood of unclear records and its potential impact when a case is appealed. Another issue raised was whether the judges are able to successfully enforce the witness exclusionary rule during remote proceedings,

40 April 2022

HAWAII BAR JOURNAL

Wailuku

especially when the public is able to log on and observe the proceedings. In-court identification of a defendant wearing a mask is problematic, because everyone else in the courtroom is also wearing a mask. In federal court, the attorneys are not required to wear a mask if proof of vaccination is provided. However, this exception does not extend to the defendant who is often the only one in court with a mask, raising potential bias as a consequence. Masks also make it difficult to assess the reaction, emotions, and demeanor of all participants in the courtroom. Discussion about whether the preference was to have a witness testify remotely without a mask or to testify in person with a mask, revealed concerns with both approaches. While wearing a mask allows a witness to be present in court, the inability to fully assess the witness’s appearance and demeanor is problematic. This disadvantage must be weighed against the constitutional right of the defendant to physically confront any witnesses at a trial. It was noted that some attorneys always object to remote witness testimony. Some courtrooms have witness boxes enclosed with a clear barrier that permit a witness to remove the witness’s mask while testifying. Federal court adopts this practice, and there was input from the group that this worked well. It was noted that an exception in the Judiciary policy permits a witness to

temporarily remove the witness’s mask while testifying in order to hear the witness clearly or to better judge his or her expressions. Similar concerns were raised about voir dire of jurors inasmuch as the difficulty of assessing jurors’ statements and credibility is compromised when they wear masks. Continuances of trials have been requested rather than proceeding with the current voir dire process. The Third Circuit provides clear masks for everyone in the courtroom, including jurors, and the use of these clear masks have been helpful in the assessment of jurors The requirement that some jurors sit behind the attorneys adds to the inability of counsel to meaningfully observe the jurors. It was requested that the judges afford the attorneys more time for voir dire because of the need to ask COVID-related questions. Another challenge has been the difficulty of holding bench conferences during both voir dire and trial. Attorneys report that despite the need for such conferences, judges discourage and deny attorney requests for such conferences. The use of individual voir dire and pre-screening questionnaires have helped the attorneys obtain information about jurors in advance, reducing the frequency of conferences during jury selection. Overall concern for the safety of all

participants was raised, especially in the context of jury trials. While there may be technical compliance with the CDC guidelines, the safety of persons who are gathered together for the purposes of jury selection, trials, and deliberations was questioned. The judges want everyone who attends court to feel safe, and the use of remote proceedings and masks, while not ideal, is necessary during this unprecedented time. b. Large panel juries Selection of large panel juries share the same challenges discussed in the previous section. However, selection of jurors from large panels is further complicated by social distancing requirements as the number of prospective jurors is significantly increased. Questions for discussions were: • What are the specific challenges of big jury panels? • Do the current methods compromise the jury selection process? • Should we increase the use of pre-selection questionnaires? In the Second Circuit, securing jurors from other islands, such as Molokai, is not currently possible. While some trials have proceeded despite this limitation, cases requiring an expanded number of prospective jurors have been postponed because of the desire to have a representative jury pool, especially if the incident has occurred on another island. The pre-selection questionnaires used in the First Circuit seem to indicate that potential jurors are comfortable appearing for jury service if they believe the Judiciary has taken the appropriate steps to ensure their safety. While it was previously believed that it would be difficult to secure enough jurors for trials, the number of jurors who have appeared for service has been impressive. There was concern about jurors who have been excused through the pre-selection questionnaire process. The attorneys are not provided with the responses of those who have been excused and are not

April 2022

HAWAII BAR JOURNAL

given an opportunity to provide input prior to excusing the juror. This raises concerns about which group of the crosssection of the community is potentially missing from the jury panels. c. Expansion of remote proceedings for evidentiary hearings One position was that absent agreement of the parties, evidentiary hearings should be held in person because of the importance of the proceeding. However, Haw. Rev. Stat. § 704 hearings held remotely, even when contested, have helped to expedite the process, especially when an examiner resides on another island. Another position was that the use of remote proceedings allowed hearings to take place that would not have been possible otherwise. For example, due to the inconsistency of custody transports, a defendant may wait for a month for an inperson hearing, or alternatively could consent to appear remotely. It was noted that HRPP Rule 43 permits evidentiary hearings via video with either the oral or written consent of the defendant. It was surmised that remote proceedings may be here to stay. The pandemic remains fluid, and there is a possibility of another postponement of in-person trials and hearings. Although in-person hearings are ideal, remaining flexible and creative within the bounds of the constitution is important as the pandemic persists. In the Fifth Circuit, evidentiary hearings were never conducted remotely. When those hearings were not possible, the courts were completely shut down. When the courts resumed it was for in-person hearings, and there is currently no option to conduct evidentiary hearings remotely. It was expressed that remote proceedings create many evidentiary appellate issues and that the attorneys on both sides are not in favor of such proceedings. Because of the low numbers of COVID cases in the Fifth Circuit, in-person proceedings have completely resumed.

42 April 2022

HAWAII BAR JOURNAL

d. Challenges regarding custody defendants The Third Circuit reported that there have been no custody transports for approximately five months, and only recently did the jail institute limited in-person visits. Phone calls to those in custody are difficult because reaching a defendant often depends on whether the defendant’s module is locked down or on which corrections officer is on duty. The Third Circuit also reported lengthy mail delays in and out of the facility, which also inhibits client communication as correspondence through fax or email is prohibited. Kauai Community Correctional Center recently began permitting Zoom calls, which allows the court and counsel to meet with the defendants virtually. Custody transports from the Kauai Police Department (“KPD”) have been problematic, and the defendants are often not transported at all. Communication with defendants in KPD custody has been inadequate, and the attorneys have had to rely on the use of the police officers’ cell phones. Improved management between the Judiciary and KPD would assist the attorneys to know whether or when their client will be transported. Enabling counsel to email forms to the facility and to have the forms printed for the defendants in the Third Circuit has been helpful. However, the lack of meaningful contact with the clients to review discovery or to discuss their cases in detail has been frustrating. The First Circuit attorneys reported inadequate telephone communication with the defendants at OCCC. The phone calls are often dependent on whether the corrections officer connects a call to the defendant or is willing to pass a message to him or her. When connected, the phone calls are usually limited to five to ten minutes, which is insufficient for meaningful conversations. While OCCC has been opened for attorney visits, it is understandable that those who are unvaccinated, who live in multi-generational households, or

who have children too young to be vaccinated, would have reservations about lengthy in-person visits in the facility. Due to an antiquated phone system at both OCCC and Halawa Correctional Facility, video calls for attorneys are not possible, and only Circuit Court probation is able to communicate with inmates via video. It would be beneficial to have a point person at each facility to help set up telephone calls or interviews. There have been instances where COVID-positive custody defendants have inadvertently been transported to court, compromising the safety of the attorneys and others. Better communication between the DPS and the Judiciary is needed to ensure everyone’s safety. Additionally, improved notification of a transport being cancelled to the attorneys would be helpful. Although the judges are unable to direct DPS procedures, the judges encouraged the attorneys to keep the courts apprised of the challenges attorneys face as the courts may be able to assist with a solution. 2. Rules for Remote Proceedings a. Proposed changes to HRPP Rule 58: Appearance by Telephone or Video Conferencing A majority supported the proposed changes to HRPP Rule 58 and agreed that it would promote consistency and uniformity. However, a Third Circuit defense attorney pointed out that for pretrial conferences, there is a current requirement that defendants be physically on standby outside the courthouse. There was concern that if these conferences were conducted remotely, and the court required a defendant to be present, it may prohibit the attorney’s ability to have candid discussions with the court about the case. 3. Impact of State v. David, (SCWC19-0000319) (September 9, 2021) The case is distinguishable and should

not have any impact on OVUII cases. The State maintains its burden of producing affirmative evidence that the defendant was too impaired to operate a vehicle, or that the BAC level was at a certain level and the level exceeded 0.08 through expert testimony. In other types of cases, the opinion appears to favor the defense as it can be expensive to hire experts. It was noted that whether an expert is required should remain within the court’s discretion. 4. Bail Reform In 2017, the Criminal Pretrial Task Force was created to address the ongoing issue of overcrowding in the correctional facilities. One focus of the Task Force was to recommend improvements to the pretrial detention system by reforming existing bail practices. Questions for discussion were: • Is the COVID pandemic taken into consideration at the time bail is set? • Are we still actively working toward bail reform? • Are defendants afforded a meaningful opportunity at the early stages of their case (such as supervised release or bail reduction)? • Are increased bail amounts in Weed and Seed locations effective? What are the concerns with this practice? Bail reform sought an individualized approach to each case, and an opportunity to request release or a bail reduction early in the process. Attorneys from the First Circuit expressed concern that the topic of bail reform has faded from the forefront, and many district courts in the First Circuit have been falling back to the unwritten rule that bail amounts are strictly dictated by the particular offense charged. There is a sense that the initial interest in meaningful reform has waned and the old system has reappeared. For instance, many District Court judges in the First Circuit do not meaningfully consider bailrelated requests if they know a defendant can later make that request in Circuit Court.

In the Third Circuit, the judges generally consider the principles of bail reform, and the prosecutors have been fairly reasonable about bail throughout the pandemic. There is concern about the length of pretrial detention for misdemeanor cases for defendants who are denied release and are unable to post bail, as they will not be transported from jail back to court for trial for up to four to six weeks. It was noted that if a judge denies release or bail, particularly on a petty misdemeanor, the defendant will essentially serve a jail term beyond the statutory maximum sentence. For petty misdemeanor and misdemeanor offenses, the Fifth Circuit often confirms bail at the initial appearance but sets a bail hearing within two to three days. When the defendant returns to court, often the case is resolved, and if not, the next appearance for the defendant is set within two or three weeks. Throughout the pandemic, DPS has not necessarily followed bail decisions issued by the court, and there have been instances of defendants being released despite a court order confirming bail. In the Second Circuit, the judges bring defendants to court quickly for the petty misdemeanor and misdemeanor charges, allowing for efficient resolutions of cases. There has also been much work done to facilitate the transfer of bail for felony defendants who have posted bail in District Court prior to the case being transferred to Circuit Court. The transfer of bail eliminates the need to re-arrest the defendant or have the defendant post bail a second time on the same charge. The Third Circuit reported a similar procedure to allow the transfer of bail. The First Circuit’s Weed & Seed program aims to increase bail amounts if an offense occurs in a certain geographical location and to impose geographical restrictions on defendants. One concern raised was that many defendants in these Weed & Seed areas are indigent and homeless, so bail in any amount is impossible. Another

concern was that a geographical restriction often results in eliminating access to mental health services or other outreach programs that serve the population in Weed & Seed areas. It was reported that generally the judges have not set increased bail amounts, have regularly denied requests to automatically impose a geographical restriction, and instead are looking at each case individually, regardless of whether the offense occurred in a Weed & Seed location. 5. Court-Appointed Attorney’s Fees Pursuant to Haw. Rev. Stat. § 802-5, the current court-appointed rate is $90 per hour, with the following maximum fees: (1) misdemeanor jury trial case: $3000, (2) misdemeanor jury-waived trial: $1500, and (3) petty misdemeanor: $900. The current federal court-appointed rate is $155 per hour and was increased in January 2021 to account for inflationary adjustments. The questions for discussion were: • Should the state hourly rate be increased? • Should the maximum fees take into consideration the type of charge and number of counts per case? There was a strong consensus that the hourly rate be increased. The rate has not been increased in over 10 years, and there are many attorneys who are unwilling to accept court-appointed cases at the current rate. All circuits reported challenges with finding court-appointed attorneys or losing attorneys from the court-appointed list. There was a consensus that an increased rate would help address this issue. It was suggested that the rate be increased to match the federal hourly rate at $155 or the commissioner appointment rate, which is $200 per hour. As to maximum fees for cases, it was discussed that the federal courts will routinely compensate above the maximum when provided the appropriate verification that increased fees are warranted. It was noted that the Third Circuit judges have been reasonable about requests to increase

April 2022

HAWAII BAR JOURNAL

Honolulu

fees if an explanation is provided. There was a consensus that the state billing process is burdensome and further discourages attorneys from accepting court-appointed cases. Of particular concern was the practice of reducing attorney bills and the difficulty of complying with unclear fiscal department policies. 6. Impact of the Amendment to HRAP Rule 28(b)(4) If a case will be decided in whole, or in part, on an issue of plain error not previously raised by the parties, the amendment to HRAP Rule 28 (b)(4) requires that prior to disposition, the appellate court give the parties an opportunity to brief the potential plain error issue. The amendment will not affect outcomes of appellate cases, but it was discussed that it will likely delay case decisions and lengthen the appellate process. It was also mentioned that the appellate court should always give the parties an opportunity to submit additional briefing if a case will be decided on an issue not previously raised.

44 April 2022

HAWAII BAR JOURNAL

7. Compliance with Haw. Rev. Stat. § 353-6.2: Periodic Reviews of Pretrial Detainees In the Matter of Individuals in Custody of the State of Hawaii, SCPW-21-0000483 (2021), the Hawai’i Supreme Court ordered DPS to comply with Haw. Rev. Stat. § 353-6. In part, Haw. Rev. Stat. § 353-6.2 requires DPS to conduct periodic reviews (at least every three months) of pretrial detainees to reassess their appropriateness for continued incarceration or release, and those findings and recommendations are to be transmitted to the court, prosecuting attorney, and defense counsel. Periodic reviews and the subsequent recommendations have not been conducted with regularity. One judge reported only recently seeing a couple of reviews and had not seen any prior reviews. The required information would be helpful in order to assess the appropriateness of filing a motion for release. 2021 BENCH-BAR CONFERENCE PARTICIPANTS The Committee on Judicial Administration: Committee Co-Chairs: Honor-

able Simeon R. Acoba Jr., Associate Justice, Supreme Court of Hawaii (Ret.) and Vladimir Devens. Members: Honorable Brian Costa, Judge, Family District Court, First Circuit; Honorable Ronald Ibarra, Judge (Ret.), Third Circuit Court; Honorable Blaine J. Kobayashi, Deputy Chief Judge, Second Circuit Court; Honorable M. Kanani Laubach, Deputy Chief Judge, Third Circuit Court; Honorable Rowena Somerville, Judge, First Circuit Court; Honorable Randal G. B. Valenciano, Judge, Fifth Circuit Court; Hayley Y.C. Cheng; Steven J.T. Chow; Dennis Chong Kee; Kahikino Noa Dettweiler-Pavia; Kirsha Durante; William A. Harrison; Daylin Rose Heather; Edward C. Kemper; Clarissa Malinao; Simeona A. Mariano; Dyan Mitsuyama; Carol K. Muranaka; Kyleigh F. K. Nakasone; Shannon Sheldon; Audrey L. E. Stanley; Wilson Unga; Dawn West. The appellate judges and Judiciary administration included: Honorable Justice Mark E. Recktenwald, Chief Justice, Hawai‘i Supreme Court; Honorable Sabrina S. McKenna, Associate Justice, Hawai‘i Supreme Court; Honorable Lisa M. Ginoza, Chief Judge, Intermediate Court of Appeals; Honorable Keith K. Hiraoka, Associate Judge, Intermediate Court of Appeals; Honorable Sonja M. McCullen, Associate Judge, Intermediate Court of Appeals; Honorable Karen T. Nakasone, Associate Judge, Intermediate Court of Appeals; Honorable Clyde J. Wadsworth, Associate Judge, Intermediate Court of Appeals; Brandon M. Kimura, Deputy Administrative Director of the Courts; Lisa K.T.O. Lum, Special Assistant to the Administrative Director of the Courts; Angela Kuo Min, Special Assistant to the Administrative Director of the Courts The participants in Circuit Court Civil Law Group 1 were Lead Judge: Judge Peter Cahill; Lead Attorney: Steven J.T. Chow; Reporters: Keani Alapa, Kahikino Noa Dettweiler-Pavia; Facilitator: Shannon Sheldon; Attendees: Judge Bert Ayabe, Judge Lisa

Cataldo, Judge Jeffrey Crabtree, Judge Keith Hiraoka, Judge James McWhinnie, Judge Henry Nakamoto, Judge Craig Nakamura (ret.), Judge Dean Ochiai, Judge Kathleen Watanabe, Nadine Y. Ando, Lisa A. Bail, Claire Wong Black, Wesley Ching, Rai Saint Chu, Michael Cruise, Charles Crumpton, Gilbert Doles, Marie Gavigan, Gary Grimmer, Leighton Hara, C. Michael Heihre, Archie Ikehara, Summer Kaiawe, Derek Kobayashi, Geoffrey Komeya, Leslie Kop, Sunny Lee, Laurel Loo, Sharon Lovejoy, Moana Lutey, Trevor Potts, John Price, Jennifer R.Sugita, Elijah Yip. The participants in Circuit Court Civil Law Group 2 were Lead Judge: Judge Randal Valenciano; Lead Attorney: Audrey Stanley; Reporters: Kurt Kagawa, Kyleigh Nakasone; Recorder: Vladimir Devens; Attendees: Judge James Ashford, Judge Jeannette Castagnetti, Judge Gary Chang, Judge Wendy DeWeese, Chief Judge Ronald Ibarra (ret.), Judge John Tonaki, Judge Clyde Wadsworth, Della Au Belatti, Jordan Inafuku, Robin Kishi, Jacob Lowenthal, Michael Matsukawa, William McKeon, John-Anderson Meyer, Melvyn Miyagi, Duane Miyashiro, Robert Miyashita, Lisa Munger, Page Ogata, Zale Okazaki, Dennis Potts, Michelle Premeaux, Ken Robbins, Woodruff Soldner, Stephanie Thompson, Brian Tilker, Lynne Toyofuku, Mark Valencia, Alan Van Etten, Allen Williams, Matthew C. Winter, Cynthia Wong, Deborah Wright, Reginald Yee, Nathan Yoshimoto, Calvin Young. The participants in the Circuit Court Criminal Group 1 were Lead Judge: Judge Rowena A. Somerville; Lead Attorney: Hayley Cheng; Reporter: Wilson Unga; Attendees: Judge Shirley Kawamura, Chief Judge Robert Kim, Judge Karen Nakasone, Steven Alm, William Bento, Reiko Bryant, Ann Datta, Craig De Costa, Adrian Dhakhwa, Todd Dickenson, Catherine

EMPO EMPOWER WER YOUR YOUR ATTORNEYS AT TORNEYS & S TAFF WORKING STAFF REMOTELLY REMOTELY ΖΖQ WRGD\ȇV ZRUOG DWWRUQH\V DQG VWD΍ QHHG LPPHGLDWH DFFHVV WR LPSRUWDQW Q WRGD\ȇV ZRUOG DWWRUQH\V DQG VWD΍ QHHG LPPHGLDWH DFFHVV WR LPSRUWDQW ȴ ȴOHV UHPRWHO\ $FFHVVȇ GLJLWL]DWLRQ DQG VFDQQLQJ FDSDELOLWLHV HQDEOH ODZ OHV UHPRWHO\ $FFHVVȇ GLJLWL]DWLRQ DQG VFDQQLQJ FDSDELOLWLHV HQDEOH ODZ ȴ ȴUPV OLNH \RXUV WR PLQLPL]H RU HOLPLQDWH RQVLWH SK\VLFDO ȴOH VWRUDJH ZKLOH UPV OLNH \RXUV WR PLQLPL]H RU HOLPLQDWH RQVLWH SK\VLFDO ȴOH VWRUDJH ZKLOH OORZHULQJ FRVWV DQG HQVXULQJ LPPHGLDWH DFFHVV WR WLPH VHQVLWLYH ȴOHV RZHULQJ FRVWV DQG HQVXULQJ LPPHGLDWH DFFHVV WR WLPH VHQVLWLYH ȴOHV

A ACCESS CCESS DIGITIZATION DIGITIZATION & SCANNING SERVICES INCLUDE: INCLUDE: Scan-on-Demand: S SURYLGHV URYLGHV VVHFXUH FRVW H΍HFWLYH DQG QHDU HFXUH FRVW H΍HFWLYH DQG QHDU UUHDO WLPH DFFHVV IURP DQ\ZKHUH HDO WLPH DFFHVV IURP DQ\ZKHUH WWR ȴOHV VWRUHG DW DQ $FFHVV R ȴOHV VWRUHG DW DQ $FFHVV GRFXPHQW VWRUDJH IDFLOLW\ G RFXPHQW VWRUDJH IDFLOLW\

Digital Mailroom: 0 0XOWLSOH XOWLSOH OORFDWLRQV" (PSOR\HHV ZRUNLQJ IURP RFDWLRQV" (PSOR\HHV ZRUNLQJ IURP K KRPH" 9LUWXDO FHQWUDO RɝFH" ΖQ RPH" 9LUWXDO FHQWUDO RɝFH" ΖQ D DQ\ VFHQDULR ZH FDQ HQDEOH \RXU Q \ V F H Q D U L R Z H F D Q H Q D E O H \ R X U SK\VLFDO PDLO LPSRUWDQW GRFXPHQWV S K\VLFDO PDLO LPSRUWDQW GRFXPHQWV FFKHFNV DQG PRUH Ȃ WR EH GHOLYHUHG KHFNV DQG PRUH Ȃ WR EH GHOLYHUHG WR D GLJLWDO PDLOER[ IRU FRQYHQLHQW W R D G L J L W D O P D L O E R [ I R U F R Q Y H Q L H Q W DFFHVV DFURVV \RXU ȴUP D FFHVV DFURVV \RXU ȴUP

Learn more at AccessCorp.com/Hawaii orp.com/Hawaii p Or call now: 808.673.3200* *Mention this ad for a Free Consultation and Quote

T e Pain Relief Center Th The

April 2022

HAWAII BAR JOURNAL

Gutierrez, Kevin Hashizaki, Lee Hayakawa, Randall Hironaka, Wendy Hudson, Dana Ishibashi, Rebecca Like, Ben Lowenthal, Howard Luke, Megan McDonald, Kyle Mesa, Shelly Miyashiro, Steven Nichols, Elyse Oyama, Joanna Sokolow, Sherilyn Tavares, Dawn West, Heather Wolfenbarger. The participants in the Circuit Court Criminal Law Group 2 were Lead Judge: Judge Richard T. Bissen, Jr.; Lead Attorney: Kirsha Durante; Reporter: Jessica Domingo; Attendees: Judge Kevin Souza, ICA Chief Judge Lisa Ginoza, Renee Arndt, William Bagasol, David Bettencourt, Thomas Brady, Jonathan Burge, Christian Enright, Mario Everett, Darcia Forester, Richard Gronna, David Hayakawa, Haaheo Kahoohalahala, Megan Kau, Marcus Landsberg, Frederick Macapinlac, Thomas Michener, Ramsey Ross, Danielle Sears, Keith Shigetomi, Renee Sonobe Hong, Myron Takemoto, Kimberly Torigoe, Zachary Wingert, Kory Young. The participants in the District Court Criminal Law Group were Lead Judge: Judge M. Kanani Laubach; Lead Attorney: Clarissa Malinao; Reporter: William Harrison; Facilitator: Ernest DeLima; Attendees: Judge James Kawashima, Judge Summer Kupau-Odo, Judge Kenneth Shimozono, Judge Michael Soong, Michelle Acosta, Elizabeth Cuccia, Leon Davenport, Manta Dircks, William Heflin, Cameron Holm, Andrew Itsuno, Dominic Jancaterino, Lezlie Kiaha, Jason McFarlin, Sarah Nishioka, Robert Olson, Dena Renti Cruz, Tyler Saito, Cheryl Salmo, Evans Smith, Andrew Son, James Tabe, Jerry Villanueva. The participants in the District Court Civil Law Group were Lead Judge: Judge Melanie Mito May; Lead Attorney: Dennis W. Chong Kee; Reporters: Edward C. Kemper, TeriAnn Nagata; Facilitator: Dawn Sugihara; Attendees: Judge Kirstin Hamman, Judge Darolyn Lendio, Russ Awakuni, David Chee, Renee Furuta-Barnum, Steven Guttman, Edmund Haitsuka, Catherine Hall, Arlette Harada, Ken Lau, Ann McIntire, Gregory Meyers, Angela Kuo Min, Cheryl Nakamura, Kirk Neste, Lori Okita, Allan Okubo, Gary Okuda, Dan O'Meara, Dan Oyasato, William Plum, Jane Sugimura, Kaliko Warrington. The participants in the Family Court Group were Lead Judge: Judge Brian A. Costa; Lead Attorneys: Dyan Mitsuyama, Simeona Mariano; Reporter: Jill Hasegawa; Facilitator: Paula Nakata; Attendees: Justice Sabrina McKenna, Judge Sonja McCullen, Judge Stephanie Char, Judge Rebecca Copeland, Judge Jessi Hall, Judge Adrianne Heely, Judge Darien Nagata, Judge Courtney Naso, Judge Elizabeth PaekHarris, Judge James Rouse, Judge Matthew Viola, Judge Bryant Zane, Eyke BrathHurdman, Everett Cuskaden, Tom Farrell, Christy Gray, Geoffrey Hamilton, Seth Harris, Geraldine Hasegawa, Emily Hills, Brandon Kimura, Erin

46 April 2022

HAWAII BAR JOURNAL

Kobayashi, Dawn Laird, Katherine Lukela, Emiko Meyers, Ellen Politano, Stephanie Rezents, Dwight Sakai, John Schmidtke, Paul Soenksen, Gemma-Rose Soon, Erin Sugita, Tom Tanimoto, Brianne Wong Leong, Marsha Yamada. _________________ 1

Hawaii State Bar Association (“HSBA”) Board Policy Manual. Second Circuit Chief Judge Richard Bissen and First Circuit Court Judge Paul Wong received the 2021 Jurist of the Year Award on October 29, 2021, from Chief Justice Mark Recktenwald. The presentations were part of the Judiciary’s annual employee Incentive Awards Ceremony, which recognizes judiciary personnel for improvements to court operations or programs and outstanding contributions to public service. See <Judiciary | 2021 Jurists of the Year and Judiciary Employees Honored (state.hi.us)>. 3 Act 57 (H.B. 1376) that passed in the 2021 Hawai‘i legislative session amended Haw. Rev. Stat. § 521-68(b), effective August 7, 2021. The landlord-tenant code was changed to allow more time for tenants to seek assistance and to work out agreements to avoid eviction. 4 Rule 9 of the Hawai‘i Court Record Rules provide, in relevant part, as follows: 2

9.1 Prohibition; Form. (a) Except as provided in this Rule 9 and notwithstanding any other rule to the contrary, a party shall not include personal information in any accessible document filed in any state court or with ADLRO [Administrative Driver’s License Revocation Office]. Required personal information shall be submitted by means of a Confidential Information Form that substantially conforms to HCRR Form 2 of these rules; provided the name and birth date of a minor charged with a traffic infraction may be displayed on the citation and the name of a minor may be displayed in submissions in proceedings under HRS chapter 586 and section 604-10.5. The Confidential Information Form shall be designated confidential, protected, restricted, sealed, or not accessible. 5 Proposed Modifications to HRPP Rule 58: APPEARANCE BY TELEPHONE OR [OTHER ELECTRONIC MEANS] VIDEO CONFERENCING. (a) Pretrial and status conferences. Unless otherwise provided by rules of court, the court [should] shall, absent good reason, as determined in the court’s discretion, allow [counsel] the parties to appear by telephone or [other electronic means] video conferencing at any pretrial or status conference. (b) All other proceedings where defendant’s appearance is not required. In all other proceedings where defendant’s presence is not required by Rule 43 of these rules, the court, in its discretion, may allow counsel to appear by telephone or [other electronic means] video conferencing. (c) Court may require personal appearance. If, at any time during a conference, hearing or proceeding conducted by telephone or [other electronic means] video conferencing, the court determines personal appearance is necessary, the court may continue the matter and require a personal appearance. (d) Arranging telephone conference call. Unless otherwise directed by the court, [Counsel] a party who requests an appearance by telephone [or other electronic means] is responsible for notifying all parties prior to the said call, arranging the telephone conference call with all parties, and ensuring the call is ready for court participation at the time appointed.

ATTORNEY WANTED ASSOCIATE ATTORNEY Our growing Honolulu law firm is seeking Associate Attorneys to join our team. Position will involve handling all aspects of the litigation process, including strategy, drafting pleadings, motions, discovery, etc. and court experience. Must have good time management skills & be highly organized. Ideal Candidate will have excellent written communication skills, strong analytical and research skills as well as a thirst for personal and professional growth. Salary commensurate with experience. Must be licensed in Hawaii. For immediate consideration, please submit resume and writing samples to: phann @hawaiilegal.com ESTABLISHED DOWNTOWN LAW FIRM is seeking a litigation associate attorney to join its dynamic team. 2 -8 years civil litigation ex-

UNIVERSITY OF HAWAII, Office of General Counsel, seeks Associate General Counsel for employment law (pos. #89411) position. Applicants must have at least 8 years of experience. For more information, see www.governmentjobs.com/careers/hawaiiedu and search by position number. The University is an EEO/AA employer.

EXPERT WITNESS CONSTRUCTION, 30 yrs; P.E., MS/BS Civil Eng’g, CCM, CEP; excellent written/oral comm; utilities, road, bridge, treatment plant, pump station, transit, multi-story; claims, scheduling, estimating; sj@sjcivil.com, 808-271-5150.

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

OFFICE SPACE AVAILABLE IMMEDIATELY – Office in suite leased by Michael Green with ocean view of HNL harbor with potential for criminal and civil case referrals. Includes shared use of conference room, kitchenette, reception

CONSTRUCTION DEFECTS, contractor issues, premises liability, real estate disclosure. AOAO, Landlord/Tenant and mold disputes National Building Expert. Best Selling Author. https://expertwitness.now.site 808-422-2132

area, fax machine & printer; front office answering service optional; parking available. Call Pia 808-521-3336.

perience preferred; Admission to Hawaii Bar Required. Excellent benefits; Salary commensurate with experience. Please submit resume and writing samples in confidence to: Recruiting Committee/HR Case Lombardi & Pettit, A Law Corporation 737 Bishop Street, Suite 2600 Honolulu, HI 96813 Email: recruitingdirector@caselombardi.com

PPREMISES SECURITY EXPERT Case Evaluation • Expert Witness • 45 Expert Retentions • Court-Qualified in Hawaii 1st, 2nd & 5th Circuits • Consulting (surveys, documents, procedures, design) Albert B. “Spike” Denis, CPP, CFE. Pacific Security Group LLC. 1050 Bishop Street, Suite 303, Hono, HI 96813. Spike@psghawaii.rr.com Tel:808.224.4559

EXCELLENT OPPORTUNITY for practicing attorney to join established Family Law department in large firm, with mentoring. Join us as an associate on a partner track. Excellent opportunity to work 1:1 with clients and do interesting court-based work. Previous court experience preferred. Please submit your r e s u m e to p to ma r@a wla w.co m a nd lmcgivern@awlaw.com. EXPERIENCED ATTORNEY will provide legal services. Pleadings, motions and memos, appellate briefs and other writing assignments. Reasonable rates. Email hawaiilawpro@gmail.com.

REAL ESTATE: Over 45-years as a Developer, Broker, Builder and Realty Advisor. HI Broker’s License, MBA/USC, extensive development and brokerage background. Seasoned real estate veteran with substantial “Real-World” experience and proven Trial testimony. Web: www.castlelyonshawaii.net. Watch 1-minute video. Call Michael K. Ryan, President, CastleLyons Corp. -- 808.282.4059. REAL ESTATE/PROPERTY MGMT/AOAO expert. See www.jurispro.com. Search for “Griswold”. Robert S. Griswold, CRE, CPM, CCIM, PCAM, CCAM, GRI, ARM. www.griswoldremgmt.com (858) 597-6100

April 2022

HAWAII BAR JOURNAL