Hawaii Bar Journal - December 2023

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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 HSBA OFFICERS President Rhonda Griswold President-Elect Jesse Souki Vice President Mark M. Murakami Secretary Lanson Kupau Treasurer Alika Piper YLD OFFICERS President Lisa Yang Vice President/President-Elect Kelcie Nagata Secretary Danica Swenson Treasurer Andria Schumann


Public Corruption in the Land of Aloha by Randall Roth

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Emergency Powers Under Scrutiny: New Uses and Limits of Chapter 127A by Keola R. Whittaker




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On the Cover: Kailoa Calm by Susie Anderson. Anderson has been described as a “Pacific

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

C I L B U P UPTION R R O in the C Land of Aloha

by Randall Roth The Hawaii Legislature created a Commission to Improve Standards of Conduct in 2022, shortly after federal agents caught two legislators taking bribes. In its report to the 2023 Legislature, the Commission described corruption in Hawaii as glaring, embarrassing, deep-rooted and systemic, and public trust as lost. Former officials in prison or awaiting trial included not just legislators, but prosecutors, police officers, planning-and-permitting workers, a chief building inspector, environmental-management director, affordable-housing official, wastewater-maintenance supervisor, police chief, councilman, county managing director, county corporation counsel, and police commission chairperson. All these crimes were investigated and prosecuted by federal agencies, with virtually no help from local law enforcement, local watchdog agencies, or whistleblowers from within the directly affected government offices. This suggests the added presence of a non-criminal form of corruption, often described as willful blindness or intentional ignorance. Rather than get personally involved and perhaps step on the wrong toes, people deliberately chose to go along to get along. A tendency to go along to get along is not limited to Hawaii, but it is particularly strong and prevalent here. Reasons include the state’s remote location, overlapping social networks, highly regulated business sector, disproportionate reliance on government jobs, bureaucratic governance

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structures, union leaders with power to make or break an individual political campaign or business activity, and, perhaps most importantly, longtime dominance of a single political party. Though seldom an indictable crime, conscious acts of willful blindness can violate civil or ethical duties—for example, when the willfully blind individual is serving on an official watchdog commission, board, or agency. Examples of these include the Police Commission, Board of Water Supply, Commission on Water Resource Management, Commission on Judicial Conduct, Ethics Commission, and Honolulu Authority for Rapid Transportation board, but there are many more. The individuals appointed to such groups tend to be intelligent, impressively accomplished and widely respected, but they also tend to be establishment insiders, not known as boat rockers. The occasional exception does not last long. For example, a new appointee to the HART board was essentially removed soon after promoting increased transparency and accountability for the rail project. Meanwhile, establishment insiders perceived as model team players sometimes find their oversight services in high demand. One of the individuals now awaiting trial for an alleged crime previously served on the Judicial Selection Commission, Board of Water Supply, Legislative Salary Commission, Honolulu Police Commission, Judiciary Salary Commission, and Honolulu Apportionment Commission. Information like this helps explain why Hawaii’s watchdog agencies, boards, and commissions have consistently missed seeing (or pretended not to have seen) public corruption now described as glaring, embarrassing, deep-rooted, and systemic. The following brutally honest look at the essential role of willful blindness in two of Hawaii’s most notorious public corruption scandals is also instructive.

The older of these scandals implicated numerous lawyers, all three branches of state government, and every judicial watchdog group. The complete backstory appears in Broken Trust: Greed, Mismanagement & Political Manipulation at America’s Largest Charitable Trust, University of Hawaii Press (2006) with electronic and audio versions now Open Access (i.e., free to users) thanks to grants from Kamehameha Schools.1 The underlying news events were widely reported during the 1990s, not just locally, but by the New York Times, Washington Post, Wall Street Journal, CNN, National Public Radio, and hundreds of other national and international news organizations.R This article focuses on the conduct of Hawaii’s Supreme Court justices, and apparent willful blindness of its judicial watchdog agencies and legal community. The justices had put themselves at the center of the Broken Trust scandal by selecting trustees of the charitable trust then known as Bishop Estate (now Kamehameha Schools), despite lacking the necessary jurisdiction. Acknowledging they could not select trustees while acting officially as justices, they claimed to be doing it unofficially, as private citizens. Nothing like this existed in any other territory or state, but it was law in Hawaii because justices, acting officially as justices, ruled it so. One obvious problem was that justices acting unofficially can be subject to fiduciary duties of care and loyalty, and not protected by judicial immunity. Accordingly, Hawaii’s justices could theoretically find themselves personally liable for harm done by trustees they selected negligently or for a purpose other than to benefit the trust. By the mid-1990s, Bishop Estate trustees were openly ignoring mandatory provisions in the trust’s governing instrument, paying themselves grossly excessive fees, improperly delegating authority among themselves, and paying millions to establishment insiders in the form of salaries, retainers, commissions, and fees for ill-defined services. As described years


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later in a CBS News “60 Minutes” retrospective report, the justices’ handpicked trustees had turned the world’s largest charitable trust (at the time) into “a candy store for the state’s political establishment.” The trustees appeared to be doing all this with impunity. Indeed, a 1995 Wall Street Journal front page story described the trustees as having “so much clout no one stops them.”2 And, as later summarized in a book review about the Broken Trust book in the Hawaii Bar Journal, “Despite corruption, greed, lack of transparency, and serious breaches of trust by the powerful, arrogant, and often abusive trustees, no attorney general, court-appointed master, probate judge, justice of the supreme court, or trust counsel did anything about the abuse and culture of fear perpetuated by the trustees.”3 Indeed, no government official, community leader, or group of lawyers publicly addressed the apparent impropriety of the five justices selecting trustees while acting unofficially as private citizens, much less that their selection decisions appeared incompetent at best, self-serving at worst: To be appointed to the Supreme Court a person’s name first had to appear on a short list created by the Judicial Selection Commission; seven of the Commission’s nine members had been chosen by a Senate President, Chief Justice, Speaker of the House, or Governor; and Bishop Estate trustees in the 1990s included a former Senate President, Chief Justice, Speaker of the House, and Governor’s confidant who also chaired the Judicial Selection Commission. On August 9, 1997, the Honolulu Star-Bulletin published a critique of Bishop Estate trustees and the justices who selected them, under the headline “Broken Trust.”4 Its authors provided specific examples of trustee misconduct and placed much of the blame at the feet of the justices. For example: “Acknowledging the obvious impropriety of making trustee selections in their official capacity, the justices tell us they are acting as individual citizens when they select Bishop Estate trustees. . . . The reality is that Bishop Estate trustees are selected by five individuals who through no coincidence are also justices of the state Supreme Court. A further reality is that these same five individuals are virtually certain to be called upon to decide cases involving the trustees they select. The estate has been before the Supreme Court at least 18 times in the last 13 years. Some people wonder why the justices would stretch logic and judicial ethics to the breaking point just to do something they clearly don’t have to do, and then do it poorly.” One week later, the Honolulu Advertiser published the justices’ long response, in which they described the Broken Trust essay as “factually inaccurate, distorted, and irresponsible,” and claimed it had “impliedly impugned the integrity, honesty, ethics, intelligence, qualifications, competence and professionalism not only of the five members of the Hawaii Supreme Court as individuals, but also of the court as an institution.”5 Days after that, the Governor instructed the Attorney General to investigate the Broken Trust authors’ accusations, including

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those regarding the justices’ role in trustee selection. The justices agreed to be interviewed only in each other’s presence. Informed the Attorney General was prepared to subpoena them individually, if necessary, to hear their individual responses to her questions, one of the justices responded that although he and the others had acted unofficially when selecting trustees, they were still justices; no one could force justices to cooperate in an attorney general’s investigation; the integrity of the judiciary was at stake; and case law said so, according to this justice. As described by the Attorney General years later, the justices’ position seemed to be, “We’ll just see whether your subpoena power goes so far. If we’re the ones to decide it (which we probably will be), we don’t think so.” The Attorney General filed a motion to disqualify, which the justices sat on for months. Eventually they stepped aside, citing “overheated circumstances” without mentioning their ex parte discussion of the issue to be decided, or their refusal to cooperate with the state’s top law enforcement official’s investigation of a matter in which they claimed to have participated as private citizens. Meanwhile, the trustees were spending millions in trust funds resisting five on-going investigations. Four courtrooms stayed busy with a flurry of motions and cross-motions, but judges appeared reluctant to remove the trustees, even temporarily. By comparison, a federal agency, the Internal Revenue Service (“IRS”), quickly concluded that these trustees had violated every condition of taxexempt status and were putting their personal interests ahead of their fiduciary duties. To the IRS, it made little sense to communicate with seriously conflicted trustees. Although the IRS saw a need to replace the trustees, it lacked the power to do so itself. Nor could it simply order a local court to do so. It accomplished this outcome indirectly, however, by getting word to the probate court that it stood ready to revoke the charity’s tax exemption retroactively—a move that immediately would cost Bishop Estate nearly one billion dollars—if that court did not replace all five trustees. The trustees and their lawyers called this extortion, and they had a point. The IRS’s position was unprecedented and remarkably heavy-handed. But with the tax exemption of Princess Pauahi’s charitable trust at stake and the public watching closely, the probate judge had no real choice but to remove the trustees. The ousted trustees started the process of suing their former lawyers, on whose advice they would claim to have relied, and justices and other government officials might be implicated. Such possibilities ended suddenly, however, when the probate court approved a global settlement that essentially wiped everyone’s slate clean. The public supposedly wanted closure and healing. Experts outside Hawaii saw this as a dodge and harshly criticized not just the trustees, but the justices who had selected them and the lawyers who saw but said nothing about the impropriety of justices picking trustees, much less incompetent ones. For example, The American College of Trust and Estate Counsel Law

Journal criticized “political backscratching in the Hawaii Supreme Court’s appointment of trustees.”6 The International Civil Society Law Journal marveled at the justices’ conflicts of interest and failure to exercise due care when selecting trustees.7 Trusts and Estates Review expressed amazement that a rigged selection system could continue for many years: “Unfortunately and almost unbelievably (especially for any member of the legal profession), … the [justices] virtually never made an objective, considered selection.”8 In sharp contrast, Hawaii’s judicial oversight groups neither said nor did anything remotely critical of the justices. Hawaii’s Commission on Judicial Conduct, which is supposed to investigate indications of serious judicial misconduct, did nothing and never explained why. This was not as surprising as it might sound to the uninitiated. All seven members of that Commission had been appointed by the justices. Another group, the Judicial Selection Commission, is supposed to investigate credible allegations of judicial misconduct when it performs ten-year retention reviews. To make sure that happened when the first of the Broken Trust justices came up for review, three Broken Trust authors sought an opportunity to testify. Informed that only written testimony would be considered, the three prepared a ten-page, single-spaced, footnoted document detailing how the justices had damaged the public’s trust in the justice system. As instructed, the authors submitted ten copies—one for each Commission member and one for the commission’s staff member. Eventually the Commission announced that its members had voted to give this justice another ten-year term. Later, when one of the Broken Trust authors mentioned to a Commission member the authors’ disappointment with that decision, the Commission member said it had been a particularly difficult decision and the outcome had been decided by a single vote. When the Broken Trust author responded that he did not see how any intelligent,


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December 2023



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well-intentioned person could read the Broken Trust authors’ testimony and vote to give that justice another 10 years, the Commission member claimed not to have been told about or given a copy of that testimony. Four years later, when the local chapter of the American Judicature Society formed a Committee on Judicial Independence and Accountability, one of the Broken Trust authors appeared before the assembled committee, and began his presentation by noting, “Something is wrong with the system of judicial independence and accountability when serious questions can be raised about the conduct of a state’s entire Supreme Court without an official body either coming to the defense of those justices or taking steps to hold those justices accountable. Given the seriousness and specificity of the allegations in the Broken Trust essay and book, one would expect some kind of response. Thus far, the silence has been deafening.” He then answered their questions and suggested questions for them to ask the justices, such as this one: “Critics have suggested the Commission on Judicial Conduct’s failure to investigate the many allegations of misconduct by the justices was connected to the fact all seven of the Commission’s members had been appointed by the justices. If you do not agree with that suggestion, please explain why you think your appointees chose not to investigate any of the many allegations of misconduct.” The Committee on Judicial Independence and Accountability subsequently met with the chief justice, ostensibly to ask him questions like that, but the chief justice flatly refused to respond to questions related to the Broken Trust authors’ allegations. Because that was many years ago, it would not be productive to comment now, he explained. As for the Commission on Judicial Conduct, they do a good job, according to the chief justice. When the Committee on Judicial Independence and Accountability issued a report several years later, it included the

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following comments about the Broken Trust essay but said nothing about the chief justice’s refusal to address any of the Broken Trust authors’ allegations: “The Hawaii Supreme Court’s (discontinued) involvement in the appointment of Bishop Estate trustees was the genesis of considerable criticism in the wake of the Broken Trust essay, which was published by the Star Bulletin in 1997, and the subject of further public debate after the Broken Trust book was published in 2006. . . . The sub rosa contentions in the Broken Trust discussion, that the Supreme Court’s trustee appointments were essentially political payoffs, rather than based on merit, and that the settlement of the legal actions involving the former trustees was improperly permitted by the judiciary, may have cast lingering shadows on the public’s view of the judiciary. . . . This Committee is not qualified or inclined to pass judgment on anyone’s conduct in the matter. The Committee does not find, however, that the system is inherently flawed.”9 In sum, there was minimal accountability for trustees who enriched themselves and others at the expense of charitable-trust beneficiaries; no accountability for the succession of attorneys general, probate judges, court-appointed masters, and watchdog commission members who for years failed to see problems that were obvious; and no accountability for justices whose handpicked trustees turned the state’s largest and most historically and culturally significant trust into a candy store for the state’s political establishment. The absence of accountability in the Broken Trust era set the stage for future corruption scandals, including the one described in The Mailbox Conspiracy: The Inside Story of the Greatest Corruption Case in Hawaii History (Watermark Press 2021), a book written by former federal public defender Alexander Silvert. Its core story began with efforts by Honolulu Police Chief Louis Kealoha, and his Deputy Prosecutor spouse,

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Katherine Kealoha, to frame Katherine’s uncle for crimes he never committed, which was related to Katherine’s attempts to defraud various family members, including that uncle. Because family dysfunction was at the core of the Mailbox Conspiracy story, casual observers might mistakenly assume this scandal says little about systemic criminal and non-criminal corruption in Hawaii. Federal District Court Judge Michael Seabright did not make that mistake, as evidenced by his remarks when sentencing the Kealohas. After describing their conspiracy as “staggering in its breadth, its scope, and its audacity,” Seabright suggested anyone who cares about Hawaii should be asking, “How was it this went on so long undetected?”10 Indeed, it seems unlikely that a police chief, deputy prosecutor, and other law-enforcement officers could frame a totally innocent man—and destroy extensive physical evidence of their crime—without others in the police department or prosecutors’ office suspecting something was amiss. These offices are filled with professionals trained and experienced in spotting wrongdoing, and the wrongdoing in this case had been staggering in its breach, scope, and audacity. Yet there were exactly zero whistleblowers from these offices. At times there appeared to be more than willful blindness at work. According to Silvert, various personnel within the police department resisted turning over exculpatory evidence and then improperly redacted records they turned over. But at least they eventually responded. By comparison, the Prosecutor, the city’s chief law enforcement officer who was specifically empowered to uphold the law and, as an attorney, ethically required to do so, flatly refused to cooperate in any way with the federal investigation. Various watchdog agencies also fell spectacularly short. The Honolulu Ethics Commission was one of them, according to its former Executive Di-

rector, Chuck Totto. He started investigating the Kealohas in 2014, which was before any federal investigation, but Totto’s investigation ended abruptly in 2015 when he resigned under pressure and funding needed to continue the investigation was terminated. Years later, when the Commission’s chairperson publicly defended the Commission’s actions and described Totto’s resignation as voluntary, he responded, “The ethics commission did not carry out its duty to the public to properly investigate the Kealohas. We’ve heard some reasons as to why that was, but I don’t buy those reasons.”11 Another example of a possibly ineffective watchdog agency: When Chief Kealoha intentionally caused a mistrial, apparently to avoid public revelation of the criminal conspiracy, the Police Commission chairman told reporters, “I think the chief has acknowledged that he’s made a mistake, he’s apologized, he deeply regrets it, and we need to move on.”12 Years later, a different chairman acknowledged that the police department was still under a dark cloud because of the ongoing federal investigation, but said the police department needed to “move on.”13 In 2020, the newly appointed Commission Chairperson said the commission needed more aloha, and added, “I don’t want to dwell on the past.”14 Immediately following the Kealohas’ conviction in federal court, the mayor who had appointed every member of the Police Commission told reporters, it’s time for the Police Department, the City, and the public to “move on.”15 The framed uncle in The Mailbox Conspiracy had submitted a detailed complaint to the Office of Disciplinary Counsel, but, as best he could tell, that agency did not investigate his specific allegations. He first heard from that office years later after Katherine had been convicted of serious crimes and voluntarily relinquished her law license. It is not as though Katherine’s corrupt behavior had been subtle. In addition to stealing from her grandmother and uncle, she had defrauded banks, stolen the life savings of orphans, talked those orphans into lying to the grand jury, created a fictious notary, and misused her position of deputy prosecutor to protect her brother and others from criminal prosecutions. As described in court, she had been “a walking crime spree.” As Silvert has pointed out, when a bridge collapses the affected community tries to understand why. People do not simply “move on.” Public trust in our government has collapsed, largely because of public corruption detailed in Broken Trust and Mailbox Conspiracy, yet oversight groups that may have engaged in willful blindness, or chosen not to seek accountability for clearcut wrongdoing, apparently expect simply to “move on.” Willful blindness is particularly troubling when done by someone with a special responsibility for the quality of justice. According to the Hawaii Rules of Professional Conduct, that includes every lawyer. If lawyers find excuses not to point out apparent corruption, or fail to call for accountability when members of official watchdogs appear to engage in willful blindness, who is left to do so?

The Broken Trust and Mailbox Conspiracy scandals are now history, but valuable lessons remain unlearned. The learning process will require more public discussion than just this article, and such discussion, if candid, will make many establishment insiders uncomfortable. But if enough lawyers express themselves candidly and forcefully, meaningful change is possible. Otherwise, history will repeat itself in one form or another, and public corruption will continue to be glaring, embarrassing, deep-rooted, and systemic in the land of aloha. __________________ 1

Available at randallroth.com/brokentrustbook. Alix M. Freedman and Laurie P. Cohen, Bishop’s Gambit: Hawaiians Who Own Goldman Sachs Stake Play Clever Tax Game, WALL ST. J., April 25, 1955, at A1. 3 David C. Farmer, Book Review: Broken Trust: Greed, Mismanagement, and Political Manipulation at America’s Largest Charitable Trust, HAW. BAR J., July 2006, p. 85. 4 “Broken Trust,” HONOLULU STAR-BULLETIN, p. B1, Aug. 9, 1997. 5 “The justices respond,” HONOLULU ADVERTISER, p. B5, Aug. 17, 1997. 6 Ronald D. Aucutt, Book Review: Broken Trust, AMERICAN COLLEGE OF TRUST AND ESTATE COUNSEL JOURNAL, Summer 2007, p.1. 7 Leon Irish, Book Review, INTERNATIONAL SOCIETY OF CIVIL SOCIETY LAW JOURNAL, Vol. V, Issue III, July 2007, p. 75. 8 Alexander A. Bove, Scandal in Paradise, Trusts & Estates, July 2006, p. 60. 9 The entire report is available on the American Judicature Society website under “Publications.” See, https://americanjudicaturesociety.org/wp-content/uploads/2021/08/9-Report-of-the-Special-Committee-on-Judicial-Independence-and-Accountability-2008.pdf. The section addressing Broken Trust appears on pp. 11-12. 10 “Judge Seabright: Corruption was allowed to flourish’ in Kealoha case, KHON2 News, Nov. 30, 2020, available at https://www.khon2.com/localnews/judge-corruption-was-allowed-to-flourish/. 11 Nick Grube, Defiant Ethics Commission Defends Decisions On Kealohas, HONOLULU CIVIL BEAT, July 17, 2019, available at https://www.civilbeat.org/2019/07/defiant-ethics-commission-defends-decisions-on-kealohas. 12 Ronald Taketa as quoted in HPD chief appears before Police Commission, Hawaii News Now, Dec. 18, 2014, available at https://www.hawaiinewsnow.com/story/27657456/hpd-chief-appears-before-police-commission/. 13 Max Sword, as quoted in an article by Christina Jedra, Indictment Puts Spotlight On One Of The Most Connected Men In Honolulu, HONOLULU CIVIL BEAT, Feb. 8, 2022, available at https://www.civilbeat.org/2022/02/indictmentputs-spotlight-on-one-of-the-most-connected-men-in-honolulu/. 14 Shannon Alivado, as quoted in an article by Yoohyun Jung, Sheehan Out As Honolulu Police Commission Chair, HONOLULU CIVIL BEAT, Jan. 10, 2020, available at https://www.civilbeat.org/2020/01/sheehan-out-as-honolulu-policecommission-chair/. 15 Kirk Caldwell, as quoted in an article by Gordon Y.K. Pang, Honolulu Mayor Kirk Caldwell defends his ‘move on’ comments following Kealoha verdicts, HONOLULU STAR-ADVERTISER, June 29, 2019. 2

Randall Roth is professor emeritus at the William S. Richardson School of Law where for many years he taught Professional Responsibility, Trusts and Estates, Tax Law, and Nonprofit Organizations. Along with United States District Court Judge Samuel P. King, Roth wrote the Broken Trust book and assigned all royalties to local charities.

December 2023



Emergency Powers Under Scrutiny:

New Uses and Limits of Chapter 127A

by Keola R. Whittaker Use of emergency powers has been under scrutiny this year as Governor Josh Green and Maui Mayor Richard Bissen exercised their legal authority under the State of Hawaii’s emergency management statute in unprecedent ways. The bulk of the news coverage and debate has centered on Governor Green’s emergency declarations on housing. These proclamations sought to address problems that have plagued the State for decades. While little attention has been paid to emergency orders promulgated in response to the devasting Maui wildfires, those too involved novel uses of emergency powers. Mayor Bissen issued emergency proclamations that – for the first time in Maui County history – purported to suspend balance-of-power and emergency provisions of the Maui County Charter. Although courts in Hawai‘i have been reluctant to limit the authority granted to the executive branch under Chapter 127A, especially during the COVID-19 pandemic, that may change in 2024. A lawsuit challenging Green’s Emergency Proclamation on Housing (the “Housing EP”) is pending before the Second Circuit state court. The many lawsuits relating to the Maui wildfires will address problems with the County of Maui’s responses to the tragedy, including emergency proclamations issued in response to the fires. This article examines both sides of

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the debate over emergency powers beginning with a brief overview of Hawaii’s emergency management statute. Next, is an analysis of legal challenges to the Housing EP. Finally, the much more complicated legal issues relating to Mayor Bissen’s expanded use of emergency powers in response to the Maui wildfires are examined. Emergency Powers in Hawaii Hawaii’s emergency management laws, which were amended and codified into Hawai‘i Revised Statutes Chapter 127A (“Chapter 127A”)1 in 2014 by H.B. 849, provides a simple but broad definition of emergency: “Emergency” means any occurrence, or imminent threat thereof, which results or may likely result in substantial injury or harm to the population or substantial damage to or loss of property or substantial damage to or loss of the environment. HAW. REV. STAT. § 127A-2.2 The statute grants the governor or mayor (in the case of a local emergency) the sole authority to judge the existence of an emergency and to declare a state of emergency. HAW. REV. STAT. § 127A-14(c). The executive is provided with tremendous powers during emergencies, including the power to suspend any law that “impedes or tends to impede . . . the expeditious and efficient execution of . . . emergency functions” (HAW. REV. STAT. § 127A-13(a)(3)) and adopt rules that have the “force and effect of law.” HAW. REV. STAT. § 127A-25. There are statutory limits to emergency powers. Most significantly, a state of emergency automatically terminates sixty days after the issuance of a proclamation. HAW. REV. STAT. § 127A-14(d). In addition, the statute explicitly states that it should not be construed as “conferring any power or permitting any action which is inconsistent with the Constitution and laws of the United States.” HAW. REV. STAT. § 127A-1(c). Courts have also cautioned that powers exercised pursuant to Chapter 127A must not violate the Hawai‘i State Constitution.3

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The extensive emergency management powers set forth in state law, and the flexibility and breadth of the definition of “emergency,” have allowed the state to respond effectively to a wide range of emergencies from hurricanes to floods, and to the COVID-19 pandemic. It has saved lives and allowed the government to act quickly to address unforeseen circumstances. That is likely the reason that the State Legislature’s attempts to apply limits to Chapter 127A have mostly failed. Senate Bill 3089, which was approved by the State Legislature in 2022, would have allowed the Legislature to strike down emergency orders issued by a governor. That bill was vetoed by Governor Ige because he feared it would limit a governor’s ability to adequately respond to emergencies. The State Emergency Declaration on Housing At his inauguration, Governor Green promised to work on public-private partnerships to “build thousands of new homes for Hawai‘i families.”4 He got to work on fulfilling that promise almost immediately. On January 23, 2023, less than two months after his inauguration, he issued an emergency proclamation to address homelessness.5 That proclamation – which suspended certain land use laws to provide immediate housing for those experiencing homelessness – was a precursor to the Housing EP issued on July 17, 2023. Like the proclamation on homelessness, the Housing EP suspends several state and county land use regulations to speed the construction of new housing. Unlike the prior proclamation, the EP creates a new regulatory scheme in its place, which, in its initial iteration, was managed by a Lead Housing Officer and a 23-member Working Group. In response to criticism, Governor Green removed the suspension of certain environmental and cultural review processes and made other substantive changes in the second and third versions of the Housing EP. For housing developers, the initial Housing EP promised a much-needed streamlined system to build additional housing. Hawai‘i is known for its complex matrix of land use regulations, which cause delays and add costs at each required regulatory step. In particular, environmental reviews under Hawai‘i

Revised Statutes, Chapter 343, and cultural reviews pursuant to Hawai‘i Revised Statutes, Chapter 6E, can take years to process and are often the basis for legal challenges, which add further delay and costs. It was no surprise then that housing advocates lauded the Housing EP as a creative solution to a problem that had not been addressed legislatively.6 Swift criticism of the Housing EP came primarily from environmental and cultural groups. They argued that the current regulatory framework best protects environmental and cultural interests, and a more streamlined approach could cause irreparable damage.7 Lawyers representing these critics have added that Chapter 127A was intended to address immediate and temporary disasters, like hurricanes or acts of war, rather than long-term problems that can be solved legislatively, and that such actions expand executive powers beyond what is constitutionally permissible.8 At least two lawsuits were filed to challenge the Housing EP. The first was filed on August 28, 2023 in the Second Circuit on behalf of a group of Hawai‘i residents (the “Maui Action”). The second was filed days later in the First Circuit by Earthjustice on behalf of multiple community groups, including the Sierra Club and ACLU but that action was withdrawn after Governor Green issued the third version of the Housing EP, which responded to a bulk of the criticism from these organizations. A Motion for Summary Judgment was filed in the Maui Action on September 19, 2023. It appears that, for now, the Maui Action will move forward. That legal challenge appears to be primarily based on three related issues: (1) whether the housing crisis is the type of “emergency” contemplated by Chapter 127A; (2) whether the creation of a new regulatory scheme to approve housing developments exceeded the scope of authority granted under the statute; and (3) whether the Housing EP violates the separation of powers doctrine inherent in the Hawai‘i State Constitution. Is The Housing Crisis An Emergency? The first issue relates to the definition of “emergency” under Chapter 127A. Rather than provide a list of circumstances or events that may constitute an emergency, like a few other states do in their emergency management statutes,9 the Hawai‘i State Legislature left the definition largely ambiguous, instead opting to have the governor determine when an emergency exists. Defining emergencies through a list of possible events proves challenging due to their inherent unpredictability. A narrow definition may prevent the governor from responding to events that are wholly unexpected. This is likely the reason that under Section 127A-14(c) the executive is “the sole judge of the existence of the danger, threat, or circumstances giving rise to a declaration of a state of emergency . . . .” Hawaii’s emergency management statute is not unusual in

giving the governor plenary power to define and take action in response to emergencies. A vast majority of states give little or no legislative input on gubernatorial emergency proclamations.10 And courts have recognized that in acting to prevent damage before it occurs, the executive must necessarily exercise their own judgment about “the imminence of the danger and the likelihood that a disaster will in fact occur.” Worthington v. Fauver, 88 N.J. 183, 196, 440 A.2d 1128, 1135 (N.J. 1982). Preventing damage necessarily requires an act of discretion. The governor’s authority to determine the existence of an emergency may be the deciding factor on the issue of whether the housing crisis is an “emergency.” In a recent Intermediate Court of Appeals (“ICA”) opinion relating to Governor Ige’s COVID-19 emergency proclamations, the ICA confirmed that, “HRS § 127A-14(a) authorizes the Governor to declare the existence of a state of emergency whenever, in his or her sole judgment, he or she 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) . . .” and did not take the opportunity to apply its own interpretation of “emergency.” For Our Rts. v. Ige, 151 Haw. 1, 10, 507 P.3d 531, 540 (Haw. Ct. App. 2022). (emphasis in original). If the courts take the same tactic when reviewing the Housing EP, a challenge based on the definition of “emergency” will fall flat. The Motion for Summary Judgment filed in the Maui Action suggests that the court should focus on five key words contained in the definition of “emergency”, “occurrence, or imminent threat thereof.” Petitioner’s Memorandum in Support of Motion, Nakoa v. Medeiros, et al., SP No. 2CSP-230000046 (Haw. Civ. Ct.) Dkt. 18 at 3 (Sept. 19, 2023) (the “MSJ Brief ”). Petitioners argue that “occurrence” and “imminent threat” suggests an unforeseen, immediate disaster, not an ongoing state of affairs, such as a housing shortage. Id. at 4. According to the Housing EP itself, the lack of affordable housing has been a problem in the State of Hawai‘i since at least 1935. By definition, a long-term problem that has become status quo in Hawai‘i cannot be an “occurrence, or imminent threat thereof ” and is therefore outside of the definition of “emergency.” Even beyond the technical parsing of the words “occurrence, or imminent threat thereof,” a long-term problem does not qualify as an “emergency” under the plain meaning of that word, i.e., a sudden, unexpected event or combination of events that required immediate action. Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/emergency (last visited Oct. 9, 2023) (defining “emergency” as “an unforeseen combination of circumstances or the resulting state that calls for immediate action”); Emergency Definition, Oxford Learner’s Dictionaries, https://tinyurl.com/mx2evfdu (last

December 2023



visited Oct. 9, 2023) (defining “emergency” as “a sudden serious and dangerous event or situation which needs immediate action to deal with it”). The Supreme Court of the Territory of Hawai‘i struggled with the definition of “emergency” in a different context in Territory of Hawai‘i v. Akase, 43 Haw. 84 (1958), decided less than a year before Hawaii’s statehood. At issue was a Honolulu rent control ordinance. The authority to pass a rent control ordinance came from a Territory of Hawai‘i law allowing the exercise of such authority only during an emergency rising out of a housing shortage. Id. at 85. The Court considered but ultimately rejected the argument that an emergency is a sudden or unexpected event which calls for immediate action or remedy. Citing cases from New Jersey and New York, the Court concluded that, “We do not think that an emergency is necessarily a temporary and fleeting situation. There is an emergency so long as the situation that gave rise to the remedial legislation remains unabated.” Id. at 86-87. The Court also pointed out that the dictionary includes other definitions of emergency that have “the meaning of exigency, which applies ‘urgency or the pressure of necessity’” and such definition does not imply “that a situation long continued cannot be considered an emergency.” Id. at 86. To the extent that Hawai‘i state courts apply the reasoning of Akase to an interpretation of Chapter 127A, the ultimate conclusion is – more than 60 years later – eerily on point: Hawaii’s longterm housing shortage can be classified as an “emergency” under the law. Does the Housing EP Exceed the Authority Granted to the Governor Under Chapter 127A? Petitioners’ second main argument is that the Housing EP exceeded the authority granted to the governor by Chapter 127A. They argue that while the governor has the power to suspend the

16 December 2023


law in an emergency, Chapter 127A does not give the governor the power to create new laws relating to the development of housing. MSJ Brief, 8-9. The power to create rules that have the force and effect of law is found in Section 127A-25. In pertinent part, Section 127A-25(a) provides, “For the purpose of carrying out any provision of this chapter, the governor may adopt rules for the State and the mayor may adopt rules for the county which may, if so stated in the rules, have the force and effect of law.” Opponents of the Housing EP contend that the phrase “[f]or the purpose of carrying out any provision of this chapter” is a reference to the enumerated powers that the Office of Governor may take during a state of emergency, which are detailed in Sections 127A-12 and 127A-13. Under that interpretation, the emergency rules issued during the COVID-19 pandemic were a permissible use of Chapter 127A, since providing for the segregation or quarantine of persons affected with an infectious or communicable disease is a specifically enumerated power under Section127A-13(1) but issuing new rules in response to the housing emergency would not. By contrast, the State has previously contended that Chapter 127A grants the governor “broad and comprehensive powers to respond to emergencies.”11 The State points to the purposes of the statute, as detailed in Section 127A-1(a),

18 December 2023


general police power to protect public health, safety, and welfare. In short, there are few limits to the types of rules the governor can promulgate, so long as such rules relate to the emergency identified in the proclamation. In addition, even if the statute limits the governor’s authority to make new rules to the listed enumerated powers, those powers include a seemingly broad catch-all provision: the governors may take “any and all steps necessary or appropriate to carry out the purposes of this chapter notwithstanding that the powers in section 127A13(a) may only be exercised during an emergency period.” HAW. REV. STAT. § 127A12(b)(19).

which refer to “the existing and increasing possibility of the occurrence of disasters or emergencies of unprecedented size and destructiveness resulting from natural or man-made hazards” and indicate that the purposes of granting emergency powers to the governor is to, among other things, “protect the public health, safety, and welfare and to preserve the lives and property of the people of the State.” Under this view, the phrase “[f]or the purpose of carrying out any provision of this chapter” is not limited to the enumerated powers of subsections 12 and 13. Rather, “any provision” means precisely that: the governor may create rules in order to effectuate the broad purposes of the chapter, which includes the

Does the Housing EP Violate the Separation of Powers Doctrine? The final issue relates to the separation of powers doctrine. The separation of powers doctrine is not set forth in any constitutional provision, but the courts have suggested that “the separation of powers” is “inherent in the Hawai‘i Constitution” based on the separation of sovereign power among three co-equal branches. Honolulu Civ. Beat Inc. v. Dep’t of Att’y Gen., 146 Haw. 285, 296 n.19 (2020). The doctrine provides that a department “may not exercise powers not so constitutionally granted which from their essential nature, do not fall within its division of governmental functions, unless such powers are properly incidental to the performance by it of its own appropriate

functions.” Hawai‘i Insurers Council v. Lingle, 120 Haw. 51, 69–70 (2008). Petitioners in the Maui Action have argued that the Housing EP violates the separation of powers doctrine because it “purports to rewrite multiple statutes by suspending portions of them and imposing new structures and processes through which they may be augmented or modified.” MSJ Brief, at 12. The State addressed a similar argument in prior litigation over the COVID-19 emergency proclamations. It argued that a violation of the separation of powers doctrine only occurs in the event of total abdication of legislative power. A legislature does not “unconstitutionally delegate legislative power” so long as “the statute provides standards to direct implementation of legislative policy.” State v. Gaylord, 78 Haw. 127, 137 (1995). Under that view, Chapter 127A is not an unconstitutional delegation of authority because it is both limited in scope and the statute

provides guideposts on how emergency powers are exercised. The main limitation on the governor’s authority is that the use of emergency powers is not permanent; the powers are discontinued at the end of the emergency and proclamations automatically terminate no later than sixty days after they are issued. As Hawai‘i attorney Robert H. Thomas noted, this is the “only systemic check on the governor’s emergency authority.” Robert H. Thomas, Hoist the Yellow Flag and Spam® Up: The Separation of Powers Limitation on Hawai’i’s Emergency Authority, 43 U. HAW. L. REV. 71, 84 (2020) (emphasis added). Courts have confirmed, however, that there is no prohibition of supplementary or successive proclamations at the end of the sixty-day period. See, e.g., Denis v. Ige, 557 F. Supp. 3d 1083, 1099 (D. Haw. 2021). Limits on the duration of emergency proclamations has been one of the

primary reasons courts across the country have rejected separation-of-powers challenges to emergency proclamations. See, e.g., Beshear v. Acree, 615 S.W.3d 780, 812 (Ky. 2020) (noting that “our Governor does not have emergency powers of indefinite duration”). The Michigan Supreme Court, in a divided opinion, addressed two certified questions posed by the federal district court regarding the Michigan Governor’s exercise of authority under that state’s Emergency Management Act of 1976 (“EMA”). That court determined that the EMA violated the separation of powers doctrine because the power delegated was “of immense breadth and . . . devoid of all temporal limitations.” In re Certified Questions From United States Dist. Ct., W. Dist. of Michigan , S. Div., 958 N.W.2d 1, 24 (Mich. 2020). In distinguishing Hawaii’s emergency management statute from Michigan’s, the State noted that the Michigan statue does not contain

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Grief Support Group Grief is a universal experience, and we all struggle with it. Sometimes we are unsure if our feelings are unique to us or whether we are justified in feeling them. By sharing our stories in a safe, confidential, and caring environment, we can find strength and additional resources to deal with our loss. The Attorneys and Judges Assistance Program is starting a support group for Hawaii’s attorneys. If you are interested in participating or have any questions, please don’t hesitate to contact Liam at director@hawaiiaap.com or 808-260-6415.

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a temporal limit for an emergency declaration, whereas Hawaii’s does.12 Opponents could argue that the temporal limitations are effectively worthless if the governor has the right to reissue the same proclamation repeatedly. When the initial Housing EP was issued, Governor Green indicated that he would reissue the emergency proclamation every sixty days for one year.13 That oneyear promise makes sense in context; it would be difficult for housing developers to apply for certification under the proclamation in just sixty days. But a promise that the emergency period would last for one year may give opponents an opportunity to argue that the legal right to reissue proclamations makes the temporal limitations theoretical. In practice, courts have pointed out, the sixty-day period allows the state legislature to take action should the emergency powers be abused. The legislature “could repeal section 127A-14 entirely, or it could amend the statute to prevent the Governor from declaring an emergency based on the then-current conditions.” Denis, 557 F. Supp. 3d at 1099. The second main reason why Chapter 127A does not violate the separation of powers doctrine, according to the State, is that “Hawai‘i law allocates to the Governor a number of specific delegated powers” which involve a “broad – but not “standardless” – delegation of authority.”14 In particular, the standards are implied by the policies and purposes – e.g., HRS § 127A-1 – provides meaningful guidance on the exercise of Chapter 127A powers. This argument is an implicit recognition that the guardrails set forth within Chapter 127A are not illusory. The State will therefore be required to demonstrate how the Housing EP fits within the specific delegated powers of Chapter 127A and concede that those delegated powers do have limits. The Second Circuit state court may decide some of the issues raised in this ar-

ticle prior to its publication in response to the Motion for Summary Judgment filed in the Maui Action. But the issues relating to emergency powers are so significant and unique as applied to the Housing EP, that any decision is likely to be appealed to and decided by the Hawai‘i Supreme Court in the near future. The Hawai‘i courts’ decisions will have significant impacts. If courts limit the definition of “emergency” to exclude long-term problems, a number of emergency proclamations issued this year would be put into question, including emergency proclamations relating to axis deer, Uncle Billy’s Hilo Bay Hotel, and homelessness. It may also prevent future governors from being able to effectively respond to emergencies that are unforeseen. One can imagine that unique and long-lasting emergencies could arise that relate to sea level rise, hacks into state or county computer systems, or unique health or safety issues that are not yet imaginable. On the other hand, if the court ultimately decides that the Housing EP does not violate Chapter 127A or the Hawai‘i State Constitution, it would mark an important shift in Hawai‘i politics. If a governor has the power to determine what an emergency is and can create or suspend laws and create new regulations to address such emergencies, community groups may call upon gubernatorial candidates to promise to issue emergency proclamations to address issues important to them, rather than wait for action by the state legislature. Either scenario is fraught with potential problems, and it will be important for the courts or lawmakers to find the right balance between emergency management and the separation of powers. Mayor Bissen’s Emergency Proclamations Relating to the Maui Wildfires The legal questions relating to Maui Mayor Richard Bissen’s emergency (Continued on page 25)




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December 2023



CASE NOTES Supeme Court

Appeal Pointer

Civil Procedure

An appeal is in default if the opening brief is not filed within 40 days after the record on appeal is filed or within any extension of the 40-day period. Relief from default must be obtained from the appellate court. Failure to cure the default may result in monetary sanctions or dismissal of the appeal. HRAP 28(b) and 30.

Womble Bond Dickinson (US) LLP v. Kim, No. SCPW-23-0000076, October 18, 2023, (Eddins, J.). Three law firms petitioned the Hawaii Supreme Court to order a judge to get them out of a case. They argued the circuit court lacked jurisdiction to hale them into Kona - side by side with the tobacco companies they long-counselled - in a products liability, fraud, and conspiracy suit. The circuit court relied on conspiracy jurisdiction to invoke jurisdiction, which the law firms maintained was unconstitutional and unsupported by Hawaii Supreme Court precedent. The Hawaii Supreme Court adopted conspiracy jurisdiction, but decided that the circuit court in this case nevertheless lacked jurisdiction on the basis of the pleadings and the evidence produced in connection with a Hawaii Rules of Civil Procedure Rule 12(b)(2) motion to dismiss.

Intermediate Court of Appeals Administrative Bardin v. Planning Dep’t of the County of Kauai, No. CAAP-18-0000902; September 29, 2023; (Wadsworth, J.). This case concerned the selection of a hearing officer appointed to hear and conduct the contested case proceedings brought by Appellants-Appellants Anthony S. Bardin (Bardin), Greg Allen, Sr., Greg Allen, Jr., Thomas J. Brooks, Jennifer S. Brooks, Michael Chandler, Kirby B. Guyer, Milton Searles, Michael L. Kaiser, and Todd Schrim (collectively, Appellants) against Appellee-Appellee Planning Department of the County of Kauai (Planning Department). Appellants moved to disqualify the hearing officer appointed by the Planning Commission based in part on the alleged appearance of impropriety and bias

22 December 2023


created by the method used to select the hearing officer. The Planning Commission denied Appellants’ motions. Appellants then filed their primary appeal in the Circuit Court, which affirmed the Planning Commission’s decision. In this secondary appeal, Appellants appealed from the Circuit Court’s Final Judgment (Judgment), entered in favor of the Planning Department on October 22, 2018. Appellants also challenged the Circuit Court’s Findings of Fact, Conclusions of Law, and Decision and Order (FOFs/COLs/Order), entered on August 8, 2018. On appeal, Appellants contended that the Circuit Court erred in affirming the Planning Commission’s decision to deny Appellants’ motions to disqualify the hearing officer. Appellants argued in part that the selection of the hearing officer bypassed the public procurement process or any process designed to ensure fair government conduct, where the law firm that was hired by the County of Kauai (County) to provide services as a hearing officer, and which was later determined to have a conflict of interest in providing such services, assigned the firm’s service contracts to the attorney who thereby became the hearing officer. The ICA held that the Circuit Court erred in affirming the Planning Commission’s determinations that: (a)

Appellants did not have standing to challenge the assignment of the service contracts to the hearing officer; and (b) the Planning Commission did not have jurisdiction to hear Appellants’ challenge. Appellants challenged the assignment of the service contracts for failing to follow any process designed to ensure a fair tribunal, and for allowing a conflicted entity to choose the successor hearing officer. Appellants’ challenge was based on established standards of just procedure and judicial conduct, grounded in due process requirements, which apply to administrative adjudicators. Appellants had standing to move to disqualify the hearing officer based on these standards, and the Planning Commission had jurisdiction to hear the motions. The ICA further held that the Circuit Court erred in affirming the Planning Commission’s determination that Appellants failed to meet their burden to prove that the challenged hearing officer should be disqualified in their contested case proceedings. It is undisputed that the assignment of the service contracts to the hearing officer was made by the law firm that acknowledged having alleged conflicts of interest that prevented it from acting as a hearing officer for the Planning Commission. The appearance of justice was not satisfied in these circumstances by allowing a conflicted entity that could not act as a hearing officer to choose, or to participate in choosing, its successor. The ICA also concluded that Appellants’ motions to disqualify the hearing officer were timely.

Criminal State v. Banares, No. CAAP-220000356, October 16, 2023, (Guidry, J.). Defendant-Appellant Joven Joseph Banares (Banares) appealed from the Findings of Fact, Conclusions of Law, and

HSBA HAPPENINGS Order Granting in Part and Denying in Part Defendant Banares’s Motion to Dismiss for Violation of Hawaii Rules of Penal Procedure Rule 9 (Rule 9 Order), entered by the Circuit Court. Banares appealed from the portion of the Circuit Court’s Rule 9 Order that tolls, pursuant to Haw. Rev. Stat. § 706-627 (2014), the period of his probation. The ICA vacated the Circuit Court’s tolling of Banares’s period of probation, and certain of the circuit court’s conclusions of law. The ICA held that, on the record of this case, in which the circuit court did not hear or issue a decision concerning or upon a motion to revoke probation, the tolling provision set forth in Haw. Rev. Stat. § 706-627 does not apply to toll the period of Banares’s probation. State v. Guity, No. CAAP-210000531, October 16, 2023, (Hiraoka, J.). Self-represented Petitioner-Appellant Walter N. Guity petitioned the circuit court under Haw. Rev. Stat. Chapter 661B, for redress for wrongful conviction and imprisonment. Guity had entered guilty pleas in two cases, but before sentencing moved to withdraw his guilty pleas, which motion was denied by the trial court. In a prior appellate proceeding, the Hawaii Supreme Court determined that Guity should have been allowed to withdraw his guilty pleas. On remand, the charges against Guilty were dismissed, after which Guity filed his petition for redress for wrongful conviction and imprisonment. Interpreting the relevant statute, the ICA discussed the meaning of the phrase “actual innocence” and held that Guity’s petition satisfied the pleading requirements of Haw. Rev. Stat. § 661B-1(b)(1) as to one of his convictions, but not the other.

2024 License Registration and Renewal The license renewal portal will open on December 1, 2023. The renewal announcement will be posted on www.hsba. org. 2024 License Renewals (online and mail-in) must be received by December 31, 2023, for timely processing. Postmarked renewals received by the HSBA after December 31, 2023, will be considered late. Renewal and other important announcements will be transmitted to your preferred communication address on file via email. Visit https://hsba.org/2024LicenseRenewal for more information.

Change of Status Change of license status requests effective for the 2023 license year must be received by December 16, 2023, to ensure appropriate processing of dues and payment amounts. Please note that 2023 Change of status must be received and processed, and CLE requirements (for “Active” membership status) must be completed, prior to renewing your license for 2024. For 2023 status change requests, contact the HSBA at (808) 5371868 or ars@hsba.org. Change of status requests using the 2024 online renewal form will be effective January 1, 2024.

CLE Reminder All HSBA members maintaining active membership status must complete the CLE and Ethics credit requirements by December 31, 2023, as set forth under RSCH 22. The HSBA strongly recommends that you complete the required CLE and Ethics requirements prior to renewing your 2024 license to avoid an automatic compliance audit (RSCH 22). Contact the CLE Department at cle@hsba.org for seminar/webinar information.

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

• Adopted the recommendation of the joint HSBA Executive-Finance Committee to support the proposed 2024 budgets of the Disciplinary Board, the Lawyers’ Fund for Client Protection, and the Attorneys and Judges Assistance Program; • Adopted the recommendation of the joint HSBA Executive-Finance Committee to approve the proposed 2024 budgets of the HSBA Sections that have submitted their requests for dues assessments and proposed 2024 expenditure plan; and • Adopted the recommendation of the joint HSBA Executive-Finance Committee that the HSBA President and Interim Executive Director be additional signatories on HSBA bank accounts for the remainder of 2023 and until a new Executive Director is hired, respectively.

Member Benefits Spotlight Kapolei Inline Hockey Arenas Walk through the door and get ready to skate in Kapolei Inline Hockey Arenas’ public skating rink. As an HSBA member, you will receive $5.00 off walk-in public skating sessions (during public skating hours only). Each session lasts a maximum of 2 hours at the allotted session times and includes a pair of rental skates. HSBA members will need to present their HSBA Bar Card upon arrival to redeem the discount. This offer will be valid for one family per bar card. For more information on KIHA’s public skating sessions, please visit KIHA’s website at https://www.kihapublicskate.com/ or contact them at kihapublicskating@gmail.com or (808) 682-5441. Kumu Kahua Theatre Kumu Kahua Theatre produces world-class theatre written by and about the people of Hawai i, performed in downtown Honolulu. They are pleased to offer HSBA members a 25% discount on staged production tickets. Please call the theatre’s office at (808) 536-4441 to redeem your discount or use the code “HSBA” when ordering online.

December 2023



Upcoming shows: “Aitu Fafine”: January 25 - February 25, 2024; “Beretania Snapshots”: March 28 – April 28, 2024; “Kamau Trilogy”: May 30 – June 30, 2024 For ticket orders or more information, please visit Kumu Kahua Theatre’s website at https://www.kumukahua.org/. Oahu Fresh Oahu Fresh is a subscription-based service that delivers fresh local produce from local farmers and specialty products from local artisans directly to HSBA member homes or offices. Their network includes a variety of farms and dozens of producers that deliver thousands of bags a month to homes and businesses across the island. HSBA members can use the coupon code “oahufresh” when subscribing, which will waive the membership fee. Visit their website at https://shop.oahufresh.com/ to sign up or for more information. Speakeasy Productions This Hawaiian-owned business provides a unique range of alcohol services. Owned by a Certified Sommelier, they can assist you with all of your alcohol and non-alcoholic needs. They can help set up, staff, supply, and break down your special event bar in any location; provide private sommelier services; conduct wine education seminars; and create the most memorably beautiful wine gift baskets on the island. HSBA members receive 10% off their stunning gift baskets when you show your HSBA Bar Card. Contact them at their website www.speakeasyproductionshawaii.com or call Liane at (808) 721-1688. Consolidated Movie Tickets and Regal Movie Tickets Stop by the HSBA office to purchase your Consolidated Theatres (www.consolidatedtheatres.com) movie tickets today for $9.75 per ticket. There is no limit to the number you can purchase. Tickets are accepted at the following Consolidated Theatres locations: Kahala, Kapolei, Mililani, Olino, Pearlridge, and Ward. The Regal Cinemas movie tickets can be purchased for $9.25 per ticket 24 December 2023


(www.regmovies.com). There is no limit to the number you can purchase. Tickets are accepted at the following Regal Cinemas locations: Dole Cannery, Kapolei Commons, Pearl Highlands Center, Windward Mall, Maui Mall, Regal Prince Kuhio (in Hilo, Keauhou-Kona. Stop by the HSBA office and have your bar number ready for verification of HSBA membership. Checks or cash are the only acceptable methods of payment. Note that, as there are limitations to special screenings and premiering movies, be sure to read the terms and conditions behind the ticket. Visit https://hsba.org/memberbenefits for more exclusive benefits. ________________________________

NOTICE OF SUSPENSION – MICHAEL J. COLLINS, XXVII On Wednesday, October 4, 2023, the Hawai‘i Supreme Court entered an order suspending Michael J. Collins, XXVII (Bar No. 9087) from the practice of law for two years, with said suspension to be stayed for a two-year probationary period, during which time Collins is required to fully comply with the conditions of probation as agreed upon by the parties. Unless probation is later revoked, Collins is permitted to engage in the practice of law. The discipline imposed by the Court was based upon numerous instances of misconduct by Collins spanning from 2021-2023. A summary of the misconduct is as follows: On March 5, 2022, Collins sent an email directed at a fellow attorney, wherein he threatened to present criminal charges against the attorney for the sole purpose of obtaining an advantage in a civil matter in violation of HRPC Rule 3.4(i). During hearings held in March 2022, Collins engaged in conduct that violated his duties of competence (HRPC Rule 1.1) and diligence owed to his clients (HRPC Rule 1.3), presented argument that was wholly frivolous (HRPC Rule 3.1), refused to obey the court’s directive to limit himself to legal argument, refused to cease speaking when directed to do so by the court, harassed a presiding judge by yelling at

him, and made a series of condescending and disrespectful statements directed at a presiding judge (HRPC Rule 3.4(e)), thereby engaging in conduct reasonably likely to disrupt the tribunal (HRPC Rule 3.5(b)). On March 25, 2022, Collins transmitted an email to opposing counsel following a deposition, in which he employed means that had no substantial purpose other than to embarrass or burden the recipient attorney in violation of HRPC Rule 4.4(a). During a hearing in January 2021, Collins refused to cease interrupting opposing counsel, harassed a judge by speaking in a loud, aggressive manner towards the judge, and threatened the judge in violation of HRPC Rule 3.5(b) and (c). In 2022, while suspended from practice, Collins engaged in the unauthorized practice of law by providing legal services to clients in violation of HRPC Rule 5.5(a), advertised legal services that contained material misrepresentations or omissions of fact regarding his license to practice law in violation of HRPC Rule 7.1(a), and advertised himself as a “Certified Legal Consultant,” implying that he could achieve results in the courts by means that would violate the HRPC and relevant law in violation of HRPC Rule 7.1(b), and without providing the basis for such certification, in violation of HRPC Rule 7.4(d); and falsely informed the Office of Disciplinary Counsel that his New Jersey law license was inactive when it was in fact active in violation of HRPC Rule 8.1(a). Collins was admitted to the Hawai i bar in 2008 and is a graduate of American University Washington College of Law. A full copy of the (October 4, 2023) Order Imposing Discipline can be found on the Disciplinary Board’s web page of Disciplined Hawai i Attorneys (https://www.dbhawaii.org/disciplinedhawaii-attorneys) or at this link: https://dbhawaii.org/wp-content/uploads/231004-Ord er-Imposing-Discipline-on-Michael-J.-CollinsXXVIII-SCAD-22-0000099.pdf. ODC v. Michael J. Collins, XXVII, SCAD22-0000099.

(Continued from page 21) proclamations in response to the August 8, 2023, wildfires (the “Wildfire EPs”) involve different and more complex legal issues. There is no reasonable argument that the wildfires do not constitute an emergency under Chapter 127A. The Maui wildfires constituted the deadliest disaster in state history.15 But the authority exercised by Mayor Bissen through the Wildfire EPs is unusual and untested insofar as it was used to suspend portions of the Maui County Charter relating to the taxation power, authority to hire special counsel to represent the County, and, more broadly, the separation of powers between the Mayor and County Council. If the Wildfire EPs are challenged, the courts will need to determine the extent to which a state statute can override a local government charter. Unlike state governments, local governments do not have sovereign authority and can only exercise those police powers delegated to them by the state governments. In Hawai‘i, most of the powers delegated to the counties are by state statute. There are two main exceptions. Article VIII of the State Constitution grants the counties near complete home rule powers over property taxes (“all functions, powers and duties relating to the taxation of real property shall be exercised exclusively by the counties . . .”) and the respective County’s political structure and organization (“Charter provisions with respect to a [County’s] executive, legislative and administrative structure and organization shall be superior to statutory provisions…”). Haw. Const. art. 8, §§ 2 & 3. The home rule powers are subject only to the power of the State legislature to “enact laws of statewide concern.” Id., art. 8, § 6; accord HAW. REV. STAT. § 50-15 (“Notwithstanding the provisions of this chapter, there is expressly reserved to the state legislature the power to enact all laws of general application throughout the State on matters

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of concern and interest and laws relating to the fiscal powers of the counties, and neither a charter nor ordinances adopted under a charter shall be in conflict therewith.”). A description of a few cases will help illustrate the balance of authority between Hawai‘i State and County governments. In HGEA v. Maui, 59 Haw. 65 (1978), the Court examined the relationship between state statutes and county charter provisions in a challenge to certain provisions of the Maui County Charter. It held that the any charter provision which relates to organization and government of the county would prevail over conflicting statutory provision, provided such statutory provision is not of statewide concern or interest or does not relate to the fiscal powers of the county. Id. at 66. The Court determined that civil service and compensation were matters of statewide concern and, therefore, state statutes override any contrary county charter provision on those issues. Id. at 68. Provisions relating to the organization of the departments of police and liquor, on the other hand, were issues of local concern. Id. at 85. The exact parameters of what constitutes a matter of “statewide concern or interest” has been further defined through statutory law (See HAW. REV. STAT. § 27-1) and case law. The Hawai‘i Supreme Court has held, for example, that the following are matters of statewide interest and concern: (1) regulation of the height of utility poles (Citizens Utilities Co., Kauai Elec. Div. v. Kauai, 72 Haw. 285 (1991).) (2) the Zoning Enabling Act (Kaiser Hawai‘i Kai Dev. Co. v. Honolulu, 70 Haw. 480, 488 (1989).); and (3) the Hawai‘i Penal Code and how violations of state penal laws are investigated by authorized state and county officials (Marsland v. First Hawaiian Bank, 70 Haw. 126, 133 (1988).) On these issues, conflicting state laws trump conflicting county ordinances or charter provisions.

26 December 2023


The Court has also confirmed that the county governments are the ultimate authority over matters of property taxes and the structure and organization of county government, and neither constitute matters of “statewide concern or interest”. For example, in State ex rel. Anzai v. Honolulu, 99 Haw. 508, 521 (2002), the Court confirmed that “the power to tax real property encompasse[s] matters of strictly local concern and . . . this power include[s] the power to grant or repeal exemptions from real property taxation.” In Clark v. Arakaki, 118 Haw. 355, 361 (2008), the Court confirmed that since term limits for council members affects the “structure and organization” of county government, that too is beyond state legislative control. With this context in mind, we turn to a review of the Wildfire EPs. On August 15, 2023, Mayor Bissen issued the third of four Wildfire EPs. That proclamation used Chapter 127A to suspend portions of the Maui County Charter relating to local matters of taxation and the authority of the Maui County Council. Among other things, the Mayor suspended Charter provisions relating to the payment of real property taxes (Chapter 3.48), and later waived all property tax payment requirements for those affected by the wildfires. Swift action to suspend property tax payments, even without council approval, made sense at the time since property tax payments were due just weeks after the August 8 wildfires. While there was some precedent in COVID-related emergency proclamations issued by previous Maui Mayor Victorino as to relief in the timing of payment of property taxes and waiver of interest, the Wildfire EP and the Mayor Bissen’s actions went further, purporting to outright eliminate the imposition of property taxes. The Mayor’s third and fourth Wildfire EPs sought to suspend Section 9-9 of the Charter, which describes the process for making changes to the annual budget,

including specific provisions for times of emergencies. Section 9-9(2) of the Maui County Charter provides that to “meet a public emergency . . . the council, upon written request by the mayor, may pass emergency appropriations” which must be approved by “not less than seven members of the council.” The Mayor also suspended Section 9-10 in the Third Proclamation, but lifted that suspension on September 8, and now is relying on that section to request emergency amendments to the County budget.16 Interestingly, the Mayor did not suspend portions of the Charter indicating that Council has the sole authority to set taxes, rates, and fees (Maui County Charter §3-6(1)) and approve the budget (“All fiscal affairs of the county during any fiscal year shall be controlled by a budget ordinance and a capital program ordinance for that fiscal year.” Maui County Charter § 9-1.) The unusual nature of the wildfires, its impact, and its timing resulted in yet unseen suspensions of the Charter. While understandable given the need for swift and decisive action, the novel uses of emergency management powers put actions taken by the Mayor and his administration in reliance on those suspensions in legal limbo since the courts have not yet opined on whether such actions comport with Chapter 127A and the state constitution. Whether a mayor can use the state statute to suspend county charter provisions relating to property taxes or the structure of county government will likely hinge on how a court defines “statewide concern.” Viewed broadly, emergency management and emergency powers would likely be considered a matter of statewide interest and concern. Accordingly, powers granted to the mayors under state statute could be used to suspend any county charter provision that “impedes or tends to impede or be detrimental to the expeditious and efficient execution of…emergency functions.”

HAW. REV. STAT. § 127A-13(3). Alternatively, viewing the issue more narrowly, Hawai‘i courts have already confirmed that issues relating to property taxes and the structure of county government do not fall into the category of issues of statewide concern or interest; no state statute can trump a county charter provision relating to such functions, including a statute relating to emergency management powers. The Maui County Council may take actions to help resolve these open legal questions through one of two ways. First, the Council could endorse and retroactively approve what the Mayor purported to do by emergency proclamation. Under that scenario, the Council would not necessarily opine on the proclamations’ legality, but simply endorse the administration’s actions now that their powers are no longer purportedly suspended. The Council could also tacitly approve the Mayor’s actions by not raising legal concerns about actions taken by the Mayor through the emergency proclamation. Courts will sometimes infer such silence from the legislative branch effectively as approval of executive interpretations of the law. See generally State v. Hussein, 122 Haw. 495, 529, 229 (2010). In practical terms, either path would likely make questions about the new uses of the Mayor’s emergency powers largely academic and broader questions about potential limits on the uses of emergency powers by county mayors will remain unanswered.17 In addition to suspending the Maui County Council’s legal authority over taxes and fiscal issues, the Mayor also suspended the power of the Council to retain “special counsel as legal representative for any special matter presenting a real necessity for such employment.” Maui County Charter § 3-6(6). While that provision was suspended, the County’s Managing Director appears to have hired special counsel to represent the County in lawsuits related to the

wildfires, including in an action filed against Hawaiian Electric Company.18 As of the drafting of this article, the Council has not officially approved special counsel or considered any contracts between these attorneys and the County in a public meeting. Mayor Bissen’s suspension of the powers of the Council to retain special counsel (i.e. lawyers that are not the Corporation Counsel or deputies) presents a more complicated issue. Under the Maui County Charter only the Council has the power to retain or employ special counsel to be a legal representative of the County. In suspending that provision in the Wildfire EPs, the Mayor did not simultaneously issue any rule that granted him, the Managing Director, or any other person the power to employ special counsel. There is no default provision granting the administration such powers nor can such powers be implied to fall to the Mayor since the Charter provides that, absent any other provision, the only legal representative of the County is the Corporation Counsel. Section 8-2(3), Maui County Charter; see Section 3.16.20, Maui County Code (defining “legal counsel” as “the corporation counsel, deputies corporation counsel, and special counsel representing the County in any claim” and defining “special counsel” as “the private attorney or law firm retained by the County pursuant to charter section 3-6(6).”). The Hawai‘i Supreme Court addressed the powers of Section 3-6(6), Maui County Charter, in Maui County Council v. Thompson, 84 Haw. 105 (1992). In that case, former Maui County Mayor Linda Lingle hired special counsel to represent county officers and employees sued in their personal capacity in an employment matter. Id. at 106. The Maui Director of Finance executed contracts with two law firms which amounted to over $500,000. Id. Council was not asked to approve the retention or expenditure and formally disapproved of the

executive branch’s actions. Id. Council sued and asked the court to hold that members of the executive branch exceeded their authority by using public funds to employ special counsel. Id. at 107. The Court held that the Maui County Charter was clear: only the council has the authority to hire outside lawyers as legal representatives of the County or its officers. The Court explained: The council is expressly charged by the charter with the power to retain special counsel, a power that is carefully restricted by the necessity of a two-thirds majority vote. Maui County’s duty to reimburse an officer or employee for expenses associated with a legal defense is, in the end, discretionary. An officer of the executive branch thus cannot expend public funds to employ such counsel, absent authority in the charter or approval by the council. Id. Therefore, even if Mayor Bissen had the authority to suspend Section 3-6(6) of the Charter under Chapter 127A, it is unclear who – if anyone – had the authority to hire attorneys to represent the County in lawsuits relating to the wildfires. Any contracts with outside lawyers that are not approved by two-thirds of the Council are likely void (Maui County Charter § 9-12). See Thompson, 84 Haw. at 108 (“a municipality may not be compelled to compensate for services rendered by an attorney unless his retainer is authorized by statute or appropriate resolution of the governing body.”) (quoting Corning v. Village of Laurel Hollow, 398 N.E.2d 537, 539 (N.Y. 1979)). On this issue too, the Council may act to retroactively approve such special counsel, which should resolve any legal ambiguities relating to payments owed to attorneys hired in this unusual circumstance. If the courts ultimately determine that Chapter 127A does not allow (Continued on page 30)

December 2023



C O URT BR IEF S Brown, Hayakawa, and Ireland Sworn In

Family, friends, and colleagues gathered as the Hawaii Supreme Court convened in special session for the swearing in of Robert J. Brown, David M. Hayakawa, and Erika E. Ireland as judges of the District Court of the First Circuit. It was standing room only in the courtroom, and more than 100 people watched the livestream on the Judiciary’s YouTube channel. Judge Brown will serve in District Family Court, and Judge Hayakawa and Judge Ireland will serve in the District Court. Chief Justice Mark E. Recktenwald presided over the Oct. 23 ceremony. Guest speakers were Hawaii State Bar Association President Rhonda L. Griswold, Hawaii State Trial Judges Association President Judge Summer M.M. Kupau-Odo, Judicial Selection Commission Chair Kamani B. Kualaau, and State Senator Gilbert S.C. KeithAgaran. The judges will each serve a term of six years.

Sex Trafficking Roundtable Event in Honolulu The Hawaii Children’s Justice Centers (CJCs), in collaboration with the Hawaii Children’s Justice Act Grant Task Force, hosted a Child Sex Trafficking Roundtable in Honolulu from July 12 - 13. State Representative Linda Ichiyama provided welcome remarks to the five

28 December 2023


teams from across the state who attended the Roundtable, which was facilitated by the National Criminal Justice Training Center (NCJTC). The NCJTC has assisted Hawaii with important ongoing training and technical assistance for several years. The goal is to enhance the state’s Child Sex Trafficking Multi-Disciplinary Team response to children who are at risk or identified as victims of sex trafficking. The Multi-Disciplinary Team is comprised of specialists from law enforcement, child welfare services, county prosecutors, victim advocates, mental health clinicians, the CJC, and other professionals. The issue of child trafficking recently gained heightened attention following the July 4 release of the movie “Sound of Freedom.” According to National Children’s Alliance* Chief Executive Officer Teresa Huizar, the majority of child trafficking victims are adolescents or teens. Many are high-risk youth, who have prior experiences of abuse, including sexual harm. They may be involved the foster care system and have run-away histories. * The not-for-profit National Children’s Alliance (NCA) is the accrediting body for Children’s Advocacy Centers (CACs) across the United States. It ensures that all children served by CACs receive consistent, evidence-based services that help them heal from abuse. The Hawaii Children’s Justice Program is an accredited member of the NCA, which is comprised of more than 950 children’s advocacy/justice centers nationwide.

Circuit Court of the First Circuit Criminal Division Seeking Attorneys The Circuit Court of the First Criminal Division is seeking attorneys interested in serving as court-appointed

counsel in criminal cases. Applicants must be licensed to practice law in the State of Hawaii and have experience in litigation and/or criminal practice. Applicants should indicate whether they have a preference of offense classifications for which they would like to be considered. Attorneys from all islands are welcome to apply by submitting a cover letter and resume to: Judge Shirley M. Kawamura Criminal Administrative Judge 777 Punchbowl St. Honolulu, HI 96813 Phone: 808-539-4330 Email: 12thDivision.1CC@courts.hawaii.gov

Applicants for Per Diem Judges First Circuit District Family and District Court are accepting applications from attorneys interested in serving as per diem judges. Send applications (and three copies) to: Committee to Evaluate Qualifications of Per Diem Judges ATTN: Judge Matthew Viola 4675 Kapolei Parkway Honolulu, HI, 96707 Send an additional copy directly to: Chief Justice Mark E. Recktenwald, Supreme Court of Hawaii, 417 South King Street, Honolulu, HI 96813.

(Continued from page 27) mayors to suspend provisions of a county’s charter relating to property taxes and the structure of county government, it will be important for all counties to review and possibly amend their charter to provide for certain emergency management powers. If, on the other hand, courts determine that mayors may suspend sections of the charter in an emergency, county councils may push state lawmakers to draw limits to the mayors’ emergency powers so that they retain some authority, even in times of crisis. Unlike the state legislature, county councils cannot change Chapter 127A in response to a mayor’s actions and may be hamstrung if a mayor takes too much power through an emergency proclamation. If a mayor can suspend any provision of a charter through Chapter 127A then, taken to the extreme, such powers could include the suspension of charter provisions relating not just to the authority of council but to a mayor’s recall, impeachment, or election. Conclusion As United States Supreme Court Justice Robert Jackson noted, the founders of the United States “knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation. We may also suspect that they suspected that emergency powers would tend to kindle emergencies.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 650 (1952) (Jackson, J., concurring). The same could be said about the emergency powers set forth in Hawai‘i state law. The broad powers granted to the executive under Chapter 127A have helped address emergencies like the COVID-19 pandemic, wildfires, and hurricanes. The statute is necessary and saves lives. But the new and expanded uses of those powers in 2023 could lead to significant changes in

30 December 2023


Hawai‘i politics, including expectations that such powers can and should be used to address long-term issues. New limits to emergency management powers could come in 2024, either through legislation or the courts. Hawaii’s leaders have difficult decisions ahead regarding use of and limits to emergency management powers, and those decisions will impact both the state’s political future and ability to address emergencies effectively. __________________ 1

For ease of reference, all citations to portions of Chapter 127A in textual sentences will refer only to the section number. 2 In an early version of H.B. No. 849, “emergency” was defined through an extensive list of events that could constitute an emergency including flood, storm, landslide, snowstorm, massive oil spills, radiological accidents, airplane crashes, vog, war, or volcanic eruption. 3 Findings of Fact, Conclusions of Law, and Order Granting in Part and Denying in Part Plaintiff ’s Motion for Temporary Stay or Suspension of the July 17, 2019 Proclamation of David Y. Ige, Governor of the State of Hawai‘i, filed on July 19, 2019, Neves v. Ige, Civ. No. 19-11134-07 (Haw. Cir. Ct. July 25, 2019) (holding that an emergency proclamation violated the due process clause of the Hawai‘i State Constitution). 4 Bodson, Sabrina, “Sworn in as governor, Green commits to housing initiatives and ‘regressive’ tax cutting,” Hawaii Public Radio, Dec. 5, 2022, at https://tinyurl.com/5baapstm. 5 Proclamation Relating to Homelessness (Jan. 23, 2023), at https://governor.hawaii.gov/wpcontent/uploads/2023/01/2301116.pdf. 6 See, e.g., Higa, Sterling, “Column: Chance for sweeping and systemic change for housing,” Honolulu Star Advertiser, July 23, 2023, https://www.staradvertiser.com/2023/07/23/e ditorial/insight/column-chance-for-sweepingand-systemic-change-for-housing/. 7 See, e.g., Tanaka, Wayne, “Governor Green’s anti-housing proclamation threatens ‘aina, culture, kama‘aina, and the future of our keiki,” Aug. 2023, https://sierraclubhawaii.org/blog/housing-aug2023. 8 See, e.g., Yerton, Stewart, “Can An Emergency Proclamation Solve Hawaii’s Housing Crisis? ‘That’s The Million Dollar Question,’” Honolulu Civil Beat, July 30, 2023, https://www.civilbeat.org/2023/07/can-anemergency-proclamation-solve-hawaiis-housing-

crisis-thats-the-million-dollar-question/ (quoting attorney Lance Collins). 9 See, e.g., GA. CODE ANN. § 38-3-51(a); CAL. GOVERNOR CODE § 8558(b). 10 See Foster, Dakota, “On the Precipice: Democracy, Disaster, and the State Emergency Powers That Govern Elections in Crises,” 13 J. NAT’L SECURITY L. & POL’Y 141, 158 (2022). 11 Answering Brief of Defendants-Appellees Governor David Ige, Attorney General Clare E. Connors, and the State of Hawaii, For Our Rights v. Ige, No. CAAP-21-0000024 (Haw. Ct. App.) July 8, 2021, 2021 WL 4225544, at *10. 10. 12 Answering Brief, supra note 10, at *11. 13 Yerton, Stewart, “Hawaii Gov Takes Dramatic Action To Solve Housing Crisis. But Is He Going Too Far?,” Honolulu Civil Beat, July 17, 2023, https://www.civilbeat.org/2023/07/hawaiigov-takes-dramatic-action-to-solve-housing-crisis-but-is-he-going-too-far/ (noting that “Green said the order would be in place one year, and he did not foresee needing to extend it.”). 14 Answering Brief, supra note 10, at *23. 15 Treisman, Rachel, “Maui’s wildfires are among the deadliest on record in the U.S. Here are some others,” National Public Radio, Aug. 15, 2023, https://tinyurl.com/mu9nnw65 (noting that the Maui wildfire is “the worst natural disaster in state history.”) 16 Letter from Mayor Richard T. Bissen, Jr. to Maui County Council Chair Alice L. Lee (Sept. 28, 2023), at https://mauicounty.legistar.com/View.ashx?M= F&ID=12337870&GUID=10C49251-574345D0-80A0-32C93A5DB9B4. 17 Also unanswered is whether Chapter 127A allows for the suspension of County charter provisions at all. Chapter 127A defines “laws” to include “ordinances, rules, regulations, and orders prescribed under federal, state, or county laws or ordinances and having the force and effect of law.” There is no mention of county charters, and it is unclear whether the State Legislature intended to include charters within the definition of “laws.” 18 Honore, Marcel and Yerton, Stewart, “Hawaiian Electric Suggests It’s Not To Blame For Lahaina Devastation,” Honolulu Civil Beat, Aug. 27, 2023, https://www.civilbeat.org/2023/08/hawaiianelectric-suggests-its-not-to-blame-for-lahainadevastation/.

Keola R. Whittaker is an attorney in the Maui office of Cades Schutte LLP. He specializes in land use law and litigation.

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