Hawaii Bar Journal - November 2023

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BAR JOURNAL

A N O FFICIAL P UBLICATION OF THE H AWAII S TATE BAR A SSOCIATION N OVEMBER 2023 $5.00

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TABLE O F C ON TE NTS VO LUM E 27 , N U M B E R 11

ARTICLES

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

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President Rhonda Griswold

Treasurer Alika Piper YLD OFFICERS President Lisa Yang Vice President/President-Elect Kelcie Nagata Secretary Danica Swenson Treasurer Andria Schumann

Overlooked Guidance in the Hawaii Real Estate Commission’s 2003 Official Commentary to Hawaii’s Recodified Condominium Law (enacted as HRS Chapter 514B)

by Gordon M. Arakaki

OF NOTE

HSBA OFFICERS

President-Elect Jesse Souki Vice President Mark M. Murakami Secretary Lanson Kupau

Appreciating Legal History: Insights from Family Law Opinions

by Tom S. Tanimoto

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Notice of Reciprocal Suspension – John Matthew Schum (#8525)

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Court Briefs

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HSBA Happenings

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Classifieds

Case Notes

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

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

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On the Cover: “In The Valley,” Giclée on canvas, by Harry D. Wishard. Wishard was born

and raised near the steep sea cliffs of Kohala where he developed his love for the sea, the wilderness and ancient Hawaiian ways. Harry's art is part of collections around the world.

To see more of his art, visit www.wishardartgallery.com (The cover art orignally appeared in the August 2004 issue) 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.

APPRECIATING LEGAL HISTORY:

By Tom S. Tanimoto I. INTRODUCTION “The first step in the resolution of any legal problem is ascertaining the factual background and sifting through the facts with an eye to the legally relevant.”

Upjohn Co. v. U.S., 449 U. S. 383, 390-91 (1981). Thereafter comes a whole array of steps, including a determination of claims or defenses, an analysis of pertinent law, followed by an assessment of the case on the merits. Citing relevant law is a fundamental and routine aspect of lawyering, and such citations are often to statutes and court rules as well as to a body of authority referred to as case law. In order to uncover a perfect case that is on point, diligent research is necessary.1 Once such a case is discovered, its holding, along with not much more than a brief summary of its facts and associated analysis, is typically put forth either orally or in a written memorandum or brief as part of the task at hand.

Sometimes, however, because the “law is not always clear and never is static. . .” (HAW. R. PROF’L CONDUCT 3.1 cmt), there are instances when the “round-pegged” case law does not fit the “square-holed” facts. Such can be the case when a party seeks to overturn precedent (i.e., stare decisis) or advance a case of first impression.2 While such circumstances may not arise frequently, they come about nonetheless and because of their very nature, such cases must arguably be approached differently – more holistically and historically.

Insights from Family Law Opinions

A. Stare decisis “Under the rule of stare decisis, where a [legal] principle has been passed upon by the court of last resort, it is the duty of all inferior tribunals to adhere to the decision, without regard to their view as to its propriety, until the decision has been reversed or overruled by the court of last resort or altered by legislative enactment. Stare decisis relates to

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the effect of legal propositions announced in prior adjudications upon subsequent actions that involve similar questions between strangers to the proceedings in which the adjudications were made.” State by Price v. Magoon, 75 Haw. 164, 186, 858 P.2d 712, 723 (Haw. 1982) (internal citations and quotations marks omitted; brackets in original). However, “[t]he doctrine of stare decisis was never intended to tie the hands of a Supreme Court and prevent it from correcting its own errors, or from making adjustments in the law to meet the needs of people who must rely on the courts for the protection of their interests.” Kamau v. Cnty. of Haw., 41 Haw. 527, 550 (1957) (citing Freedom of Litigation, by Leon Green, 38 Illinois L. Rev. 117, 118).3 In Washington v. Nedd, 2011 NY Slip Op 50564 (Sup. Ct. 2011), the trial court4 suggested that “[b]efore asking this Court to take the audacious step of not following a binding, although ‘old,’ precedent, it would have behooved counsel to have done thorough legal research and even to cite [the case in question] and discuss why it allegedly should no longer be followed.” Id. at 2.5 However, a court will “not reach out, overrule precedent, and change the law without at least some advocacy from the parties to the appeal.” Chretien v. Chretien, 170 A.3d 260, 268 (Me. 2017) (Alexander, J., dissenting).

B. Cases of First Impression As for cases of first impression, they inherently (by virtue of their unique facts and of their having never been adjudicated) escape the reach of binding precedent, and thus “citation to persuasive authority often is necessary. . . .” Ellison v. Gambill Oil Co., Inc., 650 S.E.2d 819, 828 n.2, 186 N.C.App. 167 (2007). See United States v. Resendiz-Guevara, 145 F.Supp.3d 1128 (M.D. Fla. 2015) (stating that “[i]n a case of first impression, courts may seek guidance from analogous cases in other circuits).

C. Changing the Law is Generally Difficult, But Can Be Done Advancing one or more positions or claims that appear to, or clearly lack precedential support, can be daunting as even the most detailed and painstaking legal research may not uncover supportive case law: (1) for the simple reason that it may not exist or (2) because it eludes discovery due to the inescapable and limiting nature of human fallibility.6 There will be cases that require appeal from a trial, and even successive appeals to the Hawaii Supreme Court, especially if a change in the law is sought.7 Requesting that adverse precedent be overruled or an exception carved out is no simple task. See Koenke v. Saint Joseph’s Univ. No. 19-4731, at 6, n.5 (E.D. Pa. 2021) (discussing the possibility of carving out an exception to binding precedent based on opposing interpretations of such precedent). Lawyers also must keep in mind that the commentary to Rule 3.3(a)(3) of the HAW. R. OF PROF’L COND. provides that “[a] lawyer is not required to make a disinterested exposition of the law, but must recognize the existence of pertinent legal authorities. Furthermore, . . . an advocate has a duty to disclose directly adverse authority in the controlling jurisdiction which has not been disclosed by the opposing party. The underlying concept is that legal argument is a discussion seeking to determine the legal premises properly applicable to the case” Id. (italics added for emphasis).

Nonetheless, “a study of the history of law reflects that most rules eventually give rise to exceptions where the facts warrant.” Genesco, Inc. v. Visa U.S.A., Inc., No. 3:13-0202, at 44 (M.D. Tenn. 2014). While it is difficult to accurately predict such inflection points in the law, understanding how such exceptions arise within the realm of legal history will likely be useful in practice because, “in determining the proper scope of advocacy, account must be taken of the law’s ambiguities and potential for change.” HAW. R. PROF’L CONDUCT. 3.1, cmt. 1.

This article will focus on the concept of legal history and discuss certain Hawaii family law opinions issued over the past several decades that have either (1) reversed or clarified precedent in the face of stare decisis and (2) addressed issues of first impression. Because it is impossible to discuss, within this article, the entirety of Hawaii family law legal history, a key objective will be to impress upon the reader an appreciation of legal history for the pure enjoyment of it (like any other historical study) and as a resource replete with insights potentially suitable for practical application.8 Section two will discuss the usefulness or utility of legal history. Section three will turn to the legal history of specific Hawaii Supreme Court decisions, which set aside or clarified standing precedent in family law matters. Section four will examine family law cases where Hawaii appellate courts, adopted case law from other states such as California when addressing matters of first impression. Section five will briefly cover the legal history of child support and the Hawaii Child Support Guidelines.

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II. AN INTRODUCTION TO LEGAL HISTORY AND ITS UTILITY What is legal history? If legal history were placed on display in a museum setting, the King Kamehameha V Judiciary History Center9 comes to mind. Its [a]rchives hold the personal papers of Hawaii Supreme Court Justices, such as Chief Justices William S. Richardson, Hawaii Supreme Court annual reports printed in olelo Hawaii and English, district and circuit court docket books, prison logs, land and probate records.

The Center is also a repository of research resources, including . . . Library holdings, the legal research collection of Joseph Garner Anthony (Attorney General during the Territorial Period), and the Hawaii Judges and Lawyers Database, which details biographical information about nineteenth and twentieth-century figures in the legal profession.10 Legal history may also be something far less tangible and take the form of a chronological string citation of statutes or cases.

However, legal history “is about more than stacking up old statutes. Legal historians study not just how law changes over time, but also the changing relationship between law and society. Studying the past helps us understand the present, and the most pressing, hot-button legal issues we face today.” University of Michigan, Michigan Law, The Lessons of History for the Legal Questions of Today. 11 Judges point to the importance of recognizing and understanding the development and evolution of a legal concept, as opposed to simply committing to memory such a concept in its most sterile form, i.e., words on a page.

The rational study of law is still to a large extent the study of history. History must be a part of the study, because without it we cannot know the precise scope of rules which it is our business to know. It is a part of the rational study, because it is the first step toward an enlightened skepticism, that is, toward a deliberate reconsideration of the worth of those rules. . . . It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.

Weinstein v. Aisenberg, 758 So.2d 705, 711 (Fla. App. 2000) (italics in original omitted and added for emphasis) (citing O.W. Holmes, The Path of the Law, 10 HARV. L. REV. 457, 469 (1897)). Furthermore, knowledge of the history of that branch of law with which any principle is connected is often necessary before the true bearings and the limits of its application can be fully determined. Principles which have originated from certain causes are sometimes misapplied simply because there is a similarity in the facts of two different cases, and sometimes the true principle is overlooked or forgotten, and a new one invented, to explain rules which from a historical standpoint are well established.

Kingan & Co. v. Silvers, 37 N.E. 413, 417 (Ind. App. 1894).

It is unlikely that practitioners citing to a rule or statute will often find themselves digging deep into its origins or roots. But if a sterile and rote handling of the law becomes commonplace, that is what the above-cited Weinstein and Kingan cases do not countenance for fear of losing the true and original meaning of concepts and doctrines.

No suggestion will be made herein that a practicing lawyer should undergo formal education and training in legal history as attorneys are in many ways creative, flexible, quick thinking, and erudite. Attorneys have training in researching legislative history, which is arguably a subset of legal history. See Vanguard Environmental, Inc. v. Curler, 190 P.3d 1158, 1163, 2008 OK CIV APP 57 (Okla. Civ. App. 2007) (commenting on a statute at issue that “[i]n addition to a lengthy legislative history, the statute has a well-developed legal history, which is critical to the resolution of this case”) (italics added for emphasis).

However, lawyers should not assume proficiency in legal history. “It is one thing for ‘originalists’ to look up the eighteenth-century meaning of words, a type of historical research that is feasible for the amateur historian[] . . . . It is quite another thing for the nonhistorian to try to determine the powers claimed or exercised by the colonies and states in the founding era. This is not to deny the relevance of history to adjudication. It is to question the relevance of contested history to adjudication.” Velasquez v.

Frapwell, 160 F.3d 389, 393 (7th Cir. 1998) (internal citations omitted). Court of Appeals Judge Bruns in State v. Robison, 469 P.3d 83, 96 (Kan. App. 2020), modestly noted that “[m]ost judges and lawyers are not historians by training; I’m in that group. So there’s always a risk that we’ll misread history in some way.”

As lawyers, let us therefore accept that absent formal training, we are not historians. Let us also accept that legal history has its own unique relevance and usefulness in the practice of law, alongside the import and precedential value of

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any singular holding, decision, case analysis, or statute.12

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III. HAWAII FAMILY LAW OPINIONS The cases below changed many aspects of family law by virtue of their holdings. However, these opinions were not selected for discussion merely for their holdings, but rather, because each opinion reveals different ways in which the law changed.

A. Waldecker v. O’Scanlon, 137 Haw. 460, 375 P.3d 239 (2016) The Hawaii Supreme Court in Waldecker v. O’Scanlon considered a postdivorce case where the parties’ “divorce decree [from Nevada] included an automatic change of custody provision. Enforcement of the relocation provision resulted in a change from joint physical custody, to O’Scanlon receiving sole physical custody.” Id. at 471, 375 P.3d at 250. Contrary to the terms of the decree, Waldecker sought custody, but “[t]he family court agreed with O’Scanlon and concluded that because the parties had contemplated a future relocation in the change of custody provision in the Divorce Decree, there was no material change in circumstances. The family court thus enforced the Divorce Decree and awarded sole physical custody of Daughter to O’Scanlon without explicitly finding that the change of custody was in Daughter’s best interests.” Id. at 461, 375 P.3d at 240 (italics added for emphasis).

1. How did the Material Change in Circumstances “Requirement” come about?

Anecdotally speaking, during a preWaldecker era, it was necessary to demonstrate a material change of circumstances when requesting a modification of custody and/or visitation; otherwise, such a request would be dismissed. In addition, self-executing provisions (as discussed in Waldecker) often foreclosed judicial review because changes in circumstances were previously contemplated by their memorialization in a divorce decree or other

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custody order. Nadeau v. Nadeau, 10 Haw. App. 111, 861 P.2d 754 (1993) was the prototype for the material change in circumstances test, and it concerned a divorce decree that automatically modified either the father or mother’s visitation upon either party’s relocation Id. at 11920, 861 P.2d at 758-59.

Nadeau’s rationale underlying the material change of circumstances test is as follows.

FOF No. 5 states: [A] person seeking a change of custody must show a material change of circumstances since the previous custody order, and must show that such a change of custody is in the best interest of the child.

We agree with FOF No. 5. See HRS § 571-46 (Supp.1992); Doe VII v. Roe VII, 8 Haw.App. 437, 809 P.2d 449 (1991) (child support), Vorfeld v.

Vorfeld, 8 Haw.App. 391, 804 P.2d 891 (1991) (spousal support). This rule applicable to persons seeking a change of custody also applies to persons seeking a change of visitation.

Nadeau v. Nadeau, 10 Haw.App. 111, 121, 861 P.2d 759 (1993).

The Nadeau court’s above conclusion seemingly attributes to custody and visitation matters the threshold test long associated with modifications of child support or alimony. The rationale for this appears to be, in part, based on policy considerations to reduce family court caseloads. See JS-L v. IS, 129 Haw. 295, at 4 (App. 2013) (unpublished) (stating that “requiring such a determination as a threshold matter promotes judicial economy”).

Thereafter, a long line of ICA cases perpetuated and nearly cemented the material change in circumstance test, e.g., Egger v. Egger, 145 P.3d 855, 112 Haw. 312 (Haw. App. 2006); Kennerly v. Kennerly, No. 28264 (Haw. App. 2008); Bruff v. Bruff, 127 Haw. 241, 277 P.3d 335 (App. 2012); Yamamoto v. Yamamoto, 129 Haw. 29, 292 P.3d 233 (App. 2013); JS-L v. IS, 129 Haw. 295, 298 P.3d 1059 (App. 2013); Child Support Enforcement Agency v.

MS-M, 130 Haw. 305, 309 P.3d 973

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(App. 2013); Hollaway v. Hollaway, 133 Haw. 415, 329 P.3d 320 (App. 2014); Medeiros v. Medeiros, NO. CAAP-13-002023 (Haw. App. May 14, 2014); Cravalho v. Ribao, 134 Haw. 133, 337 P.3d 54 (App. 2014); Leek v. Furtado, 136 Haw. 24, 356 P.3d 1044 (App. 2015); and Tumaneng v. Tumaneng, NO. CAAP-140000895 (Haw. App. Oct 26, 2015).

2. A Prior and Different Rule Is Revived The Waldecker court stated, “[A]s the Intermediate Court of Appeals (ICA) acknowledged in Hollaway [v. Hollaway, 133 Haw. 415, 329 P.3d 320 (2014)], the requirement of a material change in circumstances is set forth in Nadeau and other ICA cases. It has not been adopted by this court.” Id. at 470, 375 P.3d at 249 (internal citations omitted and italics added for emphasis).

The Waldecker court proceeded to analyze three older child custody modification cases issued by Hawaii’s highest court – the oldest having been issued almost 80 years prior – namely, Dela Cruz v. Dela Cruz, 35 Haw. Terr. 95 (1939), Dacoscos v. Dacoscos, 38 Haw. Terr. 265 (1948), and Turoff v. Turoff, 56 Haw. 51 (1974). Id. at 469-70, 375 P.3d at 248-49. Based on this analysis, the Waldecker court proceeded to “overrule Nadeau and Hollaway to the extent a material change in circumstances must be shown before the court can consider the best interests of the child in modifying a custody order.” Id. at 470, 375 P.3d at 249. In doing so, the “question is ‘whether or not there has been such a change of circumstances that the modification will be for the [best interest] of the child.’” Id. (citing Dela Cruz, 35 Haw. Terr. at 98 (1939); brackets in original).13 Notably, the Turoff Court also found no material change in circumstances, yet it still considered what was in the best interests of the child at the present time. 137 Haw. at 469, 375 P.3d at 248. Therefore, “[a] custody determination should not be so inflexible as to foreclose inquiry into the best interests of the child solely based on an existing custody arrangement related to relocation that was made when neither the parties nor the court had any idea of what the circumstances of that relocation would be.” Id. at 471, 375 P.3d at 250.

Although intervening case law from the ICA gave rise to the material change in circumstances requirement, cases from the highest court of Hawaii from between 40 to 80 years prior ultimately eliminated it as a threshold test. Therefore, modifications of custody/visitation as well as self-executing or anticipatory custody/visitation provisions are now subject to review under the Waldecker test, which focuses on the best interest of the child.

Legal History Takeaway: First of all, binding precedents are not all created equal. Just because case law from the highest court is much older than case law from the ICA, it does not mean that it lacks teeth.14 While Waldecker’s holding changed the practice of family law, it is also important to not lose sight of how the material change in circumstances test developed and flourished for years via newer ICA decisions that pushed older yet precedentially binding Supreme Court cases into obscurity. The ICA decisions and their threshold test

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were eventually overruled by the Hawaii Supreme Court, however, one should be mindful that a similar situation regarding wholly different issues may arise in the future.15 Second, while it cannot be said that the Supreme Court formally ever adopted the material change in circumstances test, it seemingly came close at one time. In Doe v. Doe, 98 Haw. 144, 153, 44 P.3d 1085, 1094 ( 2002) (italics in original) it stated that “[a]lthough this requirement is not expressly articulated in the statutes, several cases of the ICA have indicated that a parent seeking a change in his or her child’s custody status must demonstrate that there has been a material change in the child’s circumstances that warrant amendment of the original custody decision.” Following the above quoted language, the Supreme Court referenced two ICA cases necessitating a showing of a material change in circumstances, followed by a “see also” reference to “Turoff v. Turoff, 56 Haw. 51, 55-56, 527 P.2d 1275, 1278 (1974) (determining that, where a parent requests a change in custody, the ‘question is whether substantial change has occurred since the initial Decision and Order requiring modification or change in the award of custody of the minor child’).” Id. This sequence of citations, taken alone, can lead to Turoff being construed as actually requiring a threshold showing of a material change in circumstances as they lack reference to the best interests of the child, and this may have somewhat weakened the focus on such in cases decided thereafter.16 Nevertheless, this serves as a reminder that quoting certain piecemeal phrases from an opinion should be done with context in mind.17 B. Cox v Cox, 138 Haw. 476, 382 P.3d 288 (2016) – Statutory History Cox v. Cox, 138 Haw. at 489-90, 382 P.3d at 301-02 set aside the 2015 version of Haw. Fam. Ct. R. 68, specifically, its application to the award of attorney’s fees and costs in divorce matters.18 The court placed more analytical weight on the superseded 2006 version of the rule (rather than the subject rule) to support its decisional reasoning, explaining that “[t]he 2015 version of HFCR Rule 68 is even more problematic than the 2006 version because it omits the phrase ‘in accordance with the provisions of HRS section 580–47 or other applicable statutes, as amended.’ By deleting the reference to HRS §580– 47, HFCR Rule 68 now appears to have been decoupled from the statute. Thus, the current form of HFCR Rule 68 does not provide any guidance or standard for its mandate that reasonable post-offer attorney’s fees should not be awarded if ‘such would be inequitable,’ making it susceptible of subjective and differing applications.” Id. at 481, 382 P.3d at 293.19 While the Cox majority also looked to other states for guidance in similar situations,20 for purposes of the discussion herein, emphasis is placed on the court’s statement that Rule 68’s decoupling from HRS 580-47 distanced it from various principles set forth therein that may have otherwise saved it from being stricken. This very point regarding decoupling could likely only have been made possible by way of a legal

R

history analysis, i.e., upon a review of the 2006 version of Rule 68 in addition to the 2015 version.

Legal History Takeaway: Changes that occur over time with respect to amended court rules (or statutes and ordinances), i.e., legislative history, transpire for a reason, and being aware of not only those changes, but the reasons for such changes can expand one’s understanding of the most current rules beyond the printed words.

C. Gussin v. Gussin, 73 Haw. 470, 836 P.2d 484 (Haw. 1992) – The Power of Concurring Opinions In Gussin v. Gussin, 73 Haw. 470, 836 P.2d 484 (Haw. 1992) the Hawaii Supreme Court set aside what was termed uniform starting points21 and held that: [a]dmittedly, the ICA’s purpose and goals in promulgating USPs are commendable. However, they are unrealistic because each case is factually and circumstantially unique, and therefore outcomes will necessarily be diverse. To the extent that a certain degree of “uniformity, stability, clarity or predictability” of family court decisions can be attained, while at the same time preserving the wide discretion mandated by HRS § 580-47, judges are compelled to apply the appropriate law to the facts of each case and be guided by reason and conscience to attain a just result. Moreover, we conclude that our acceptance of the “partnership model of marriage” provides the necessary guidance to the family courts in exercising their discretion and to facilitate appellate review.

We therefore hold that USPs, as mandated by the ICA, are violative of HRS § 580-47 because they restrict the family courts’ discretion in the equitable division and distribution of parties’ estates.

Id 485-86, 836 P.2d at 492.

Robert B.

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In support of its holding, the Gussin court “adopt[ed] [Intermediate Court of Appeals] Judge [Walter] Heen’s . . . concurring opinion [in Hatayama] wherein he reiterated his rejections of USPs

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which he first expressed in Bennett.” Id. at 486, 836 P.2d at 492. Excerpts of those two concurrences follow and the precepts therein are echoed in the Gussin holding cited above.

In Hatayama v. Hatayama, 9 Haw. App. 1, 13-14, 818 P.2d 277, 283 (1991) Judge Heen stated that “I am compelled to comment further on the majority opinion in this case. In this case, the majority has attempted to establish a further foundation for the Uniform Starting Points (USP) established by prior opinions. In doing so, they have only served to emphasize what I consider an invalid deviation from Hawaii Revised Statutes (HRS) § 580-47(a) (Supp. 1990).” He further noted that “[i]t is our function to review the trial court’s decision to determine whether it leaves the parties in a position that satisfies the factors outlined in the statute. It is not our function to determine if the court started from a point which is not mandated by the statute.” Id. at 14, 818 P.2d at 284.

In Bennett v. Bennett, 8 Haw. App.

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415, 807 P.2d 597 (1991), Judge Heen similarly concurred noting that “[i]n my view, the USP, contrary to the line of supreme court cases, in fact establish a fixed rule governing the split of marital property by the family court.

Consequently, they violate the letter and the spirit of HRS § 580-47(a). Opinions by the supreme court in reviewing our decisions on certiorari support my view.”

Id. at 428-29, 807 P.2d at 604.22 Although USPs came about and developed across a string of ICA cases, they undoubtedly came under heightened scrutiny from Judge Heen’s concurrences (beginning in 1991)23 and were eventually eliminated by Gussin in 1992.

In fact, “[a] year before the Gussin decision, [Judge] Burns already appeared to sense that his uniform decisional process faced substantial opposition and imminent reversal from the supreme court.

Perhaps goaded by a dissenting voice within his own court....”. Calvin G.C. Pang, Slow-Baked, Flash-Fried, Not to be Devoured: Development of the Partnership

Model of Property Division in Hawai’i and Beyond, 20 U.H. Law Rev. 1, 71, n. 306 (1998). Practicing attorneys apparently saw such a change forthcoming as well.

“Prior to Gussin, proponents of the USP process predicted its eventual demise and supported legislation that would expressly give the appellate courts the authority to require the family courts to utilize a uniform decisional process in the equitable distribution of property in divorce actions.” Lori L. Yamauchi, Gussin v.

Gussin: Appellate Courts Powerless to Mandate Uniform Starting Points in Divorce Proceedings 15 U.H. Law Rev. 423, 438 (1993) (internal citation to fn. omitted).

Legal History Takeaway: Based on the two University of Hawaii law review articles cited above and the history of USPs, there is value in noting a pattern of similar and successive concurring (or dissenting) opinions, especially from the same judge or justice on the same issue, as they possibly signal a trend towards an eventual change in the law.

Judge Heen’s concurring opinions that grew in opposition to USPs leading up to Gussin are a remarkable example of such.

D. Riethbrock v. Lange, 128 Haw. 1, 282 P.3d 543 (2012) - Revival of an Earlier Dissenting Opinion Similar in approach to Gussin is the Riethbrock case, where the Hawaii Supreme Court turned not to a recent concurring opinion but a dissenting opinion (from a fellow justice, handed down nearly 30 years prior) to support a reversal in standing case law precedent.

In Riethbrock v. Lange, 128 Hawai‘i 1, 282 P.3d 543 ( 2012), the Hawaii Supreme Court “reexamine[d] HRS § 580–56(d) and th[at] court’s application of that statute in Boulton24” id. at 15, 282 P.3d at 557, where “the Boulton majority broadened the scope of HRS § 580–56(d) to apply the limitations period to the division of the former spouse’s entire personal estate, rather than only that

portion of the personal estate in which a former spouse had a “dower or curtesy” right” Id. at 16, 282 P.3d at 558. The Riethbrock court proceeded to “overrule Boulton, and hold that HRS § 580–56(d) does not limit the family court’s jurisdiction to divide the property at issue. . ..”

Id. at 16-17, 282 P.3d at 558-59.

In support of its decision, the Court cited Justice Wakatsuki’s dissent in Boulton, which stated, in part, that “[t]he majority’s application of the ‘dower or curtesy’ phrase to only real estate and not personal estate means that under the pre–1973 statute a wife could not share in any of her husband’s property after a divorce decree was entered.” Boulton, 69 Haw. at 7, 730 P.2d at 341. Riethbrock, 128 Haw. at 16, 282 P.3d at 558, agreed that the Boulton majority’s analysis would result in “a wife’s interest in all of her former spouse’s property would cease immediately upon divorce, even if the former spouse were still living,” 69 Haw. at 6-7.25

Legal History Takeaway: “Concurring and dissenting statements are not binding authority and do not speak for the Court.” Duncan v. State, 791 N.W.2d 721, 721 (Mich. 2010). However, dissenting and concurring opinions should not be ignored, much less forgotten. 26 They suggest that the issues at hand are dynamic, and, “[a]lthough a dissent signals a lack of consensus by its very definition, dissents shape the law in many ways, not only by contributing to later reversals, but also by bringing about changes in policy. Even when a majority view controls, a dissent can lead to a reconsideration or voluntary change of policy.” Iman Zekri, Respectfully Dissenting: How Dissenting Opinions Shape the Law and Impact Collegiality Among Judges, Fla Bar J. Vol. 94, No. 5, at 8, Sep. Oct 2020.27 IV. CALIFORNIA AND CASES OF FIRST IMPRESSION Linson v. Linson, 1 Haw. App 272, 618 P.2d 748 (1980) was a marital

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property division case of first impression, specifically addressing whether nonvested retirement benefits (pensions) could be divided and distributed in a divorce case, id. at 274, 618 P.2d at 749, and it was an issue that “divided courts in other jurisdictions.” Id. at 275, 618 P.2d at 749. The court analyzed and adopted In re Marriage of Brown, 15 Cal.3d 838, 126 Cal.Rptr.

633, 544 P.2d 561 (1976), a California case for the proposition that nonvested retirement benefits are divisible, and then proceeded to do a national survey of courts in support and against. Id. 275-76, 618 P.2d at 749-50. The court concluded that “[i]n reading the opinions of courts which have passed on this issue we come to the conclusion that those courts which hold that nonvested retirement benefits are cognizable or divisible do so on the basis of equity, although this is sometime left unsaid. Courts holding that such benefits are not cognizable or divisible, on the other hand, appear not to have considered equity at all, but to have rather mechanically applied rules of property law.” Id. at 277, 618 P.2d at 750-51. The ICA held that “the phrase ‘estate of the parties’ as it is used in HRS § 580-47 means anything of present or prospective value, and therefore that a spouse’s nonvested military retirement benefit constitutes part of the estate of the parties under HRS § 58047.” Id. at 278, 618 P.2d at 751.

Similarly, in Crofford v. Adachi, 150 Haw. 518, 525-27, 506 P.3d 182, 189-91 (2022), the Supreme Court analyzed cases from other jurisdictions to decide the question whether a marital agreement containing property division terms based on misconduct was enforceable. It concluded that “although the jurisdictions that have considered this issue are split, those courts that have found such agreements unenforceable have policies and divorce schemes that resemble our own. California and Iowa have both adopted strong policies favoring a nofault approach to divorce proceedings. Moreover, the Court previously adopted California’s approach to the enforceability of prenuptial agreements.” Id. 150 Haw. at 525, 506 P.3d at 191 (citing L.R.O. v. N.D.O., 148 Haw. 336, 350 (2020).28 Another case of first impression, KS v. RS, 151 Haw. 336, 512 P.3d 702 (App. 2022) “conclude[d] that the Family Court was not precluded from ordering joint legal custody with tiebreaking authority to one parent, based on its broad discretion, if the Court determined such was in Child’s best interests.” KS, 512 P.3d at 713 (internal citations omitted). In support of its analysis, the KS court heavily analyzed Santo v.

Santo, 448 Md. 620, 141 A.3d 74 (2016), in which Mother relied upon primarily for her argument, KS, 512 P.3d, at 711-12, but also acknowledged a California case, i.e., “Cassady v. Signorelli, 49 Cal.App.4th 55, 56 Cal. Rptr. 2d 545, 549 (1996) (affirming the trial court’s ruling that father should have the ‘final say’ as to child’s health care decisions in the event of disagreement between the parties due to trial court’s ‘very extensive discretion’ as to best interests of the child)” KS, 512 P.3d. at 712.

Legal History Takeaway: California cases have been viewed as persuasive in family law matters of first impression, albeit that view is not absolute. From a prospective standpoint, consider the coercive control prong of the Domestic

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Abuse Protective Orders statute codified and enacted a few years ago in Haw. Rev. Stat. §586-1. Legal research does not uncover Hawaii decisions on coercive control protective orders. One avenue of guidance may be the California case of L.R. v. K.A., 281 Cal.Rptr.3d 706 (App. 2021), where the legislative development of the concept of coercive control and its applicability to a domestic abuse setting was discussed in detail, id. at 721, along with various cases setting forth different examples of coercive conduct. Id. at 719-21.29 V. HOW MIGHT CHILD SUPPORT EVOLVE? In this section, the origins of the child support agencies of today and the State of Hawaii’s system of calculating child support will be briefly reviewed.

1. Creation of Child Support Enforcement Programs In 1974, Congress amended the Social Security Act by adding Title IV-D. Title IV-D established a Child Support Enforcement Program, ‘[f]or the purpose of enforcing the support obligations owed by absent parents to their children.’ At the same time, Title IV-A was amended to require states, as a condition of receiving federal AFDC funds, to adopt child support enforcement programs that complied with Title IV-D. Accordingly, in order for a state to obtain federal funding for its AFDC program, the state was required to operate a child support enforcement program in compliance with Title IV-D. *** One of the requirements of Title IV-D is that the state must make the same child support enforcement services available to both families receiving AFDC and families who are not receiving AFDC. In re Marriage of Lappe, In re, 680 N.E.2d 380, 385, (Ill. 1997) The above is a “a federal-state statutory procedure designed to ensure that absent fathers whose children are being supported by AFDC reimburse the taxpayers for such support to the extent of their ability to do so.” Marriage of Simmons, In re, 139 Cal.Rptr. 832, 834 (App. 1977). For a further discussion on the history of child support agencies and their various processes, see Naomi Cahn & Jane C. Murphy, Collecting Child Support: A History of Federal and State Initiatives, 34 Clearinghouse Rev. 165 (2000).30 2. Hawaii Child Support Guidelines Haw. Rev. Stat. §§576D-7, 576E-15, 580-47, and 584-15 require the most current child support guidelines to be used when calculating child support, be it through an administrative process or via the family court in a divorce or paternity matter.

The 1989 Hawaii Child Support Guidelines at 2 (emphases in original) (“1989 Guidelines”) state that they “are child centered [and] . . . based upon a formula developed by Delaware

Family Court Judge Edward F. Melson, which the State of Delaware has successfully used since 1979.” See Dalton v.

Clanton, 559 A.2d 1197 (Del. 1989) (discussing the Melson formula). The child support guidelines have been revised over the years – with 2020 being the most current version – and contain information, definitions, income tables, and protocols. A snapshot comparative look at the 1989 and 2020 Hawaii Child Support Guidelines (“2020 Guidelines”) for some of the most marked changes spanning 30 plus years follow.31 The 1989 Guidelines at 8, subsection d, sets forth a method to calculate child support pursuant to an extensive visitation scenario based on payor having more than 100 overnights in a year.32

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d. Extensive visitation: For overnight visitation more than 100 days, but not exactly 50/50 joint custody (i.e., 162 1/2 days) use the following formula:

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1. Calculate normal (100 days) support.

2. Calculate 50/50 joint physical custody (183 days) support.

3. Subtract #2 from #1.

4. Divide #3 by 83 to obtain a per diem support amount.

5. Multiply the per diem support amount by the number of days over 100 days to calculate the support amount to be subtracted from normal support to adjust for the additional days. If this issue arises in connection with a request for modification of child support, the moving parent bears the burden of showing by accurate calendar records the actual number of visitation days for the 12 months immediately preceding the motion. Either parent may file a motion to modify child support, based solely on the number of visitation days, only once in any 12 month period.

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The above is quite different from the current 2020 Guidelines at 5-6, section II.B.1.b., where an extensive visitation calculation is triggered only when a party has more than 143 overnights.

In addition, the 1989 Guidelines at 9, called for an additional consideration

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no longer present in today’s version. “If the custodial parent has retained the federal tax pendency exemption, then subtract one – twelfth (1/12) of the annual federal tax dependency exemption per child from the non-custodial parent’s SOLA income. This amount is $167 (1/12 x 2000).” This has the effect of possibly reducing the non-custodial parent’s child support obligation.

Lastly, the 1989 Guidelines at 6 varied the base child support amounts depending on the number of the children in the household as follows: 1st child in the household $200/mo 2nd & 3rd children in the household $150/mo Each additional child in the household $100/mo

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In the 2020 Guidelines at 2, section II.A.2., base support is $415.00 per child.

Based on the foregoing, the reader is free to determine why such changes occurred and build upon this modest backdrop a more comprehensive legal history on child support from which to draw conclusions as to how things might or should develop going forward.33 VII. CONCLUSION Attorneys have many tools to handle the rigors and complexity of advocacy, as well as the dynamic nature of the law, including but not limited to their own education, experience, wisdom, the advice of colleagues and mentors, legal research programs, and continuing education legal seminars. Legal history is another tool.

The cases discussed above effectuated significant changes to family law over the past forty years, but they offer far more than just their notable holdings.

Each of the opinions discussed herein are followed by legal history takeaways such as (1) case law, specifically concurring and dissenting opinions, (2) statutory amendments, (3) cases of first impression, and (4) changes in what was believed to be established concepts or doctrines. The value of legal history consists not only of knowing case law with its holdings, dissents, concurrences,

issues of first impression, but how and why such holdings were issued, with the ultimate objective of understanding both how the law changed and how it could change. ___________________ 1

Not all cases require legal research. There are many cases in state District Court and Family Court that can be initiated and advanced to conclusion with pre-printed, “fill in the blank” forms designed to be user and pro se friendly that already reference a court rule and/or statute on which the action or relief is based.

2 It is more than possible of course, to have cases with little to no merit.

3 In addition, the Hawaii Supreme Court “has long recognized, we not only have the right but are entrusted with a duty to examine the former decisions of this court and, when reconciliation is impossible, to discard our former errors[.]”

State v. Brantley, 99 Haw. 463, 465, 56 P.3d 1252, 1254 (2002) (overruling State v. Jumila, 87 Haw. 1, 950 P.2d 1201 (1998)).

4 In the State of New York, “[t]he Supreme Court is the trial court of unlimited original jurisdiction; but it generally hears cases that are outside the jurisdiction of other trial courts of more limited jurisdiction.” NYCOURTS.GOV, New York State Unified Court System, https://www.nycourts. gov/courts/cts-NYCSUPREME.shtml (last visited August 5, 2023).

5 The Court then presented other cases that it also deemed to be precedential or that “might be helpful to plaintiff.” Id. at 2-3.

6 Over the years, the process of legal research has evolved from physically scouring through pages of stacked case reporters and indexes to what is now online research.

7 Some matters may even be eligible for consideration by the United State Supreme Court.

8 By no means is legal history confined to cases where precedent was overturned or issues of first impression analyzed, but such issues are arguably at the very least, more dramatic and exciting from a lawyer’s standpoint.

9 King Kamehameha V Judiciary History Center, https://www.jhchawaii.net/what-we-do/ (last visited August 26, 2023).

10 See, https://www.jhchawaii.net/exhibits/.

11 Avalable at https://michigan.law.umich.edu/academics/ar eas-interest/legal-history (last visited May 28, 2023).

Changes in society could include, but not be limited to, trends in the rates of marriage or childbirth and increases in the cost of living.

12 Otherwise, like any historical display in a museum, legal history can be enjoyed purely for what it is, i.e., one continuously evolving facet of humanity over time.

13 The Honorable Carrick Buck presided over the trial. As an historical point, in 1934 Judge Buck was the first woman to be appointed a judge in Hawaii. See Hawaii Women Lawyers,

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Milestones for Women Lawyers in Hawaii, http://www.hawaiiwomenlawyers.org/history.h tml (last visited August 13, 2023).

14 See Martin v. Bicknell, 99 A.3d 705, 709 (D.C. 2014) (noting the court’s discovery of old, yet binding, precedent which the parties did not cite to).

15 Notably, in JS-L v. IS, 129 Hawai’i 295 at 3, n.6 (Haw. App. 2013) (unpublished) “[m]other observe[d] that the Hawai‘i Supreme Court avoided holding that a change of circumstances must be established to modify custody in Doe v.

Doe, 98 Hawai‘i 144, 153, 44 P.3d 1085, 1094 (2002), and has never embraced [a] changed circumstances rule since enactment of HRS § 571–46. Therefore, she urge[d] [the ICA] to reconsider and overrule the language in Nadeau v.

Nadeau ... and In re Guardianship of Doe ... requiring proof of a change of circumstances.” (quotation marks omitted).

The JS-L court declined to do so as Doe v.

Doe was a challenge to the initial custody order rather than a request for modification. Id. Nonetheless, the above argument portends the Waldecker opinion’s reasoning and analysis that followed a few years later.

16 Waldecker analyzed Turoff differently – that Turoff, in fact, focused on the best interests of the child. 137 Haw. at 469, 375 P.3d at 248.

17 The trial court considered the best interests of the child even though there was found to be no change in circumstances. Turoff, 56 Haw. at 53.

18 Rule 68 was a frequently utilized settlement tool in divorce and paternity matters prior to Cox. 19 It can be inferred from this analysis that the 2006 version of Rule 68 may have had a slightly better chance of surviving scrutiny than its 2015 iteration. Any future attempt to reincarnate some version of this rule might wish to take the 2006 version into consideration.

20 Cox, 138 Haw. at 484 (2016) set forth cases from other jurisdictions such as Oregon, North Carolina, and Nevada that frowned upon the application of rules similar to Rule 68 in divorce or custody matters.

21 The USPs for dividing the NMVs under the various categories are as follows: Categories Percentage 1 and 3 100% to the owner and 0% to the non-owner 2 and 4 75% to the owner and 25% to the non-owner 5 50% to the husband and 50% to the wife.

Gussin, 73 Haw. at 475, 836 P.2d 487.

22 Judge Heen expressed a change in mind over time regarding USPs. He never actually framed any of his associated opinions as a dissent, but stated that “[h]owever, I am constrained, albeit belatedly, to express disenchantment with the uniform starting points (USP) first established by this court in Hashimoto v. Hashimoto, 6 Haw.App. 424, 725 P.2d 520 (1986). Although I joined in Hashimoto and, indeed, in nearly every other decision of this court re-

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viewing family court marital property divisions in divorce cases, I have gradually come to realize that the imposition of the USP on the family court judges is contrary to the legislative intent of Hawaii Revised Statutes (HRS) § 580-47(a) (Supp.1990).

Bennett, at 428, 807 P.2d at 604.

23 See Calvin G.C. Pang, Slow-Baked, Flash-Fried, Not to be Devoured: Development of the Partnership Model of Property Division in Hawai’i and Beyond, 20 U.H. Law Rev. 1, (1998) for more details on Judge Heen’s concurrences, including in Gardner v. Gardner, 8 Haw.App. 461, 479 (Haw. App. 1991) (stating “I concur only in the result of this opinion. My reasons for not joining the majority may be found in my concurring opinion in Bennett v. Bennett.”).

As for Collier v. Collier, 8 Haw.App. 28, 38 (App. 1990) (stating “I concur in the result only of the majority decision”) (Heen, J., concurring) it is not clear from the opinion whether it was based in any way on an opposition to USPs. However, an inference can be drawn when compared with future concurrences.

24 Boulton v. Boulton, 69 Haw. 1, 730 P.2d 338 (1986).

25 In his dissent in Boulton, Justice Wakatsuki analyzed the legislative history of Haw. Rev. Stat. § 580 56(d) and concluded that “it [wa]s clear . . . that the 1973 amendment was directed only at preserving dower and curtesy rights in the former spouse prior to property division, and that the one-year period was intended as an outside time limit on those dower and curtesy rights only.” 69 Haw. at 7, 730 P.2d at 341 (emphasis in original) (Wakatsuki, J., dissenting).

26 The Cox case has a dissenting opinion which may pave the way for a future reinstatement of Rule 68 in some way, shape or form, and understanding the methodology underlying the Cox opinion may be useful for such an undertaking.

Gussin also comes with a dissenting opinion from Chief Justice Lum approving of USPs as they “provide some amount of continuity between courts in how they reach a property settlement but in no way diminish the discretion to vary decisions based on differing factual circumstances.”

Gussin, 73 Haw. at 496, 836 P.2d at 493. Ultimately in Tougas v. Tougas, 76 Haw. 19, 28 (1994), the Hawaii Supreme Court stated that “[t]he partnership model is the appropriate law for the family courts to apply when exercising their discretion in the adjudication of property division in divorce proceedings.”

“Forced to expand upon the partnership rhetoric of the Gussin decision, the Tougas court ostensibly tried to meet the call for certainty, uniformity, stability and predictability, while avoiding an embarrassing concession to the ICA’s system of uniform starting points.” Calvin G.C. Pang, Slow-Baked, Flash-Fried, Not to be Devoured: Development of the Partnership Model of Property Division in Hawai’i and Beyond, 20 U.H. Law Rev. 71, 77 (1998).

As of 2023, the partnership model remains intact, but it continues to be polished here and there along the way. See Kakinami v. Kakinami, 127

Hawai’i 126, 276 P.3d 695 (Haw. 2012); Gordon v.

Gordon, 135 Hawai’i 340, 350 P.3d 1008 (Haw. 2015); Hamilton v. Hamilton, 138 Hawai’i 185, 378 P.3d 901 (Haw. 2016); and Selvage v. Moire, 139 Haw. 499, 394 P.3d 729 (Haw. 2017).

Kakinami and Selvage come with dissenting opinions for the aspiring legal historian to study.

27 Available at https://www.floridabar.org/theflorida-bar-journal/respectfully-dissenting-howdissenting-opinions-shape-the-law-and-impact-co llegiality-among-judges/, last visited May 9, 2023.

28 This case cited In re Marriage of Bonds, 24 Cal.4th 1, 99 Cal.Rptr.2d 252, 5 P.3d 815 (2000) that put forth a multi-part test for determinig the validity of a prenuptial agreement.

29 A more recent California case on coercive control is Hatley v. Southard, (Cal. App. 2023).

30 Available at https://scholarship.law.gwu.edu/ cgi/viewcontent.cgi?article=1406& context=faculty _publications, last visited September 3, 2023.

31 The 2020 Guidelines “focus on the best interest of the child.” Id. at 1.

32 A party was limited to one modification request per year if the request required the calculation of actual visitation days. Id. 33 See, 1994, 1998, 2004, 2010, and 2014 Hawaii Child Support Guidelines and see also, Judge Frances Q.F. Wong (ret.), “Hawaii’s Statewide Child Support Guidelines,” 1011 Hawaii Bar Journal, Vol. 14, No. 13.

Tom S. Tanimoto is currently employed as a Hearings Officer with the Office of Child Support Hearings, State of Hawaii Department of the Attorney General, and the entirety of this article was authored solely in his personal and individual capacity. It shall not be construed in any way as legal advice, nor shall it be attributed to or cited in any way as policy, commentary and/or guidance of the Office of Child Support Hearings or its employees and hearings officers in their joint or several official capacities.

Prior to his current employment, he worked at the Hawaii State Bar Association and as a family law practitioner. He was chair of the Family Law Section for 2018 and part of 2023. He currently serves as a member of the Board of Bar Examiners.

Many thanks are due to Kim K. Leonillo, Supervisor of the Officer of Child Support Hearings, Department of the Attorney General, State of Hawaii for her support while this article was being drafted. Many thanks are also due to Michelle Moorhead, a fellow Hearings Officer in the Office of Child Support Hearings for her constructive comments and suggestions regarding this article.

NOTICE OF RECIPROCAL SUSPENSION – JOHN MATTHEW SCHUM (#8525) On Wednesday, September 13, 2023, the Hawai‘i Supreme Court entered an order reciprocally suspending Hawai‘i-licensed attorney John Matthew Schum from the practice of law, based on his suspension by the Supreme Court of California, for a period of one year, with that suspension held in abeyance pending completion of a one-year probationary period, and with an actual period of suspension of 60 days [Eff. February 24, 2023].

Mr. Schum was suspended in California for intentionally obtaining confidential personal information of a third person, impersonating that individual over the phone to Comerica Bank, and canceling that individual’s financial ac-

counts while the individual was away from home on a business trip, resulting in violations of Sections 6106 and 6068(a) of the California Business and Professions Code.

Mr. Schum opposed ODC’s Petition for Reciprocal Discipline under Rule 2.15 of the Rules of the Supreme Court of Hawai‘i, but the Court ultimately granted ODC’s petition and ordered Mr. Schum suspended for a period of oneyear, with that suspension to be held in abeyance pending completion of a oneyear probationary period, and with an actual period of suspension of 60 days, effective from October 13, 2023. The Court further ordered that Mr. Schum show proof of payment of any ordered bill of costs and proof of his return to good standing in California, and provide the Office of Disciplinary Counsel with copies of the regular probationary reports that he submits to the California

disciplinary authorities, as conditions of his reinstatement in Hawai‘i.

Mr. Schum was admitted to the Hawai‘i bar on July 12, 2006, and is a graduate of California Western School of Law. A full copy of the (September 13, 2023) Order of Suspension 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/ 230913-Order-of-Suspension-of-JohnMatthew-Schum-SCAD-23-0000254.pdf.

ODC v. John Matthew Schum, SCAD-230000254.

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

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Phone: 808.523-1234 judgefoley2000@hotmail.com

www.dprhawaii.com November 2023

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C O URT BR IEF S 2023 Jurist of the Year and Judiciary Employees Honored

Third Circuit (Hawaii island) Chief Judge Robert D.S. Kim was presented with the 2023 Jurist of the Year Award

by Chief Justice Mark E. Recktenwald at the Judiciary’s Statewide Employee Awards Ceremony on September 29.

“Judge Kim was appointed to the bench in 2017 and began serving as Chief Judge in 2020 during the early days of the pandemic,” said Chief Justice Recktenwald. “Chief Judge Kim did an exceptional job addressing the challenges brought on by the pandemic, especially with the serious staffing shortage the Third Circuit faced and the temporary closure of the South Kohala Courthouse, working through the

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myriad of challenges to reopen it and be fully operational. He became the Third Circuit’s ‘MacGyver,’ innovating ways to keep the work of the courts going, and ensuring that services to the Big Island community were not compromised. He has maintained excellent communications with the Big Island bar and has convened meetings on pressing challenges such as mentally ill individuals in the criminal justice system. He consistently demonstrates an abundance of aloha, and immediately offered resources and suggestions to support our Maui ohana following the wildfires. He has been forthright in publicly addressing challenges in the criminal justice system, thereby heightening the trust and confidence the public has in our government.”

The Jurist of the Year is selected annually by the Chief Justice from nominations submitted by Hawaii attorneys and Judiciary personnel. The award recognizes a full-time trial judge who exhibits exceptional judicial competence, evidenced by decisional quality; significant extra-judicial contributions to the administration of justice; and active participation in public service to the community at large.

In addition to honoring the Jurist of the Year, the Hawaii State Judiciary presented individual and group awards to employees who have distinguished themselves through exceptional service and accomplishments. The recipients of this year’s awards are: Distinguished Service Award (the Judiciary’s highest employee award): Curt Shibata, Supreme Court Operations Officer / Bailiff.

Meritorious Service Award: Lisa Kimura,

Court Documents Supervisor, Fifth Circuit (Kauai and Niihau) Legal Documents.

Group Meritorious Service Award: First Circuit (Oahu) Truancy Court and Early Education Intervention Program: Social Workers Anthony Cannon, Garrett Alcott, Letty Di Lillo, Billie Reeves, Blaine Tomita, Roberta Uemura.

Spirit of the Judiciary Award: Armon Tavares, Certified Substance Abuse Counselor, Maui Drug Court, Second Circuit (Maui, Molokai and Lanai); and Donna Miura, Human Resources Technician, Third Circuit Administration.

Certificate of Commendation: Grayson Hashida, Drug Court Coordinator, Big Island Drug Court, Third Circuit; and Jesse De Rego, Groundskeeper, Second Circuit Facilities Management Branch.

Group Certificate of Commendation: Hilo Legal Documents Branch, Third Circuit: Circuit Court Clerks Leone Ausage Kahihikolo, Kiara Goo, Traci Kanaeholo, Malie Maii, Kellie Nagai, Cindy Ohigashi, Byron Poy, Morgan Rogers, Joyce Rosal, and Katrina Yogi.

District Court Clerks Mona Daniels, Tumamaopavaiai Enos-Godinez, Troy Kahai, and Kiralee Ma-e.

Award for Suggestions: Ernest De Lima, Second Circuit Deputy Chief Court Administrator; and Jennifer Ueki, Human Resources Manager, Judiciary Administration.

H SBA HAP PE NIN GS 2024 License Renewal Reminder

webinar information.

Per RSCH 17, your license must be renewed annually to be in good standing.

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.

HSBA Board Action

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. Note that a 2023 status change requests must be received and processed, and CLE requirements (for “Active” members) must be completed prior to renewing your license for 2024. For 2023 status change request, contact the HSBA at (808) 537-1868 or via email at ars@hsba.org.

Note that 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/

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The HSBA Board took the following action at its meeting in August: • Adopted the recommendation of the joint Executive-Finance Committee to approve the proposed 2024 budget for the Goal Group’s projects and events; • Adopted the recommendation of the joint Executive-Finance Committee to approve the proposed amount of $20 per capita to support activities of the neighbor island bar associations; • Adopted the recommendation of the Awards Committee to honor the following people with the corresponding HSBA Awards at the Annual Meeting being held in conjunction with virtual Bar Convention on October 17, 2023: ○Susan L. Arnett - C. Frederick Schutte Award (for outstanding and meritorious service to the legal community and the profession) ○Tom S. Tanimoto - C. Frederick Schutte Award (for outstanding and meritorious service to the legal community and the profession) ○Associate Justice Paula A. Nakayama (Retired) - Golden Gavel Award (for outstanding service to the state or federal judiciary in Hawaii) ○Rosemary T. Fazio - Ki’e Ki’e Award (for outstanding provision of professional legal services at no charge to the recipient) • Adopted the recommendation of the HSBA Nominating Committee to reappoint David Fitzpatrick and Marie Gav-

igan and newly appoint Titiimaea Ta’ase to the Hawaii State Board of CLE (aka MCLE Board) to a three-year term beginning October 2, 2023; and • Adopted the recommendation of the HSBA Nominating Committee to reappoint Christine Daleiden and Carol Muranaka to the Hawaii Access to Justice Commission for a three-year term beginning January 1, 2024.

Member Benefits Spotlight Bank of Hawaii Bank of Hawaii offers the Interest on Lawyers’ Trust Account (IOLTA) Program, sponsored by the Hawaii Justice Foundation (HJF). This account enables attorneys to deposit your clients’ funds to an interest-bearing business checking account. Interest earned on these accounts are transferred automatically at month’s end to the HJF, which uses the funds to sponsor charitable lawrelated projects in the State of Hawaii.

Bank of Hawaii offers special account packages that can assist with your business needs.

For inquiries, please email BR001@boh.com.

Central Pacific Bank The benefits of an IOLTA Checking account at CPB include: • No minimum balance requirement • No minimum opening deposit • No monthly maintenance service fees • Unlimited check writing • Free Business Online • Miscellaneous banking functions including transferring funds between accounts, mobile check deposit, viewing account statements and activity.

CPB acts only as custodian of the trust funds and is under no obligation to act as a trustee or to inquire as to the powers or duties of the attorney or law

firm as trustee(s). The attorney or law firm is responsible for following the Hawaii Rules Governing Trust Accounting.

Having a CPB Business Exceptional Checking account saves you time and money by making banking easy and efficient. Account benefits include: • Free Business Online Banking • Free ACH (electronic payments) and waived monthly maintenance fee • First 325 items processed at no cost each statement period • No monthly service charge when you link qualifying deposit accounts to your Business Exceptional Plan and maintain a $10,000 minimum combined balance • Business owners and authorized signers are eligible for a complimentary Personal Exceptional Checking account in Hawaii and on the mainland • No incoming wire transfer fees • Non-CPB ATM transaction fees are waived when you use any non-CPB ATM worldwide Certain terms and conditions may apply to the account benefits listed above. To ensure your account opening goes smoothly, review our convenient checklist for the basic requirements needed for business entities. For more information, contact Lori Honda, Vice President and Senior Business Banking Officer at Lori.Honda@cpb.bank or (808) 544-5414, or Glenn Ching, Chief Legal Officer at Glenn.Ching@cpb.bank or (808) 544-3531.

First Foundation Bank First Foundation Bank offers Interest on Lawyers’ Trust Accounts (IOLTA). This is a method of raising money for charitable purposes, primarily the provision of civil legal services to indigent persons, through the use of interest earned on certain lawyer trust accounts. These accounts are special trust accounts, also known as a client trust account, that attorneys use to hold

funds on behalf of their clients. The interest earnings from these types of accounts are to be paid to the Hawaii Justice Foundation each month. Only attorneys are permissible to be authorized signers on these accounts.

Visit https://bit.ly/HSBAFirstFoundationBank for First Foundation Bank’s IOLTA Enrollment Form.

For inquiries, please contact our Main Branch at (808) 585-9600, and ask for Elroy Abe, VP, Branch Manager or Marji Okagawa, Financial Service Representative.

CASE NOTES

HomeStreet Bank Whether you are a sole practitioner or a large firm, your time is the most valuable part of your business. Working alongside a knowledgeable team at HomeStreet Bank will save you time so that you can focus on what’s really important - your clients. HomeStreet Bank offers interest-bearing IOLTA accounts for attorneys managing pooled client trust funds. Call (800) 719-8080 to open an IOLTA account with HomeStreet Bank. An operating account with the Bank is required. Interest is paid to the Hawaii State Bar Association.

HomeStreet Bank also offers legal practice loans and business checking accounts, and all their clients have access to online banking and cash management services. Visit https://www.homestreet.com/ business for more information.

Criminal

*** Visit https://hsba.org/memberbenefits for more benefits.

Appeal Pointer An appeal is in default if the record on appeal is not filed with the appellate clerk within 60 days after the notice of appeal is filed. Relief from default must be obtained from the appellate court. Failure to cure the default may result in dismissal of the appeal. HRAP 11(a).

Supreme Court State v. Bautista, No. SCWC-210000395, September 13, 2023, (Eddins, J.). This criminal case involved a jurisdiction challenge and a sentencing challenge. Rommel Bautista argued that the State of Hawai‘i must refile a complaint in circuit court after a district court finds probable cause to support a felony and commits a case to circuit court. The State only filed a district court complaint, Bautista’s argument goes, so the circuit court lacked subject matter jurisdiction. The Hawaii Supreme Court held that if the State files a complaint in district court, and the district court lawfully commits the case to circuit court, then the circuit court has jurisdiction.

Relying on State v. Obrero, 151 Hawai‘i 472, 517 P.3d 755 (2022), Bautista challenged the circuit court’s power to act another way. But Obrero has limited retroactive effect, so Bautista’s Hawaii Revised Statues § 801-1 (2014) attack came too late. Bautista also argued that the circuit court improperly imposed two consecutive sentences. Because the circuit court did not provide adequate independent grounds to impose each consecutive sentence, the Hawaii Supreme Court remanded for resentencing.

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By Gordon M. Arakaki

d e k o o l r e Ov

The [Hawaii Real Estate] commission’s “Final Report to the Legislature, Recodification of Chapter 514A, Hawaii Revised Statutes (Condominium Property Regimes), in response to Act 213, Section 4 (SLR 2000),” dated December 31, 2003, should be used as an aid in understanding and interpreting this Act. Excerpt from Section 1 of Act 164, Session Laws of Hawaii1 (2004)

This article explicitly reviews some of the guidance included in the Hawaii Real Estate Commission’s “Final Report to the Legislature, Recodification of Chapter 514A, Hawaii Revised Statutes (Condominium Property Regimes), in response to Act 213, Section 4 (SLH 2000)”, dated December 31, 2003, (“Commission’s 2003 Final Report”), which appears to have been overlooked over the years. The author hopes this article will encourage attorneys to follow the Legislature’s statutory2 instructions and use the Commission’s 2003 Final Report as an aid in understanding and interpreting Hawaii’s recodified condominium law, Hawaii Revised Statutes (“HRS”) Chapter 514B.3 In addition to detailed explanatory comments in the Commission’s 2003 Final Report, the Final Report explicitly references secondary sources that have detailed explanatory comments that should be used to correctly understand and interpret HRS Chapter 514B. As noted in the Commission’s 2003 Final Report at pages 7-8: Based on feedback the Commission received from the advisory committee, realtors, property managers, individual unit owners, and others, HRS

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Guidance in the Hawaii Real Estate Commission’s 2003 Official Commentary to Hawaii’s Recodified Condominium Law (enacted as HRS Chapter 514B)

munity. Indeed, because highdensity housing is critical for the provision of housing for Hawaii’s people, it is important for all of Hawaii. Many of Hawaii’s condominium communities, which comprise approximately 30% of Hawaii’s housing units,4 are or will be facing challenges ranging from deferred maintenance, to evolving building requirements, to sea-level rise, all while trying to figure out: (i) who is responsible for what; (ii) who is responsible for paying for what; and (iii) how to resolve disputes and solve problems in a way that is fair and efficient for the condominium community and the people who live in them.

This article will cover the following:

Chapter 514A (rather than the uniform laws) was used as the basis for most of Recodification Draft #2 (i.e., general provisions; creation, alteration, and termination of condominiums; protection of purchasers; administration and registration of condominiums; and condominium management education fund). The Uniform Condominium Act and Uniform Common Interest Ownership Act – along with appropriate provisions of HRS Chapter 514A, other jurisdictions’ laws, and the Restatement of the Law, Third, Property (Servitudes) – was used as the basis for condominium governance matters.

•Identifying the sections of HRS Chapter 514B that are based on the Uniform Condominium Act (UCA) or the Uniform Common Interest Ownership Act (UCIOA) (1994)5 and the Restatement 3rd (Servitudes) and explaining how the official commentary to those treatises can be used to help correctly understand and interpret the law.

(Emphasis added.) The Real Estate Commission’s (“Commission”) final draft of the recodification was based on this structure and the statutory structure ultimately adopted in HRS Chapter 514B. The bottom line is that using the Commission’s 2003 Final Report and its cited references to correctly understand and interpret HRS Chapter 514B is important for Hawaii’s condominium com-

•A cautionary example of an apparent failure to use the Commission’s 2003 Final Report to help correctly understand and interpret HRS Chapter 514B.

•Two examples (from the author’s opinions) of how one can use the Commission’s 2003 Final Report to correctly understand and interpret HRS Chapter 514B.

I. Many sections of HRS Chapter 514B are based on the Uniform Condominium Act (UCA) or the Uniform Common Interest Ownership Act (UCIOA) (1994) and the Restate-

ment 3rd (Servitudes) and the official commentary to those treatises can be used to help correctly understand and interpret HRS Chapter 514B As shown by the table on page 26, many of HRS Chapter 514B’s sections are based, in whole or in part, on the Uniform Condominium Act (UCA) (1980) or the Uniform Common Interest Ownership Act (UCIOA) (1994).

When crafting the Recodification, the Commission tried to build on the scholarly work of UCIOA and the Restatement 3rd (Servitudes). Each of those treatises have their own extensive explanatory comments that should be used to understand and interpret sections of HRS Chapter 514B which are based on those treatises.

For example, as noted in the table on page 26, HRS §514B-141 (Tort and contract liability; tolling of limitation period) is based on UCA/UCIOA §3-111. HRS §514B-141 reads in part as follows: §514B-141 Tort and contract liability; tolling of limitation period. (a) A unit owner is not liable, solely by reason of being a unit owner, for any injury or damage arising out of the condition or use of the common elements. …

The Commission’s 2003 Final Report’s comment on HRS §514B-141 simply states “UCA/UCIOA §3-111, modified, is the source of this section.”

UCOIA’s comment on its §3-111, however, contains much more information that helps to understand and interpret HRS §514B-141. Among other things: •UCIOA §3-111 changes the law in several states where plaintiffs were forced to name individual unit owners as the real parties in interest to any action brought against the association (rendering such a possibility in Hawaii moot).

•The section recognizes the practical control that declarants (“developers” in HRS Chapter 514B, so that term is used for “declarant” going forward) can exercise over the affairs of the association during any period of developer control, and therefore provides that the association or any unit owner has a right of action against the developer for any losses suffered by the association or any unit owner as a result of an action based upon a tort or breach of contract arising during any

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period of developer control.

•To assure the decision to bring such an action can be made by an association’s board free from the influence of the developer, UCIOA §3-111(c) provides any statute of limitations affecting such right of action by the association shall be tolled until the expiration of developer control.

•The form in which common elements are owned—whether in a condominium, planned community, or cooperative—should not impose joint and several personal responsibility on condominium owners, when no such liability exists for owners in planned communities. This rejects the decision in Ruoff v. Harbor Creek Community Association, 10 Cal.App.4th 1624, 13 Cal. Rptr 2d 755 (Cal.App. 1992).

As shown above, the extensive comments in UCIOA can be helpful in understanding and interpreting the provisions in HRS Chapter 514B that are based on UCIOA. The Commission’s 2003 Final Report favorably cites UCIOA and the Restatement 3rd (Servitudes), so attorneys and courts should use those treatises to correctly understand and interpret HRS Chapter 514B. Indeed, the introduction to Chapter 6 of the Restatement 3rd (Servitudes) was paraphrased in the Commission’s 2003 Prefatory Comment to Part V (renumbered as Part VI in HRS Chapter 514B) (Management of Condominium) to set forth the philosophical underpinning of HRS Chapter 514B’s management of condominium provisions.6 Finally, the Commission made it easy for people to identify the sources of each section of the Recodification with translation tables showing the sources of the proposed law [e.g., HRS Chapter 514A, Hawaii Administrative Rules, UCIOA, the Restatement 3rd (Servitudes), etc.]. The first table was sorted by Recodification section numbers, and the second table was sorted by the sources of the Recodification sections. These translation tables were included in the Commission’s 2003 Final Report.

Once the Recodification was enacted in 2004-2006, the author updated the translation tables to include the sections as numbered in HRS Chapter 514B. The author has updated the translation tables (and much more) every year since then in

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Recodification, Final REC Draft

___: 1-03 ___: 1-03 ___: 1-04 ___: 1-07 ___: 1-08 ___: 1-09 ___: 1-10 ___: 2-05 ___: 5-02 ___: 5-04 ___: 5-05 ___: 5-06 ___: 5-24 ___: 5-23 ___: 5-08 ___: 5-25 ___: 5-13 ___: 5-15 ___: 5-29 ___: 5-32 ___: 5-35 ___: 5-40 ___: 5-43 ___: 4-01 ___: 4-13 ___: 3-01 ___: 3-02 ___: 3-17 ___: 3-11 ___: 3-08 ___: 3-07 ___: 1-02 ___: 1-03 ___: 1-11 ___: 1-12 ___: 1-13

Source UCA 1-103(7), (10), (11), (16), (25) UCA/UCIOA 1-103(3), (4), (5 ) UCA/UCIOA 1-105(a), (b), (d) UCA/UCIOA 1-109 UCA/UCIOA 1-111 UCA/UCIOA 1-113 UCA/UCIOA 1-114 UCA/UCIOA 2-102 UCA/UCIOA 3-101 UCA/UCIOA 3-102 UCA/UCIOA 3-102(b), (c) UCA/UCIOA 3-103 UCA/UCIOA 3-104 UCA/UCIOA 3-105 UCA/UCIOA 3-106 UCA/UCIOA 3-107(a) UCA/UCIOA 3-108 UCA/UCIOA 3-110 UCA/UCIOA 3-111 UCA/UCIOA 3-115 UCA/UCIOA 3-117 UCA/UCIOA 3-118 UCA/UCIOA 3-119 UCA/UCIOA 4-101 UCA/UCIOA 4-110 UCA/UCIOA 5-102 UCA/UCIOA 5-103(a) UCA/UCIOA 5-106 UCA/UCIOA 5-107 UCA/UCIOA 5-109 UCA/UCIOA 5-110 UCIOA 1-102 UCIOA 1-103(16), (26) UCIOA 1-201 UCIOA 1-204 UCIOA 1-206

HRS Chapter 514B 514B-3 Definitions 514B-3 Definitions 514B-4 Separate titles and taxation 514B-7 Construction against implicit repeal 514B-8 Severability 514B-9 Obligation of good faith 514B-10 Remedies to be liberally administered 514B-35 Unit boundaries 514B-102 Association; organization and membership 514B-104 Association; powers 514B-105 Association; limitations on powers 514B-106 Board; powers and duties 514B-136 Transfer of developer rights 514B-135 Termination of contracts and leases of developer 514B-108 Bylaws 514B-137 Upkeep of condominium 514B-121 Association meetings 514B-123 Association meetings; voting; proxies 514B-141 Tort and contract liability; tolling of limitation period 514B-144 Association fiscal matters; assessments for common expenses 514B-147 Association fiscal matters; other liens affecting the condominium 514B-152 Association records; generally 514B-155 Association as trustee 514B-81 Applicability; exceptions 514B-93 Early conveyance to pay project costs 514B-51 Registration required; exceptions 514B-52 Application for registration 514B-67 Termination of registration 514B-61 General powers and duties of commission 514B-58 Annual report 514B-57 Commission oversight of developer’s public report 514B-2 Applicability 514B-3 Definitions 514B-21 Applicability to new condominiums 514B-22 Repealed 514B-23 Amendments to governing instruments

Source: The Expert Statute Geek’s Guide to Hawaii’s Recodified Condominium Law (Chapter 514B, Hawaii Revised Statutes)—2022 Edition,

by Gordon M. Arakaki (in discussions to make the Guide available through the Hawaii State Bar Association), at pages 103104 (Translation Tables—Sorted by Source).

his Expert Statute Geek’s Guide to Hawaii’s Recodified Condominium Law (Chapter 514B, Hawaii Revised Statutes).

II. Two examples (from the author’s opinions) of how one can use the Commission’s 2003 Final Report to correctly understand and interpret HRS Chapter 514B. The following examples are from opinions written by the author based on his specialized knowledge of HRS Chapter 514B and the Commission’s 2003 Final Report.

A. First example: Pursuant to HRS §514B-10(b) and the Commission’s 2003 Final Report, Hiner v.

Hoffman’s “strict construction” rule regarding restrictive covenants has not applied to condominiums since July 1, 2006; instead, the governing documents of condomini-

ums must be liberally construed to facilitate the operation of condominiums.

To properly construe the provisions of condominium governing documents, it is important that attorneys and courts understand that the governing documents of condominium associations must be “liberally construed to facilitate the operation of the condominium property regime.” [See, HRS §514B-10(b).]

HRS §514B-3 defines “operation of the property” as “the administration, fiscal management, and physical operation of the property,7 and includes the maintenance, repair, and replacement of, and the making of any additions and improvements to, the common elements.” (Emphasis added.)

Consequently, the governing documents of condominiums must be liberally construed to facilitate the administration, fiscal management, and physical operation of condominiums.

For example, responsibility for the costs and expenses related to the repair of limited common elements, assessments for such costs and expenses, and priority of payment policies all relate to the fiscal management of condominium property regimes. Therefore, provisions in the governing documents of condominiums related to responsibility for limited common element repair costs and expenses, assessments for such costs and expenses, and priority of payments must be liberally construed to facilitate the fiscal management of the condominiums.

When the Commission crafted the recodification (enacted as HRS Chapter 514B), it recognized: (i) condominium associations were stepping into the shoes of developers and (ii) those developers drafted governing documents that generally protected very different interests than those of condominium associations (e.g., protecting features and processes that kept the projects and units attractive for initial sales and secure for construction lenders). For that and other reasons (explained in the Commission’s official comment below), HRS §514B-10(b) was enacted. It reads: “Any deed, declaration, bylaw, or condominium map shall be liberally construed to facilitate the operation of the condominium property regime.”

(Emphasis added.)

As explained in the Commission’s 2003 Final Report comment regarding HRS §514B-10(b): Subsection (b) is intended to negate any implication that the Hawaii Supreme Court holdings regarding restrictive covenants/equitable servitudes in Hiner v. Hoffman, 90 Haw. 188, 977 P.2d 878 (1999), and Fong v. Hashimoto, 92 Haw. 568, 994 P.2d 500 (2000), apply to condominium communities.

Given the importance of condominiums to the quality of life of Hawaii’s people, laws must support the fair and efficient functioning of our condominium communities (and other common interest ownership communities). …

Contrast the Hawaii Supreme Court’s current approach regarding servitudes in common interest ownership communities with that of the Restatement of the Law, Third, Property (Servitudes). As stated in the Restatement’s introductory note to Chapter 6 – Common-Interest-Communities: The primary assumption under-

lying Chapter 6 is that commoninterest communities provide a socially valuable means of providing housing opportunities in the United States. The law should facilitate the operation of common-interest communities at the same time as it protects their long-term attractiveness by protecting the legitimate expectations of their members.

The Restatement’s position on servitudes should be used by courts as a guide in resolving disputes over servitudes in condominiums and other common interest ownership communities.

As is made clear above, when HRS §514B-10(b) was enacted, the Legislature statutorily overruled the Hawaii Supreme Court’s holding regarding ambiguity in condominium governing documents and construing the governing documents strictly against the purported “drafter” of the governing documents (i.e., the condominium association that has stepped into the shoes of the developer that originally drafted the governing documents). Instead, the Legislature adopted a “facilitate the operation of the condominium property regime” standard for construing a condominium’s governing documents.

Note also Chapter 6 of the Restatement of the Law, Third, Property (Servitudes) was favorably cited in the Commission’s 2003 Final Report comment to HRS §514B10(b).

All of this was done to help people correctly understand and interpret HRS Chapter 514B. None of this was done out of the public eye.

Indeed, the Commission relentlessly informed the public it was proposing to negate Hiner as it applied to condominiums. The proposal and detailed explanation were in the Commission’s 2001, 2002, and 2003 (Final Report) reports to the Legislature. It was part of every draft of the Recodification (all of which were available online). And it was part of every presentation made by the author regarding the Recodification from 2001 on and every article written by the author about changes being made by the Recodification.8 Finally, common interest ownership community practitioners should be aware that pursuant to Act 70 (SLH 2008), the substance of HRS §514b-10(b) was adopted for planned community associa-

tions and enacted as HRS §421J-1.5. The rationale for HRS §514B-10(b) should apply equally to HRS §421J-1.5, which reads as follows: [§421J-1.5] Interpretation. This chapter and any association document subject thereto shall be liberally construed to facilitate the operation of the planned community association.

After a quick online search, however, it does not appear HRS §421J-1.5 has been cited in any Hawaii cases. On the other hand, Hiner v. Hoffman has been cited in a few recent cases involving the interpretation of restrictive covenants in planned community associations.9 B. Second Example: To properly understand and interpret HRS §514B-138 (Upkeep of condominium; high-risk components), you should read the article cited by the Commission in its 2003 Final Report as the basis for section.

As noted in the Commission’s 2003 Final Report comment #1 for HRS §514B-138, the section is new (i.e., it had no counterpart in HRS Chapter 514A) and is based on an article entitled “Create Policy to Deal with ‘High-Risk Components’ Before Disaster Strikes” from the Community Association Management Insider (July 2003). In addition to a “Model Amendment” that served as the basis for HRS §514B-138, the article contains many practice pointers.

The main concept that was incorporated in HRS §514B-138 from the “HighRisk Components” article is in the article’s first few paragraphs: When a domestic hot water heater breaks, it can cause thousands of dollars of damage to adjoining units. The same can be said of a washing machine hose or a polybutalene (sic) pipe. A faulty smoke detector can lead to consequences that are even more severe.

What all these “high-risk components” have in common is that they’re usually located within the members’ units. Because of their location, they belong to the members, and it’s the members’ responsibility to maintain, repair, and replace them. But most members will fix something only after it breaks, and with these high-risk components, that can be too late. …

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To ensure that the high-risk components located in your members’ units are properly maintained, give your association the authority to compel proper care of them…

(Emphasis added.)

In one case for which the author provided an expert opinion, the plaintiffs spent a lot of time in depositions attempting to somehow establish that, pursuant to HRS §514B-138, the association was responsible for inspecting the windows and screens of privately owned units for safety and security. The windows and screens of privately owned units in that case, however, did not meet the criteria to be defined as “high-risk components” subject to HRS §514B-138.

HRS §514B-138(a) reads as follows: The board, after notice to all unit owners and an opportunity for owner comment, may determine that certain portions of the units, or certain objects or appliances within the units such as washing machine hoses and water heaters, pose a particular risk of damage to other units or the common elements if they are not properly inspected, maintained, repaired, or replaced by owners. Those items determined by the board to pose a particular risk are “high-risk components” for the purposes of this section.

(Emphasis added.)

The windows and screens of the condominium in that case did not pose any particular risk of damage to other units or the common elements if they were not properly inspected, maintained, repaired, or replaced by the owners. Regardless, while associations are authorized to designate certain portions of units (or certain objects or appliances within the units) as “high-risk components,” they are not obligated to do so. The purpose of HRS §514B-138 is to help to prevent damage to other units or the common elements from things like broken washing machine hoses, water heaters, and toilet O-rings, which can damage an entire stack in a multi-story condominium.

Indeed, even if an association, acting through its board, were to designate a certain portion of the units in a condominium as a high-risk component, the association would not be liable if the owner failed to maintain, repair, or replace the high-risk component and the association did not do

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so itself. The Legislature made this clear in 2006 (the session before HRS Chapter 514B became effective on July 1, 2006), when it adopted an ad hoc stakeholders group’s recommendation and amended HRS §514B-138(d) and changed “shall” to “may.” The intent of the amendment was to clarify that, while the association is authorized to replace or repair high-risk components if an owner fails to do so, the association is not subject to liability if it fails to do so.10 III. Cautionary example of an apparent failure to use the Commission’s 2003 Final Report to help correctly understand and interpret HRS Chapter 514B. Failing to use the Commission’s 2003 Final Report to help correctly understand and interpret HRS Chapter 514B can have serious consequences for everyone who lives in common interest ownership communities in Hawaii.

For example, in 2018, the Hawaii Intermediate Court of Appeals’ (“ICA”) somehow created a new requirement for condominium associations that wanted to use the nonjudicial foreclosure process to collect delinquent assessments. In Sakal v.

AOAO Hawaiian Monarch, 426 P.3d 443 (Haw. Ct. App. 2018), the ICA ruled condominium associations were required to have language in their bylaws explicitly authorizing them to use the nonjudicial foreclosure process to collect delinquencies, notwithstanding statutory language in HRS §§514A-90 and 514B-146 providing (for the relevant time period) that “[t]he lien of the association may be foreclosed by action or by nonjudicial or power of sale foreclosure procedures set forth in chapter 667”11 and a provision in the association’s bylaws stating that the association “shall have all remedies provided in Section 514A-90, HRS.” In a nutshell, the ICA construed an ambiguity it perceived in the Hawaiian Monarch’s bylaws against the association as the purported “drafter” of the bylaws, and ruled the association did not have the authority to enforce its lien through the nonjudicial foreclosure process because the Hawaiian Monarch’s bylaws did not explicitly state it had the authority to use the nonjudicial foreclosure process. [As noted above in section II.A, condominium developers actually draft the governing docu-

ments of condominiums, including the bylaws, and condominium associations step into the developer’s shoes once the developer transitions out.]

After the Hawaii Supreme Court denied certiorari on the nonjudicial foreclosure for condominium associations issue,12 the 2019 Hawaii Legislature amended HRS §514B-146 to correct the ICA’s decision in Sakal and make it even clearer that condominium associations had the statutory authority to enforce their liens using the nonjudicial foreclosure process “regardless of the presence or absence of power of sale language in an association’s governing documents.”13 [See, HRS §514B-146(a).]

The damage to Hawaii’s common interest ownership community, however, had already been done. The ICA’s decision in Sakal appears to have been a substantial factor in the rising costs and lack of availability of Directors & Officers (D&O) liability insurance for condominium and other common interest ownership associations.14 And that affects everyone who lives in condominiums, planned communities, and cooperatives in Hawaii.

It is difficult to see how the ICA could have come up with their new rule (and the Hawaii Supreme Court refuse to overrule the ICA) if they had referenced the Commission’s 2003 Final Report as statutorily directed to by the Legislature in Act 164 (SLH 2004).

Simply reviewing the condominium’s governing documents in Sakal by the correct standard [i.e., not construing any perceived ambiguities against the purported drafter—the association—but instead following the mandate of HRS §514B-10(b) and liberally construing the condominium’s governing documents “to facilitate the operation of the condominium property regime”] would necessarily result in the conclusion that both the statutes and the Hawaiian Monarch’s governing documents gave the association the authority to enforce its lien using the nonjudicial foreclosure process.

As discussed above in section II.A, pursuant to HRS §514B-10(b) and the definition of “operation of the property” in HRS §514B-3, the governing documents of condominiums must be liberally construed to facilitate the administration, fiscal management, and physical operation of condominiums.

During the process of recodifying HRS Chapter 514A, no one expressed any doubt that the statute (i.e., HRS §514A-90, which was incorporated in HRS §514B146) gave condominium associations the authority to conduct nonjudicial foreclosures. Indeed, the Real Estate Commission and parties involved in the management of condominiums were concerned about unnecessarily voluminous condominium governing documents, not mandating more requirements for what needed to be included in those documents.

Voluminous condominium documents are the equivalent of the legal disclaimers for access to many websites; how many people actually read the full disclaimers before clicking “o.k.” and accessing the website?

Condominium development attorneys have routinely (but unnecessarily) inserted statutory language in their declarations and bylaws. As HRS Chapter 514B is amended (and HRS Chapter 514A and its predecessors were amended), the now obsolete statutory language remains in the condominium’s governing documents unless those documents are restated or amended. For these and many other reasons, even attorneys and judges sometimes have difficulty understanding and interpreting a condominium’s governing documents correctly.

To address that problem, the Commission tried to minimize the amount of language that the condominium statute required be written into a condominium’s governing documents.

As explained in the Real Estate Commission’s Guiding Principle #3 in its Prefatory Comments to the “Management of Condominiums” Part in the Commission’s 2003 Final Report: The recodified condominium law should enhance clarity of Condominium Property Act. … The artificial approach regarding the contents of bylaws developed in HRS §514A-82(a) and (b) should be eliminated. And the statutory requirements for condominium governing documents should be minimized while incorporating certain provisions currently in HRS §514A-82(a) and (b) in more appropriate statutory sections.

(Emphasis added.)

IV. Conclusion.

Fo r the go od of Hawaii’s

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condominium community and Hawaii as a whole, using the Commission’s 2003 Final Report and its cited sources and references is important to correctly understand and interpret HRS Chapter 514B. To be consistent with HRS Chapter 514B, a condominium’s governing documents must be liberally construed to facilitate the operation (i.e., administration, fiscal management, and physical operation) of the condominium property regime. As stated in the Commission’s 2003 Final Report comment regarding HRS §514B-10(b): “Given the importance of condominiums to the quality of life of Hawaii’s people, laws must support the fair and efficient functioning of our condominium communities (and other common interest ownership communities).”

Many of Hawaii’s condominium communities are or will be facing challenges ranging from deferred maintenance, to evolving building requirements, to sea level rise, all while trying to figure out: (i) who is responsible for what; (ii) who is responsible for paying for what; and (iii) how to resolve disputes and solve problems in a way that is fair and efficient for the condominium community and the people who live in them. Using the Commission’s 2003 Final Report to properly understand and interpret HRS Chapter 514B is the best place to start. ____________________ 1

As noted in the Hawaii Legislative Drafting Manual, 11th Edition (December 2022): The fact that an Act (or any part thereof) is not codified in the Hawaii Revised Statutes does not make that Act or provision any less a “statute” or “law.” Any provision in any of the Session Laws of Hawaii of any year … is a validly enacted statute, regardless of whether it is codified in the Hawaii Revised Statutes.

(Emphasis added.)

The Hawaii Supreme Court has made it clear that: When construing a statute, our foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. And we must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose.

State v. Sullivan, 97 Hawai`i 259, 262, 36 P.3d 803, 806 (2001).

2 Id. 3 To make it easier to research the Commission’s 2003 Final Report and amendments made to HRS Chapter 514B since 2006, Mr. Arakaki wrote The Expert Statute Geek’s Guide to Hawaii’s Recodified Condominium Law (which he has updated every year since 2006). His “Expert Statute Geek’s Guide” contains, among other things: • Translation tables showing the sources of HRS Chapter 514B, with the first table sorted by HRS 30 November 2023

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Chapter 514B section numbers and the second table sorted by the sources of HRS Chapter 514B. The section numbering of the Commission’s Final Draft of the Recodification is also shown.

• Annotated individual parts of HRS Chapter 514B, plus a list of Acts enacting and amending HRS Chapter 514B (2004-2022). ○Statutory language is presented in Ramseyer format (i.e., deletions are bracketed and linedout and new material is underscored) to graphically show amendments made by the Legislature from 2006 through 2022. ○Individual parts contain the Commission’s 2003 Final Report comments. The Commission’s 2003 Final Report comments are reproduced verbatim, except to fill in references to HRS Chapter 514B [since the actual chapter and section numbers were not inserted until after Acts 164 (SLH 2004) and 93 (SLH 2005) were enacted].

4 State of Hawaii Data Book (2021); compare Table 21.10 (“Condominium Associations and Apartments Registered: 1990 to 2021”) and Table 21.20 (“Housing Units, by County: 2007 to 2021”).

5 The Uniform Common Interest Ownership Act was originally promulgated in 1982. It was amended in 1994, 2008, 2014, and 2021.

6 The Commission’s 2003 Final Report “Prefatory Comment” to what was codified as Part VI (Management of Condominium) of HRS Chapter 514B reads in part as follows (please note that the Community Associations Factbook has been updated yearly since 2015, and its most current edition is 2021): “Every [unit owners’ association] has three functions – to serve as a business, a governance structure, and a community.” ~ Community Associations Factbook (1999) As explained in the Community Associations Factbook (1999), the business, governance, and community functions of community associations (including condominium unit owners’ associations) have evolved over time. Early in the history of community associations, “business” meant “austerity,” “governance,” meant “compliance,” and “community” meant “conformity.” As the movement matured, “business” has come to mean “prudence,” “governance” has come to mean “justice,” and “community” has come to mean “harmony.”

To paraphrase the Restatement of the Law, Third, Property (Servitudes) introductory note to Chapter 6: The law of residential condominium communities reflects tensions between protecting freedom of contract, protecting private and public interests in the home both as a personal base and as a financial asset, and protecting the public interest in the ongoing financial stability of condominium communities. …

Ultimately, this Chapter should facilitate the operation of condominium communities at the same time as it protects their long-term attractiveness by protecting the legitimate expectations of their members.

7

HRS §514B-3 defines “property” as follows: “Property” means the land, whether or not contiguous and including more than one parcel of land, but located within the same

vicinity, the building or buildings, all improvements and all structures thereon, and all easements, rights, and appurtenances intended for use in connection with the condominium, which have been or are intended to be submitted to the regime established by this chapter. “Property” includes parcels with or without upper or lower boundaries, and spaces that may be filled with air or water.

8 See, e.g., Gordon Arakaki and Mitch Imanaka, “Hawaii’s New Condominium Law Yields Important Changes,” Hawaii Bar Journal (March 2006), pp. 4-12; Gordon M. Arakaki, “Hawaii’s New Condominium Law: Facilitating the Fair and Efficient Functioning of Condominium Associations,” Hawaii Bar Journal (June 2013), pp. 12-15.

9 See, e.g., Gailliard v. Rawsthorne, 150 Haw. 169, 498 P.3d 700 (Haw. 2021).

10 Memorandum dated March 30, 2006, from Gordon M. Arakaki to the Honorable Ron Menor, Chair, and Committee Members of the Senate Committee on Commerce, Consumer Protection & Housing, regarding H.B. 3225, H.D.1— Proposed S.D. 1, at page 16.

11 In applying its newly created requirement against the association’s authority to enforce its lien through the nonjudicial foreclosure process, the ICA appeared to ignore HRS §514A-82 (Contents of bylaws), subsection (b)(13), which stated that “[a] lien created pursuant to section 514A-90 may be enforced by the association in any manner permitted by law, including nonjudicial or power of sale foreclosure procedures authorized by chapter 667.” Pursuant to the explicit statutory language of HRS §514A-82, all provisions of HRS §514A82, subsection (b) “… shall be deemed incorporated into the bylaws of all condominium projects existing as of January 1, 1988, and all condominium projects created after that date.” (Emphasis added.)

12 The Hawaii Supreme Court had at least two other chances to correct the ICA’s Sakal ruling regarding nonjudicial foreclosures by condominium associations, but by 3-2 votes on this issue (with Chief Justice Recktenwald and Justice Nakayama dissenting), declined to do so. See, Sakal v. Ass’n of Apartment Owners of Hawaiian Monarch, 466 P.3d 399 (Haw. 2020); Malabe v. Ass’n of Apartment Owners of Executive Ctr., 465 P.3d 777 (Haw. 2020).

13 See, Act 282 (SLH 2019).

14 One major insurance agency had eighty-eight D&O claims related to nonjudicial foreclosures by condominium associations after the ICA’s decision in Sakal, and two major insurers [Continental Casualty (aka CNA) and Travelers Insurance] essentially withdrew from Hawaii.

From December 2000 through June 2004, Gordon M. Arakaki served as the Hawaii Real Estate Commission’s Condominium Law Recodification Project Attorney. In that capacity, he worked with lawmakers, the Commission, a blue ribbon advisory committee, and stakeholders throughout the state to “update, clarify, organize, deregulate, and provide for consistency and ease of use” of Hawaii’s then 44+ year old condominium law.

The author believes that the devastating Maui wildfires, which destroyed and damaged many condominiums, will raise legal issues that have not previously been considered in Hawaii. It is critical that such issues be examined with the guidance of the Commission’s 2003 Final Report.

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