Maryann Sasaki, an associate at Clay Chapman Iwamura Pulice & Nervell, 700 Bishop Street, Suite 2100, Honolulu, HI 96813

Tuesday, September 29, 2015

Change the Charter


Not too many people are taking advantage so far of an opportunity that only comes along once every 10 years.

Oahu residents have until Oct. 31 to submit proposals to the Honolulu Charter Commission for improving the city and county government. As of Friday only six proposals have been submitted, but the commission chair still anticipates that the ultimate response will be similar to 2005, when 180 proposals were made.

The commission sent 12 of those proposals on to voters in 2006, and eight of them were approved, including measures to make bikeways a priority; mandate the start of a curbside recycling program; allocate a percentage of annual property tax revenues to land conservation and affordable housing;  and allow the Ethics Commission to impose civil fines on elected officers for ethics violations.
Every 10 years, the commission is formed to investigate how the local government operates and explore ways to improve it. During this period, the public can submit proposed changes to the City Charter, in essence the constitution that lays out its structure.

“I think that there are people out there putting proposals together, but we haven’t had direct participation yet,” said Jesse Souki, commission chair.

The Charter Commission is comprised of 13 members – six appointed by the mayor, six by the City Council and one jointly — picked by the mayor but requiring the council’s approval.

The all-volunteer commission will review the proposals and decide which ones to place on the 2016 ballot.

This year, one proposal already received asks for more City Council oversight of the Board of Water to decrease water main breaks. Another would allot money from the Affordable Housing Fund to help people earning 60 percent or less of the household median income.

Members of the public, city officials and commissioners can submit proposals.

Since July, the commission has held public meetings on climate and environmental issues, planning and development, and public transportation. So far, they have been sparsely attended, but that may change with meetings coming up focused on the controversial Honolulu Police Commission and fees charged for rides on the bus and the future rail project.

The commission is also working with city agencies to assess the effectiveness of the current government structure.

During the next meeting — which is scheduled for Thursday at 3:30 p.m. at the Honolulu Hale committee meeting room — the public will have the opportunity to provide comments on the Honolulu Police Commission and Fire Commission, Souki said. Members of both commissions have been invited to attend.

One question to be addressed is whether the Honolulu Police Commission is “properly policing the police,” Souki added.

The Police Commission has come under fire because of perceptions that it’s soft on police discipline.

And even when it determines police officer misconduct has occurred, under the current structure the Police Department can ignore its findings.

Another meeting is scheduled Oct. 15, but the commission hasn’t chosen a topic yet. Souki said he wants to hold one or more meetings with the Board of Water Supply, the Ethics Commission and Planning Commission before the Oct. 31 proposal deadline.

He also wants to hold another meeting on public transportation to figure out how to coordinate fares between the bus and the rail.

The public can also submit ideas for topics to discuss at the meetings, he said.

“Participation is not just submitting a proposal, but coming to a meeting and listening to what we’re talking about,” Souki said. “This is actually the general public’s shot at having a direct involvement.”
The charter review process gives residents a unique opportunity to directly influence how government operates, Souki said.

Beyond this once-a-decade process, there are only two other ways to amend the charter – the mayor can submit amendments, or the City Council can place amendments on the ballot during years that the charter isn’t under review.


Be Heard!

The Supreme Court of Hawaii is soliciting public comments on their proposed amendment to Rule 2.1(d). The legal and nonlegal community is invited to voice their opinions. Public comment may be submitted by Oct. 16 in writing to the Judiciary at 417 South King Street, fax 539-4801, via the Judiciary’s website, or via e-mail to pao@courts.hawaii.gov.

Hawaii Transactional: Quote of the Day

The law is reason, free from passion. -- Aristotle

Monday, September 28, 2015

List o' Lawyers

From the Hawaii Free Press, a list of Hawaii Law bloggers and other Law bloggers.
Join the Hawaii Women Lawyers on Monday, October 5 at the the Hawaii Women's Law Association - Lady Lawyer Luncheon series.

Hawaii Women Lawyers

Always a fascinating talk by eminent ladies in our field.

Join and meet a network of people!

Lady Lawyers Luncheon:
Alternatives to Law

Monday, October 5, 2015 at Noon

Offices of Alston Hunt Floyd & Ing, ASB Tower,
1001 Bishop Street, 20th Floor conference room

Sponsored by Hawaii Women Lawyers and the Hawaii State Bar Association
Please join us on Monday, October 5 from Noon to 1:15 p.m. to hear from two licensed attorneys who have decided to pursue interests related to or different from law, why they made those choices, and how they got to their current positions.
  • Donna Tanoue is Vice Chair of Bank of Hawaii and President of Bank of Hawaii Foundation.  She also serves on Bank of Hawaii’s Board of Directors.  Prior to joining the Bank, Donna was the Chairman of the Federal Deposit Insurance Corporation (FDIC) in Washington, D.C.  She was also a partner with Goodsill Anderson Quinn & Stifel and Commissioner of Financial Institutions for the State of Hawaii.  She serves on the boards of Kaneohe Ranch and the Honolulu Museum of Art.  She previously served on the boards of Longs Drug Stores Corporation, PBS, and The Queen’s Health Systems.  In her own words, she is still adjusting to life as “the Mayor’s wife.”
  • Sen. Laura Thielen has represented the 25th Hawaii State Senate District, which includes Kailua, Waimanalo, Hawaii Kai, and the Northwest Hawaiian Islands, since 2012.  She also operates a small farm business in Waimanalo.  Her prior experience includes serving as Windward District representative for the Hawaii State Board of Education, Chairperson of the Hawaii State Board of Land and Natural Resources, Agricultural Liaison for the City and County of Honolulu, Director of the Hawaii State Office of Planning, and Managing Attorney for the Legal Aid Society of Hawaii.  She is also a past President of Hawaii Women Lawyers.

Invite a friend or colleague - the more, the merrier!  Please register online no later than Friday, October 2 to let us know you are coming.  Bring a bag lunch or snack; beverages will be provided.  And bring some of your business cards for networking, to help introduce yourself to others.  Members of Hawaii Women Lawyers who attend are eligible to enter a drawing for 2 free movie tickets!

The Supreme Court Acts!

Pursuant to the petition to the Supreme Court discussed last week in this blog, the Supreme Court of Hawaii has proposed new language for Rule 1.2(d) of the Hawaii Rules of Professional Conduct so that local lawyers can advise clients who are medical dispensaries of marijuana. The proposal states:

RULE 1.2. SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LAWYER

***

d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning, or application of the law, and may counsel or assist a client regarding conduct expressly permitted by Hawaii law, provided that the lawyer counsels the client about the legal consequences, under other applicable law, of the client’s proposed course of conduct.

Public comments to the proposed rule should be submitted, in  writing, no later than Friday, October 16, 2015.

Thursday, September 24, 2015

Bar Passage Rates Plummet

Why are so many people failing the bar? The New York Times takes a look.

Lawyers Act!

A couple of days ago we reported on formal Opinion 49 from the Hawaii Disciplinary Board. This  decision limits lawyers who represent marijuana dispensaries to advice only on the actual law (as opposed to say, business matters). The ruling was met with consternation among the legal community and dispensaries alike. 

Today, a group of 25 lawyers have petitioned the Supreme Court for a review. According to PBN, former Hawaii Attorney General David Louie, an attorney at the firm of Kobayashi Sugita & Goda, said the letter was delivered Tuesday. Mr. Louie stated, “it’s important to ensure that qualified patients in Hawaii have safe and legal access to medical marijuana. We support that and believe that there should obviously be access to this with public safety and health preserved. So we are asking the Hawaii Supreme Court to take a look at the situation caused by the disciplinary board's formal Opinion 49 and we hope they will act soon and act appropriately."

Hawaii Transactional could not have said it better. The sooner the rule is changed, the better.

2015 Real Estate Panel

Are you going to the 2015 Real Estate Panel? Come up and say hi.

What: 2015 Commercial Real Estate Panel
Where: The Plaza Club 900 Fort St. Mall, 20th Floor, Honolulu, HI 96813
Date: Friday, September 25, 2015
Time: 6:45 am



Speak Up!

From our friends at Hawaii Women Lawyers comes this announcement.


Chief Justice Seeks Public Comment on Judicial Nominees

HONOLULU – Chief Justice Mark E. Recktenwald announced today that he is seeking public comment on judicial nominees for the current vacancy in the District Court of the First Circuit (Oahu) as a result of the retirement of the Honorable Faye M. Koyanagi. The names submitted for this vacancy by the Judicial Selection Commission, in alphabetical order, are:

Brian A. Costa
Thomas A.K. Haia
Timothy E. Ho
Chastity T. Imamura
Regan M. Iwao
James S. Kawashima
Linda S. Martell
James C. McWhinnie
John Alberto Montalbano
Scott M. Spallina


Because the Chief Justice has the discretion to assign judges to the district or district family court calendar, comments about the qualifications and character of any of the nominees with regard to either calendar assignment may be sent, in writing, to:

Chief Justice Mark E. Recktenwald
Supreme Court of Hawaii
417 South King Street
Honolulu, HI 96813
Fax: 808-539-4703
Email: chiefjustice@courts.hawaii.gov

Comments must be post-marked, emailed, faxed, or hand delivered no later than Friday, October 9, 2015. All comments will be kept confidential.

The individual selected by the Chief Justice is subject to Senate confirmation.

Hawaii Transactional: Quote of the Day

Keep doing good deeds long enough, and you'll probably turn out a good man in spite of yourself. --Louis Auchincloss

Oh No Kyo-Ya

In a 76-page ruling, Justice Richard Pollock of the Hawaii Supreme Court found that the Developer, Kyo Ya, could not construct a 26-story high rise 50 feet from the shoreline makai of Kalakaua Avenue yesterday.

Procedural Posture 

The case has wended its way through the administrative and legal system for over 5 years. In 2010 Kyo Ya sough a variance for its project and obtained a partial one, meeting the three prong criteria for a variance, in short, (1) deprivation of reasonable use of the land  (2) unique circumstances and (3) no alteration to the character of the neighborhood. Plaintiffs appealed this decision which was denied. The case found its way to the Circuit Court where the Court found that Plaintiffs "failed to satisfy its burden to demonstrate  [the zoning board's decision]  . . . was based on erroneous findings of material fact." The environmental groups had lost again. Plaintiffs appealed once again and the case was transferred to the Supreme Court.


Decision

In yesterday's ruling the Court found that the project did not in fact deprive Kyo Ya of reasonable use of its land stating that "the standard to evaluate deprivation of reasonable use under the charter is that the property owner must establish an inability to make reasonable use of its land . . . without the variance." Relying on Korean Buddhist Dae Won Sa Temple of Hawaii v. Sullivan, the court held "that an applicant who sought a variance to construct a taller building than authorized by the ordinance had not demonstrated deprivation of reasonable use because . . . the applicant could have constructed a shorter, compliant building." Kyo Ya also relied on the argument that because the PD-R (Planned Development-Resort) license would allow such a high rise building, it should build such a building. The Court did not agree. “[T]he director used Kyo Ya’s inability to obtain the full benefit from the PD-R permit as a reason to find that Kyo Ya a would be denied reasonable use of the site if the coastal height setback was applied. In other words, by obtaining the PD-R permit prior to seeking the variance, Kyo-ya was able to argue that it was deprived of the reasonable use of its land by pointing to the loss of the increased density and height. The judge found that reasoning circuitous.

Implications

This case will have long reaching ramifications for Developers who wish to build on Waikiki shoreline. With Court effectively holding that reasonable use can be obtained with hotels the are similar to the ones now standing, increased development as we have come to understand it will be limited. "Equally  Dense" buildings, but perhaps not the new beachfront high-rises Developers were hoping for.

Tuesday, September 22, 2015

Hawaii Medical Marijuana Counsel: Up in Smoke

Formal Opinion No. 49 set forth  by the Hon. Clifford L. Nakea (Ret.) may have dashed hopes of  businesses and business lawyers throughout the state when the Disciplinary Board of the Hawai'i Supreme Court opined on August 27th that lawyers could advise clients with respect to Act 241, but a lawyer cannot "provide legal services or  facilitate and manage the operation of a medical marijuana business" when pot remains illegal under federal law.

Under Rule 1.2(d) of the Hawai'i Rules of Professional Conduct, "a lawyer shall not counsel a client to engage or assist a client in conduct the lawyer to aid or assist in conduct the lawyer knows is criminal or fraudulent" but a  lawyer can advise with respect the legal consequences of such action.

This is bad news for enterprising Hawaii lawyers and medical marijuana purveyors. There may be not group in more dire need of legal services than marijuana dispensaries. The state law itself is rife with conflicts, each state varying the access to buying marijuana. Moreover, medical dispensaries are in dire need of tax advice given not only of their designation as criminal activity, but also the labrythine workings of the tax code.

Hawaii Transactional: Quote of the Day



Words are not pebbles in alien juxtaposition --Learned Hand