Report of the 2013 Bench-bar Conference

• Publication year: 2014

REPORT OF THE 2013 BENCH-BAR CONFERENCE

by Don Jeffrey Gelber

The Judicial Administration Committee of the Hawaii State Bar Association was established for the purpose of permitting the Bar Association to maintain a "close relationship with the Judiciary on matters of mutual concern to the bench and bar" and to promote the "improvement of the Judiciary and [the] administration of justice." To fulfill this purpose, the Judicial Administration Committee, in cooperation with the Judiciary, from time to time convenes a conference of invited participants from the bar and selected participants from the bench (traditionally referred to as a "Bench-Bar Conference") to discuss selected topics that the Committee considers timely, in the hope that those discussions will result in suggestions or recommendations that will improve the administration of justice in the state courts.¹

The 2013 Conference - the subject of this report - followed a prior Conference held in 2012.² Several of the proposals and recommendations made at the 2012 Conference resulted in or influenced certain new procedural rules and legislation (some enacted and some now under consideration). A brief review of those judicial and legislative actions provides an appropriate postscript to the 2012 Conference and, in some respects, helps explain and place in context the work of the 2013 Conference.

THE 2012 CONFERENCE

At the 2012 Bench-Bar Conference, the participants concluded and recommended that telephonic appearances of counsel at non-evidentiary hearings be allowed. In response, the Hawaii Supreme Court adopted Temporary Rule 16.1 of the Hawaii Rules of Civil Procedure and Temporary Rule 58 of the Hawaii Rules of Penal Procedure, which, subject to certain limitations, permit trial courts to allow counsel to appear by telephone or other electronic means.³

Similarly, the attorney participants at the 2012 Conference supported, and the judicial participants did not oppose, the expanded use of wireless electronic devices in the courtroom. In response, the Supreme Court amended Rule 5.1 and adopted Temporary Rule 5.3 of the Rules of the Supreme Court of the State of Hawaii, which, subject to the limitations therein stated, permit the expanded use of electronic devices, such as laptops, tablets, cell phones, smart phones, and similarly functioning devices.⁴ Although the amendment to Rule 5.1 and new Temporary Rule 5.3 were scheduled to become effective at the same time as the Temporary Rules permitting telephonic and electronic appearance of counsel, the effective date has been postponed because of the need to assure that the use of electronic devices with a video feature does not put jurors and witnesses at risk.

The 2012 Conference also considered the inconsistency or conflict between federal immigration rules and state rules when non-citizen immigrants (i) wish to plead guilty or no-contest and be granted a deferred acceptance of the plea (with the prospect that the charge will be dismissed if the defendant does not engage in further criminal behavior for a stipulated period), or (ii) wish to enter the Drug Court program, but are required first to stipulate to the "factual basis" of the charge. In each of these situations, the plea and the stipulation can trigger a deportation (or bar re-entry) notwithstanding the fact that the defendant may otherwise be an appropriate candidate for the relief sought. In addition, statements made at sentencing in cases involving domestic violence may trigger deportation.

In 2013, the Legislature enacted Act 279, which requires a statutorily-prescribed advisement by the court to a defendant, before the commencement of trial, the entry of a plea of guilty or nob contendere, or an admission of guilt or of facts, that the plea or admission may have adverse consequences respecting the defendant's immigration status, and that the defendant has a right to advice from counsel about the specific impact that the case may have on the defendant's immigration status. The state Judiciary has amended the required colloquy between the bench and the defendant and is considering proposed amendments to the relevant rules of penal procedure to ease the friction between state judicial administration and federal enforcement of immigration laws. Although the statutorily-prescribed advisement ensures that a defendant will be fully advised before he or she takes any action that might imperil his or her immigration status, given the constitutional supremacy of federal law, the state Legislature and the state Judiciary cannot entirely resolve the conflict. A comprehensive resolution will require changes to federal immigration law.

In addition to its expressed concern about the adverse impact of immigration law on defendants wishing to enter, and who are otherwise qualified candidates for, the state's Drug Court program, the 2012 Conference questioned the sufficiency of legislative funding for the Drug Court program and the allocation of funds among the various circuits. In its 2013 biennium budget, the Judiciary sought, and the Legislature granted, restored funding for the First Circuit and increased funding for the Third Circuit.

At the 2012 Conference, the District Court civil law participants concluded that the ability to demand and obtain a jury trial for claims starting above $5,000 was out of step with the cost of providing and conducting the trial. They recommended that the threshold amount for jury trials be increased and that, in addition, the jurisdictional cap for District Court civil proceedings be increased to the "$40,000 range." The 2014 Session of the Legislature is now considering a bill for the submission to the public of a proposed amendment to the state constitution to increase the threshold amount (i.e. "the value in controversy") for jury trials in suits at common law from an amount in excess of $5,000 to an amount in excess of $10,000. The Legislature is also considering statutory revisions that would provide for the transfer of cases to the Circuit Court, or the commencement of cases in the Circuit Court, where a jury trial is demanded and the amount or the value of the property claimed exceeds $ 10,000 and to provide that the District Courts shall have jurisdiction in all civil cases where the amount or the value of property claimed does not exceed $40,000 (except that, as under current law, the monetary or value limitation would not apply to claims and counterclaims brought in summary possession or ejectment actions).⁵

THE 2013 CONFERENCE

The 2013 Conference was held on September 27, 2013, in Honolulu. The participants on behalf of the Judiciary were selected by the Chief Justice. Participants on behalf of the bar were selected by the Committee. Extensive efforts were made to achieve a broad representation of attorneys who practice in various areas of civil law and criminal law; attorneys who practice predominantly before the Circuit Courts and those who practice before the various District Courts; attorneys who represent the private sector, and those who represent various agencies of government, including the Office of the Attorney General, the Office of the Public Defender, and the offices of the county prosecutors. The Chief Justice, three Associate Justices, 19 judges, and 108 attorneys and other participants attended the Conference.

The Conference was divided into five separate groups. Two groups addressed civil practice in the Circuit Courts; one group addressed criminal practice in the Circuit Courts; another group addressed civil practice in the District Courts; and the remaining group addressed criminal practice in the District Courts. Each section considered proposed topics thought to be of common interest to those who practice or preside in each of the various courts, and selected topics more particularly related to the court in which the participants presided or appeared. The discussion in each section was guided by a "lead judge" and a "lead attorney," and a report of the proceedings of each section was prepared by a "reporter." This report is a summary of the major topics addressed at the 2013 Conference and the conclusions and recommendations of the participants.

COMMON TOPICS

Expanding the Use of Technology in the Courtroom

In light of the conclusions and recommendations reached at the 2012 Conference and the promulgation of the Temporary Rules permitting telephonic appearances in limited situations, the participants at the 2013 Conference considered the implementation of Temporary Rules, principally involving the use of teleconferences and the prospect of future proceedings by videoconference. While the participants generally favored the increased use of telephonic appearances and telephonic proceedings, including, where appropriate, both non-evidentiary and evidentiary proceedings, many questioned the need for and the expense of, and anticipated administrative problems in conducting, proceedings by videoconference.

With respect to appearances and proceedings by teleconference, there was a clear consensus that such technology should be liberally permitted. Some participants, however, noted that telephonic systems in some courtrooms needed to be improved and that the procedure for arranging telephonic appearances varied from court to court. There was concern expressed that, when the Temporary Rules became effective, mechanical or administrative problems might make telephonic hearings with multiple participants difficult to manage. Nonetheless, even prior to the effective date of the Temporary Rules, trial courts have increasingly permitted telephonic appearances, and the Family Court of the First Circuit has permitted, in some circumstances, evidentiary proceedings by teleconference.

The initial impetus for permitting telephonic appearances was a desire or need to reduce or eliminate the expenditure of time and money required for an attorney based on one island to travel to another island for a hearing...