Senate Standing Committee on Judiciary

Good morning everyone.

Will the joint committees on public safety and military affairs and judiciary please come to order? Today is March 13th. It's 9:30am we are in Conference Room 16 at the Hawaii State Capitol. This hearing is also being streamed live on Hawaii State Senate's YouTube channel. Just a few housekeeping announcements in the unlikely case of technical failures.

This meeting will reconvene in Conference Room 225 on March 14th, 2025 at 3:00pm. For all testifiers, including those on zoom, we ask that you stand on your written testimony. If your oral testimony is different from your written testimony, the time limit for each testifier will be one minute.

The content, including the hearing notice, copies of the bills and testimony can be found on the legislature's website. If time permits, decision making will occur after we hear from those offering testimony. Yes.

If you want, you can. If you can do the drop dead date tomorrow in this room at the same time if it's more convenient because we don't have a hearing schedule.

Okay. Yes. Why don't we. Why don't we do that? So we'll do it 9:30 for March 14th, Friday. Yes. Thank you. Okay, great. Okay. With that, we'll proceed to our agenda. First up on our agenda is House Bill 550, House Draft 2. This is relating to fireworks.

Part one allows recordings made by law enforcement agencies who are using, controlling, or operating unmanned aerial vehicles to establish probable cause for arrests under the fireworks control law if the unmanned aerial vehicle is recording directly above public property or the act leading to the arrest is committed on public property.

Part two appropriates funds to the Department of Law enforcement for the purchase of unmanned aerial vehicles to monitor the use of illegal fireworks. First up on our list, from the Department of Law Enforcement, Director Lambert or Deputy Director Redulla. Good morning.

Good morning, sir. Good morning, members of the committees. My name is Jared Redulla. I'm the Deputy Director for Law Enforcement. Our department is in support of this measure.

Thank you. We have Kazuo Todd, chair of the Hawaii State Fire Council on Zoom.

They're not present on Zoom, chair.

Okay, thank you. Deputy Assistant Public Defender Hayley Cheng, followed by Major Randall Platt.

Good morning, members of the committee. Again, my name is Hayley Cheng. I'm the first deputy of the Office of the Public Defender. We want to emphasize as a part of our written testimony the unconstitutionality of the bill as we see it. You cannot draft a bill that says that there's, that something shall be probable cause.

A probable cause is always subject to judicial scrutiny. There are certain factors that the court may consider in making a determination of whether something may be probable cause. However, as we've noted in the section of the bill under C.

Excuse me, number C, where it says that the drone use essentially shall establish probable cause for an arrest, we do not. We absolutely believe that that would not withstand constitutional scrutiny. That is not something that can be articulated and mandated by statute.

We've also commented on some of our concerns regarding drone use, but we will submit on our additional written testimony, and I will remain available for any questions. Thank you.

Thank you. Major Randall from Honolulu Police Department, followed by Stephanie Kendrick from the Hawaiian Humane Society on Zoom.

Morning, Chair. Co chair. Members of the Committee, Major Platt with the Honolulu Police Department. We stand on our written testimony in support of House Bill 550 draft two. Be available for any questions.

Thank you, Major. Ms. Kendrick.

She's not available on Zoom, Chair.

Okay. Thank you, Greg. Gregory Misa Kien in support on Zoom.

He's also not available on Zoom.

Austin Martin on Zoom.

Yes, he is available on Zoom.

And Gregory was in support. Austin is in opposition. Yes. Please proceed.

Aloha. My name is Austin Martin. I'm here with Young Americans for Liberty today. I, I, I want to stand on my written testimony, and I also want to add and echo what we just heard, that probable cause is not optional.

It's really important that we not try to bootstrap important jurisdictional elements that don't give defendants an opportunity to defend themselves against it fairly. There's good reasons why we have these, these safeguards in our legal system, and it's really important that this body work to uphold them. And so this bill should not be passed.

While I was waiting, I, I wrote a little song, actually, and if, if, if it pleases you guys, I'd like to share it with you because it's, you know, maybe needs a little work. We'll see. I can't promise it'll be great.

And like that. It takes a spark to light an ember. And though you tried to put it out, a fire starts and we remember up. In the sky shoot it out. Don't change our ways, don't touch our culture. Don't make us change, leave us alone. This is our land. This is our moment.

Time is up. I'm sorry, Mr. Martin. Thank you. We'll proceed to our next testifier.

That's all I got. Much love.

Thank you. Is Police Chief Ben Moskowitz for the Hawaii Police Department in support, Chief Sheldon Howe from the Hala Fire Department in support, Bradford Ventura Fire Chief for the Maui Fire Department in support. And then we have Abra Green for the Libertarian Party of Hawaiian in opposition. Then the following individuals in support.

Lynn Murakami Akatsuka, Lynn Matasau, Merle Perotsu, Lisa Anderson, Frank Schultz, Beverly Heiser, Ted Bolan, Daniel C. Smith. All in support. Michael A. Cop Jr. in opposition and Nicholas Zur in opposition. That completes our list of testifiers for House Bill 550 House Draft 2. Anyone else that wishes to testify on this measure? Okay. If not, members, questions? Co Chair Rhoads.

For DOA, if you don't mind coming back up. So we're looking at the bill, and I just. I. I guess I'm a little surprised that law enforcement doesn't have the ability to use drone footage already.

I mean, there's a chain of custody issue, of course, but that's going to be there no matter what anyway, right?

Yeah. So right now, I'm familiar with some case law, some case law from several years ago. And in looking at some of that case law, what. What this bill does is it sort of cures some of our concern with the case law that that happened.

But I think that in the intervening times that the case law was issued until now there's been some reluctance for us to use the drones in our criminal cases.

So currently, does HPD not. Do the county police departments not use drones for surveillance?

So I can't speak to what HPD does. We have some drones in our inventory. They're typically used for more tactical type situations where we need to take a quick look for safety, but not necessarily to gather evidence.

Okay, but there. But there's no. There's no court rule or anything that would. Would prevent using evidence from a from a drone per se, is there?

Well, there was some case law that was issued a few years ago, typically related to helicopter overflight, that may be relevant in this instance of using drones and not being a lawyer. Generally speaking. You know, it talks about bettering your, bettering your vantage point in places where the public may have an expectation of privacy.

But that case law, at least in our operation, has, you know, tempered our use of the drones that we currently have to more the tactical type where we're not gathering evidence.

Can you send us a? The name of the case would be fine, but if you got the case, that would be great.

We'll get a hold of your question.

Thank you. Thanks chair.

Okay. Further questions. Senator San Buenaventura?

Thank you. Yeah, thank you. Mr. Redulla. My memory is a few years back, and I believe it was former Reps. Roy Takumi's bill that we actually passed regarding video recordings of fireworks being allowed in as evidence. So you folks are able to use video recordings, right?

According to current law, yes.

Yes, because I remember passing that bill.

The law would allow that. It's also a question of the prosecutor's discretion in using that. So it's. It's more than one single factor in terms of how comfortable, you know, the prosecution is in using that type of evidence.

So what I'm trying to say, what I don't understand, I guess what, what necessity of this bill is, is it shouldn't matter whether or not the video recordings are made by drone or by regular people because we it to be used as evidence.

Well, in May, some of the case law, if interpreted to apply in the under this proposal, might might tend to chill someone prosecutors comfort or the law enforcement's comfort in using that type of footage. That's why this proposal, with its mandate to only cover a public place would seem to cure some of that issue.

Okay.

Albeit we haven't tested it. Our department hasn't used its drones to collect evidence. We've used it in tactical situations to safely take a look at something without having to put our people there.

Okay. So other than I have questions regarding the shall be, shall establish problem cause. Because to me that, that does become unconstitutional, but the use of the drones itself.

Okay, if we could use does this bill then, because we already have a law that says video recordings were ever taken, whether or not public or private, could be used as evidence for fireworks violations, wouldn't this bill then, if passed, actually limit the video recordings if taken by drones? Because it's only then limited to public areas.

It limited. Correct. But. But that limit may actually increase the comfort to be able to use it for prosecution.

But then you guys can do that anyway, regardless. I mean, the prosecutor can do that anyway, regardless of this bill.

It's difficult for me to speak for the prosecutor right now, ma' am.

Well, okay. Thank you. So maybe I should ask a prosecutor or.

Okay, before we continue, is there any further questions for Deputy Director Redulla? If not, I have a few questions and we can bring up.

I'm sorry, go ahead.

Yeah. So currently now, Deputy Director Redulla, does DLE have drones in your capacity?

We do.

And how many do you have?

I'm not sure, I'm. More than one. I don't know the complete.

And you have licensed people to fly those drones?

A very small number.

Okay, so you don't need any additional funding for this. You just need enabling legislation to allow you to be able to record videos via drones?

Our primary interest in this is to be a part one of this measure which would allow us to use the drone.

Okay. Okay, understood. Okay. Any further questions for Deputy Director Redulla? Okay. If not, there was a request center. You had a request for the prosecutor. Prosecutors.

Yeah. Prosecutor, then. So I understand Deputy Director Redulla's concern regarding part one, but we're back to the question of, since we already have a law that allows for video recordings and it doesn't limit whether or not it's public or private.

My memory of it, but it could be used as evidence, why do we need to use this bill other than the part one section?

And so, Senator San Buenaventura, just first for the record, my name is Daniel Hugo. I'm with the Honolulu Prosecutor's Office, and we're just offering comment on this bill.

Okay.

So the. The case at issue here is a 2017 case, State vs Quiday, which rejected the aerial surveillance doctrine. So most states and in federal court, the belief is that if there is a. That you don't have a legitimate expectation of privacy in things that can be seen from aircraft that are flying at commercial levels.

So if there's a aircraft that's flying very close to your house, you still have a legitimate expectation of privacy, but if it's over that threshold where normal aircraft could be flying, then you no longer have that. So that's the rule nationally. But in Hawaii, there is an expectation of privacy in the zone around your home.

So even flying an aerial drone above your home under State versus Quiday, as a matter of state constitutional law would not be permitted. And so even though there's a statute that enables that, the conflicting constitutional decision by the Hawaii Supreme Court would require either a constitutional amendment or would require the Hawaii Supreme Court to reconsider.

Thank you. Yeah. So if it's a constitutional amendment, then we actually need to have a constitutional amendment to fix that issue, right? So I don't know whether or not this bill would do that because it requires it to go to the voters.

So if my understanding of this bill is that it's attempting to limit the effective area to a constitutionally permissible zone. Public areas.

Okay, but doesn't the prosecutor already have that discretion to limit it without having this bill required?

Right. So I. I think what the intent of this bill is to do is to ensure that there's no challenge that.

That the statute on its face was unconstitutional and that therefore, even if, as applied, it may have been constitutional, making a constitutional challenge to the statute as it stands, I think that if there was a substitution of may for shall in terms of probable cause, that could be an additional thing that would ensure that this statute isn't challenged on constitutional grounds.

Or be a factor towards?

Correct, yes.

Okay. Because. Yeah, I have a problem with the shall because that would require constitutional amendment. Thank you.

Further questions for Mr. Hugo? If not, we'll proceed to our next item on our agenda, which is House Bill 806, House Draft 1. This is relating to fireworks. This appropriates funds for the Department of Law Enforcement to conduct sting operations on Oahu to enforce fireworks ordinances or laws. First up is Director Mike Lambert or Deputy Director Redulla from DLE.

Morning again. Jared Redulla, the Deputy Director. Our Department is in support of the proposal.

Okay, thank you. From the Hawaii State Fire Council, Chief Todd on Zoom.

He's not present on Zoom, Chair.

Okay, thank you. Major Randle Platt.

Good morning, Chair, Co-Chair, Members of the Committee. Major Randall Platt with the Honolulu Police Department. We stand on our written testimony in support of House Bill 808.

Thank you. Stephanie Kendrick from Hawaiian Humane Society in support on Zoom.

She's also not present on Zoom, Chair.

Austin Martin on Zoom in opposition.

Aloha. Austin Martin here with the Libertarian Party of Hawaii. I think it's really important that we take a careful look at what we're doing. A lot of this is attempting to get around the safeguards. Fireworks are already illegal. A lot of this is already at the discretion of the Department and of the prosecutors.

These are enhancements that are not needed, which pose constitutional risks and litigation risks to the State of Hawaii. And I strongly urge you guys not to pass anything regarding the fireworks task force. It should go to sunset. I realized that I had noise suppression on earlier, so you guys probably got an acapella performance. So I'm going to go ahead and share this with you since I wrote it in the waiting room. Kind of cool. Can you hear that? Hopefully it's not terrible.

Thank you, Austin. Your time's up. Thank you. We'll move on to our next testifier, which is Chief Sheldon Hao from the Honolulu Fire Department in support. Maui Fire Chief Bradford K. Ventura in support. We have Abbra Green for the Libertarian Party of Hawaii in opposition. And the following people are in support.

Lynn Murakami Akatsuka, Lynne Matusow, Lisa Anderson, Frank Schultz, Beverly Heiser, Ted Bohlen, all in support. And then in opposition, Michael A. Cobb Jr. and Nicholas Zehr in opposition. That completes our list of registered testifiers for HB 806. Anyone else that wants to testify on HB 806? Okay. If not, Members, questions? Yeah, Co-Chair Rhoads.

For DLE again. So the bill doesn't actually define a sting operation. What does a sting operation mean? Is that a sort of a law enforcement I know what that means in my head kind of a term?

So sting operation is actually police jargon, and it refers to a police or criminal investigation involving the use of deception.

Okay, but you don't think it needs to be defined?

It would help to define the word because it could mean a lot of things, from undercover work to surveillance, that kind of thing, even wiretap type investigations. So it can mean a lot of things. It would help in terms of being able to appropriately use the funding. So, you know, if there were that kind of safeguards, it may help our agency to ensure that we're spending the money in the way that the Legislature wants us to.

Fair enough. Thanks. Thanks, Chair.

Okay. Thank you. Any follow up questions for Deputy Director Redulla? I do have one question for you. So the Senate did pass measures for illegal fireworks task force and enforcement division. So do you still need this measure to...

Yes. So, Senator, the funding that would, that would be conceived in either the illegal fireworks division proposed or the task force is used for operational running that task force in terms of paying for training, paying for storage, those kinds of things. With this particular measure, certain kinds of investigations that we do, especially in the undercover realm, are very expensive. We have to create certain illusions of things and that's where specific funding like this becomes important.

Okay, thank you. Any other questions? If not, thank you. We'll move on to our last item on our agenda, which is House Bill 1483. This is relating to fireworks. Establishes an adjudication system and procedures to process fireworks infractions.

Amends multiple definitions and penalties for fireworks offenses, including heightened penalties if another person suffers substantial bodily injury, serious bodily injury, or death as a result of fireworks offenses. Establishes various criminal offenses and penalties related to fireworks or articles, pyrotechnics, and appropriates funds.

First up on our list is from the Attorney General, Attorney General Ann Lopez, or Deputy Attorney General Nakamatsu. Aloha and welcome.

Good morning Chair Elefante, Chair Rhoads, vice chairs, members of the committee. Deputy Attorney General Tricia Nakamatsu appearing on behalf of the department. We are in strong support of this bill and thank you chairs for hearing it. We also want to thank Governor Green and Representative Masayoshi for their leadership in.

In introducing these bills and making sure that there is a spotlight on these important issues. This bill, as indicated in the description, does quite a lot. One of the most important things that it does, though it doesn't.

It's not as glamorous as some of the other things, is amend the definitions, frankly, to make it to facilitate more effective enforcement of the fireworks control laws, both for law enforcement and for prosecutors.

The definitions would essentially allow us to, when appropriate, prove some of these cases without having to collect for evidence, without forensic testing or the use of expert witnesses, particularly when the fireworks go up in the air and there is essentially nothing left to collect.

It would also strengthen and clarify existing criminal offenses, establish some new offenses, and in particular, establish some heightened penalties for repeat offenders, as well as for instances when people either suffer substantial bodily injury.

Thank you, your time's up.

I apologize. I'm available for any questions.

Thank you. We do have your testimony. Thank you. Director Mike Lambert or Deputy Director Redulla.

Deputy Director Radula with the department. Our department is in support of the measure.

Morning.

Okay, thank you. Chief Kazuo Todd from the Hawaii State Fire Council. On Zoom in support.

Not available on Zoom, chair.

Okay. Hayley Cheng, Deputy Public Defender or Assistant Public Defender.

And good morning again, chairs and members of the committee. Hayley Cheng from the Office of the Public Defender. We submitted very comprehensive testimony on this measure, and we hope the committee will take the time to review it. I do just want to emphasize a couple of things.

Our issue with the bill is really enhancing penalties for criminal offenses that are not readily enforced. This session, we have not opposed or testified in opposition to any of the bills that have sought to increase enforcement, such as the bill preceding this, because we understand the need to respond to the fireworks situation here.

However, as we've outlined, so few cases are ever charged, prosecuted, citations issued, people arrested, so enhancing penalties for crimes that are not currently utilized is not the solution. Enforcement is.

We've also very comprehensively laid out our opposition to the concurrent trial provision, which is actually one of our main issues with this bill and all of the problematic aspects that we believe that will cause, given the difference between civil and criminal proceedings. So I will remain available for questions. Thank you for the opportunity to comment.

Major Randall Platt from HPD, followed by Myoung Oh.

Good morning chair, co chair, members of the committee. Major Randall Platt with the Honolulu Police Department. We stand on our written testimony in support of House Bill 1483.

Okay. Thank you, Major. Myoung Oh, followed by Stephanie Kendrick.

Good morning chairs, vice chairs, members of the committee. My name is Myoung Oh. I'm here on behalf of TNT Fireworks. We offer our comments and offer some amendments. TNT Fireworks has been in business in Hawaii since 1982 and they strictly strictly are involved in consumer fireworks, not the display or pyrotechnic.

So it includes the novelty sparklers, fountains as well as firecrackers. With respect to 132D-E, it doesn't address the different enforcement or regulation of consumer fireworks varying across from county to county. Here in Oahu, sparklers, fountains, they are prohibited through county ordinance. On the neighbor islands, it is allowed.

In addition, the neighbor islands do require permits, 5,000 individual firecrackers for every $25. Again, this bill under the prohibition of consumer fireworks. Yeah. Thank you.

Stephanie Kendrick in support on Zoom.

She's not present on Zoom, chair.

Thank you. Gregory Misakyan in support on Zoom.

He's also not present on Zoom.

We have Chief Sheldon Howe from the Halu Fire Department in support. Chief Ben Moskowitz from the Hawaii Police Department in support. Andrew H. Martin, prosecuting attorney for Maui County in support. Chief Brad Bradford K. Ventura for Maui Fire Department in support. Comments is Danielle Pert for Phantom Fireworks offering comments.

Abra Green for Libertarian Party of Hawaii in opposition. The following individuals are in support. Lynn Murakami Akatsuka, Lynn Matasau, Lisa Anderson, Frank Schultz, Beverly Heiser and Ted Bolan all in support. Michael A. Cobb, Jr. In opposition. And Nicholas Zur in opposition. That completes our list of registered testifiers for House Bill 1483, House Draft 1.

Anyone else that wishes to testify? We'll start first with Mr. Hugo and then the gentleman in the back. Yes.

Good morning Chair Elefante, Chair Rhoads, and members of the committee. Daniel Hugo for the Honolulu Prosecutor's Office. And our office is just offering brief comment on this bill. And what we're focusing on here is the definition aerial device.

We believe that the proposed definition that's given for aerial device should be given for a separate term, perhaps fireworks nuisance and the original aerial device definition preserve. And here's why. The term aerial device is not just used for prohibitions, but it's also used for licensing and other provisions of the fireworks control law.

And so if there's, if the explosive threshold of 130 milligrams is removed, that could potentially mean that high explosives would now qualify as aerial devices.

I think that the intent of this bill to allow for prosecution in cases where the firework is already exploded and where we are not able to get that explosive content is a good thing and should be preserved.

Thank you, your time's up. Thank you.

Thank you.

Aloha. Welcome and if you can identify yourself.

Aloha Chair. Aloha Vice Chair. Hello. My name is Joshua Duhaylonsod and I'm here on behalf of HIPyro, Hawaii Explosives and Pyrotechnics. We are a small local business that does majority of Hawaii's fireworks. And the way that this is written, HB 148 in specifically 132D-6 it would. It would stop us from doing legal fireworks in Hawaii.

And we know the goal is to crack down on illegal fireworks and we are all for that. We love our dle. We love everyone and what we're doing. However, the way it's written, it would stop. It. It allows pyrotechnics for theater productions, professional. I mean theater productions and movie. But it takes out professional licensed productions like us.

That's our Friday Waikiki. And so we have to oppose this as it's written. But we've been working with the Attorney General and we would like for us to just be able to do what we're doing because we're doing it legally. Thank you.

Thank you, Mr. Duhaylonsod. So anyone else on House Bill 1483. If not, members, questions? Yeah, Senator San Buenaventura.

for the Attorney General. Are you listening? Come on up, Tricia. So you heard from TNT Fireworks and the last gentleman. Are you proposed.

For the Attorney General. Are you listening? Come on up, Tricia. So you heard from TNT Fireworks and the last gentleman. Are you proposed.

Do your proposed amendments allow for them to continue to do business like TNT wants to be able to? Even though it's illegal here on Oahu, they want to be able to sell to other counties like my island where it is legal for certain fireworks.

Did our testimony in this bill?

If I propose amendments.

Yes, that should address.

So that's the question. Does that also address what the last gentleman talked about, which is like the Hilton Hawaiian?

Okay. Just want to make sure that everyone's happy.

Yes.

Yes. And it's true that we have been talking with them. They've been a great partner in the community to help explain the industry and we are speaking with them.

Thank you.

Thank you.

Any further questions for deputy Attorney General? Co Chair Rhoads.

Thanks. So the proposed adjudication system for fireworks looks an awful lot like the adjudication system for traffic tickets and emergency order violations.

It does.

Do we need to create an entirely new system for something that's rather sporadic? Like normally you get spikes after New Year's or after fourth of July.

Well, we do need this system because currently there is no system to handle non traffic or non emergency infraction offenses or other types of like criminal types of offenses? It's a lesser but.

Yeah, the criminal part I understand, but just the infractions that aren't criminal. Would it, would it be a problem if we moved it into the same into 291D that covers traffic tickets and emergency emergency order infractions.

The only thing about 291D is that it's currently contained in title and I'm sorry, I should have had that ready. But the portion of the HRS that is contained in pertains to motor vehicles. So it is a little bit unusual that even the emergency infractions were placed under that expanded under that section.

But the place that we're proposing to put it actually deals with more procedural issues for all all other types of cases. Whereas the title that 291D is is specifically titled Motor Vehicles.

Okay, so then that sort of, that sort of asked the question, well, they should remove the. Well, the bill title probably won't let us. But emergency orders, I mean there's no constitutional problem with the emergency orders being adjudicated with traffic tickets on there. Is it?

We're not aware of one. No, it's just oddly. Yeah, perhaps. I think I see where you're going. Is that in a future bill, perhaps it might be appropriate to move it to a non motor vehicle title.

Because for something like this where it's. I mean traffic tickets of course are all day, every day, all the time, but emergency emergency order violations are going to be pretty sporadic too, hopefully.

Yeah.

And this would also be something where you have spikes and it just seems kind of wasteful to have an entirely different system just for one, you know, for three times a year.

I suppose there will be spikes. Yes. But we feel that the fireworks infractions will probably be a lot more frequent than emergency order violations.

Well, that's probably true. Okay. On a different topic, is the intent of the bill? It wasn't clear to us when we read it whether the counties are still the ones that will issue the permits. Is that your intent, that the counties issue the permits?

Yes, I believe HRS180. I'm sorry, 132D8 controls the procedures for applying for licenses and 132D16 controls the permits applications. So my understanding is that I believe those are still done by the counties.

However, I do note that there was one portion in the bill, and this may be the source of confusion, is that on page 52 of the bill, line three, we did strike out the words has a valid license issued. We struck out by the county.

The intention was not to say that they won't be done by the county anymore. It's just to strike out that unnecessary language because further down, about three lines down, page 52, lines 9 to 10, it says something similar about permits, and it just says permits provided in this chapter, pursuant to this chapter.

So it was unnecessary to have the words by the county in the higher line. And also we wanted to provide for the possibility because there's so much talk about a state fire marshal and things like that. We wanted to leave that more to sections 183D8 and 16.

So if those sections change and those control how the applications and the licenses and permits work, that there wouldn't be some possible oversight in these little cleanup provisions.

Okay. I just want to be sure that's what we're still doing. That would be a fairly major change.

Yeah, no, that was. Thank you.

Thank you. Any further questions for Deputy Attorney General Nakamatsu? I do have a question for you, so I'll go to page 55 of the bill. This is under HRS 132D-10 under permits.

So currently in the draft of the bill, I think this was in the original language as it got amended, it maximizes the amount of permits to 50 per year, which would be for the professional and consumer for cultural and commonly known as firecrackers. Would the.

Would the AG's office be opposed if we were to put a maximum cap for each of those levels for consumer and also for the professional?

We hadn't really considered it. So I can take that question back to the department.

Okay. Because how I read this is it's 50 for any one of those categories that someone could get. And currently now there's no cap, right?

Correct. Correct.

Yeah, okay. Thank you.

Thank you.

Any other questions, Members? If not, there anyone else on HB14V3. Okay. If not, I'm ready to be ready to roll. Yeah, I think so. Ready to roll into decision making.

Yeah. So, yeah, I'm open to that. I mean, I think the question is it's not so much whether the information that you get from a drone is going to necessarily provide the evidence necessary to provide probable cause. It's just that particular way of collecting information is fine.

So whatever we need to do to get to that point I think is perfectly legitimate.

Okay. Let me make my recommendation and we can go into discussion. We'll do that. Okay. So chair's going to recommend that we pass with amendments first on page two. Remove line seven and replace it with aerial vehicle. May be used to establish probable cause pursuant to Chapter 803 for an arrest.

If we're going to keep the defective date. Yes. zero, I'm sorry. Let me go back. Okay, so we're rolling into decision making. This is on House Bill 550, House Draft 2. This is relating to fireworks. Recommendations to pass with amendments on page two. We're going to remove line seven and replace it with aerial vehicle.

May be used to establish probable cause pursuant to Chapter 803 for an arrest. If and I think that should address the concerns raised by the public defenders. We're going to keep the defective date. We're going to add technical amendments and in the Committee report, we're going to include that dle does not require additional funding in the budget.

And subsequent to that, we're also going to delete section two on page three, lines one to eight. And I don't know if you wanted to change any references from shout to may co chair throughout the bill. What do you think that section.

I think what you've already said is, is going to. Yeah. Address the issue and then we'll see what we get at the next Committee.

Okay. Okay. So with that. And it's. And it still has a defective date on it. So we'll keep that with those changes. Any discussion? Okay. If not for the Committee on Public Safety and Military Affairs, Vice Chair Wakai for the vote.

[Roll call]

Same recommendation for JDC Members. Any questions or concerns?

[Roll call]

Okay, thank you. Our next item on our agenda is House Bill 806 House Draft 1. This is relating to fireworks recommendation here is to pass with amendments. We're going to put an effective date of July 1, 2025 and tech amendments. Any discussion? If not Vice Chair Wakai for the vote? Chair votes aye, vote yes.

[Roll call]

Your recommendation is adopted for HB 806. Judiciary Committee Members, same recommendation. Questions or concerns? Comment. Sorry. Go ahead. Thank you.

Yeah. Both this bill and the last bill, I just want to point it out that in the Committee report asked for about $2 million for each one to buy drones, the other for enforce the ordinances. But it's really disappointing to sit here as a Senator.

Spent all this time while you guys come all the time and know that we're addressing something that was was in the media. It was so hyped up in the media.

So much attention heartstrings because of the deaths and and you know, we wish all of those families were affected but 200 plus people die from overdoses fentanyl crystal meth in Hawaii and we're going after fireworks instead of criminals with drugs and we're putting all our money there. It's so disappointing. So low to all of these bills.

Okay. Other comments or concerns if not Senator Gabbard on HB886HC1 to pass with amendments.

Of the Members present are any no votes or reservations.

No reservations for Senator.

The measure passes.

Okay, thank you. And our last item on our agenda is House Bill 1483, House Draft 1. This is relating to fireworks recommendation here is to pass with amendments. We're going to accept the AG suggested amendments in their testimony.

On pages 54 and 55 of the bill, we'll add in provisions establishing a maximum amount of permits a person may purchase under each of the three categories. So for HRS.

132D10 permits one for any consumer fireworks commonly known as firecrackers, upon payment of a fee of $25, we're going to add in language that says and each person may purchase a maximum of 10 permits per year for subsection 2, any aerial devices, articles, pyrotechnic or display fireworks for the purposes of Section 132D16, upon payment of a fee of $110, we're going to add language that says and each person may purchase a maximum of 50 permits per year for subsection 3, any consumer fireworks for cultural uses that occur at any time other than during the periods prescribed in Section 132D3, subsection 1 upon a payment of a fee of $25, we're going to add in this language that says and each person may purchase a maximum of 10 permits per year.

We're going to remove the proposed new subsection B from 132D10 on page 55. And then I know there was a question about counties. We're going to include language that authorizes counties to issue permits and then add in tech amendments and put an effective date upon approval. And then Chair Rhoads, did you have anything else to add?

Yeah. So we'll also go ahead and integrate the fireworks violations of similar severity into the existing system for adjudicating traffic ticket and emergency violation orders in HRS. Chapter 291d. I'm not necessarily wed to this in the end, but I don't think it makes any sense to have an entirely separate system for the same sorts of violations.

And it also may make sense at some future date to pull out emergency order violations and fireworks and put them in a different system. But at the moment, I think let's. Let's try this and see what we get once we've got a draft and.

We're agreeable to that proposed language. And just as a additional comment, in the original proposed bill and the draft that the House sent over, they had a purchase of a maximum of 50 permits per year for consumer and professionals.

So the suggested changes would limit the amount for consumer permits for individuals to just 10 for consumer and cultural while keeping professional displays to still at a maximum of 50 per year. With that any further discussion? Members?

Yes, I believe the numerosity of permits should be determined by the county, not by the state. And for those reasons, I'm going to vote no.

If we were to move it and authorize just the counties to do that, would you be okay?

I would be okay.

Okay. So with that, what we'll do is we won't put in the. The caps for the permit. So we'll go back to what the original draft language was, which was maximum of 50, and allow the counties to decide. Decide that if they want to authorize a more stringent. For that. Yes. Okay. That. Anyone else okay with that?

As I mentioned, pass with amendments. Chair votes. Aye said for the vote.

[Roll call]

Same recommendation for JDC Members. Any questions or concerns? Bingo.

SG with all Members present. Any. No votes or reservations?

Just a reservations for me. I, I appreciate them. And.

And Senator Awa.

No, thank you.

Okay. And the measure passes. Thank you. Okay. That concludes our Joint Hearing today. We are adjourned.

Okay everyone, we do have another Judiciary Committee only hearing that was supposed to start at 9:45. We'll go ahead and get going on that. If we have, we do have a, we have a longer time limit, two minutes in this Committee when on our own.

And if there's a catastrophic failure on the zoom side, we'll go to 10 o' clock tomorrow in the same room 016 and tomorrow is Friday, March 14th. Hopefully that won't happen. First up on this agenda is HB127 as relates to requires bail to be set in amount that defendant can afford based on certain factors.

First up is Jennifer Wong for the Judiciary on Zoom.

Perhaps.

not present on Zoom chair.

not present... Comments. Next is Sonny Ganaden for the Office of Public Defender. Good morning.

Good morning, Chair. Vice Chair Sonny Ganaden, Deputy Public Defender. The Office of the Public Defender supports this Bill. As the chair knows, there have been several reports that have come to the Legislature over the last several years regarding pre trial reform, the most recent one being 2019. We believe this is amongst the most conservative of those measures.

This would simply put a conversation on the record, a formal discussion with the defendant about the use of money bail. We think it just puts some teeth onto HRS 804.9 and provide some uniformity across the state. It would put us aligned with the majority of states now as well as the Federal Government.

Although no state has completely ended bail, it's in the Constitution. This would kind of get us aligned with best practices. Thank you.

Thank you very much. Next up is my prosecutor's office. In opposition, Christine Denton for Department of Prosecuting Attorney. Yes. For city and county. Good morning.

Good morning Chair Rhoads, Vice Chair Gabbard and Members of the Committee. Daniel Hugo for the Honolulu Prosecutor's Office. We're opposing this Bill and our written testimony covers some of the public safety concerns that we have.

But I also think that the Committee should consider the second order effects of requiring defendants to put under oath or their lawyers to make as representations, specific financial representations about the defendant. Those sort of statements could be used in subsequent prosecutions for perjury because sometimes people lie about their finances.

And even if state prosecutors and county prosecutors were prohibited by statute from using that information, there's nothing that prevents the U.S. attorney's office from using that. So I think even for people who are considering the interests of defendants, this Bill has not been thought through thoroughly. Thank you.

Thank you. Next up is Kelden Walton for the County of Hawaii, Prosecuting Attorney. He is the, he is the office... He is the prosecuting attorney on zoom.

He's not present on ZOOM Chair

In opposition next is Rebecca Leake, the Kauai prosecuting attorney. Also in opposition next is Cat Brady Community alliance on prisons. In support, Nathan Lee, ACLU of Hawaii.

Good morning. For the ACLU of Hawaii. We are in support. We believe adopting this Bill will help ensure that the freedom of individuals is not determined by their ability to afford bail. We believe this will also create a more intelligible decision making process without sacrificing public safety.

The example of other states that have passed far more protective bail reform suggests that this Bill, which is, as noted, relatively modest, will reduce the criminogenic effects of pretrial detention without sacrificing public safety. We also want to echo that...

We believe this Bill already will actualize the protections already present in 804-4 of the statutes by including an obligation to enter written findings and also fulfill the mandate in 804-9 already existing to make sure that bail is not a privilege useless to the poor.

We also believe this is consistent with the Hawaii State Judiciary's Criminal Pretrial Task Force and their recommendations issued in 2018. And we also want to note and we want to acknowledge that there is a current penal code review issued by the judiciary and the ACLU does have representation.

And we believe that that review force has more than enough on this plate. And given how modest this measure is and how consistent it is with existing statute, we believe that there is no conflict here.

We also want to lastly note a proposed amendment just to revert the Bill to echo some of the original language requiring the court to enter on the record written findings on why conditions imposed on the defendant are necessary to ensure the defendant's appearance.

And so not just going to why is the bail being set at what it is, but why are any of the conditions being set?

And we believe that this will help people understand why they're being held and also why the conditions are being imposed upon them, which is important and also recommended by the American Bar Association affirmed in federal law and affirmed by the US Supreme Court in its decision. So happy to answer any questions. Thank you.

Okay, thank you. Next up is Lauren Walker, Hawaii Friends of Restorative Justice. In support, Amy Zhao for EMU Alliance in support. Nico Leverance for Hawaii Health and Army Deference Center, in support, Jamie Detwiler Island Republican Islands Republican Women, in opposition, Andrew Crossland for Hawaii Patriot Republicans, in opposition, Steve Santos for Calvary Chapel west side.

In opposition, Michael Older maybe on Zoom.

He's not present on zoom Chair in opposition.

Okay. Then there's a long list of individuals, the vast majority of which are in opposition. I'll give you the stats as soon as we're done with the testifiers. Anybody else wanted... Would anyone else like to testify on HB 127. Okay. Seeing none. So the statistics overall are 8 in support, 49 in opposition with one common. Okay.

Members questions.

If I could testify on this, I would be grateful.

I'm sorry, who. Who we.

This is Austin Martin with the Libertarian Party of Hawaii overseas.

Okay, go ahead. You have two minutes.

Just. I'll try to keep it brief. We do need some reforms in this area. However, this is extremely misguided. I, I definitely want to see criminal justice reform. It's rare that I agree with all the prosecutors, but the problem here is is that money and inequality are not greater enemies than tyranny.

A tyranny sincerely exercised for the good of one's victims may be the most oppressive. This is a CS Lewis quote and I think it's really applicable here. "To be cured of states which we may not regard as being diseased puts us on the level of imbeciles and animals."

I believe that these people mean well and that they want to do well, but what they will do is erode the important protections against the abuses that can so often happen unintentionally in the court system.

The bail may seem unfair, but there's a reason that we have that system and it's not because that's necessarily the most equitable in all regards. And I realize that there's problems with it. It needs to be addressed, but there isn't a better option on the table here. This is very dangerous what we're talking about doing.

And thank you for listening. I'll leave it there.

Thank you very much. Would anyone else, Anyone else like to testify in HB127? Okay, seeing none. Members questions? I have a question for Mr. Hugo, if you're still here. So the notion that if you're giving information at a bail hearing or under or when you're in police custody, when you're initially given bail, typically that's not under oath now?

No. In most cases, the way that a typical bail hearing, the financial status of the defendant, they can volunteer some facts, but we don't have any sort of detailed accounting. So typically a judge will say that this person's represented by the office of the public defender and there where they're indigent and make that finding.

Now, if we get into detailed financial accounting that's where deviations from facts which can be proven with bank records becomes an issue. That's exactly how the feds nailed Al Capone. Tax evasion.

Right, but isn't there, there's, there's no expectation that you're telling the truth when you're supplying that information?

Well, there's definitely an expectation. And if you falsify it and that, and that's the issue here. Right. Because believe it or not, sometimes people don't tell the truth.

I don't find that difficult to believe at all. But no, what I'm saying is if you're in front of a, in front of a judge or a police officer who's giving the initial bail, there's no, you're not on the hook for lying to a public official or one of those lesser not perjury charges.

Well, it's, it's the level of detail. Right. If you say that if you represent to the court that you're indigent, that's a very difficult thing to prove that you're lying. If you represent to the court that you have these specific payments from Social Security, that's a very easy thing to disprove.

Right, but what were you. But what you were arguing was that just you want them to be under oath when they make these statements. What I'm saying is they're not under... What I'm asking is they're not under oath. Now, whether it's hard to prove or not is irrelevant. Are they under oath?

So typically, the maneuver that's done is that the, the defense attorney will say, this is my understanding of the, or some sort of thing like that. It's not as detailed as what this Bill is proposing. Okay.

All right, thank you. Hang on just one second to other questions, other Members. Okay, thank you. I just wanted to double check. If that's... no other... There are no other questions. We'll go ahead and move on to HB395. This is.. increases the amount each drawer or prospective juror is paid for each day of actual attendance at court.

First up on 395 is Michelle Acosta for the Judiciary. Good morning.

Morning. Chair, Vice Chair, Members of the Committee, Michelle Acosta here on behalf of the judiciary. We stand on our written testimony in strong support of this Bill. And it increases the current per day rate of $30 to $50 per day. Again, we stand on a written testimony. Support, available for questions.

Great, thank you. Next up is Darcy Foster for the Public Defender. Good morning.

Good morning.

Chair, Vice Chair and Members of the Committee. Hayley Cheng, first Deputy of the Office of the Public Defender.

We submitted brief testimony but just want to emphasize the challenges that we face getting jurors to come to court and the financial obligations and the financial burdens that they face, especially given the more lengthy trials, is significant and sometimes causes us to lose jurors. And the increase is only nominal. We do understand that.

But anything is better than nothing. So we stand in strong support and I will remain available for questions. Thank you.

Thank you. Next is Mark Murakami for Hawaii State Bar Association. Also in support, Frank Schultz and support. That's everybody who signed up on HB395. Would anyone else like to testify on HB395, seeing other Members questions? Okay, we'll go ahead and move on to HB396.

This increases the rate of compensation and maximum allowable amounts per case for court appointed Council on Criminal Proceedings. First up on 396 is Ronald Johnson for the state the Judiciary. Morning.

Robert Kim on behalf of Judge Johnson. Thank you, Sherry. As pointed out in the Testimony. They have 13 attorneys in Oahu that do class A cases. Those are the most serious cases. And what's happening statewide is we're all taking attorneys from Honolulu, they're taking attorneys from Kona, we're taking attorneys from Maui.

And the pool has shrunk so far and you're competing against the feds. And the feds are paying 175 and 223 for capital cases. And so attorneys are saying, okay, thanks, I'm going to the feds. And that's what we're seeing.

And so if we can't get it right, and remember this, this issue came up last time and went all the way to conference where it stopped. This is really important now. It's affecting due process. It's... I have testimony on behalf of Third Circuit and I'll just introduce it now.

In the third Circuit in Kona, public defenders lost half their staff and came to the court and said we can't do A felonies, the most serious cases and we can't do DUIs. And just last month we had 137 cases that we couldn't find attorneys for.

Luckily, two Maui attorneys, young attorneys, two women came over and took 40 cases. We still got 80 cases or more right now. Some cases have been dismissed, some cases have been continued so long, months, that the defendants say, I don't need an attorney, I will just represent myself. And that's because we can't find an attorney.

And so it's a matter of due process. It's gonna. It's gonna. System's gonna break down if we can't get this addressed.

Thank you. Thank you. Next up is Darcia Forster, public defender or designee. Good morning again.

Good morning again. Hayley Cheng.

On behalf of the Office of the Public Defender. I know this Committee has considered this measure before. I just want to emphasize on behalf of the office and the criminal bar, the critical phase that we are at and the necessity to pass this. The Bill has not. Excuse me. The rate has not increased in over 20 years.

Attorneys in the private sector would never take a case for $90 an hour. And the caps are equally problematic for a petty misdemeanor, which a DUI is. To reference what Judge Kim was talking about, a court appointed attorney will only make $900 for taking a DUI case.

There is not a single private attorney that I know that would take a DUI case privately retained for anywhere close to $900. The reason is they're highly litigious. There is a lot of things that go into that. Our office in collaboration with the judiciary helps secure court appointed counsel for our conflict cases.

When we have co defendants, when the clients let go of their public defenders, there is a critical need and we are losing good attorneys from the list. We are not able to retain our good attorneys, especially for the more critical cases. Some of the most serious offenses, murders, sex assaults, kidnapping. We are losing.

As Judge Kim referenced, we only have 13 attorneys and they routinely turn down the opportunity to represent clients because they are either overly burdened or it is just not financially worth it for them. We, this is something that we are dealing with every day. We are asking the Committee to be responsive.

We are really at a crisis point in terms of legal representation and we do fully believe that it's going to become a due process issue. Thank you. And I will remain available for questions.

Thanks very much. Next is Director Salivaria for Department of Budget and Finance with comments. Next is Martin Recomi, Hawaii State Bar Association in support West Hawaii Bar Association President on zoom. Good morning.

Good morning, Committee Members. My name is Annaliese Wolf. I am the current President of the West Hawaii Bar Association and I'm here to testify in support of this Bill on behalf of the entire West Hawaii Bar. As Judge Kim mentioned, it is a absolute crisis here in Kona getting people to take on cases.

My day job, I am a deputy prosecuting attorney and I can tell you that it hurts everyone when we can't have appropriate criminal representation before the courts. Serious cases are not being able to be stopped by the public defender's office.

It is hard for Honolulu attorneys to take on cases outside of their jurisdiction or Maui attorneys and either come over here and handle very serious matters. As the public defender counsel mentioned, the rate has not increased in 20 years.

And I completely support what she had to say regarding how private attorneys would not take care cases for the amount of money that is being paid through the judiciary. So we urge you to pass this Bill. Thank you. I'm available for questions.

Great, thank you. Next up is Jennifer Wharton for the law office of Jennifer Wharton. In support, Joanne Hicks, also an attorney in support.

Hello.

Oh, you're here.

Hi. Yeah. Let's see. I'm trying to start my video here. There we go. You know, I did submit a letter. Good morning chair, Vice Chair, Members of the Committee. Thank you. I didn't mention earlier that I was going to test to find person, but I have some time. You know, I did submit my letter.

I stand on my letter, but I wanted to emphasize a few things and also give you a little background kind of on what my experience. So previously I was a prosecutor with the city and County of Honolulu, the County of Kauai and the County of Maui for approximately the last nine years or so.

In 2023, I broke off and started my own solo defense practice. So I am a solo defense attorney and the majority of people that take your court appointed cases tend to be solo small businesses such as myself.

And I want to just give a little business perspective because I'm not sure that that's been represented in prior letters or testimony. From the business perspective, the average defense attorney rate, at least on Maui that I'm aware of is about 350 an hour. That's what I charge.

And for DUI's specifically, I'm one of the two attorneys from Maui that took on the huge number of Kona conflict cases for the public defenders because they simply couldn't help. I consider that honestly as kind of pro Bono. It's an extraordinary amount of work.

Just to give you a ballpark, a DUI, privately retained, which is not hard for private attorneys to get business for. I charge around 4,500 to $5,000 as a flat fee and some attorneys charge for up to $10,000. Our services are not cheap.

You know, at the rate of $90 an hour per case for the average amount of work I might do, maybe, maybe I'll get out like $1,000 from it. So, you know, it's... This is a huge loss in terms of business. And for attorneys our value is our time.

I only have so much time in a day to work and it makes sense to work at the highest rate. So to survive as a small business it doesn't make sense to take on these court appointed cases at $90 an hour. Honestly, I enjoy them the most because I strongly believe in access to justice.

Thank you very much.

Okay, thank you. Thank you.

Thank you for being here. Next is Victor Cox in support. John Nober in support. Emil Makasinog in support. Frank Schultz in support. Corey Weinberger on Zoom.

Yes, they are here on Zoom.

Good morning.

My name is Corey Weinberger. I'm the Vice President of the West Hawaii Bar Association and I don't want to take up much of your time. Annaliese had covered most of what I have to say and I do stand on my written testimony.

But I did just want to emphasize how important this Bill is and emphasize the crisis that we're experiencing here in West Hawaii. I saw Bill Heflin's testimony to a different Committee last week and he had said that the system is in danger of collapsing. And frankly I would argue that in West Hawaii it has collapsed.

I heard Judge Kim's numbers of the number of people who are without representation. To have that number be in the three digits. It's unbelievably problematic and really the only way to solve this problem is to give the court appointed council a raise.

I don't think anybody on this Committee would have stayed with the job for 20 years with no raise. And yet that's what we're asking our court appointed council to do in this essential work. So I just really humbly ask this Committee to take this Bill seriously and to to pass it. Thank you very much for your time.

Thank you. Next is Georgette Yingel in support. Carol Kitaoka with comments. And that is everyone who signed up to testifying. That's HB 395. Would anyone else like to testify in HB 395? Sure. Come on up.

Aloha. Thank you for...

I'm sorry.

396 I apologize. 396

no worries. Thank you very much for hearing me out on this.

I'm sorry Mr. Martin. We're taking. I'll let you testify but we have someone else here in person first.

Go ahead.

No problem.

Good morning. Chair, Vice Chair and Senator San Buenaventura. I am Bill Heflin. I am the current President of the Hawaii County Bar Association. I did submit written testimony. I stand by that. I came here because I. I agree with everything that was just said. And Kona is the canary in the coal mine.

The system is collapsing. We're already dismissing petty misdemeanor cases. Those are the lowest level of criminal cases. If something is not done, it's going to become misdemeanor cases and felony cases. This is becoming a public safety issue on top of everything else. My hourly rate is $400 an hour.

If you came to my office like the young woman who just testified and wanted to hire me or my partner to do a DUI case for us, we would charge you $5,000. We are working at $90 an hour. I am one of the few attorneys left, along with my partner on the class A level.

We get calls from the Kona courts all the time to take cases. I've actually started getting calls from Oahu to take cases. I just cannot emphasize. I like public service. I'm an army brat. I'm prior service military. I'm an Eagle Scout. I actually believe in public service.

And I don't think most of the Members here understand how this system works. It's not like, zero, can you please help? We have somebody next week who might need help. It's Bill. Can you come at 11:30 this morning? Because we have somebody in custody who needs a conflict for family court case.

Doesn't make a difference if I'm doing other things. I sometimes have to say, you know, I can't, I'm really sorry. I've got an appointment. I have a woman who's paying me 400 for a divorce. I need to work on that case. I get calls from judges personally that I have social relationships before they became judges.

It's very hard for me to say no. When a judge calls you personally and says, Bill, can you please come in and take this case at one o' clock? There's nobody else. Thank you very much.

Thanks for, thanks for coming up for this.

There was someone on Zoom that wanted to testify. Go ahead. Two minutes.

Aloha. Thanks for hearing me. Austin Martin with the Libertarian Party of Hawaii. And I just wanted to testify in cautious support of this Bill. It's rare that I agree with so many attorneys in one room, but they're right. It's a, it's a, it's a five alarm fire and it needs to be addressed.

But I would also point out that this Bill doesn't address the root cause issues. One of those root causes is that we have very high and expensive entry requirements with less than optimal ongoing training, accountability.

And I think that if we crafted a Bill that aimed to make it easier and more attractive for attorneys to practice out here and focused our quality control efforts on the ongoing practice rather than on entry bars.

I think that we would do really well to increase the number of attorneys practicing and the rates that they would be able to get with a little more free market, a little less government regulation on the practice. And I don't know, maybe I'm probably the minority opinion in the room on that.

But it is important that we make sure that our defendants are represented and have access to attorneys. And that is a real problem out here, I know from firsthand. So definitely kind of weird to be on the same side as all the prosecutors and the lawyers today. But so it is. Aloha. Thank you.

Thank you. Anyone else wish to testify on HB 396? 396. Okay. Not seeing none. Members, questions seeing none. Let's go ahead and move on to HB 398.

I'm sorry.

Oh, I'm sorry. I do have. Go ahead on 396.

Judiciary, I guess. Judge Kim, could you come on up? I have a question.

Robert Kim, Court Administrator, Third Circuit. Yes.

Okay. Do you folks... I'm sorry, I didn't see it here. But what, what amount are you, are you folks proposing for the blank appropriation to be able to increase the rates that you folks are asking?

I believe the testimony of Judge... Judge Johnson. It says 3,890,000.

Yeah. There... 396 is a blank appropriation on the second page.

I'm already had already moved down to 398.

I'm sorry, 398.

Okay. Yeah. I'm sorry. Go ahead.

Are we speaking 396 again? We are, right?

396. Yes.

Yeah. On the, on the last page of Judge Johnson's, it says respectfully request the appropriation of 2,890,000 to be included in section two of the proposed legislation.

Okay. And 398. You folks are... My other question is, did you folks do some kind of survey to determine that whether or not the 150 and 122 is enough to be able to attract... I mean, it's a substantial amount compared to it was.

Yes. I mean, I don't think we did a survey, but we talked to all the attorneys. And they're telling us you have to be competitive with the federal rate. Otherwise we're not...

I mean, what I'm hearing, frankly, is that it doesn't really matter how much money, and I'm poor because I've done court appointed cases. And I know that it is a huge public service and I know even before I retired from court appointed that a lot of my, because of the caps, a lot of my work was unpaid. So my question is... I'm sorry.

For court appointed, that's the next bill.

That's 398. Right?

So if you want to ask about that, then let's wait until we get to that bill.

Okay. We're still, we're still at 396.

Yeah.

Okay. Thank you.

Anything else? Okay, moving on to 398. This increases the rate of compensation and maximum allowable amounts per case for court appointed counsels and guardian ad litems in family court proceedings. First up on 398 is Dyan Medeiros for the Judiciary or her designee. Good morning.

Good morning, Chair, Vice Chair, honorable Members of the Committee. I'm Andrew Park. I'm Judge Medeiros' designee. I'm a family court judge in Kapolei out here in the First Circuit. I'm going to submit mostly on our written testimony in strong support of this bill. I testified before this Committee previously on the Senate companion bill, 265, which was treated favorably by this Committee. And since the last time I testified, there's actually been a change in circumstance.

I mentioned previously that we had four attorneys on Oahu in child welfare cases who were consistently ready, willing, and able to accept counsel on child protective act cases. Since the last time I testified here, one of those attorneys is dealing with a medical situation and is unavailable, reducing our workforce by a quarter. And these are important cases.

This Committee previously heard testimony from court appointed counsel that we have on the juvenile offender calendar, and we have on the First Circuit three of those individuals who are all kind of retired from their former lives as public defenders and whatnot.

And so the same type of crisis that the criminal courts are experiencing with court appointed counsel, we are experiencing also for our court appointed counsel and guardians ad litem in the family courts. So I'll remain available for questions, and I will ask for your favorable consideration.

Thank you. Thank you very much for being here. Next up is Judge Kim for Judiciary as well. Morning again.

Morning, Chair, Vice Chair, Members of the Committee. We strongly support this bill. In fact in family court, guardian ad litems and other received $60 out of court and $90 in court. And so that's even less. What I just want to say is that the most vulnerable people in our society are the children who are caught in the either foster custody whose parents are going through a divorce. As a former judge and attorney in family court, the guardian ad litem is required to keep in contact with the child.

A lot of times the children never come to court. In fact, they don't come to court. And so that's the lifeline, the voice of the children. They speak to the child's resource caregivers, foster parents. They speak to the children's teachers, the counselors at schools. They get report cards, they speak to the children's therapists, they monitor the child.

If they're seeing a medical doctor or dentist, they are the lifeline. They are the eyes and ears of your judges. And the reason I'm so concerned is we know what's happening in society, and when the children are at risk because they don't have proper representation, that hurts everyone.

These are people who will be the leaders in our community in the future. Let's protect the children. I know we're tight on money, but these are very important programs that we need to maintain to protect the families and children in our family courts. Thank you so much. I'm available for questions.

Thank you. Next up is Director Yamane for Department of Human Services in support. Darcia Forester for the Public Defender or Ms. Cheng.

Good morning again. The reason the Office of the Public Defender is offering testimony on this matter is that the provision allows for compensation for juvenile cases. We represent juveniles in criminal proceedings, so this would impact our court appointed attorneys.

As the Committee heard from Judge Park, we have three attorneys that accept juvenile cases right now, and it is simply not enough. I'd just like to emphasize, and I think Judge Park can also agree, that many of our juveniles often get arrested together or charged as a group.

The public defenders can only represent one of those individuals and the rest must be conflicted out. Having only a pool of three to choose from makes it incredibly challenging and deprives often or will put barriers up to the representation.

At least in the First Circuit, I also want to emphasize that being in Kapolei court is also a deterrent for some of our private attorneys who accept court appointed cases. Going to circuit court in town versus having to drive up to Kapolei for detention home hearings or any kind of juvenile matters also adds to the burden on court appointed counsel.

So again, we incorporate everything that's in our written testimony, support all of the other comments that the Committee has received, and again emphasize the critical nature of passing these so we can ensure our clients are adequately represented. Thank you.

Okay, thank you. Next up is Daintry Bartoldus for Hawaii State Council on Developmental Disabilities in support. Marilyn Yamamoto, Hawaii Coalition for Child Protective Reform, also in support. Mark Murakami, Hawaii State Bar Association, in support. And President of West Hawaii Bar Association. Go ahead. Good morning again.

Good morning again, Committee. Annaliese Wolf on behalf of the West Hawaii Bar Association. I echo the comments of the people who testified before you on this matter. Again, the West Hawaii Bar Association contains not just criminal attorneys but also family law attorneys.

And however bad the crisis is in the criminal system, there's even fewer attorneys here in West Hawaii who can take on family law cases and provide support to people who need help in the family law area, including children and guardians ad litem. So raising the rates for their representation is just as crucial as it is for the criminal matters. And again, I do speak on behalf of the West Hawaii Bar and all the attorneys who cannot be here today because we have both a civil and a criminal practice.

I would point out that there's, since there are fewer attorneys that handle this, it's even harder to get attention for these matters, as family matters are often private matters, closed courtrooms, and it is very hard to find any attorneys on this island who will take any of these cases. So again, we urge you to support this bill and pass it out of Committee. I'm available for questions. Thank you.

Thanks very much. Next is Joanne Hicks for Joanne Hicks, a limited law, Hawaii limited liability law company, maybe on Zoom.

I'm here. Can you hear me?

Yep. Go ahead.

Okay, great. I just want to, I just want to continue with the business perspective of all of this. Like for the guardian ad litem cases, like, personally, I won't even take them at least $60 an hour. That's already lower than the very bottom of the barrel $90 an hour that's currently set.

You know, and then like all the other folks were saying, it's hard to find counsel for guardian ad litem and type of cases because there's interplay between criminal law and family law. And then you're just, the potential for conflicts of counsel are just so much greater. When you have an island such as Maui, where I'm at, we only have so many family law attorneys or so many criminal defense attorneys in state, so many people that know how to practice in those areas and are willing to.

A lot of your family attorneys are not going to do it because they can charge so much more money. It's an extremely lucrative area of law, and they'll conflict out. And these types of cases are very highly contentious. They're very stressful. They're like basically on par with doing a TRO case, which we charge a lot of money for because it's a lot of drama. That's just honestly how it works.

So if anything, these cases should be paid more than some of those criminal matters because they are very complex and they're very important. As Judge Kim said, they involve a very vulnerable population, children in dangerous situations. So, you know, I strongly support higher pay.

And again, just from the business perspective, from an attorney that's considering appointed work, you've got federal work which pays 175 an hour. I'm actually leaning more toward federal work and dropping my state matters because of the pay disparity. If it were to be increased to at least 150.

We're in the ballpark of keeping some attorneys and court appointed work in the state. But right now the feds pay much better, you know, and they increase regularly, I think on an annual basis. Whereas this, there's been no increase here for, what, over 20 years.

So, you know, I just, I just think that the state needs to have show that it, that it values, you know, access to justice, due process, and it values the underrepresented communities such as, you know, children. So I strongly support an increase in the amount of pay for the guardian ad litems.

Thank you very much. Thanks for sticking around. Next up is Emil Macasinag in support. Frank Schultz in support. Madeline Reed in support. Kori Weinberger in support.

Thank you. I'm here. I just wanted to just piggyback on what a few folks have already said. Again, I'm Kori Weinberger. I'm the Vice President of the West Hawaii Bar Association. Some of the comments I made previously with respect to HB 396 also pertain to this bill regarding mainly parents counsel and guardian ad litem compensation. I just wanted to again emphasize that there are very few attorneys who take these types of cases as it is.

With the family court right now in Kona, I know because I've talked to some of our family law lawyers who take these, who take these guardian ad litem appoint appointments that, you know, they're getting calls from court clerks over and over and over again, sometimes on the same cases. Because the clerks are so desperately trying to find people to take these cases.

The court clerks here are calling, the family law clerks are calling sometimes dozens of people, dozens of lawyers before finding somebody willing to take an appointment. And you know, the only way to even hope to solve this problem is to increase the rate of compensation to something that's just, that's feasible.

I had heard Ms. Hicks comments that she considers some of this work, that she takes the criminal appointments pro bono. And I know that with the GALs in particular, a lot of the attorneys who take those cases basically consider this, you know, public service pro bono work because they take home so little pay. So I just want to emphasize that and just reiterate our strong support for this bill. Thank you.

Thank you very much. Next up, we have Carol Kitaoka with comments. That's everybody who signed up to speak on SB 398. Does anyone else wish to testify on SB 398? Yeah, please come up.

Thank you again, Chairs and Committee Members. I just want to... This is William Heflin from the Hawaii County Bar Association. I just want to reemphasize everything that was just said. I'm also speaking on behalf of my members. I actually don't do the GAL calendar because it has such a low compensation rate.

As noted, it has a, in my mind, artificial distinction between a 60 hour and 90 hour rate for work done out. I do sometimes take them because there are so many conflicts in East Hawaii. I'm aware, I think there's only five, maybe six attorneys all in East Hawaii who will do all the GAL and representation work.

And just so you understand, the GAL work is actually the more difficult one. You only get paid $60 an hour for it. You actually have to drive to the schools, see the kids, talk to everybody. And the way the compensation package is done with the caps, you basically, if the case lasts more than six months a year, you basically are doing it for free. I've actually had cases that I didn't even bill because the arcane billing is so, so complex and you don't get time to bill when you bill it.

So it becomes like a compounded thing. So everything that's happening with the criminal system is exponentially worse in the GAL system. And as stated, these are kids and it's incredibly critically important that they have adequate representation. Thank you.

Thank you. Anyone else wish to testify in HB 398? 398. Seeing none. Members, questions? Go ahead, Senator San Buenaventura.

Judiciary, could you come on up? Why is it that your guardian ad litems are only attorneys? Or is there a... Do you folks have a list that includes guardians that's not attorneys?

I can speak from direct personal experience in the First Circuit where I sat on the child welfare docket for three years. We have both attorney and non-attorney guardians ad litem. So for example, my courtroom was serviced by Legal Aid Society of Hawaii under a service contract.

There were some legal aid attorneys who served as guardians ad litem and there were some of their like, you know, staff or paralegals who served as guardians ad litem and then they would get the non-attorney rate.

And so across all courtrooms, at least on the First Circuit, there are non-attorney guardians ad litem still who do guardian ad litem work, although there are less of those now than there were when I was sitting on that docket.

How do you, how do you recruit guardian ad litem?

We do whatever we can. Judges reach out, we ask other attorneys to reach out. Do you know anybody, anybody in your office interested in this? Can you, do you want to get courtroom experience as a young attorney or any, you know, things like that?

You're not going to get paid a lot, but you're going to come to court, you're going to get to participate in hearings. And we try our best, our sales pitch. But ultimately, as some of the attorney practitioners who are still practicing in this field, it's not enough to draw people.

Okay, so my understanding, because I used to do the guardian ad litem work. Was in the Third Circuit was almost always just attorney and there wasn't really any recruitment other than the regular court appointed list that they, that they end up going back to. So is there...

And I looked also at 398 and 396, which the Chair interrupted me on. I don't see here any non-attorney rate like for paralegals. And I remember when I was court appointed, I ate the money that I spent for my paralegal rate. Is there... Do you folks see a potential which would for non-attorney rates other than guardian ad litems?

I can see if we get this successfully passed through, I can see the potential for that. I used to practice court appointed both in state and federal. And I'm aware that in the federal system, you know, we were able to make do requests for expenditures to have investigators and investigators and paralegals and such and stuff like that. That's not something that exists in the state system. But I do recall having that option available as I practice federal court appointed work.

Okay. And lastly, sorry, is the 2 million something that was originally coded in 396 applicable also worth 398? That amount of money?

We are not, this is a Judiciary package bill. We were not requesting an appropriation for this bill. We did some looking into our current caseload for a variety of factors including, you know, there was initiative by the Department of Human Services, you know, a few years back, the Family First Initiative. And we saw a decrease in cases coming in. So we think we can cover this increase without asking you folks for more money, and so we didn't ask you folks for more money.

Okay, thank you. So I have a question of Judge Kim.

Okay, go ahead.

Hey, Judge Kim, come on in. Okay, this was a question I was about to ask, but I was told to ask in 398, which was family court. But for 396, which is for criminal court appointed as well. I know that there is a shortage on the Big Island, Hawaii County, of attorneys in general, including prosecutors, and they're not coming up.

How do you expect to increase, I guess, court appointed representation when there aren't enough attorneys? I mean I'm going back to have you thought about non-attorneys to help at least do investigative paralegal work and maybe a shorter, a different rate to help out the existing attorneys?

Well, to be clear, in the federal system the attorney who's working on the case...

We're talking about the state system.

I understand. But as by way of background, in the federal system you can have a paralegal help you on the case and they will pay for that separately in criminal cases. We don't in Third Circuit assign generally, I can't remember ever paralegals to do guardian ad litem work because of the complexity of basically coming to court and know what the court rules are. The guardian ad litem will state a position as an independent what is the best interest of the child to represent to the court, and then they basically have to defend that on the stand when it's an adversarial system.

Is that the reason why in the Third Circuit court it's always attorneys for guardian ad litems?

And there's no mechanism to pay paralegals. You have to be... Or social workers.

Okay, thank you very much.

And before I go, I just want to thank Ms. Hicks for taking 20 of those cases because it's people like them that give honor to being an attorney.

Thank you. By the way, HB 398 does have an increase up to 122 an hour for non-attorneys. Okay, we're running out of time. So I think what I'm going to do is skip... First, I'm going to take a short recess, and then we're going to try to finish up on the not 399 but on 401.

Because people, this is about the Third Circuit and several people have made trip up here today. So short recess and then we'll go into 401 and then we'll take some votes and we'll continue this tomorrow at 10. So short recession.

Okay.

As I mentioned before we broke. We're going to go ahead and Skip ahead to HB401. This establishes one additional district court judgeship in the third circuit because a number of people have made a trip up here today. So let's go ahead and go there. Next on HB401. First up is Judge Kim.

Morning again, Chair, Vice Chair, Members of the Committee, Robert Kim, Chief Court Administrator. 16,000 cases last year. We got one judge for all of Wessel W. We have a courtroom that is readily available, top notch courtroom to be on the second floor.

Just this week, let's say, for example, there must have been at least 80 or more cases for International Day. That's when people who can't speak English have an interpreter. They had to turn away 40 of them and set it for another date which has a calendar.

We're in dire need of another judge, especially with the explosion of cases that are occurring on the Big island. And we would welcome the support. This is just the authorization of statute. We also have in the judiciary Bill that the Chief Justice and the judiciary has made it a priority to ask for another judge.

And we would ask that you consider it. Thank you.

Thank you. Next is Mark Murakami, Hawaii State Bar Association and support. Excuse me, West Hawaii Bar Association President on Zoom. Still here?

Yes, they're still here.

Go ahead.

Good morning again, Committee Members. Annaliese Wolf on behalf of the West Hawaii Bar Association to echo what Judge Kim said. Additionally, the backlog that exists in the Kona District court creates a situation where nobody receives the justice they seek from the district court.

With this kind of backlog, coupled with the lack of representation in our community, people are not getting the redress or services that they need from the court. So we would ask for an extra judge to be placed in Kona as one of the busiest courts, if not the busiest court in all of the Hawaiian Islands.

It is creating a real bottleneck when it comes to moving cases through the 3rd Circuit Court. It is causing other problems in which sometimes things are jury demanded out of district court up to circuit court in order to get a faster resolution up there or find another way achieve resolution.

It's also a situation where people may be forced to choose between resolving their case on the merits with adequate representation versus just trying to settle it now or taking an offer in order to just simply resolve it instead of coming back to court time and time and time again.

There's only so many hours in the day that a single judge can work or their staff can work. But by having two Judges. It could significantly alleviate the backlog of cases and bring justice swifter to West Hawaii as well as civil matters.

I don't mean to discount the importance of a civil matter coming to court for what as restraining orders, eviction process and other resolutions people need in the civil world as well. Thank you.

Thank you. Next up is Marvin Dang, Hawaii Financial Services Association in support. Corey Weinberger in support on zoom. Morning again.

Good morning again. Cory Weinberger, Vice President of the West Hawaii Bar Association. I'm testifying in support of this bill.

I just by way of background, I was a prosecutor for about five and a half years and I spent the majority of that time in this district court courtroom and I deeply suspect that it is the busiest courtroom in the entire state. It is.

It was not uncommon when I was a prosecutor to have a single morning with over 120 people on calendar. That's from 8 am to 11 when the custody start. We had to get through 120, 120 cases or 120 defendants. It's just not sustainable.

I remember years ago before we moved to the new courthouse down at the Kekkalani building, which that little old hospital building, defendants sleeping on the steps of the courthouse because court ran so long that they missed the last bus, couldn't get home. So I mean that's the situation that we've had here for a very long time.

There are no dark days in this courtroom. There are no anytime that anytime that you come to court in Kona, court is in session. Myself and the public defender who was assigned to that courtroom, we would often go through lunch with no break. We would have maybe a 10 minute break after custody.

We'd go from 8:30 in the morning till 4 or 4:30 in the afternoon and sometimes after business hours. So it's just, just not a sustainable situation and hasn't been for a very long time. We have a courtroom ready to go here at the Keahualu courthouse that is, you know, vacant.

So all we need is, all we need is the judge and the staff. So I just would humbly request that this Committee take this bill to heart and, and pass it for us. Thank you.

Hey, thank you. Next up is Victor Cox in support. Emil Makasinog in support. Frank Schultz in support. Miles Kushima in opposition. Jacob Rafia in opposition. Gary Venet in support. Does anyone else wish to testify in HPF? Come on up, Hogan.

Good morning again. Chairs, Vice Chair and Senators, William Heflin on behalf of the Hawaii County Bar Association. We also stand in strong support of the necessity to get another district court judge for all the reasons stated. This is primarily because the increasing Big Island population.

But I would also point out, I also think there's a feedback loop with this and the attorney compensation issue. When you have 100 cases where there's no attorney assigned to it because there's nobody willing to take the case, those cases are still called in addition to the cases that have just come up and then they get continued.

You know, my experience and I do take cases over in Kona sometimes, thankfully, with, you know, technology and the post pandemic, they're much more accommodating regarding zoom testimony. But I will routinely have a 8:30 case which I will not have called until 10:30 or 11. And that's just because of the insane amount of cases there.

And as the prosecuting attorneys there have testified, even is routine for that case to not break for lunch. And I think Judge Kim had once testified that, you know, that's getting into some serious, you know, employment issues about making the staff work through their lunch, making everybody come and continue to work till 4:30.

And then unfortunately, some of the solution for that is just to continue everything which just as I said, has a feedback loop. So this is, I mean, I hate to keep harping everything, but this is what the beginning of the collapse looks like. So thank you very much.

Thank you. Anyone else like to testify in HB401? Yep. Morning.

Again, thank you. Haley Chang from the Office of the Public Defender. And I support everything that everybody said, and I apologize. I thought we had submitted written testimony on this. We support the intent of the bill and believe that there is a need to expand the courts.

Our only concern that we just want to forecast for the Committee is that if you build another courtroom and staff another judge and hold more calendars, you're going to need attorneys to staff those calendars. And as you've heard this morning, our Office of the Public Defender branch in Kona is operating with three attorneys. Right now.

We have six spots. We are down to half. So currently we do not have the capacity to go above what we're doing. And in fact, you've heard we've had to pull back because we're not able to provide effective representation to the hundreds of people that the public defenders are responsible for in Kona right now.

So we support it, but we just want to forecast that the public defenders also will need support in order to provide the representation for those individual individuals that we anticipate appearing in those courtrooms.

Thank you. Thank you. Anyone on twitch to testify. HB 401. See none. Members questions. Okay, seeing none. The plan is we'll go back, we're going to vote on everything that we've heard so far today.

We have a hard stop at 11:20 and then we'll pick up the rest of the agenda that we haven't covered today, Tomorrow in this room at 10 o' clock. 16, March 14th, Friday. Okay, back to the top of the agenda. First up is HB127.

This requires bail to be set in amount the defendant can afford based on certain factors. The recommendation here is the password. Amendments. Let me define them. Okay. We'll amend page four, line six to clarify that the requirements apply to both the setting and confirming of bailiff.

And we'll add a new subsection each to 804.7.5, providing the bail may be reconsidered at any time following the prompt hearing upon the defendant's motion or the court's own motion.

In any subsequent hearing where bail is reviewed, confirmed or set, the court shall conduct the proceedings pursuant to the provisions in subsection D and E, which is the in this bill. Provided the subsequent hearing. Provided the subsequent hearing need not be proud, which means that the earlier ones do have to be prompt.

But if you're reconsidering later, it doesn't have to be. That's it. Okay. Questions or concerns? If not Senator Gabbard for the vote.

On HB 127 HD1. Recommendations to pass with amendments. [Roll Call] The measure passes.

Thanks. Next up is HB 395 relating to jury duty. This increases the amount of each juror or prospective jurors paid for each day of actual attendance quarter. We'll blank the daily rate, but in the maybe blanked already. The daily rate will be blank.

And what I'm going to put in $75 in the Committee report is the amount that we would we could raise it to. And we'll put in a different defective date. April 23, 2057. Questions or concerns? Yes.

Thank you. I support the intent of this. Voted in support of the Senate's version. We'll keep supporting the Senate's version, but because this is a Representative Nakamura, I'll be voting no to it.

Okay.

Other questions or concerns. If not Senator Gabbard.

On HB 395 HD1 to pass with amendments. Any no votes or reservations?[Roll Call] Measure passes.

Thank you. Next up is HB 396. This increases the rate of compensation and maximum allowable amounts per case for court appointed counsel and criminal proceedings. Recommendation is to pass with a different bad date, April 23, 2057. And we'll note in the Committee report the amounts that that we think the appropriation should be. Questions or concerns?

Comment? Yes, go ahead. After hearing all the testimony I actually support this. But I only support the Senate's version of this. If it were to come back around to us, I'll be voting no because of the House version.

Okay, thank you. Other questions or concerns? If not Senator Gabard on HB 396 AC1 to pass with amendments. Any no votes or reservations? [Roll Call] Measure passes. Thank you.

Next up is HB 398 increases the rate of compensation and maximal allowable amounts per case for court ordered counsel and guardians ad litems and family court proceedings. Recommendation is to pass with effective upon approval. Note in the Committee report that any additional budget asked will have to come through the normal budget process.

So an amendment but as to make it effective upon approval. Questions or concerns?

Comment, sir? Sorry, I was going over and over but after hearing the testimony I do support this. It's just can't vote for it because of House leadership.

Okay, thank you. Other questions or concerns? If Not Senator Gabbard.

HB 398 HD1 to pass with amendments. Any no votes or reservations? No, Senator Awa. Measure passed. Okay.

We skipped over HB 399 and we last one we heard today was HB 401. This establishes one additional district court judgeship in the third circuit. I believe the money's already there. It just has. The position just has to be authorized. So we'll make it effective upon approval plus Committee report language on the need for the new judge.

Questions or concerns? If not Senator Gabbard.

On HB 401 HD1 to pass with amendments. Any no votes or reservations? [Roll Call] Measure passes.

Thank you Members. So we will tomorrow at 10 we'll pick up with HB 399 and then we'll skip over 401 which we've already done and we'll do the rest of the agenda. Thank you all for being here.

We're adjourned.