Senate Standing Committee on Judiciary

Welcome everyone to the decision making only agenda for the 9:45am agenda for the Judiciary Committee this Friday morning, February 20th. We have three measures that we heard previously that we'll be voting voting on today. The first one of those is SB 2418. This repeals the law prohibiting drug paraphernalia under the Uniform Controlled Substances Act.

So my recommendation is and we can discuss the center San this is your Bill. I would like to keep the statute in place for.

This the items that are manufacturing related so I would I'm suggesting no person shall knowingly use possess with intent to use deliver or possess within with intent to deliver manufacturing paraphernalia for this won't be the exact language but paraphernalia to manufacture compound, convert, produce process or prepare a controlled substance in violation of this chapter. Okay that's fine.

Okay. Other any questions or concerns on that recommendation? If not Senator Gabbard for the vote

Chair's recommendation on SB 2418 is to pass with amendments Vice Senator Chang excuse Senator San Gwen Ventura I Senator Oah no measure is adopted.

Thank you. Next up is SP2568. This elevates the offense of harassment to a misdemeanor when committed against certain public officials in connection with their performance of government functions. Recommendation here is to go ahead and pass it out with an amend some amendments.

We we first we'll put it in the harassment statute which is hrs 711106 and we'll narrow the nexus a little bit from in connection with to because of or while performing official duties.

But then I'd like to apply it across the board to all public employees, federal, state and county because I think a lot of the people who suffer from harassment are the frontline guys who are yeah renewing driver's license licenses and stuff like that.

Put an effective date on March 222075 and will make conforming amendments to the preamble mainly to the preamble questions or concerns if not Senator g. Recommendation

on SB2568 is to pass with amendments of the Members present. Are there any no votes or reservations? No vote for Senator AWA the measure pass thank you.

And last up and last is SB2661. This repeals language in the state's code of ethics. It exempts the legislative and judicial branches from prohibition against nepotism and public employment. Recommendation here is it's really a I think it was the way it was written. It didn't cover legislators or judges.

It covered other people who worked in the Legislative and judiciary branches. So my recommendation is to cover everybody. So it'll be us, it'll be legislators and judges will be bound by the ethics rule against the ethics commission's rules and the statute against nepotism. Everything on that one? Yeah. Okay. Questions or concerns? This is a.

It's a good Bill. You can thank. All right. Other. Other questions. Concerns, comments if not Center Gabard on

SP 2661 Recommendation is to pass with amendments the Members present. Are there any no votes or reservations hearing none the measures adopted.

Great. Thank you very much. That concludes. Well before I conclude it we do Members we do have a Judge Char to hear hear for a nomination to the circuit court on Kawai. But that starts in 11 minutes so we have an 11 minute break. So for the 945 agenda, we're adjourned. Okay.

Welcome everyone to the second Judiciary Committee agenda for the day. This is for Judge Stephanie char Governor's message 684 Consideration and confirmation is circuit court judge the circuit court of the Fifth Circuit which is Kawaii for those who don't pay attention to these things. Let's see first up on this one is.

Oh, we're not going to vote today. So if you're waiting for the vote it won't be occurring today. We're going to do it on Monday instead 23rd February at 10:45 in this room 016.

So just FYI if you're thinking about hanging around for the vote first testifier on Judge Char's nomination is the governor's office Will Kane or his designee. Yes. Mr. Kochi. Good morning.

Good morning Chair, Vice chair Members of the Committee Dan Cochi on behalf of Will Kane Office of the Governor will stand on our written testimony in strong support for Judge Char and we respectfully ask for the committee's favorable consideration for nomination.

Thank you. Thank you. Excuse me. Next up we have Mark K. Let 's see. We usually go last Derek Kami mayor of of Kawai in support. Mahana Vaugh in support and is there anyone else that's except for hsba that's everyone who signed up for this GM for to testify in this Gm.

There's anyone else here on Zoom would like to testify on testify on GM684 Signon HSBA Murakami or his. Good morning.

Good morning Chair Members of the Committee. Thank you. I'm Mark K. Murakami President of the HSBA here to testify on behalf of or the appointment of Stephanie Judge Stephanie, charge of the circuit court of the Fifth Circuit as set forth in our written testimony, we went through our usual and customary process.

We got a questionnaire from the judge candidate. We did our due diligence. We had a meeting yesterday and we found the judge to be qualified. Okay, great. Thank you. Thank you.

Members, any questions for any of these testifiers? Okay, seeing none judge Char, you're welcome to come up and make an opening statement if you'd like. Good morning.

All right. Aloha, Senators, Chair and aloha Mai Kakou. To others who are present here today and who may be watching virtually to the Senators of the Judiciary Committee, I. I humbly sit before you today seeking your vote for confirmation to the Circuit court bench of the Fifth Circuit on the island of Kauai.

I am a child of the island of Kauai. The island is important to me. It's where I grew up. It's where I married my husband. It's where my children are growing up. My mom was one of the first six babies delivered at Wilcox Hospital.

A photograph of her, the other babies, my grandma, the other moms graces the entrance of Wilcox Hospital. My dad was born and raised here in Kakaako. I graduated in 1992 from Kapaa High School, and I went on to attend undergrad, graduate and law school on the continent.

While in law school at San Diego, I developed a particular affinity for criminal defense work and criminal law in General.

I wanted to return home to serve my community in this regard, to protect those accused on a constitutional level, not to make excuses for their behavior, but to make sure they were treated fairly as they went through the process.

I had an innate sense of justice, to do as much right as I could by the accused while respecting the rights of the victimized. I was a public defender for 17 years before taking the bench as a district family court judge and as a family court judge. What a whole different world it was for me.

I was and am now dealing with civil cases. It was a very steep learning curve for me, but I stayed ahead of that curve. It took and takes a lot of long and very arduous hours of research and reading on my part to prepare for each and every single case that comes before me.

It is the same work ethic that I will, of course, bring into this new position if given the opportunity. In addition, I have the experience as a lawyer of doing a number of criminal trials both before a jury and a judge. And I am not new to learning a whole new area of law.

I have done so successfully when I took the bench as a family court judge. If Confirmed. I will however, miss my current position something awful. I will miss the types of cases I sit on. I will miss working with my family court colleagues across the state. It was through them that I have sought advice problem solved issues.

And for that I have become a better judge. In addition to presiding over cases, I also joined a number of task forces and committees through which I continued to educate myself as well as work with others to make access to justice on all fronts easier and more cohesive for the public.

If confirmed, I will certainly continue that work. I applied for this position because in some sense I felt it was my responsibility to do so. To do so for the community who come to the courts seeking justice, relief and help. My applying for this position is not an opportunistic one.

I felt I had to step up and take the chance for this. And I was encouraged by my peers and colleagues to do so. Currently on Kauai, we have no permanent circuit court judge. Since October 2025, Judge Michael Sung and myself have been temporarily assigned to cover the two circuit court courtrooms.

It's not lost on me of how the importance of decisions made from a civil standpoint could shape our island for years to come. The decision, the decisions I make must be thoughtful, well informed and thoroughly researched, all with consideration to the rule of law.

I am committed to making those kinds of decisions where I can facilitate treatment and rehabilitation for someone rather than locking them up. I will try my best to do so within reason and with consideration of the circumstances. I am up for this task.

I'm not afraid of hard work or admitting where and when I'm ignorant and needing more education. I'm not afraid of asking for help from my colleagues. I do want to thank the Governor for placing his trust in me and making this appointment.

And when the appointment was announced, the outpouring of support from my friends, family and colleagues, it was mind blowing, it was humbling and it was incredibly appreciated. And I will not forget this. I will not let them or you, Members of the Committee or the public down if I am confirmed. Thank you very much. Welcome. Any questions?

Great, thank you. Members, any questions? So I obviously acquire is a small island. I would imagine that for all judges, recusals are an issue. Do you think, have they been. Have you had to recuse yourself a lot? And how long have you been on the bench now? Since 2020. 2020?

Yeah, December 2020. So five years and a couple months.

Okay. Do. Do you think you've. How have you dealt with recusals? Have you had a lot of them? Or is it far for the course?

You know, I actually thought I would have had a lot more than I actually experienced. How I deal with recusals is I disclose, I leave it up to the parties. If there is an objection, I disclose, I let them know. I think I can be fair and impartial. Nonetheless, I leave it up to the parties.

If they do have an objection to me sitting on that case, then I will just recuse myself.

Okay. Can you ball harp? How many times do you think it's happened or you've actually. Where someone's actually objected and you've. And you've recused yourself?

Maybe three or four.

Okay, three or four. Five years. Okay. So I'm talking about the calendar. So you. You already mentioned that you were a public defender for quite a while, right? Yes. How long were you a public defender?

17 years.

17 years. Was that all up on Kauai or is that down here?

Here until from 2003 to 2011 on Oahu. 2011 to 2017 on Kauai.

Okay. And I forget where.

I'm sorry. 2011 to 2020 on Kauai.

Okay. And what. What. What was your. I mean, that long in the. In the organization, you. You moved up, right?

Yes. When an opening. When there was an opening there in the Kauai office, I jumped at it. I wanted to get back home. I went there as a PD4, and eventually our supervisor retired, and so I took that spot as a PD5, supervising that office.

Okay, so you clearly have a lot of trial experience with. With criminals on the criminal count and the criminal docket, and you've got five years of experience as a district court, but assigned to family. To family. So I'm just trying to think. So what. So in terms of just sort of straight civil stuff that will. That will.

Will that be something relatively new? Will that be new to you, or is that.

I. I think the types of cases that I would be handling as a circuit court judge would be new to me. But procedures, I. I don't think there's much difference, as I did state, I'm a district family court judge, so I do also sit on the district civil calendar, and I handle civil cases on the district level.

And everything that's in front of me. Divorces, tr. Guardianships, adoptions, those are all also civil cases.

Okay, so my recollection is that on a couple of the smaller circuits, you do everything you do. You have. You'll have a criminal calendar and a civil calendar in circuit court.

Yes. That's two circuit court judges in our

Circuit, you don't try to, they don't try to specialize in one do criminal, one do civil. Okay.

So since you will have a criminal calendar, what, what's your approach when you, when you run across a defendant and once they're convicted and they, and before the conviction, the, the court that you're sitting at convicts them for and you're looking at their past history in terms of, you know, how many priors they had.

What do you do with someone who's got a multitude? You know, sometimes we can, we see cases where 50 or 60 prior convictions for, you know, what, what's considered minor things, petty misdemeanors, violations, stuff like that.

What, how do you, what's the thought process behind sentencing when you get somebody, when you would get someone in circuit case who's been convicted of something that's going to be a class C felony or more.

You know, I think, I think what you really want to achieve as a judge in fashioning a sentence is you don't want it necessarily to become a revolving door for that defendant.

So, you know, if, if that was a situation I found myself in where the person has like 50 or 60 misdemeanors, petty misdemeanors, I think it would kind of be important to see what kind of misdemeanors and petty misdemeanors and why.

For example, if it, the majority of it was shoplifting and you look at what kinds of items were they shoplifting. They're shoplifting things for basic needs, like basic living needs. So maybe houselessness is a problem for that person. Finances is a problem.

Well, clearly if they're shoplifting, I suppose finances is a problem, but you could try to address that underlying reason by way of inserting certain and different conditions of that person's probation when being sentenced on the felony.

And that would be a four year, could be a four or five year term of probation or even a ten for that matter.

I think I misspoke, actually. You probably would get. If somebody, somebody who was charged with a misdemeanor could ask for a jury trial and I guess that would come up to you at the circuit as well. Well, I'm not sure.

I, you know, I think there's a lot of people who would take issue with being at that stage if they've already been convicted multiple times. You know, at some point, don't you just.

I mean, I think there's a lot of people who are really unhappy with the, the sentences that are coming down out of not just your court, but the whole court system. And then people feel like, you know, if you've decided you're gonna. If you.

Whatever your problems are, if you've got 50 or 60 convictions at some point, why don't you get like some real time?

Oh, I don't doubt that the person should get some real time, but if there's an opportunity for probation and if I would were to sentence that person to, say, six months in jail and place that person on probation, I think it would be important in the conditions of probation not to be just boilerplate, but to address the reasons why the person came before you in the first place.

Okay.

Members of the question. Yes, I do. Okay. Thank you. Thank you. Frankly, I'm impressed. Okay. Because as I had told you before, and I had told Chief Justice Reckonwald, I had always been doubtful of his appointments of. In family court for people who have only had experience in criminal.

Because as you know, as you have learned by being a family court judge, especially in this jurisdiction where we do not codify property settlements or property division, and a lot of things are not codified, experience in family law is, to me was paramount.

And the fact that in a small community like Kauai, I haven't heard any complaints, especially I do know that there are areas in Kauai who are very vocal to me that. That to me is impressive that. That you have done well as well as you have. So for circuit court, as we had discussed, courts of General jurisdiction.

Right. In Kauai, and unlike district court, you're going to be doing jury trials.

Yes.

So I'm impressed with your answers because unlike district court, where you do not, you need to have a certain amount of decorum in front of a jury because you do not want to in any way impart any biases.

So that's the reason I didn't ask any questions beforehand, because the fact that it a small community where it seems to me you have that decorum, otherwise I would be hearing from the legal community, the small legal community of Kauai, whether or not they have any issues with the.

But also in circuit court, you have to also hear appeals for administrative, right. Yes. Which is like unemployment, which you have no experience in, also with other administrative, like welfare refusals. And how do you expect to be able to handle those where you do not have any experience or knowledge in those particular areas of law?

Well, for one thing, sitting on the district civil calendar, we do hear appeals of ADLRO decisions.

Okay.

And I've had a couple in the past five years that have come across that I've come across. But you know, specifically when we're dealing with other types of entities, not just adlro, you know, I think it's just important to you.

I would have to get into that entity's position and literally understand the rules and regulations or whatever it might be that affects that entity's decision making. And I need to apply that to when I hear the appeal. Right.

And so it's just a matter really truly of preparation of education and just willing to get in there and do the long hard hours of work.

Okay. And one last question is I don't think in, in circuit, I mean in district court, how do you handle 704s? I mean especially I, I just want to preface this with on the Big island, former judge Kim is really wants to have a state hospital over in.

On the Big island to handle 704s and we just don't have the capacity to do that. So how do you intend to handle 704s in Kauai?

I'm not too clear what you mean by that. Like how do I intend to handle it?

Can you just, for the non lawyers who might be listening, talk about what a 704 is?

Okay, so in a basically capacity, capacity and fitness. Right, Right. So if you have a criminal defendant who comes before your court and his or her attorney says I, I need a 704 exam, I need to know.

And basically what they're asking in layman's terms is I need to know whether or not my client is fit to proceed. I need to know. That's the one prong. And then secondly, I need to know if as a result, result of the person's mental illness, disease or defect, are they penally responsible for their offense? Right.

So you tackle the first question first. And if the person is found by a three panel of doctors to be not fit to proceed, in other words, they are not able to cooperate with their attorney in their defense, they're not able to understand perhaps the, the roles of the different people involved.

Then the option, and kind of the only option for that person is to go to the state hospital which is here. The court would have to send them.

In the meantime, while they're awaiting their examination, what is your position as to where they are housed, not make bail.

My position would be that they should, while they're awaiting. Say that again.

While they're awaiting their examinations. Okay. Class C felony, they got to do the 33 panel exam and we have a difficulty finding the three people to examine them. So sometimes they, they Languish.

You know, I have never come across that as a judge. Right. Okay. But I can speak to it from the point of view of public defender. And I have asked the court that, pending the evaluation, send my client to hsh, Hawaii State Hospital to begin potentially rehabilitation or restoration as a public defender

or as a district court judge. Have you tried. You've heard of Judge Lippman, right, from Florida? No. Okay.

He came down to Supreme Court at one time to educate both the prosecutors, the Judiciary Committee and the like as to how he was able to empty out a jail by basically having collaboration between the prosecutor and the public defender into how to take care of potentially 704 claimants and seeing whether or not we can divert them out of the judiciary system.

Have you ever done that? And what is going to be your position as circuit court judge in diversion?

Okay. So I think it's important to start out by saying you definitely need to take this on a case by case basis. Right. Some cases will be appropriate for what I'm about to say. Some cases absolutely would not be appropriate.

I already stated that Kaua' I has very limited resources, but we do have the Kauai Community Mental Health center and a lot of our 704 defendants or clients. They are clients of KCMCH as well.

There is the possibility, again, on a case by case basis that the person potentially could be released from jail on strict conditions that they comply with and, you know, meet on a weekly basis with their caseworker, meet on a weekly basis with the psychiatrist, take, continue to consistently take their medication, and we can bring them back for court reviews to see how they're doing.

So that's definitely one option. There are certainly other individuals that release pending the evaluation just is not an option. Not an option. And in those cases, those individuals, in my view, would have to be sent to hsh.

Would you urge the public defender and the prosecutor in each of the cases to determine whether or not such an individual could be subject to diversion?

Yes. Thank you.

Yes.

Okay. Other questions. I do have one. Just follow up on something Senator Sanborn, I'm sure, said. So what, what actually happens if you, if you just say, if you look at the defendant in front of you and say, okay, this person really needs to go to State Hospital, they're still going to be.

I mean, they don't come and pick them up that, that afternoon or anything. Right. They're going to sit somewhere for a day or two.

They will be in custody. They'll be in custody, yes.

Okay. And the jail and on Kauai. Do they have any. This isn't really your Kulana. It's more curiosity on my part. Do they have a, any facility for holding somebody who's probably shouldn't be in the General population?

No. And what's really unfortunate. Well, I mean, I guess it's a yes and no to your answer because what's unfortunate is a person who, like you said, probably shouldn't be in the General population, they're going to be put

in solitary, which is probably almost as bad or worse. Yeah. Okay. All right. Any other questions, Members? Okay, thank you very much. That's it. We'll, as I mentioned before, we will do decision making on Monday the 23rd, 10:45am in this room. 016.

Senator F. Can I just ask you, I. The initial, I guess, scheduling thing that I got from Jesse, it was decision on the 24th.

Yeah.

I'm sorry, it's been changed.

Yeah, we, it's. I need to have a quorum here, and we have to do it by a certain time. So there was going to be at least one person who wasn't going to be able to come on the, on Tuesday. So I'm sorry about that, but we have to do it by.

I forget what day we have to do with the 26th. We have to get it on the floor by the 26th because we're going to go into a, a five day mandatory recess.

Okay. So decision making is on the 23rd at 10.

9. 1045.

1045. Back in this conference room. Yeah. Okay. Thank you. Thank you very much. Thank you, Senators. Thank you.

We are adjourned.