Senate Standing Committee on Judiciary

Hey. Welcome, everyone, to the Judiciary Committee. This is our 9:30 agenda. On this agenda, we have Governor's Message 725. This is submitting for consideration and confirmation as associate judge of the Intermediate Court of Appeals gubernatorial appointee Daniel M. Gluck for a term to expire in ten years.

We do have a two minute time limit on testimony for both people on Zoom and in person. For those on Zoom, your audio and video will be blanked out until it's your turn. Members often do have questions, so if you can stick around for those if possible, that would be great.

If we have a major technical crash on the Zoom side... Let's see. Sorry. I guess I should just reading my notes. Friday, March 20 at 9:45am here in 016 will be our resumption time if that comes to that. And we will not be voting today. We'll be voting tomorrow. If everything goes according to plan, we'll vote tomorrow at 10:45am here in this room, 016. Okay. First up on GM 725 is the Governor's Office. Good morning.

Chair Rhoads, Vice Chair Gabbard, Members of the Committee. Dan Kouchi on behalf of Will Kane in the Office of the Governor. We'll stand on our written testimony in support of Mr. Gluck's nomination, and we respectfully ask for the committee's favorable considerations.

Thank you. Next is James Earl Duffy, retired associate justice of the Hawaii Supreme Court, in support. Jill A. Otake, judge of the United States District Court. Yes. That's it. In support. J. Michael Seabright, United States District Court Judge, also in support. Kenneth J. Mansfield, US Magistrate Judge, also in support.

Salina Kanai, federal public defender, in support. Matthew Winter, former federal public defender, in support. Michael Formby, managing director, City and County of Honolulu, in support. Dana Viola, Corporation Counsel, City and County of Honolulu, in support. Bob Toyofuku, I did see here. Morning.

Good morning, Mr. Chairman and Senators. I'm Bob Toyofuku testifying in support of Daniel Gluck for the ICA. And I'll just add a couple of comments to my written testimony. I've always felt that Daniel Gluck was a perfect combination of integrity, legal knowledge, and he's an academic to me. And he's the perfect person to sit on an appellate court, and I strongly support his confirmation. Thank you.

Thank you very much. Next up is Joshua Wisch. Good morning.

Good morning. Josh Wisch here testifying in my personal capacity on behalf of Dan Gluck's nomination to the ICA. You also do have my written testimony, so I won't repeat everything in it. I'll just note that I've also been a licensed attorney in Hawaii for going on 25 years. I've spent the last number of those working in a combination of law, policy, and nonprofit work, and I've gotten to both work with Dan.

I've gotten to know Dan personally. I've gotten to work with him in some of those nonprofit areas. And Dan actually preceded me in some of the jobs that I had had. And so I've also gotten to see the extraordinary work that he left behind as a legacy of what he did. And I think when you take take a look through the testimony today, it just underscores the extreme regard in which he's held.

And I can just say, in addition to his legal brilliance and acumen, he carries himself with wonderful humility, self deprecatory sense of humor, and I think he is just gonna come with a remarkable demeanor to the court. And I am strongly in support of his confirmation. Thank you very much for considering.

Thank you. Next is Kalikoʻonālani Fernandes, solicitor general, in support. Next is Melissa Vincenty, managing and legal director for Worldwide Migration Partners, also in support. Okay. I have a long list of individual testifiers in support.

I'm not gonna bother to read them all. The overall statistics are 72 in support, zero opposition, and one comment. The one comment is the Hawaii State Bar Association. But before we go to them, is there anyone else, any of those people that signed up, would you like to testify, or is there anyone else who'd like to testify on GM? Did you wanna... Yep. Come on up, Mr. Kane from the Governor's Office.

Aloha, Chair, Vice Chair, Members of the Committee. Will Kane, Office of the Governor. I apologize for being a few minutes late, but I just wanted to say thank you so much for your consideration of Dan Gluck for this appointment. Governor is very, was very enthusiastic to to put down his nomination or send down, excuse me, his nomination.

And so I think the folks that came up here and that have submitted extensive written testimony already can say it much better than I can, all the wonderful things about Dan Gluck. But I just want you to know that the governor appreciates it, and he hopes that you'll look upon this with favorable consideration. Mahalo for your time.

Thank you very much. Would anyone else like to testify on GM 725? Yep. Please come on. Good morning. Good morning. So which one of you are testifying?

I signed up, but she's got some nice things to say.

Go ahead. You got two whole minutes.

Uncle Dan actually helped us out in Girl Scouts because one of our leaders stepped out, and Uncle Dan stepped in when that leader stepped out and wanted a break. He's also kind and fair. He's really nice. I really want you guys to have him as a judge. He's caring. He always helps out. He will always share if he needs to, and he always wants to share. He's very kind. I think you should guys should keep him as a judge.

Alright. Thank you very much. Thank you.

Excuse me. Could you state your name, please? I didn't...

Oh, good. Good point.

That is Coraline Cranford.

I am Coraline Cranford. My middle name is Joy. Yeah.

Good. Thank you.

331. My name is Joy from Inside Out.

Thank you. Would anyone else like to testify on GM 725? Okay. Seeing none. Members, we'll ask questions of this group, and then we'll go on to HSBA. Any questions, Members? Okay. We'll go ahead go ahead on to HSBA. Good morning.

Good morning, Senator, Chair Rhoads, Vice Chair Gabbard, Members of the Committee. Mark K. Murakami on behalf of the Hawaii State Bar Association. We've gone through our standard process. We've notified our members of the nominee. We have put, the board has put together its subcommittee fact finding. They did their fact finding. We interviewed the candidate, and we found the candidate qualified.

Thank you. Thank you very much. Members, any questions for this testifier? If not, thank you very much. Mr. Gluck, if you'd like to come up and make an opening statement. Good morning.

Thank you, Chair, Vice Chair, and Members. I am humbled and honored to be here today. First, I wanna offer my thanks to the Judicial Selection Commission and the governor for the nomination and the appointments. I wanna thank everyone who submitted testimony on my behalf. I wanna offer my thanks to this committee and also the Senate at large for their time in considering my appointment.

And most importantly, I wanna offer my thanks and love to my wife, Deborah, and my children, Elliot and Naomi, who are here with me today. Over the course of my legal career, I've had the opportunity to work in the private sector, the nonprofit sector, and in government.

And within government, I've served in the executive, legislative, and judicial branches. I've served in federal, state, and local governments. I'm very excited at the prospect of taking everything I've learned from these different positions and applying everything I've learned to this new role with the ICA.

I know that access to justice remains a high priority for the legislature, as it should. Earlier in my career, I focused on civil rights, particularly on behalf of marginalized groups. I represented homeless individuals whose property was wrongfully destroyed.

I represented Maui and Hawaii Island residents in deportation cases after ICE agents entered their homes without warrants. And I represented a filmmaker in a media shield matter against a wealthy homeowner who found Iwi Kupuna on his property.

Throughout my career, pro bono work has also been an important part of my law practice. I currently represent an asylum seeker who lives in West Hawaii and who, with her young son, fled domestic violence. I also currently represent a public housing tenant in a dispute with a debt collector.

My previous pro bono cases have included representing an individual who is denied unemployment benefits during COVID as well as representing Ke eaumoku Kapu before the Hawaii Supreme Court in a quiet title action where he was wrongfully denied an opportunity to present his case to a trial judge. Ensuring access to justice has been a through line in my legal career, and it will continue to be so as a judge if I'm confirmed.

Another component of access to justice is having one's case heard and decided in a timely manner. And from my conversations with Senators and others, I know that the ongoing backlog of cases at the ICA remains a serious concern.

Reducing and eventually eliminating that backlog will be my primary focus if I am confirmed. Along with the other six judges on the court, I will be thorough and I will be fair, but I will also work tirelessly to decide cases as quickly as possible. I know that lengthy delays in decisions have serious real world consequences for the parties.

I don't take that responsibility lightly, and I will do everything I can to move cases along as quickly as I can. I spent my entire legal career here in Hawaii. My kids were born here. This is my home. I've tried to serve this community the very best that I can. If confirmed as a judge, I will continue to do so. Thank you, and I welcome the committee's questions.

Great. Thank you. Members, questions? I have some to start with anyway. So currently, you're deputy corporation counsel for the City and County. You've been there since 22. Is that correct?

That's right.

Can you just tell us about what your responsibilities, what your, what your... Excuse me. What your responsibilities are there and what takes up most of your time?

Sure. It's, if I were to give it a category, I would say special projects. I was brought in to serve and advise the board of directors for HART, the Honolulu Authority for Rapid Transportation, and I still do that. So we have a HART board meeting tomorrow, so I staff that. I do a bunch of constitutional and administrative law litigation.

So after the United States Supreme Court decided the Bruen decision, which authorized a concealed right to carry a firearm in public, I worked with the Honolulu Police Department to set up a new system for authorizing licenses to carry in public and also handled litigation that arose from that.

There have been a number of cases in federal court that I've handled. I still give them ongoing advice when they come across a particularly thorny issue on whether to issue a license or not. I also have handled a number of appeals. So I had a 9th Circuit argument a couple of weeks ago on a seizure of gambling machines that happened back in 2012 and whether that was lawful. I have the Haiku Stairs matter.

I'm still handling that. It's actually three different lawsuits that are still pending in state court. And let me think. I have another case that I'm working on where we just got cert granted at the Hawaii Supreme Court on a procedural issue involving summary judgment. So it really runs the gamut.

I'm technically assigned there are two divisions within corporation counsel. There's counseling and drafting and litigation. I'm technically assigned to the counseling and drafting, but I overlap with both of them. So it really it fits a wide range of projects.

Okay. So were your responsibilities taking you into both federal court and state court?

Yes. That's right. At both the trial and appellate level.

Okay. Well, I'll pause for a second. Members, other questions? Okay.

Senator Chang has a question.

Oh, I'm sorry. Go ahead. No. Go ahead.

Thank you, Chair. And thank you for your willingness to serve the state in this capacity.

Thank you, Senator.

You earlier mentioned in your comments about the backlog at the ICA, and this committee has taken this matter seriously. Can you talk about what specific steps you would take to try to expedite the backlog?

Sure. I think the biggest factor will for the court will be just having a full complement of judges. You know, this court authorized the seventh judge for the ICA, I think, in 2021 or 2022. But because of vacancies and the time it takes to fill appointments, they haven't had the full complement of judges for most of that time. So just being fully staffed, I think, is going to help.

Another thing that I would like to do that I know the court is already trying to do is to just be briefer in the opinions that they issue. The last few cases I've had with the 9th Circuit, the court has been able to issue decisions within three weeks or so of oral argument, but the decisions tend to be about three or four pages long, just very concise and to the point.

The ICA's opinions tend to be longer, more in the realm of 10 to 11 pages. And I think just being shorter means you're spending less time drafting, and my colleagues would be spending less time reviewing that written work. And I think that you can still be fair and thorough while also being concise and trying to get the opinions out faster.

There's also I'm exploring the possibilities of using AI in different capacities. I've tested out the tools. I don't think anything that is out there right now is anything close to ready for legal analysis or research or any of the core work that a judge can do.

But I do think that there may be room for some of these tools in summarizing of a voluminous record and coming up with a summary of facts or doing something else to do some of the background work to try to help to reduce just some of the time that's spent reviewing the case before you can even get to the legal analysis.

So those are a couple of things. I know I spoke with Chief Judge Nakasone the other day. They've also talked about reallocating the staff attorneys at the court to try to make their processes more efficient, and so I look forward to speaking more in-depth with her.

As you know, this is not your first time before this body. And you've also worked with us when you were at the Ethics Commission. This relationship has not always been the most harmonious one. And yet it will be your duty to be an impartial adjudicator of disputes should they arise between the legislative and the executive branches. Can you talk about your experiences and your commitment to that impartiality?

Sure. Well, I think first and most importantly, I think I firmly believe that it is the legislature and it is the executive that formulate and execute policy. It's not up to the judiciary to be formulating policy or making those kinds of policy decisions on its own. Our fealty is to the law and to carry out those policy objectives as the legislature has enacted.

And if you ask about sort of my background, you know, I've had the opportunity to work on multiple sides of different issues. So for example, earlier in my career, I brought litigation against police officers. And in my current position, I have represented police officers both in, you know, in the gun issues that I mentioned, but also in police misconduct concerns and other issues.

And so that work and the breadth of experience that I have I think allows me to have a good perspective that I haven't just done one thing my whole career, that I've been able to see different people's perspectives on how they approach problems. And I think that will allow me to have an open mind throughout my career as a judge and make sure that I'm really basing on the law and not on any personal feelings that I might have.

One specific case that I thought the Hawaii Supreme Court got it wrong was when they found that the the constitutional amendment to allow real property surcharges to be used for education funding was unconstitutionally vague.

And as it turned out, that decision came down after the ballots had been printed. The voters indeed voted on that 70 to 30, they voted no against this tax increase despite the vagueness, what the Supreme Court thought was the vagueness of the question. Do you think that case was correctly decided?

So I first wanna stress that, as an ICA judge, we follow the precedent that's set by the Hawaii Supreme Court. So it is not my place to overrule certainly or question, even if I may disagree with what they did. As a general rule and without commenting on the specific case.

As a general rule, I trust voters to be able to make informed decisions both when it comes to ballot initiatives and also in choosing their elected representatives. And so my tendency would be to defer to the electorate to make those decisions.

Thank you, Chair.

Thanks. Other questions, Members? I'll just go back to that, the line of questioning that Senator Chang started on the timeline for getting through appeals. I mean, they've been, the ICA has been so far behind for so long that everybody was, like, thrilled when they made it to, like, three and a half years or something. What is a reasonable, if everything was in an ideal world, how quickly would appeals out of the ICA from the time that you appeal to the final decision, how long would that take?

So I think there's sort of two periods of time to think about. One is the amount of time that it takes the parties to finish their briefing. So by the time the lower court enters its judgment, then the parties have thirty days to file their notice of appeal.

And then you have to get the record of, record on appeal transferred over, and then the parties have to do their opening, answering, and reply briefs. And that whole process can take nine months or longer depending on if people are asking for extensions.

Excuse me for interrupting. So what part of that is is takes up the most time? Is it just getting the record on appeal?

I think that is some of it. I know for the briefing, just the briefing alone, from the time the record on appeal is done, I believe the appellant has forty days to do their opening brief, but they can ask for an automatic extension of another it's either fifteen or thirty days.

And same with the answering brief, and then the reply brief is due a little bit sooner, but it's still a lengthy process. So it could be, you know, the courts could consider shortening the time period. Although most of the appeals I've done, the parties have asked for the extensions anyway just because it's a normal practice. Lawyers wanna have more time to do everything.

Yeah. So but in terms of you're talking about AI, was it? I mean, isn't AI probably to the point where, I hate to say it because I have friends who are court reporters, but do we really need court reporters anymore? Why can't we just transcribe it? I mean, that would save a ton of time, I would think.

So there are some cases that don't have transcript needs at all. Right? Like, some things, either if there wasn't anything particularly notable in the trial court where you just don't need to read the transcript or you had something that was done completely on the paper.

So it is possible you can have cases with no transcripts at all. As for whether AI can do it, honestly, Chair, I don't think I can comment on that. I don't know the tools well enough and whether the reporters feel comfortable authorizing or sort of certifying something without having gone through the audio. So I just don't know the answer to that.

Okay. So on the on the briefing schedule, I mean, I don't think those briefing schedules have changed since I worked for the ICA in 95, and the technology obviously has come a long way since then. So is that, I mean, you've already mentioned you thought maybe they could be shortened. But isn't that isn't that a fairly obvious thing to do to shorten it because you just don't need that much time to get your briefs ready?

Maybe. Although, you know, I have had complex appeals where it does take me a solid three to four weeks of work just to prepare the brief. I mean, the briefs for appeals tend to be longer. I mean, the appellate courts, I believe it's 35 pages at one and a half spacing. So they can be dense, and you can have exhibits, and you need to go through a record, which at times can be voluminous.

It's still shorter than the 9th Circuit where I think you can write up to 70 pages or something for a brief, which is too much. But I certainly, I know that the court has frequent times where it goes through the rules and takes suggestions from members. And so I'm happy to speak with the Bar Association and the other court.

Well, I interrupted you on your way to the to the answer to my original question, which was how what do you think is a, if everything was running well, what would be a reasonable time to turn an ICA appeal around?

Yeah. So I'm I'm looking at the 9th Circuit for a comparison. So when briefs are done, they will generally schedule an oral argument if attorneys are involved on both sides. And I believe the oral argument is within about five to six months of the closing, and then the opinion comes out very, very shortly after that.

So they so they often finish up in less than a year?

Oh, yeah. Yeah. No. I think less than a year would be should be doable. Yeah.

But the but the ICA often, in fact, almost never has oral arguments. Correct?

Correct. And I think it's because of an attempt to try to be more efficient because the oral arguments do take time.

Do they, do they take time, or do they actually elucidate the legal issues enough that they maybe speed things up by just crystallizing people's views on things?

It's a fantastic question, and I think that's a debate that's been ongoing for many, many years. I know we've had US Supreme Court justices who have said that, you know, oral arguments don't make any difference at all. And I think there's something to be said for, look, everything's in the paper and you can do it.

There is a benefit in oral argument in having the interaction with the public. I mean, nobody, if you never have oral arguments, people just never get to see or never get to interact with the judges. And I think that there is a value in having that kind of openness and transparency with oral arguments at least some of the time.

Okay. Thank you. Other questions, Members?

I do. And I don't think it it falls under your bailiwick after even after you're confirmed. But as you can tell, the biggest issue is the backlog. It seems to me as an appellate practitioner, former appellate practitioner, that if you could get your clerks or your to review the cases beforehand because a number of those cases can be summarily dismissed if they fail to reach final judgment.

Right.

Right? And I hated the fact that you folks, not you. You're not in there yet. Wait until after the briefing, and then you come up with a summary disposition. Final judgment hasn't been reached.

Isn't there, shouldn't there be a process where at least the clerks could look at that, come up with a summary disposition order. I mean, get a judge to look to see a summary disposition order, final judgment hasn't been reached, and summarily dismiss those cases so that you guys can call your backlog? .

So I think there are some procedures in place, and certainly, I think could be improved. But one of the requirements of the rules of appellate procedure is that there be a jurisdictional statement, which is actually filed before the briefs are. And so practitioners can do one of two things.

They can either contest jurisdiction for lack of a judgment in the jurisdictional statement, or they can file a motion to dismiss at the outset before the briefs have been done. So that does happen, and I know the ICA does grant motions to dismiss with some frequency. I don't know if there's another way to do sort of a sua sponte review of cases for lack of jurisdiction. I'd have to inquire as to the procedures.

And I'm advocating for that because, as you know, because you're a practitioner and Chair Rhoads used you in ICA clerk, a lot of times the decisions had nothing to do with the briefs. Right. So there's usually, like, a sua sponte decision anyway. So is that something, you know, after confirmation, you can discuss with Chief Judge Nakasone and at least let's call some of these so we don't have as big backlog?

Yeah. Absolutely, Senator. And I can assure you that, like, any way to sort of decide a case faster is a priority for me, and I know it's a priority for the rest of the judges as well. Thank you, Senator.

Other questions, Members? Okay. I have a couple more. So kind of an odd time, I hope it's an odd time, legally on at the federal level. And of course, what happens at the federal level does affect us legally in certain in quite a quite a few ways.

But, of course, as you've already stated, your job is to follow the the precedent set by our Supreme Court. Do you see, what do you see in terms of the what I think is fairly obvious in some situations, especially, for example, on the gun case where the the Hawaii Supreme Court went off in an entirely different direction.

How do you, how how do you sort of manage that tension, and when how do you, how do you plan to rule when when there is potential conflicting advice as it were coming, it's not advice really. It's coming from the US Supreme Court and the Hawaii Supreme Court.

Sure. So all Hawaii courts are bound to follow decisions of both the US Supreme Court and the Hawaii Supreme Court. But the US Supreme Court wouldn't take certiorari on a case where there is an independent and adequate state grounds for a state court's decision.

So as long as a state court is deciding state law, then the US Supreme Court shouldn't be interfering in the Hawaii court's determinations about its own jurisprudence. And so if you have, and and Hawaii courts are clear on this.

You know, the federal court's decisions on a particular issue may be informative, may be instructive, but they're not controlling. And so it does happen with regularity that the Hawaii courts decide that they're not going to follow federal law where it's just inconsistent with Hawaii precedent or or Hawaii values.

Okay. So then your answer is you're just sort of underlying answer is you'll do what you're required to do as ICA judge.

Yes.

Follow Hawaii, Hawaii Supreme Court precedent if it conflicts, assuming it's not a federal question of some kind?

That's right. I mean, if there is a federal question and there's controlling US Supreme Court precedent, then we're obligated to follow that. Those are the rules.

Okay. Alright. Members, other questions? If not, thank you very much. And as I mentioned before, we'll have the, we'll do the decision making on your nomination tomorrow at 10:45 in this room, 016, and that was March 20. We are adjourned.