 I'm Jay Fidel. This is Stink Tech. This is life in the law. And we have the honor today of a visit from Mark Rectonwald. He's the Chief Justice of the Hawaii Supreme Court, appointed as such in the year 2010. In September, he's going to make his 10th year as Chief Justice. Hi, Chief Justice. Good morning, Jay. Thank you for having me. It's great to have you. It's great to have your support over the years. We really appreciate that. And we're very sympathetic to a situation where the judiciary has to meet the challenges of COVID. Judiciary is an essential service for sure. And COVID is a definite challenge to all of us. So I'm really curious to check in with you and find out how it has affected the judiciary and how the judiciary has responded to that challenge. So what does the judiciary have to do to keep on going, to keep on performing its vital essential service in our community? Well, you know, we've had to adapt like everyone else, Jay. And you know, the critical touch, the touchstone for us is the health and safety of everyone who comes into our courthouse. You know, we have a wide variety of folks who come in from judges, staff, lawyers, members of the public, people who are addressing traffic tickets to folks who have cases. And so the touchstone is trying to keep folks safe. And to do that, you know, we've tried as much as possible to minimize folks having to physically come into the courthouse. But at the same time, we also need to continue delivering the critical services that we provide to the public. So what we've tried to do is adopt a strategy of moving as much as we can of our activities online or doing them remotely and minimizing what's happening physically inside our courthouses to the maximum extent we can. But bottom line is always to be looking at health and safety of everyone who's in our courthouses. Yeah, it's a question that always comes up. And that is of the changes you've made in order to, you know, go online and have, you know, the benefits of that health and safety. How much of that do you think will turn out to be permanent? In other words, there are efficiency points that you've learned about. We've all learned about that we need to, you know, deploy to meet COVID. But some of those are lessons that will stand as well even without COVID later. Absolutely. And I think, you know, this has the potential of transforming how courts do business in the sense of having us do more work remotely and in that sense, being more accessible to the public, particularly with one big caveat, making sure that we ensure that folks have access to the technology they need to be able to use platforms like Zoom and WebEx. So that's something we're very sensitive to, and I can mention in a minute. But, you know, the idea of, for example, folks not having to travel into Ireland, lawyers not having to travel into Ireland for a 15 minute hearing, or, and, you know, really surprisingly, you know, folks coming in for civil traffic matters, we've gotten a great response when we've offered the opportunity, rather than coming down to court to being able to engage the court remotely using Zoom and WebEx. We've had something like 75 to 85 percent of the folks who want to engage the court in that manner, who've actually shown up and participated. So it's really, I think, you know, we had sort of identified the notion that there are people in the community. And just given the fact that folks are more used to interacting with government, with retailers, with merchants, with all aspects of our society remotely, we already have come to the conclusion, we needed to do more remotely and online. And I think this is just a further impetus in that direction. But again, always realizing there are some aspects of what we do that require import in-person activity. And that's really, you know, jury trials is a great example of that. Yeah, you need the crucible. You need to be able to see that witness and see him react to the questions and so forth, or her as the case may be. So jury trial, you really can't do much, but have an in-person jury trial. Yeah. Right. I think, you know, there are, you know, there are perhaps aspects that someone could stipulate to. And again, it's different from criminal and civil. And, you know, certainly in the civil context, if the parties wanted to stipulate to do more and more of the trial online, that's certainly something that we're open to. In the criminal context, there's a right to, you know, confront your accusers and the witness against you. And that right is one that involves being in the courtroom, being able to actually see them and have your lawyer or you, if you're representing yourself, confront them. So in-person is sort of a, you know, is a feature of certainly criminal jury trials that I don't think is something that is going to go away. I mean, it's enshrined in our Constitution. So it's something we have to adapt to and figure out how to make jury trials a work in a way that, again, is going to maintain the health and safety of everybody in that courtroom. And we spent a lot of time working on that over the last four or five months. Is there a distinction you think in this context between a jury trial and a jury-wave trial, judge-only trial? I think that's right, too. Although, again, in the criminal context, I think if somebody, you know, if somebody wants to confront the, you know, they have a right to confront the witnesses against them. So I think in that context, if the defendant wants to waive jury trial but wants to be in the courtroom, they have an absolute, in my view, they have an absolute right to do so. Now, in the civil context, there is more flexibility and there have been examples elsewhere in the country of where folks have basically just agreed to conduct entire trials remotely. And that's certainly something if a person wanted to or if parties wanted to raise that with our judges as a possibility in a case on the civil side, that's certainly something that we would be open to considering. You know, you've been very transparent about things. I must say, you know, government does have a need to be transparent in times of crisis. And I have gotten an email from you on a regular basis from your staff. I don't know if it's limited to the lawyers or it's the whole community, but we have seen every step of the way with you in terms of the publication of these newsletters and advice to the community. Am I right? Well, you know, I think we put out press releases to the public on things that are of, you know, particular importance to them. So, you know, when we had court staff who've tested positive, which we've had in recent weeks, we put out press releases to advise the public of that fact. And, you know, in all those instances, our concern is, first of all, the employee and their family and our thoughts are with them. And then of course, ensuring that we take the right steps in our courthouses with anyone who they came in contact with and disinfect and follow all the best practices. But those, when those instances have come up, that's something that we put out and press releases to the public generally for the day to day operation of the courts, typically we sort of will, we have a website where all of the orders that basically explain how we're doing business these days, there's one hit one page on our website, where one can go to find that information. And then we try to share all of that with members of the bar. And I've done myself and our chief judges did a forum with members of the bar a week or two ago, where you had to think about 200 folks online and other meetings with bar members across the state. Communication is critical, Jake. If people, you know, we can devise the best policies in the world, but if people don't understand them or understand what we're doing and importantly have confidence in what we're doing, really it's kind of, it undercuts those efforts. You know, Judge, one of the troublesome aspects of our experience and not only in Hawaii, but elsewhere with COVID is that it's hard to find a balance between meeting the challenge of masks and diminishing the curve, flattening the curve and all that, and then reopening. And I think on the national scene, we reopened a little too early and we are paying a price for it. And you have been through several cycles of that, haven't you? Following on the state, you know, on the state lead, you've flattened the curve and then you've had to reopen, but then you did reopen and then you had to flatten it. Can you talk about the sine curve there, the ying and the yang of it? Yeah, I mean, you know, we have to be sensitive to what's happening in the community, just like everyone else. And we respond to and get guidance from the Department of Health, the governor, the incident response commander. And so, you know, in the immediate, our immediate reaction was basically to pull back all but our very core function. So, you know, criminal defendants who are making their initial appearance, folks seeking a restraining order against domestic violence. So there were just certain core categories of cases that we kept doing in person, but really pretty much everything else for the first couple of weeks, we dialed back and stopped doing in person. And then, gradually, we developed, well, we developed our capability to do more things online. We brought more things back online. And then as we got into late spring to the beginning of summer, of course, you know, days on end of single digit new cases, we began bringing back in person proceedings in our courthouses. Now, of course, what we've seen is everyone in our community has seen as we moved into July and August, although things have stayed relatively low levels on the neighbor islands, the levels here on Oahu of new cases have shot up. And with that, in the last week, the last few weeks, we pulled back some of the in person appearances that we'd had resumed doing. We were going to resume jury trials at the beginning of September. We haven't been doing jury trials just to be clear now for the last since March. We had set a target of early September for jury trials, but a week or two ago, it became apparent that we weren't we weren't the community was not going to be in a place where we could do that. And so we've continued that now to the beginning of October at the earliest. But in the meantime, our judges, and we have a committee that's been formed to basically move us forward on these initiatives, jury trial is one of them, the judge Ashford has been sharing the subcommittee to look at how we're going to do jury trials. What's that going to look like? Because that really is the most challenging in person proceeding to bring back because you need to bring bring people together in a courtroom. And most notably for jury selection, you need to bring an even larger number of people together for selection. So how do we keep everybody distance? How do we screen? How do we keep folks out of the courthouse who don't want to be or can't be here because they're at risk, or they may be feeling ill. And so those are all issues. And then once folks are in the courthouse, what protective gear should we have? What policy should we have on cleaning? And we've been doing physical modifications in our court range to get plexiglass in place where we need it. So all that planning has been taking place over the last three, four months. We were ready to deploy it at the beginning of September. But now it's, you know, the next, we move that back to October and we'll make an assessment is at date years, if we're ready to move forward at this time at that time. Boy, you got to be flexible. You know, there's so many things happening. And the science changers, the advice from national and local health authority, that changes, have to follow all these balls in the air. It really is a moment to step up, isn't it? You've had to work a lot harder, haven't you? Well, our staff has been amazing and our judges have been amazing. I mean, we ask, we ask a lot of people and, you know, they really, they really responded to, you know, learning new things, you know, to go to figure out, you know, we have a busy district court calendar that, you know, traditionally has been a face-to-face calendar, like, you know, civil traffic cases, you know, with 50, 60s, 80, 100 people coming up to deal with their traffic ticket, in essence, and to figure out how to make that work on a Zoom platform or a WebEx platform, you know, is required, you know, like going from zero to 60 on technology, on training for the judges and staff, and just sort of learning how to use those platforms in a way that's going to be user-friendly. And so, our folks have stepped up and, you know, meanwhile, we're all in the community. We all have the challenges that everybody faces. And, of course, we're constantly trying to address and respond as, you know, new situations arise. You know, if somebody, there's a concern about somebody who's tested positive, there's a concern about somebody who's associated with somebody who might have tested positive, as all those situations arise, we have to evolve them, have to respond. But the key for us, I think, has been, you know, our internal unity and strength, and then also the support we've gotten from the bar. Greg Fry, Pat Mauchemizou, the leadership there have been wonderful, Chief Judge Sebrite at federal court, and then people in the executive branch, Department of Health, Hyema. You know, one thing I'll mention, Jay, you know, the National Guard has now been outside of our eight largest courthouses. Frank, it's about three weeks now doing temperature screening and health screening of people who come in, and that has just been an incredible help to us. So, you know, it's a team effort, and we've had a lot of folks who've come forward to help us, and we're very, very grateful for that. You know, on the horizon is the possibility of a spit-in-the-cup test. In fact, one local company, Ocean, it's working on that right now. And if we could have that, you would have results on COVID test in five or 10 minutes, which would change things about entry into public places, and participation in groups, and so forth. That'll be another change you'll have to deal with. Well, you know, early on, we had talked about, you know, we've talked throughout this about, you know, testing and what role it might play. I mean, where we are now is like many elements in our communities, you know, having, doing temperature checks and health screening at the front, and that's kind of, you know, that's what you see throughout our state, in businesses and in government. But yeah, I think, you know, obviously, if there are, and you know, looking forward, if there are quick means of testing, that's going to change, I think, the equation. And of course, you know, if we do get a vaccine, that's going to change the response as well. So I think, you know, what we've learned to expect the unexpected, and you know, certainly it seemed there for a while, like we were moving in a very positive direction. And, you know, we've had to, you know, us as everyone else in the state have had to respond when we realized that, at least here on Oahu, and now to be clear on the neighbor islands so far, and not on wood, a bit of a different situation in terms of the levels of new cases. But here on Oahu, we've had to respond, especially, you know, in these last couple of weeks. And ultimately, I think there'll be changes in substance of law about claims arising out of the compliance or failure of given companies and organizations to make the workplace safe for its employees and staff. And on the mainland, there have been reports, I'm sure you've heard and seen, of plaintiffs who have gone against companies and institutions of one kind or another on a basis that those organizations did not make the workplace safe. I don't know if that's happened in Hawaii, but seems to me it will happen around the country, don't you think? Well, certainly, if you read legal reporters, you know, the reports of these cases that have been brought, I can't really, I can't comment on the trial level here, but, you know, we haven't seen them yet at the appellate level, but there are, you know, if you, again, if you read journals that follow developments in the law, there are cases that have sprung up across the country on a variety of different, you know, raising different claims and different theories. So, you know, that's certainly every time there's a new challenge, anytime there's a, you know, something that's different and poses a great challenge for society, usually it comes back with the, there are usually legal ramifications that then make their way through the system. One of the biggest things about the judiciary and our court system in general is to ensure public confidence. I mean, that goes for government in general, but it certainly goes for the courts. And public confidence in these times is difficult. You have to, you have to, you know, have to demonstrate that and create that. And one of the things that I've observed over the past few years is your program of access to justice. You've alluded to that earlier today, and I wonder if you could tell us the effect that COVID has had on the program and how the program has responded to maintain that confidence in the community. Well, we have a great access to justice commission. That's, you know, the effort that was designed back in 2008 to bring all kinds of different folks together on a permanent basis to look at this issue of folks who don't have access to our civil justice system because they can't afford a lawyer. And it has achieved wonderful things during those 10, now 12 years. But these times have been very challenging just, you know, for that area of the law just as for everything else in our society. So our chair of that commission is now a retired judge, Joe Cardoza from Maui. One of the areas they've been looking at and working with our committee on operational solutions is how we ensure that people who don't have access to Wi-Fi or, you know, cellular coverage are still able to access remote hearing. So that's an important piece. Another area, you know, that they've been working on is sort of being able to prepare for when the eviction moratoriums that have been in place, when those do expire, you know, will we be ready to handle the influx of cases it seems likely to occur and what programs will be in place, what resources will be in place to help folks navigate through that system or through that, through the challenge of all those cases coming in and many, many people being without representation. And also just to be sure that we have a unified or marched approach within our community and within government so that, you know, there are resources that are out there that were intended to be rental assistance, you know, for rental assistance, what role might they play? What role would mediation play? And we work with the Mediation Center of the Pacific to have a sort of robust capability to mediate in those cases when they come in and really to try to mediate them before they come to the courts and try to reach a resolution between the landlord and tenant that would be mutually beneficial. So, you know, the landlord will be getting, you know, eventually getting what they're owed back or delaying or deferring or perhaps reaching some kind of compromise, but the individual, the tenant will still be able to stay in the property. So, those are the kinds of discussions that we hope could be handled by mediation before a suit is filed, once the moratoriums are lifted or after a suit is filed, and then have good communication between the folks who are doing that mediation and the resources that might exist in the community to try to help people. Yeah, that's really a blessing in the community. A lot of these cases are really not so much legal as practical. You don't want to lose your tenant. On the other hand, you have to pay your mortgage, assuming your bank is demanding you do that. And so the whole thing has a corrosive effect on the economy. And for that matter, in public order. So, I'm looking forward to a time when people are reasonable about it and see it from a practical point of view and a community point of view. You're speaking about more than law here. I think so. And yes, there's broader, again, the policy, of course, was to send funds out into the states. The federal policy was to get funding out into the states and communities to help with different issues, one of which was housing. So, there's a public policy aspect of how do we effectuate or how could that policy be effectuated? And then there's the day to day realities of landlord tenant court and how that operates. And then add on top of that a situation where there's the COVID virus, it's difficult to come in in person and resources are stretched in. And then if there's a huge backlog of cases, all of which begin moving at one time, that's a situation which we need to think ahead and be ready to address if and when that happens. And at some point, there will be, at some point, undoubtedly, it would seem the moratoriums would be lifted and there's going to be this kind of activity of, okay, now there are cases that haven't been filed, what's going to happen? Yeah. I wonder about the tolling of the statute and things like that. What kinds of issues are going to arise? Well, there are a lot. Yeah, I can't comment on the legal issues, but I guess the thought is we've been looking ahead and just planning how are we going to handle that and how can we get the resources that are out there in the community working together. So we have the best possible response and a response that's not chaotic because no one thought through what to do when you suddenly have thousands of cases coming through the courts. Yeah. So Judge, the Bar Association, somehow the Bar Association, I make that the Bar Exam is central in the judiciary, in the practice of law, in making the wheels turn. You have to admit new lawyers, not everybody goes to law school practices, but we do need practicing lawyers and business and government and so forth. I recall that you deferred the Bar Exam at least once. What's the status of that now? So we did two things. We deferred the exam into early September. I believe September 8th and 9th. And then about a month ago, we added another option, which was for folks who had applied for this exam. So this is actually was the July, the summer 2020 exam, which is a big one. Folks graduate from law school and you know, the folks who just came out, this is their time to take the bar typically. So we often have a lot of people applying. If folks had applied and decide they don't want to take the bar and instead they want to pursue another path, we're offering them a path of temporary provisional licensing. And what that means is that they can get a license to practice, which will last, I believe, into basically early 20 through this year and into through 21. And it will allow them to practice if they're working for under the supervision of a licensed attorney. So it basically, if you're a can demonstrate good character, and there's very rigorous evaluation of the character of folks who want to be lawyers, you graduated, you know, from an accredited school and have satisfied the legal education requirements, and you're going, you're, you're, you're working for going to work for a licensed Hawaii attorney, then you'll be able to practice for this period of time. And in essence, make the decision whether you want to take the bar exam in February of next year, summer of next year, or February 22. And if you, those will be your options. And at least if the program is put set forth now, so the hope would be if somebody is really concerned about taking the bar and their reasons why people would be other folks are, you know, they're, they're willing to go and let me just make clear, you know, we're doing, we're going to socially distance, we're going to be cleaning, we're going to be absolutely rigorous in ensuring a safe environment when people come in to take the bar exam. But if somebody wants to go in this other direction, we have this other option for them, which you put in place. It was about a month ago now, I think. Yeah, you can't do a bar exam. You can't allow people to take bar exam on, on Zoom or WebEx. That doesn't work on a security level. Some folks tried and they have the, some states tried and there were difficulties in at least a couple of those states. So we could hear that option as well. You know, I'm reminded of two things that flood into my memory about that. One is that medical schools, I'm not sure, I think Japson may have done this, graduated people before they actually finished their last semester of practice, of school in medicine, medical school, which is, you know, good idea because then you get to, you get to, you know, get into the thick of editing, learn on the job. The other thing that floods into my mind is that I came up in New York. In New York until 1928, you could read the law. I'm sure you know about this. And you just associate yourself with a law firm or a lawyer and you would spend a period of time, a year or two, whatever it was, and you could work in that law firm and read the law. And then on his certification or her certification, you would be admitted to practice without a bar exam. Those were the good old days. It ended in 1928. I don't know why I remember that. Well, you know, this, what I described as a bit in that direction in the sense that people can, can get a license, can make a living, can practice if they're under the supervision of a licensed attorney. But what we're saying is they will eventually have to take the bar exam by early 22. Well, Judge, you know, we're almost out of time. And I just wanted to ask you to sort of look into the future. We won't hold you to this. But what are your expectations on how this is going to unfold? I know it's hard to do that because it's kaleidoscopically changing. But how do you see this affecting you and the judiciary going forward next six months or a year? Where are we going to come out at the end of this? And how are we going to be better, worse, or just holding the same? What's your vision, your view of the next say six months or a year? It's very hard to predict. You know, if you'd asked me that three months ago, I might have got a much different or a rosier point of view than I have today. And I guess if we learn anything, we can't assume anything about this virus. So, you know, my hope is that once we have a once we have a vaccine, once we are in control from a public health point of view, we'll be able to bring back in person appearances to, you know, back to something in certain areas. As we said, we have to have the ability to come in in person, but that we'll have transformed by our in our ability to do many, many more things remotely, which will be more convenient, more accessible for the public. And I hope that'll be a long-term benefit of this otherwise terrible situation. Do you see the need or the expectation of any legislation going forward to smooth the edges on what will happen? You know, at the moment, nothing has jumped out at me. I mean, I'm sure there'll be, you know, and we've had a good relationship with the legislature in terms of, you know, when we've had issues that have come up where we need legislation to address particular things, we can raise them. I mean, there have been things that we've had to address in terms of our own rules, which we have looked at and tried to, you know, tried to adjust to acknowledge the immediate challenges. So, you know, one thing we did was reduce the size of grand juries here on Oahu so that we would be more able to socially distance. So there are things that we've been able to do from a rule point of view. And if there are legislative changes that we need, we wouldn't hesitate to go to the legislature and to raise them and say, these are some of the things, this is something we need to be able to operate safely, but to continue providing the services that we need to provide. I hope you don't mind, but I'd like to make a statement of admiration. I admired the job you did as assistant U.S. attorney. I admired the job you did in DCCA, Department of Commerce. I admired the job you did before you were appointed. And since you were appointed as Chief Justice, I've admired really everything you've done. And I have admired your administration of the judiciary, which people don't realize is one of your jobs. So I hats off to you, Judge. And I really appreciate what you're doing, especially in this crisis. And I appreciate your coming on the show. Well, it's a team effort, Jay. And thank you for helping us get the word out about what we're trying to do to keep the public safe, but also to provide the services we do. So thank you very, very much, Jay. I appreciate everything. Judge, before we go, just for the record, I wonder if you could show us your mask and just put it on for a moment, because I know when you came in, you were wearing it. And I just want to there we go. That's Chief Justice Bama Rectonwald in his normal garb during these difficult times in COVID. Thank you so much, Judge. Okay. Thank you very much. Take care. Thank you, Jay. Appreciate it. Aloha.