 This is ThinkTek. Life in the Law. It's our Life in the Law series, and we're honored this morning to have Chief Justice Mark Wrecked of the Hawaii Supreme Court with us to talk to us about how the coronavirus has affected our judiciary. Thank you so much for coming on, CJ. I really appreciate you being here. Jay, thank you for having me, and thank you to ThinkTek for continuing to inform our community during this time of crisis. Thank you very much. We consider it a very important mission of ours. So talking about government in general, we know how busy you must be because you must be in the same place about watching the branches of government function even in the time of crisis, watching the judiciary, helping the judiciary through the crisis. We need government now, maybe more than ever. We need our courts. We need all the branches of government. Regrettably, we don't have the legislative functioning, but at least we have the judiciary function. I know how hard you work to make that happen. We need judicial oversight. We need to, you know, we need to lubricate the wheels of justice. So disputes and the implementation of statutes, however they were arrived at, you know, can be overseen and handled by the judiciary. Very important that you continue to function by understanding as much of the bar is working, much of the bench is working, and you're working harder than anyone. So we appreciate that. It's not harder than the folks on the front lines, but the healthcare industry. But, you know, we, well, first of all, thanks for having me on, Jay. I mean, I think, you know, we face the balancing between wanting to protect the health and safety of everyone who comes into our courthouses, our staff, our judges, and the public with also continuing to operate and do business. So that's really been the focus of our efforts over this last six weeks is to strike that balance, to figure out ways in which we can, the maximum extent possible, keep people out of our courthouses but continue to operate. And whether that's doing hearings remotely, deciding motions based on just paper submissions from the parties or written submissions as opposed to having oral argument or restricting access to the courthouses to people who are only there for very specific reasons from the public side, and then internally trying to have as many folks as possible set up to work remotely. So we're minimizing the number of people who are in our courthouses each day. But we need to be open. We need to be doing the public's work and ensuring that two processes maintain during the crisis. But we also need to do our part to make sure that we're doing everything possible to maintain the health and safety of everyone who comes in contact with the judicial system. Well, wow, let me unpack some of that a little bit. For example, I mean, we have to maintain public confidence in the system. And that I guess that happens at every level. But you have, for example, right now you have the police are issuing citations and tickets. In a case or two, they made an arrest for violation of the quarantine and orders issued by the governor. Is that in the pipeline? Is there a way to handle that? Or is this going to be something that just gets delayed until we find a better time? Well, I think you know, what we've done on the criminal side of the house is when we have the real focus is on people who are in custody. So if someone is arrested and is not able to post bail, or even if they do post bail, there's a series of constitutional and statutory protections that require action by the courts in a relatively short timeframe. And so what we've tried to do is to maintain that both core criminal proceedings and try to do them as much as possible by video. So if we have somebody who's, for example, being held in custody at OCCC, Wahu Community Correctional Center, we have video slots available on several days of the week. And I try to say that the Department of Public Safety has worked with us to increase the amount of time we have to be able to have defendants appearing by video from OCCC with the lawyers in courtrooms here in Honolulu, and they were able to socially distance in the courtroom and to be able to conduct those proceedings. So for folks, you know, proceedings when we have folks who are not in custody, generally we've tried to continue those proceedings into at least into the end of April to May. And now of course that was our initial order was to basically continue matters until after April 30th. And of course as we start to near that deadline we're going to have to reassess what we're going to do on a longer term basis and are we going to continue operating the same way? Are we going to change things up a little bit? What changes can we make based on the experience we have? So I think really in any particular case depends on the nature of the case and you know particularly in the for criminal cases that somebody in custody and then of course there's a very different approach in civil cases. But even there realizing there's certain core kinds of cases that have to be adjudicated even in this environment like restraining order cases. So somebody that's at risk from violence, that's not something we can put off for a month. That's something that has to be adjudicated hopefully to the maximum extent possible online or in a remote way. But if not sometimes you have to do it in person. Well, you know, you talk about the criminal process that there have been issues raised on whether the prisoners in the Wauau Community Correctional Center should be released because of coronavirus by the ACLU and others. And this is not only why you hear this issue being raised on the mainland as well. Do you have any thoughts about it? Can you speak about it? Where does it fit? Well, I, you know, we do have a pending case in front of us. And again, under our Code of Conduct, I can't comment on a matter of this pending. So, you know, it's out there that there's a special master's in the point that Judge Dan Foley will be reporting to the court that the status of the case right now. And then beyond that, I really can't comment on the issues that that case is raised. I can say that even before that petition was filed, we had done a lot of work on a county level trying to work both with the police, prosecutors and public safety to work through the sort of myriad issues that come up on a day to day basis of, you know, should this particular person be brought to the courthouse? Should we be executing this bench warrant on someone who failed to appear for a traffic violation? Do we want that person in the system right now? How do we go about having the judges come engage with the defendant? Is that something we can do by video? Is it are there arrangements we can make to maintain social distance? So across the state, we had have been and continue to engage on a daily basis with, you know, law enforcement with public states, the public safety department, police, prosecutors and public defenders to try to work through a lot of the practical issues that come up. But the case, the matter itself is now the subject of the comment because certainly something we have to fight on the record. So what about access? You know, access is a big part of the American system. The public should have access. The courts should be open to the public. But you really can't do that. I mean, you know, talking about the micro work by the Japanese science community on micro droplets, which are, which are emitted when you just speak in a conversation, they hang in the air. This is probably a big reason why coronavirus is so contagious. So if you let people in, you're going to have micro droplets for sure, and you're going to have contagion. How do you handle that? How have you handled that? A couple of ways. So, you know, I think one critical, you know, for one critical step we took, I think it was around March 20, when we basically closed our courthouses for all but official business. And what I mean, and that order said the folks who could be in the courthouse building were relatively specific, people who had a specific role in the proceeding, attorney, a party, translator, domestic violence advocates, there were very specific categories that we identified. And the order said, you know, enter the building, go to the proceeding, turn around and come back. And then the direction was to maintain social distance in the courtrooms as much as possible. And I think we tried, we've tried very hard to maintain that. And then to clean, you know, intensely those areas where folks come in and come into public contact. But you know, those, so those are that that small category of matters that are still being conducted with people physically coming in. But we tried to minimize them to the greatest extent possible. We tried to find other ways to resolve those cases without having people come in. And then when they do come in with we could just have folks who are there for that very limited purpose. And then are absolutely the courthouse afterwards. And you know, I would view to be clear, the media wanting to cover an event and that being obviously a legitimate reason for some of the being in the courthouse. What about jury trials? You know, it's hard to do that by remote. And it's hard to have a jury of 12 sit in a in a regular jury box where you can't be six feet apart. How can you handle how are you handling jury trials? You know, it's a great question. That was, you know, one of the when I entered an order on March 16, to basically set the framework for what we're doing in the judiciary in terms of how to handle this crisis. And, you know, did I did sort of the broad parameters of what we were going to do. And one of the things one of those was to continue jury trials or until after April 30, if that was back in mid March, and now we're going to have to re-asset that as April 30 of years. But it was apparent, although, you know, we had tried to figure out ways in which we could minimize the risk. You know, we initially were looking at, you know, strong policies for folks who had traveled to particular places might have been had other risk factors and then allowed potential jurors if they were in the high risk categories to ask for excuses based on those risk categories without having to come to the building. But eventually, we reached the conclusion that we simply had to stop bringing people together in this way. Because, you know, when you when you create a jury, you need a lot more than just the 12 people plus the alternate to around the jury in the pool and to bring them together for jury selection. And so we, as I believe every other state and federal jurisdiction across the country suspended jury trials during this period of time. And I think, you know, we are actively trying thinking through what might we do or how might we bring back jury trials going forward. I think, again, it's a real challenge because it is typically a face to face. People are in a room. You could try to socially distance and certainly those will be things that we'll think about. But, you know, typically you do have a lot of folks in a relatively small space. And so we have a lot to work through I think before we're going to be ready to bring people together in that way. That is a kind of uncomfortable in the sense that the American jurisprudence is based on looking the witness in the eye, seeing the sweat on his brow or her brow and try to figure out if he's telling the truth and making a determination of fact on that. So, you know, we have to preserve that and preserve the system. One other thing I wanted to ask you, CJ, is we have special situations now, civil situations. We have situations involving businesses that can't pay the bills, especially the rent or mortgages or loans. We have situations where people can't pay the rent for their homes. We have all kinds of, you know, breakaway type civil situations. And I recall that you've issued some orders dealing with that and delaying, for example, evictions. What have you done and how has it worked? Well, I think we've, you know, foreclosures and evictions, both proceedings are among the ones that have been continued until after April 30th. So again, we're going to have to assess everything that we did in that initial order back on March 16th to determine how we want to proceed going forward. But I think there are, you know, we get questions sometimes about in the landlord spending context. Well, what if there's a, what if there are, you know, there's conduct that's threatening or that might affect public health safety and, you know, the restraining order mechanism is still available. So there are still avenues for people to proceed in that context. But the proceedings for eviction and the proceedings for we decided again, because they tend to be bring a lot of folks in and bring people together in the building. Those were some of the proceedings that we continued, although in every instance, the judge has the ability to say a particular matter is urgent and needs to be resolved immediately that judges still retain that power. And so that's the balance we've tried to strike in that area. And again, we, you know, we need to look ahead when we get to the end of the month and decide how we want to proceed. And we're going to try to use the best evidence that we have in terms of how long this crisis is going to continue and figure out the right path forward and really are listening very carefully to our judges out in the field. You know, and we have I have to emphasize we've heard the bar twice a bar association and its members have been extraordinarily helpful both in terms of us being able to share information about what we're doing in the courts with members of the bar and also being able to hear from members of the bar. The challenges they're facing and being able to practice in this in this environment and ideas for what we might be able to do to ensure that, you know, the legal system can continue to operate both in the civil and criminal arena. So in my hats off to a great Friday president of White State Bar Association, Pat Maus should be due because they really have helped us get out the word about what we're doing. And you know, I realized what a lot of, you know, I set that framework for how we're going to in essence reschedule and move to a world that is let as minimally in person as possible. But I left to each Chief Judge in each circuit the opportunity and responsibility to define how that was going to take place in their individual circuits. So each circuit Chief Judge issued a series of orders, addressing specific courts, civil criminal family in their respective circuits. And we realized there was a lot out there. So we put it together on our website in one place where people can find it because we want to be sure folks, lawyers and others have to navigate the system can understand what's up and what's running and what's not right now. What's the name of the website CJ? So if you go to the White State Judiciary, if you Google White State Judiciary, go to our website, there's a big banner on the top that says COVID-19. You go there and it's all of the all of the orders starting with the White State wide orders and then each of the circuit orders is set forth there. And again, the big ones for us statewide where the order is should not March 16 that set the framework for basically moving us to a non in person hearings rescheduling a number of matters until April 30 and then a couple days later of shutting the courthouses except to official business and we suspended a number of filing deadlines for about two weeks. And that was just to ensure that people who might not have had access to a computer or might have, you know, for whatever reason, might have been exposed, you know, put a risk of exposure if they had to, you know, come into an office and then come to our building to file. We wanted to give them some relief. So for about a two week period, we I suspended filing deadlines in the in the trial courts and the appellate courts that expired on Friday and based on the feedback I've gotten, which is it seems like people have settled in and are now able to work in this environment. I didn't extend it. So we're back to the deadlines that exist is in cases that have been set forth in all of our cases for people to file. What about the those young young people who are taking the bars and we're trying? What's the status there? So that was we did we took the my court, which is in charge of the the licensure process, working with the board of bar examiners. We did two things. First, we extended the bar. So there's going to be a bar exam at the end of July. We've announced that we're going to reschedule it probably for a date in September and then we extended the application deadline for that bar by another month. So we tried to give again relief to folks who I'd not have been able to feature applications on time that that deadline was April 1. And we were you know, I know there's a lot that goes into applying to become a lawyer. And again, some of that might bring us out to bring us out to people out into the community. And we wanted to give them another month to apply. And then we just, you know, along with about a number of other jurisdictions made the judgment that we would reschedule the bar rather than trying to bring again, bring all of those folks together at one place in July. And again, it's just something that people need to plan for they need plan to travel if they're not here in Hawaii. So those are the two steps we took. And I have I found our website address www.court.state.hi.us. But again, if you just Google Hawaii Judiciary, you'll find it. Okay, well, it sounds like, you know, you really got your arms around it. And furthermore, that it's essentially working for now. But that your your approach is to take a look at it. I hate to use this term take its temperature as it were. And tune it up tune it up as you go forward, which is really great. So at this point, where there's so much discombobulation, confusion, misinformation, it sounds like the Hawaii State Judiciary really has things worked out, at least for the moment. Well, you know, I gotta say our, our, and I really have to do two things I have to say, our, our staff and judges have been amazing. And you know, we have people, our facility staff, you know, are keeping these buildings clean, the security folks are, are, you know, navigating the guidelines that we put out for who can come in and who can't come into the building. We have folks who are, you know, coming in and, and, and engaging in our buildings. We have others who are working very, very hard from home. And, you know, people have been incredible and trying to, you know, meet the challenges of this situation. And then I really have to shout out to a lot of our partners in the community. The Department of Health has been very helpful to us. As we've had specific situations arise, giving us guidance about how to deal with them. You know, the legislature was very supportive while they were still in session, in terms of our needs. As I said, the bar has been wonderful. And, you know, we've been able to, again, working with law enforcement and others to address some of the day-to-day issues that come up. And then nationally, you know, we've engaged just yesterday, there was a national web broadcast of judges from across the country talking about ways to do more work remotely, which is, you know, an example of, again, judiciary of judges and staff coming together, you know, both here in Hawaii on the local level at the state level and then across our country to be sure we serve the public, but maintain public health and safety in this crisis. Yeah. And by the way, remote remote is something that the press has addressed and that we have addressed and it works really well. I mean, it's not only think tech and CNN, MSNBC, almost all the guests these days are connected remotely. But let me point this out, though. We're in a dynamic and things are changing. We haven't reached the apex yet. There'll be more cases, more deaths, more issues. And, you know, you can imagine, I'm sure you do imagine, there'll be disputes about this. There'll be legal issues that need to be resolved, just a few to come to mind. You know, one is there was an article about whether in whether the standard form, insurance, business insurance covers business interruption in the context of a pandemic that was in the paper today. policies have to be developed. We have business failures breaches of contract failure supply lines. All these issues are going to come up to be a lot of claims. We have not decided as a matter of public policy, a matter of law, exactly where the burden should fall. Is this an act of God? As opposed to contract talks about active God, but they didn't don't talk about epidemics. And thankfully, a lot of them do talk about it and, you know, handle that issue going forward. But I suspect you're going to be awash in you when I say you know, I mean, the judiciary, the justice system, the civil justice system are going to be awash in new issues of every kind of nature. I'm not sure when this tidal wave is going to start, maybe, maybe it's already starting, although you probably can't handle it right away. But how do you see that? You must think about that at three in the morning, CJ, there's going to be all kinds of new issues that are arising around us, though. You know, I think it, you know, that's what that's how the law works, you know, situations arise. And then that's why we have courts, you know, so that the parties and their lawyers can come in and make arguments to our judges, and we can, you know, listen and decide, make the right call based on what the record and the evidence is. So, you know, whether that's an insurance policy or a contract or a statute, that's kind of that's what we do. And that's why, you know, it's so important for us to continue to survive this error forum with new process for all. And, you know, those, those issues will arise and we will deal with them and do for us, you know. And so, and I'm confident we will be able to do that. And I'm sure there'll be some things we haven't seen before. But, you know, some of these issues have arisen in other contexts, you know, with the corruption on the big island, there was some, you know, tough insurance coverage issues that arose and folks were able to address them. And I'm sure there'll be issues that come up here as well. I'm confident we'll be able to address them and resolve them in a way that's fair. We'll listen to everyone and make the right, make the call that we think is right based on the record. Well, you remember what George Washington said. He said the the true administration of justice is the firmest pillar of government. And I, with you, I am confident that you will be able to handle this. But let's move on to, you know, planning for the future. Because, you know, every every crisis is an opportunity to learn and develop better plans going forward. And you must be thinking about that, too. You must be thinking about, you know, having the resources, having the technology, having the systems that would be able to better deal with another crisis like this. And PS, the scientific community has made it clear that the coronavirus is just one virus. There are others in the pipeline that we will see later. That's the human condition. So this was a bad one has been and is a bad one. But there will be others and they could be even more, you know, damaging. So question is planning, going forward, thinking about how you would, you know, change the system to make it more resilient in the face of other crises in the future. Have you thought about that? And what are your reactions, you know, to plan? Well, for sure. And, you know, just to be clear, we had planned, you know, extensively for civil defense emergencies, including pandemics. We had training for our judges and, you know, we've had folks who've gone and participated in, you know, tabletop exercises on pandemics. So it's something we certainly have thought about, although we put a lot of emphasis into, you know, considering, for example, the framework that would apply for mandatory quarantine if somebody didn't want to go into quarantine. That's not, in fact, something that's really, by now, it's been that much of an issue now in terms of proceeding to actually impose quarantine on folks. So, you know, some of the things that you sort of anticipate might be what we spend a lot of time on. In fact, are not the things that we spent a lot of time on. We're focused, you know, of course, because of the nature of this pandemic, on how do you do the business of the court without having folks come into the court, both in terms of our own staff and in terms of the public parties and lawyers. And, you know, those lessons, I think, are ones and the adaptions we've been making to that situation, I think, will carry us forward. So using technology more effectively to enable people to work remotely, I think on our side will be important. And also learning ways to use technology to be able to engage court proceedings, the public, learning lessons about how technology might be used in, for example, depositions in ways that it hasn't been used so far. Although our rules anticipate that you could have depositions by electronic, you know, by electronic means, you know, are those rules of adequate need to test that we have now. So there's a lot of lessons to be learned and we're learning them. We're learning them fast and we'll keep trying to learn them and be ready to, whenever we need it, whenever we need that information again. Well, will it cost money? Would you seek additional resources to be better prepared for the next one? Would you seek additional personnel or space for that? You know, I think those are all things we want to sort through. I mean, obviously, just having, you know, the resources to be able to, you know, purchase the supplies we need to keep our buildings clean, laptop, be able to, you know, have people work from home, you know, if we need to upgrade our video equipment or audio equipment, those are all things that we'll be thinking about. But, you know, the legislature certainly had expressed, before they went out a session, had expressed the willingness to entertain those kinds of requests if we need them. And so we'll see what our needs are going for right now. You know, we're taking the resources we have and using them to the best of our ability. Well, one thing you've mentioned a couple of times during this discussion is, you know, that the benefits of having remote communication like we're having now, and of course with laptops and the like, in terms of improving the equipment software, what have you, that I wonder if you see a whole change in the system emerging out of this. In other words, finding more and more opportunities for remote connection within the judicial system and making it thus more resilient and more efficient even in times of non-virus. Is this a possibility? I certainly think we're going to, you know, we're all becoming more adapt to using new types of technology. And, you know, I think we had, you know, the technologies we've had in place, you know, our programs are typically audio technology and then tied into a reporting system in the program. So if as we explore new means or new opportunities, I'm sure we'll learn from that. And, you know, that may make us more flexible going forward. But, you know, there are certain kind of core needs that we have. You know, one is for the trial judges to be able to create a record, you know, which is something that the appellate court can look at and understand what happened and then be able to determine, you know, if there's a challenge to what took place in the software, have a clear understanding of what took place. So whatever we do, there's some of those core needs that we still have to be sure that we address. But, you know, we're trying every day to learn and identify opportunities for how we can be flexible and how we can respond more effectively. And I'm sure all those lessons will carry on in the future. You know, CJ, there's a lot of people out there who are worried about the future. We took a poll, a survey on our website, you know. We got some answers back about how people are not necessarily optimistic about the future. This has scared them big time. They've never seen anything like this. In fact, nobody I know has seen anything like this. Even the scientists have not seen anything like it. So, you know, and really it's a test in a way, isn't it? It's a test of government, it's a test of all the branches of government and certainly a test of the traditional system. And I wonder if you could talk to people for a minute in closing even though I have more time, but in closing to say what is your message to them about the future? About the future of our system, our democracy, our judiciary, and you know, the basic principles that have held this country together for all these years? Well, I think people absolutely should be confident. You know, these are terribly challenging times. They're heartbreaking things happening around the country and in our own community that, you know, causes the flaws each day and, you know, causes to have, you know, dark moments. I think every one of us has this moment. But, you know, the fundamental truth is our system is strong. The folks we have who are working in our government are committed to providing those services, maintaining the basic principles of our democracy, you know, equal justice before the law, and due process, and to ensure that people have this forum to resolve their disputes, whatever challenges we're facing. And so I think people should feel confident in the future that our institutions of government will be up to this challenge. You know, we're not going to get everything right necessarily the first time, but we're going to learn. We're going to work our hearts out to figure out the best way to do it. We're going to learn from what happens and get better and better and better. And the commitment of our people is unwavering within the institution, and people should be confident that we're going to be able to continue to deliver on the promise of justice for all and due process that are the bedrock of our democracy. C.J. Mark Franklin, well thank you so much for coming down with us and for talking to us by remote about these really critical issues in our in our community and our democracy. Thank you so much and thank you for all you're doing and I hope we can circle back and check back with you in a month or two to see how it's going. Absolutely, and you know, again one last shout out to the folks on a long front line who are working day in and day out here in our organization and across the state health care providers, public safety folks across the state who are just working tirelessly to keep our community safe. So thanks to them and thank you, Jay, for letting me come on and speak to all your listeners and followers and I appreciate what you're doing keeping the free flow of information. Thank you C.J. C.J. Mark Recton World, Aloha and stay safe. Aloha, you too, Jay.