 Thanks for attending. We have the honor of having with us today retired Judge Walter Kieromitsu from the Intermediate Court of Appeals. Walter also had a long and successful law practice in Hawaii. He was also head of school for St. Louis School as well as Chief Counsel for the University of Hawaii for a good number of years. So Walter has quite a few experiential cards in his deck to share with us today. We also have Jeff Portnoy, one of the most respected litigators and a partner, senior partner in the Cade Shuddy firm here, our leading First Amendment lawyer, and also strong in the torts medical malpractice and other civil litigation. Jeff Walter, thanks so much for being with us. I don't have any, I don't have any experimental cards in my deck. Maybe Walter would deal me some. Okay, but you have your MAGA tie on today, so. Yeah, I do. I know it's a St. Louis tie, Walter told me. Awesome. Awesome. Okay, today we're actually going to do something different. Rather than dig deeper and dive deeper into the corruption and bias in our legal system, we're going to let Walter and Jeff who have over 40 years of experience each share some of their most inspiring experiences of what our legal system at his best can be and what we can do with it and things and elements in that system that are worth preserving, worth perpetuating, worth nurturing through these really challenging times. It's going to be a short show. And Jeff is our humor colonist, kind of our John Madden color colonist of the group. So Walter, what got you into law and what kept you there, what motivated you, what inspired you? Well, Chuck, to tell you the truth, I got into law because I didn't know what to do. I was an undergrad and I knew I couldn't become a doctor because I couldn't stand the sight of blood. I couldn't become an engineer because I was poor in math. And so I thought to myself, I didn't want to be a teacher. I didn't want to have literature. I didn't want to be a nurse. So I told myself, well, that leaves law. And so I decided to take the entrance exam for the law school and got into, luckily got into University of Michigan. And from there, I developed a very, very keen interest in law. They taught me all the rules of law, what precedent is all about and how, you know, law practice usually operates and how the judicial system works. So it all intrigued me. And then I realized that, you know, learning law, Chuck, and Jeff, is really the core of life. You know, everything that we do, we have rules, we have ordinances, we have procedures. We also have respect for the rule. Even if you're not in court, I realized that much of our lives or a substantial part of our lives is really run by a set of rules. And we learned that as we go along in life. And I began to appreciate that. And I said, you know, this is worth preserving. And that's kind of why I ended up as a mitigator, as a lawyer, and eventually as a appellate court judge. So thanks, Walter. And so now we're in a time where the pandemic has taken law out into frontiers that many people are not familiar with, where you can go, who you can be with, how many people you can be with, what you've got to wear in terms of masks and protective equipment. When you can start groups, schools or other activities, has the law gone too far? Or do we need it there to help protect? I think we do need the rules of law, especially in this time of the pandemic, because everything is out of sync. And so we do need to regulate our lives by rules, procedures. Even the six feet apart wearing the mask involves rules and procedures and restrictions. Those are all basically some form of legal procedures, illegal precedent. And so especially now, we do need a strict sense of set of rules and laws so that people can regulate their lives to secure safety and protect themselves. So I noticed that even in Japan, they have following procedures in the six feet apart and no coughing. You cannot applaud, but don't yell. Don't voice yourself when spread the disease, especially in the pandemic. The other thing, Chuck, I noticed that with the onset of COVID, we have in the legal practice certain kinds of cases have come into prominence. One is there are many more claims against caregivers, nursing homes is a prominent rise in lawsuits against these caregivers. A second aspect is there are claims against insurance companies now, whether COVID situations are covered under a person's insurance policy. Another category of cases would be claims against not only caregivers, but also against people who provide ventilators, the nursing, the nursing, the hospital, the clinics, whether they're following the right procedures and making adequate safety precautions. So even in the legal arena, the pandemic has spread into a surge in certain types of cases. So there's a definite impact of the corona or COVID pandemic in the legal practice. So Jeff, let me ask you, as our leading First Amendment expert, we're seeing a lot of people out there who are claiming First Amendment rights to disregard some of those rules and restrictions, even though for health and safety reasons. What's your take on that? Has the law gone too far? Do they have constitutional rights to resist those restrictions? Well, you know, there's always going to be a segment of the community that's going to claim that constitutional rights are being violated, whether it's a result of the pandemic, whether it's a balance between religious liberties and discrimination, whether it's because something happened to them at birth and something is in their brain that makes them believe that government is not necessary. So there's always going to be a segment of the community that regardless of what the issue is is going to claim that they don't have to pay their taxes. Then there are some that are a little bit more modest about their claims of constitutional deprivations and many times those are successful. I read just yesterday what I believe is the first or second Supreme Court case out of Pennsylvania, this one was, after the Wisconsin Supreme Court, along political grounds ruled against the governor's restrictions, the Pennsylvania Supreme Court in a case called Friends of Danny DeVito. I thought it was the actor, but it's actually a person running for office, state office in Pennsylvania. But they challenged a bunch of the Pennsylvania governor's edicts and the Pennsylvania Supreme Court in a fairly reasoned decision said too bad. I mean we're in a crisis, we're in a pandemic, it falls within the governor's emergency powers and yes, some of your rights are going to get restricted. So can it go too far? Yeah, no question. I don't think it has yet. I think we know about the two lawsuits here that have gone nowhere. One was dismissed after the judge ruled against them preliminarily. I don't know what's happening with the other one. But people better get ready because with 177 cases over 100 the last week, don't be surprised if the governor and the mayors decide to shut things back down. We already know the mayor has shut down bars. You can argue whether that was the correct response because of, you know, two bars allowing people to not follow the guidelines. But yeah, I mean, look, I'm a constitutional law guy. I believe in constitutional rights. But there comes a point where public welfare, safety and health are going to take precedent and it's always going to be a balancing test. As Walter knows, he probably handled those kinds of cases while he sat on the ICA. No, and that's that's a really good point. Walter, your take. Yeah, absolutely. It requires balancing of the interests and, you know, constitutional rights of one thing. But also within that constitutional rights, you have the welfare of the general public and people's welfare. So you have to balance those different considerations and find an ultimate decision or conclusion. So it's it's traditional. And it's it's just that it's highlighted with severe stress now because of the influence of COVID. Well, and the last thing anybody wants to be is dead. Right. Yeah. But at this point, there are people with arguments on both sides, on the restrictions and saying, oh, we've only got a few deaths and they're all old people with comorbidities. The three of us might be a little bit sensitive to that. But not. Not I. But but what Lieutenant Governor Josh Green is talking about is we're looking at a lag time of one to two weeks between the case spikes and the hospitalization spikes. And if they continue at this rate and those spikes start to surface in hospitalization in a week or two or three, we're going to see hospitals up against capacity. And two of them, which are major hospitals are already getting there. So Jeff, your point is a good one that the protective measures in the balancing test are health and safety. The constitutional expression rights are important as well, but not as weighed against those factors. Yeah, I mean, you know, I mean, COVID has brought out a lot of these issues that sometimes are just festering below the surface. But there's nothing new. There's nothing new about people challenging what they believe are governmental interference with their constitutional rights. I mean, it's going on around the country pre COVID and it'll go on post COVID. I mean, the Supreme Court is now dealing with all of these religious liberties cases and state courts are dealing with religious liberty cases versus discrimination against gays. We know about the Baker case and, you know, whether you can force a baker to bake a cake for a gay wedding. I mean, that's the constitutional law case. And at some point society decides that the rights of the public are greater than the rights of any one individual. So COVID has just brought it to the surface because people don't want to be told, you know, you have to wear a mask or you got to be six feet apart or you got to close down your business. And I can understand that. I mean, if I'm a bar owner in Honolulu now, I'm, I'm, I'm likely to be out of business. And so is that a constitutional rights matter? Maybe, maybe not. But there's been a decision that in the public good, that has to happen. You know, it's just it's and it's not going away as more and more restrictions are put into place. How about all these school things that are going to come up now, whether you have a right to send your kid to school if the school district decides not to open or or vice versa. So, you know, it's just that COVID has exaggerated the problem and it will continue to do that or the issue. No, and that's a really good distinction, Jeff. And we've seen it in court rulings, including your Supreme Court rulings where, for example, the Supreme Court has authorized religious schools to fire or discipline the employees on on religious grounds, despite First Amendment claims to the contrary. But when it comes to health and safety protections, they have not let religious organizations choose to violate health and safety measures established by state government. I mean, when Walter was a child and they were arguing back in 1930s about, you know, child labor laws, remember, Walter, when you were working and they were paying you 15 cents an hour, there were people, you know, that argue that the government could not impose a minimum wage or could not impose child labor laws because it impacted their constitutional right. So, I mean, you know, it's been going on for 250 years. Walter wasn't around. Walter wasn't around then, but he was around in the 30s. Yes, you know, and and it was 16 cents an hour, but I was making 18 because of exceptional skills. Yeah, in the fields, right? Yeah, yeah. In the pineapple fields. I hear you. And the cannery. And the cannery. So, if we're trying to balance these things now, and even economists like Breu Baker has said, this economy is not coming back until we get the pandemic under control, until people here feel safe to go back to work in school, until people who support our tourism industry feel safe to come here and are able to come here safely. So they're clearly tied together. You can't just associate them as, say, one outweighs the other at the expense of health and safety. So Walter, have you been in places where health and safety risks have come up against constitutional arguments? Have I been in places? Either on the Intermediate Court of Appeals, or in your practice, where health and safety issues came up against constitutional issues? You know, I don't remember a specific issue like that in the ICA at that time, because we just didn't have that kind of COVID type of impact in the situation. However, in private practice, I do recall cases where we had to express concerns over a patient's care and making sure that the patient's care supersedes any of the institutional practices and procedures of the hospital or clinic. And we had to advocate that and fight for our client to make sure that their personal treatment and security supersedes any of the other institutional procedures. So we had that kind of experience. Hey, that's a good point. Jeff, you've been on the other side of that for doctors, hospitals, clinics, and others. Has the law in your experience done a good job of balancing the patient public interest against the health care institutional and practitioner interest? You know, I think that's a matter of debate. I mean, first we start with the jury system. And you know, those cases initially get decided by juries if they're not resolved. There has been an emphasis in this state to kind of minimize the jury system. I don't know how Walter feels about it, but it's clear that we've had a number of chief justices who have imposed requirements that cases go through ADR. You've made a good living on that, Chuck. And I know Walter is now doing that. I've done some. So more and more and more and more and more and more of the civil cases are going to mediation. More and more cases are contractually bound to arbitration. But you know, when it gets to the legislature, it's just in the hands of the voters and the people they put in to office. And that opens up a whole Pandora's box as to who gets elected these days, both whether it's on a local or state or a national basis, who's got the money, who's got to control, who are the lobbyists, and how powerful are they. But in the health care area in Hawaii, I think there's been a pretty good balance. I think if you talk to plaintiffs, lawyers, and patients advocates, they'll have one view if you talk to defense lawyers, insurance lawyers, and lawyers who represent hospitals and health care providers, you'll probably get a somewhat different view. But that's a topic that would occupy us for many, many shows as to damages and what damages should be permitted and all the things that go into tort litigation. But I think for the most part, it just really depends on where you are. I think there are states where the legislatures and the courts have been more likely to find in favor of plaintiffs, injured parties. And there are states where they're more likely to find in favor of companies and hospitals and insurance companies. And that's just the way it is in a 50 state system. In your experience, Jeff and Walter, has this legal system contributed to favorable constructive standards, progress in, for example, health care? Well, I don't know. I guess it depends who you talk to about whether they find it constructive or not. I think it's an evolving process. I mean, not to get trite, but we live in a democracy, apparently, allegedly. And people get the right to vote. And they vote in people they believe will follow what they think should be done. And you can question the Hawaii state legislature. I do it all the time. But other people are very enthusiastic about what happens. The interesting thing about Hawaii is that it's a total one-party state. And that's another subject for another time. Because even though people argue, well, it's really not a one-party state because there are different constituencies within the Democratic Party, it's a one-party state. So do you have any checks and balances when every elected official is a Democrat, whether it's on the state level or the county level or the federal level? I don't think so. I don't think it's a good thing. But that's for another time. Walter would probably, I would guess, might disagree because he's been a very supportive and a very important stalwart of the Democratic Party and what it's done for Hawaii and for workers, et cetera, right? Well, I think that's correct, Jeff, except that going back to that medical care system and procedures, I'm kind of an optimist. I don't know whether it's because I'm a Democrat or my Democratic thinking, but because of some of these lawsuits that we or the injured patient brought to the medical institutions and so forth, it has, to me, had a positive impact or constructive impact because I think the medical care in Hawaii is quite good. And the hospitals, the clinics are very aware and concerned about the patient's safety, security. I don't think all of that is because of lawsuits that were filed before, but they have resulted in constructive improvement of our medical care, as well as a concern for liability insurance coverage. Hospitals are, in fact, some of the doctors are very concerned about the costs of liability coverage. And so it has impacted medical practice, I think, too, in a positive way. So that's kind of how I view the medical care in Hawaii. We're very fortunate. Well, all I'm going to say is, well, know by tomorrow whether you can still sue hospitals. I mean, the Republican plan, which is pending negotiations, is to give immunity and protect health care providers and hospitals from liability related to COVID treatment. I think many people would argue that's important and should be done. And other people are going to argue and are lobbying hard against it, including plaintiffs lawyers. And so we'll find out, probably Friday or Monday, whether this new relief bill, which is supposedly to deal with financial relief, is going to provide immunity for COVID-related health care. It's a fascinating time. Yeah, interesting. I didn't know about that. It's very, very interesting. It's an ultimate balancing test. And for employers as well, right, Jeff? Certain employers, yeah. Yeah. I mean, I don't know the exact language. And the Democrats are fighting it tooth and nail, so it'll be interesting to see if it survives. It's interesting that mini-tort reform finds itself in a COVID relief bill. But that's how politics work. Wow. I wasn't even aware of it. You know, and as we get into our last few minutes here, Jeff and Walter, you've raised what is probably at the forefront of people's concerns right now with regard to our legal system, our system of justice, is the elections and voting, and what role the laws and the courts may play in that, and what role politicians may play in that. What are the risks that you see for reliable voting? Jeff? Well, I don't know if in two minutes we can talk about it, but we all know about the public controversy over mail and voting. And are we going to see Bush versus Gore multiplied by 10 states this time? I mean, if you listen to the president, there's no way this is going to be a legitimate election. And millions of people who are dead or don't exist are going to wind up voting. If you listen to other people, the only way to make sure we have a fair election is to make sure that everybody has some opportunity to vote. I don't think there's any question that this is the most perilous time that I can remember, pre-election, where there's so much controversy over whether the election will be legitimate or not, depending upon your politics, and probably essentially how it ends up. Walter, your thoughts, your last thoughts? Yeah, I just have some good news that the task force that we're trying to get started, we've come up with a draft mission statement, which includes this preservation of the three eyes in judicial independence, impartiality, and integrity. But also, it also involves advocating fair elections. So the electoral process is very, very critical to make sure that we choose leaders or charismatic leaders of conscience and character as you describe Chuck. And so that's part of the task force mission. So we're on it. And I think it's very critical, especially at this time, because President Trump is kind of threatening, saying if he doesn't win, he might object to the electoral process. And so all of this election and getting the leaders of conscience and character are very critical. And they're part of the mission of this task force. And I'll send you a copy of the mission statement, Jeff and Chuck. That would be great. Walter, Chuck, thanks so much for your time, for your thoughts, for your insights. We'll conclude it for today. And we'll see you all in a couple of weeks. No, you won't. Not unless I get that check you've been promising. The checks and balances, Jeff. Yes, $0.18. Don't forget, $0.18. Bye.