NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 07-FEB-2024 08:18 AM Dkt. 90 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
A.S., Plaintiff-Appellee, v. J.S., Defendant-Appellant.
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT (CASE NO. 1DV181006111)
SUMMARY DISPOSITION ORDER (Hiraoka, Presiding Judge, McCullen and Guidry, JJ.)
This appeal arises out of a family court case in which
the underlying divorce and child custody rulings are not
challenged on the merits. Defendant-Appellant J.S. appeals
solely from the Order Re: Defendant's (1) Motion to Sanction
Attorney David Hayakawa for Rules Violations Filed 9/28/21, and
(2) Motion for Relief from Judgment Filed 1/20/22 (Order), NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
entered on July 29, 2022 by the Family Court of the First
Circuit (family court).1
J.S. argues four points of error, which we consider in
turn:2
(1) J.S. contends Judge Paek-Harris should have
recused herself because there arose an appearance of bias due to
A.S.'s counsel (Hayakawa) "'liking' photographs on the Judge's
Facebook and Instagram pages during the litigation and
especially during the divorce trial[.]"3 We review the family
court's ruling for abuse of discretion. DL v. CL, 146 Hawaiʻi
328, 336, 463 P.3d 985, 993 (2020). "Decisions on recusal or
disqualification present perhaps the ultimate test of judicial
discretion and should thus lie undisturbed absent a showing of
abuse of that discretion." State v. Ross, 89 Hawaiʻi 371, 375,
974 P.2d 11, 15 (1998).
Hawaiʻi courts reviewing questions of disqualification
and recusal apply a two-part analysis. First, with respect to
1 The Honorable Elizabeth Paek-Harris (Judge Paek-Harris) presided.
2 J.S. also raises, but does not provide any discernible argument on the following point of error: "[t]he family court judge erred . . . in holding that [J.S.] should have discovered her social media sites, when she misled him in her pretrial disclosure." "Points not argued may be deemed waived." Hawaiʻi Rules of Appellate Procedure Rule 28(b)(7); see also Kahoʻohanohano v. Dep't of Hum. Servs., State of Haw., 117 Hawaiʻi 262, 297 n.37, 178 P.3d 538, 573 n.37 (2008). We therefore need not address this point.
3 Facebook and Instagram are social media platforms on which account holders may post messages and photos on their accounts to be shared with others.
2 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
judicial disqualification, "courts determine whether the alleged
bias is covered by [Hawaii Revised Statutes (HRS)] § 601-7,
which only pertains to cases of affinity or consanguinity,
financial interest, prior participation, and actual judicial
bias or prejudice." Kondaur Cap. Corp. v. Matsuyoshi,
150 Hawaiʻi 1, 10-11, 496 P.3d 479, 488-89 (App. 2021) (quoting
Ross, 89 Hawai‘i at 377, 974 P.2d at 17).
Second, with respect to judicial recusal, "if
HRS § 601-7 does not apply, courts may then turn, if
appropriate, to the notions of due process . . . in conducting
the broader inquiry of whether circumstances . . . fairly give
rise to an appearance of impropriety and . . . reasonably cast
suspicion on [the judge's] impartiality." Id. at 11, 496 P.3d
at 489 (cleaned up). "The test for appearance of impropriety is
whether the conduct would create in reasonable minds a
perception that the judge's ability to carry out judicial
responsibilities with integrity, impartiality and competence is
impaired." Id. at 21, 496 P.3d at 499 (quoting Off. of
Disciplinary Counsel v. Au, 107 Hawaiʻi 327, 338, 113 P.3d 203,
214 (2005)).
Judge Paek-Harris disclosed on record, at the start of
the trial, the nature of her relationship with Hayakawa as
follows,
[T]he Court did want to make a disclosure on the record that it was from roughly about 2009 to 2010, when I was practicing law, I did share offices with Howard Luke. 3 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
At the time [] Hayakawa was working with Mr. Luke as an associate. I was not affiliated with the firm. I was simply sharing an office with them. And I never co- counselled any cases with [] Hayakawa. My relationship when I shared offices was primarily with Mr. Luke.
I made this disclosure to Mr. Waki [Fred Waki, J.S.'s counsel] at the Rule 16 conference last week Thursday. Asked him to consult with [J.S.] to see whether there would be any objections. And then on Friday Mr. Waki notified the Court that his client would likely not make any objections. And I just want to make sure that [J.S.] has had an opportunity to talk it over with Mr. Waki and think about it and then of course today state any objections, if he has any. I have no personal connection to any of the parties in this case, no personal knowledge of the facts of this case other than what I've reviewed in the record and heard from counsel during the Rule 16 conferences. I have no financial interest in the result of this case. I'm not related to any of the attorneys. Aside from the fact that I shared offices with [] Hayakawa during that one-year period, I don't have a social relationship with him, business or other professional relationship with him or Mr. Waki.
. . . I do not believe that I have any personal bias or prejudice for or against a party in this case or the attorneys. And I can be fair and impartial in this case.
Following the above disclosure, J.S., who was represented by
counsel at the time, affirmatively consented to Judge Paek-
Harris's involvement in this matter.
We note the absence of record evidence supporting that
Judge Paek-Harris is herself the owner of the social media
accounts, or author of the social media posts, at issue. The
record supports instead that Hayakawa "liked" social media posts
on publicly accessible social media accounts belonging to
Judge Paek-Harris's husband. J.S. does not challenge the
numerous findings of fact about the absence of any evidence
demonstrating an actual conflict. Unchallenged findings of fact
4 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
are binding on appeal. See State v. Rodrigues, 145 Hawaiʻi 487,
494, 454 P.3d 428, 435 (2019).
"[A] judge is duty-bound not to withdraw where the
circumstances do not fairly give rise to an appearance of
impropriety and do not reasonably cast suspicion on his [or her]
impartiality." Kondaur, 150 Hawaiʻi at 22, 496 P.3d at 500
(quoting Ross, 89 Hawaiʻi at 377, 974 P.2d at 17) (cleaned up)
(emphasis in original). We conclude that Judge Paek-Harris did
not abuse her discretion by not disqualifying or recusing
herself from this case.
(2) J.S. contends that the family court erred by
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NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 07-FEB-2024 08:18 AM Dkt. 90 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
A.S., Plaintiff-Appellee, v. J.S., Defendant-Appellant.
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT (CASE NO. 1DV181006111)
SUMMARY DISPOSITION ORDER (Hiraoka, Presiding Judge, McCullen and Guidry, JJ.)
This appeal arises out of a family court case in which
the underlying divorce and child custody rulings are not
challenged on the merits. Defendant-Appellant J.S. appeals
solely from the Order Re: Defendant's (1) Motion to Sanction
Attorney David Hayakawa for Rules Violations Filed 9/28/21, and
(2) Motion for Relief from Judgment Filed 1/20/22 (Order), NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
entered on July 29, 2022 by the Family Court of the First
Circuit (family court).1
J.S. argues four points of error, which we consider in
turn:2
(1) J.S. contends Judge Paek-Harris should have
recused herself because there arose an appearance of bias due to
A.S.'s counsel (Hayakawa) "'liking' photographs on the Judge's
Facebook and Instagram pages during the litigation and
especially during the divorce trial[.]"3 We review the family
court's ruling for abuse of discretion. DL v. CL, 146 Hawaiʻi
328, 336, 463 P.3d 985, 993 (2020). "Decisions on recusal or
disqualification present perhaps the ultimate test of judicial
discretion and should thus lie undisturbed absent a showing of
abuse of that discretion." State v. Ross, 89 Hawaiʻi 371, 375,
974 P.2d 11, 15 (1998).
Hawaiʻi courts reviewing questions of disqualification
and recusal apply a two-part analysis. First, with respect to
1 The Honorable Elizabeth Paek-Harris (Judge Paek-Harris) presided.
2 J.S. also raises, but does not provide any discernible argument on the following point of error: "[t]he family court judge erred . . . in holding that [J.S.] should have discovered her social media sites, when she misled him in her pretrial disclosure." "Points not argued may be deemed waived." Hawaiʻi Rules of Appellate Procedure Rule 28(b)(7); see also Kahoʻohanohano v. Dep't of Hum. Servs., State of Haw., 117 Hawaiʻi 262, 297 n.37, 178 P.3d 538, 573 n.37 (2008). We therefore need not address this point.
3 Facebook and Instagram are social media platforms on which account holders may post messages and photos on their accounts to be shared with others.
2 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
judicial disqualification, "courts determine whether the alleged
bias is covered by [Hawaii Revised Statutes (HRS)] § 601-7,
which only pertains to cases of affinity or consanguinity,
financial interest, prior participation, and actual judicial
bias or prejudice." Kondaur Cap. Corp. v. Matsuyoshi,
150 Hawaiʻi 1, 10-11, 496 P.3d 479, 488-89 (App. 2021) (quoting
Ross, 89 Hawai‘i at 377, 974 P.2d at 17).
Second, with respect to judicial recusal, "if
HRS § 601-7 does not apply, courts may then turn, if
appropriate, to the notions of due process . . . in conducting
the broader inquiry of whether circumstances . . . fairly give
rise to an appearance of impropriety and . . . reasonably cast
suspicion on [the judge's] impartiality." Id. at 11, 496 P.3d
at 489 (cleaned up). "The test for appearance of impropriety is
whether the conduct would create in reasonable minds a
perception that the judge's ability to carry out judicial
responsibilities with integrity, impartiality and competence is
impaired." Id. at 21, 496 P.3d at 499 (quoting Off. of
Disciplinary Counsel v. Au, 107 Hawaiʻi 327, 338, 113 P.3d 203,
214 (2005)).
Judge Paek-Harris disclosed on record, at the start of
the trial, the nature of her relationship with Hayakawa as
follows,
[T]he Court did want to make a disclosure on the record that it was from roughly about 2009 to 2010, when I was practicing law, I did share offices with Howard Luke. 3 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
At the time [] Hayakawa was working with Mr. Luke as an associate. I was not affiliated with the firm. I was simply sharing an office with them. And I never co- counselled any cases with [] Hayakawa. My relationship when I shared offices was primarily with Mr. Luke.
I made this disclosure to Mr. Waki [Fred Waki, J.S.'s counsel] at the Rule 16 conference last week Thursday. Asked him to consult with [J.S.] to see whether there would be any objections. And then on Friday Mr. Waki notified the Court that his client would likely not make any objections. And I just want to make sure that [J.S.] has had an opportunity to talk it over with Mr. Waki and think about it and then of course today state any objections, if he has any. I have no personal connection to any of the parties in this case, no personal knowledge of the facts of this case other than what I've reviewed in the record and heard from counsel during the Rule 16 conferences. I have no financial interest in the result of this case. I'm not related to any of the attorneys. Aside from the fact that I shared offices with [] Hayakawa during that one-year period, I don't have a social relationship with him, business or other professional relationship with him or Mr. Waki.
. . . I do not believe that I have any personal bias or prejudice for or against a party in this case or the attorneys. And I can be fair and impartial in this case.
Following the above disclosure, J.S., who was represented by
counsel at the time, affirmatively consented to Judge Paek-
Harris's involvement in this matter.
We note the absence of record evidence supporting that
Judge Paek-Harris is herself the owner of the social media
accounts, or author of the social media posts, at issue. The
record supports instead that Hayakawa "liked" social media posts
on publicly accessible social media accounts belonging to
Judge Paek-Harris's husband. J.S. does not challenge the
numerous findings of fact about the absence of any evidence
demonstrating an actual conflict. Unchallenged findings of fact
4 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
are binding on appeal. See State v. Rodrigues, 145 Hawaiʻi 487,
494, 454 P.3d 428, 435 (2019).
"[A] judge is duty-bound not to withdraw where the
circumstances do not fairly give rise to an appearance of
impropriety and do not reasonably cast suspicion on his [or her]
impartiality." Kondaur, 150 Hawaiʻi at 22, 496 P.3d at 500
(quoting Ross, 89 Hawaiʻi at 377, 974 P.2d at 17) (cleaned up)
(emphasis in original). We conclude that Judge Paek-Harris did
not abuse her discretion by not disqualifying or recusing
herself from this case.
(2) J.S. contends that the family court erred by
"failing to disqualify" Hayakawa for "liking" photographs on
Judge Paek-Harris's social media accounts during the litigation.
This argument is factually inaccurate because, as explained
supra, the referenced social media accounts and posts belonged
to Judge Paek-Harris's husband, not to Judge Paek-Harris.
"The disqualification of an attorney is a matter which
rests within the sound discretion of the court." Boyd v. Trent,
287 A.D.2d 475, 476 (N.Y. 2001) (citation omitted); see also
Davis v. Wholesale Motors, Inc., 86 Hawaiʻi 405, 425, 949 P.2d
1026, 1046 (App. 1997) (reviewing denial of motion to disqualify
attorney under the abuse of discretion standard). We conclude,
on this record, that the family court did not abuse its
5 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
discretion in denying J.S.'s request for the disqualification of
Hayakawa.
(3) J.S. contends that the family court erred because
Judge Paek-Harris used her own personal knowledge to rule on his
Motion for Relief From Judgment. J.S.'s contention lacks merit.
"The jurist requested to recuse himself [or herself] is the most
capable to determine those factors . . . which would bear upon
his or her capability to maintain the impartiality that each
matter must receive." TSA Int'l Ltd. v. Shimizu Corp.,
92 Hawaiʻi 243, 252, 990 P.2d 713, 722 (1999) (cleaned up). We
conclude that Judge Paek-Harris did not abuse her discretion by
considering personal facts that were directly relevant, and
applying these facts to the objective disqualification and
recusal standard.
(4) J.S. contends that Judge Paek-Harris "held no
evidentiary hearing on the issue [of disqualification or
recusal] and just denied the allegation without further hearing,
apparently based upon her own personal knowledge." J.S.'s
contention is factually incorrect. On March 17, 2022, the
family court held a hearing on J.S.'s Motion for Relief From
Judgment. The family court heard J.S.'s allegations, and
considered the admissible evidence, in support of J.S.'s motion
prior to issuing its Order.
6 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
For the foregoing reasons, the Family Court of the
First Circuit's Order Re: Defendant's (1) Motion to Sanction
Attorney David Hayakawa for Rules Violations Filed 9/8/21, and
(2) Motion for Relief from Judgment Filed 1/20/22, entered on
July 29, 2022, is affirmed.
DATED: Honolulu, Hawai‘i, February 7, 2024.
On the briefs: /s/ Keith K. Hiraoka Earle A. Partington, Presiding Judge for Defendant-Appellant. /s/ Sonja M.P. McCullen David M. Hayakawa, Associate Judge for Plaintiff-Appellee. /s/ Kimberly T. Guidry Associate Judge