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By: Chief Justice Mark E. Recktenwald

            The past year has brought unprecedented challenges for the administration of justice.[1] At the same time that COVID-19 has posed significant health and socioeconomic challenges to our community, it has also forced the courts to rethink the way we do business from the ground up.  And while we, like everyone in our community, are looking forward with anticipation to a post-COVID world, some of the ways in which the courts have adapted to the pandemic will undoubtedly be enduring.  The changes precipitated by the COVID-19 pandemic have created courts that are more efficient and responsive to a community more accustomed to doing business online.  

            When the pandemic’s severity became clear in early 2020, the Judiciary quickly realized that we needed to shift operations online as much as possible.  The courts moved swiftly to leverage video conferencing platforms, like Zoom and Webex, to create virtual courtrooms.  Traditionally, court business brings together many people, in person, and we began the pandemic doing very few court proceedings remotely; that obviously could not continue.  Now, we have held more than 149,000 hearings on remote platforms between August 2020 and January 2021.  At least some court business in every case type – civil, criminal, family, and in the appellate courts – is done online.  This shift required an incredible amount of work from judges and court staff – from testing remote hearings, to troubleshooting glitches, to running training programs for the bar and other employees.  I am deeply grateful to everyone in the Judiciary who learned new skills, thought on their feet, and pulled together as a team to make remote proceedings a success. 

            As legal futurist Richard Susskind has observed, court is not a place, but a service.[2]  Remote hearings may have developed out of necessity, but they will no doubt remain part of our operations moving forward.  This is because by transitioning more of our services to remote media, we are, in effect, building the courts of the future.  Many people welcome the convenience of appearing remotely, rather than coming to a brick-and-mortar courthouse.  And doing business online promotes transparency: for example, during one Supreme Court oral argument in a case from Maui, more than 500 people tuned in to watch the proceedings on YouTube.  This process builds on the Judiciary’s preexisting initiatives, as we had already recognized the potential for technology to make courts more accessible and resilient.  For instance, even before the pandemic, the Hawaiʻi Judiciary had begun work on a pilot Online Dispute Resolution (“ODR”) project.  The ODR service will provide a streamlined process for resolution of small claims disputes online, such as by providing interactive court forms, facilitating electronic filing, and creating a virtual space for online negotiation and mediation.  

            But while increased accessibility and efficiency are no doubt silver linings to the challenges of the past year, courts have the responsibility to ensure that the most vulnerable in our community have access to our services.  This is especially true when the pandemic has profoundly impacted so many in our community, exacerbating social problems that might have a legal component (such as domestic violence).  Moreover, COVID-19 threw into sharp relief that access to the tools required to take full advantage of the “courts of the future” is inequitable – not everyone has reliable internet and video-capable devices, technology that, because of COVID-19, suddenly became necessary to fully participate in many aspects of society.  This gap is more broadly known as the “digital divide.”[3] 

            The Judiciary has taken important steps to ensure access to justice – both in the traditional sense of the term (i.e., meeting unmet legal needs) and vis-à-vis access to virtual courts – which remains a priority while we redefine how court services are delivered.  For instance, we created a public kiosk in the Supreme Court Law Library where a litigant without the required technology can go to access their court hearing.  As another example, Governor Ige has imposed a state eviction moratorium that prevents summary possession cases from proceeding due to unpaid rent, and we are anticipating a surge of evictions cases once the moratorium ends.  Hawaiʻi is not alone in this, and experts have been warning for months of a national eviction “tsunami” – literally tens of millions of Americans are at risk of losing their homes due to the pandemic.[4]  The coming surge is particularly concerning in light of the fact that in Hawaiʻi, approximately 50% of all eviction cases filed result in a default judgment against the tenant and less than 10% of tenants involved in evictions have access to representation.[5]  Even in the best of times, there are significant unmet legal needs in this kind of case.  But we have been working with the mediation centers and other stakeholders to have alternative dispute resolution options in place to facilitate amicable and fair resolutions outside of the courtroom if possible, while also preparing operationally to meet the increased need for judicial intervention.  

            In addition, in February 2021, the Hawaiʻi Supreme Court established the Tenant-Advocate Pilot Project to assist self-represented litigants in landlord-tenant disputes on Oʻahu.[6]  Through the project, an advocate trained by the Legal Aid Society of Hawaiʻi will be available in court to consult with unrepresented tenants facing eviction and provide assistance.  Their involvement in the case can range from simply providing information about procedures and the law, to participating in mediation, to full representation.  A similar program is being piloted in the Second Circuit as well.[7]  We hope that these innovative pilot projects will begin to fill the gap in landlord-tenant cases and, ultimately, keep people in their homes whenever possible.

            With respect to foreclosures, Congress provided protections for homeowners under the Coronavirus Aid, Relief, and Economic Security Act, and the executive branch instituted a foreclosure moratorium of federally backed loans, which has been extended by various federal agencies and continues to today.  To ensure that these protections operate as they are meant to, we have implemented a certification process for all foreclosure-related actions. 

            Despite the challenges of the past year, the Judiciary remains hopeful that through innovation and collaboration,we will be able to build a more adaptive and responsive court system, long after the pandemic has ended.  I am very grateful to our chief judges (Lisa Ginoza, R. Mark Browning, Richard Bissen, Robert Kim, and Randal Valenciano) and adminstrative leaders (Rodney Maile and Brandon Kimura) for responding so quickly to the needs of the community, and to all of the Judiciary’s partners and the bar for supporting these efforts.  We are certainly not out of the woods, but I am confident that we as a legal community will be able to adapt and adjust to any challenge.

 

[1] Thank you to the Asian-Pacific Law and Policy Journal, including co-editors-in-chief Kamrie Koi and Kristin Fujiyama, for the invitation to contribute to this column and discuss these important and timely issues.  

[2] Richard Susskind, Online Courts and the Future of Justice 95 (2019) (“Underlying the vision [of online courts] is a basic question.  Is court a service or a place?  When people and organizations are in dispute and call upon the state to settle their differences, must they congregate in physical courtrooms?  The vision introduced here suggests not.”). 

[3] See, e.g., Karl Vick, The Digital Divide: A Quarter of the Nation is Without Broadband, Time (Mar. 30, 2017), https://time.com/4718032/the-digital-divide/. 

[4] Francesca Mari, What’s Between 30 Million Americans and an Eviction Tsunami?, N.Y. Times (Dec. 2, 2020), https://www.nytimes.com/2020/12/02/opinion/eviction-moratorium-ending.html. 

[5] Victor Geminiani et al., Evicted in Hawaiʻi: Lives Hanging in the Balance, Laws. for Equal Just. (Dec. 2018), https://www.hiequaljustice.org/reports/evicted-hawaii. 

[6] Order Establishing a Tenant-Advocate Pilot Project in the First Circuit, SCMF-21-0000065 (Haw. Feb. 21, 2021), https://www.courts.state.hi.us/wp-content/uploads/2021/02/order466.pdf. 

[7] Order Establishing a Tenant Volunteer Attorney and Volunteer Assistant Pilot Program in the Second Circuit, SCMF-20-0000571 (Haw. Sept. 18, 2020), https://www.courts.state.hi.us/wp-content/uploads/2020/09/order429.pdf.