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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCPW-17-0000927
                                                              05-JUN-2018
                                                              09:49 AM



           IN THE SUPREME COURT OF THE STATE OF HAWAII

                                ---o0o---


                        NICK GRUBE, Petitioner,

                                    vs.

 THE HONORABLE ROM A. TRADER, Judge of the Circuit Court of the
       First Circuit, State of Hawaii, Respondent Judge,

                                    and

 STATE OF HAWAII; ALAN AHN; and TIFFANY MASUNAGA, Respondents.


                            SCPW-17-0000927

                          ORIGINAL PROCEEDING
                          (CR. NO. 15-1-1338)

                              JUNE 5, 2018

   RECKTENWALD, C.J., McKENNA, POLLACK, AND WILSON, JJ., AND
    CIRCUIT JUDGE VIOLA, IN PLACE OF NAKAYAMA, J., RECUSED

                OPINION OF THE COURT BY POLLACK, J.

          Petitioner Nick Grube filed a petition for writs of

prohibition and mandamus (petition) to obtain access to judicial

records and documents related to a circuit court criminal
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proceeding held on September 9, 2016.        These court documents and

records were sealed, and have remained sealed, by a series of

circuit court orders.     The petition also seeks an order

prohibiting the circuit court judge from requiring Grube to

retain an attorney in order to assert a constitutional right of

access to judicial records.

          Upon our review of the procedures employed by the

circuit court, we conclude that the court did not provide

adequate notice and opportunity for interested persons objecting

to the sealing to be heard prior to issuing its order and failed

to sufficiently articulate the reasoning supporting the order in

its findings.   In addition, upon reviewing the sealed records

and documents, we hold that the substantive requirements for

sealing were not met in this case because the record fails to

demonstrate a compelling need sufficient to overcome the

public’s constitutional right of access.

          We further hold that, because the constitutional right

of access inheres in every member of the public and Grube

asserted this interest as an individual, Grube had a right to

represent himself in the unsealing proceedings.          The circuit

court therefore also erred by refusing to allow Grube to appear

pro se and requiring him to obtain counsel.

          Accordingly, we grant the petition and order that the

circuit court unseal the documents--provided, however, that the

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effective date of our directive shall be ten days after the

filing of this opinion, unless within the ten days the State

requests a hearing to provide additional evidence to demonstrate

that the documents or some portion thereof must remain sealed to

serve a governmental interest of sufficient gravity to overcome

the public’s constitutional right of access.           Following any such

hearing, the circuit court shall promptly prepare specific

findings in conformance with the substantive requirements set

forth in this opinion if these requirements have been met;

otherwise our order shall take immediate effect.            We further

order that Grube be permitted to represent himself in any

further proceedings on this matter.

                               I. BACKGROUND

                         A.    The Criminal Case

           Alan Ahn, a Honolulu police officer, and Tiffany

Masunaga, his girlfriend, were charged by indictment in the

Circuit Court of the First Circuit (circuit court) with multiple

drug-related offenses on August 26, 2015.1          Ahn has since pleaded

no contest and been sentenced to a sixty-day jail term as a

condition of a four-year probationary term.           By contrast, the

     1
            In deciding this case, we take judicial notice of all records,
sealed and unsealed, in the underlying criminal case. See State v. Akana, 68
Haw. 164, 165, 706 P.2d 1300, 1302 (1985) (“This court has validated the
practice of taking judicial notice of a court’s own records in an
interrelated proceeding where the parties are the same.”).




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public record indicates that Masunaga’s case is still pending as

of this filing, and no disposition of the charges is reflected.

 1.       Sealing of Records, Files, and Proceedings Relating to the
                        September 9, 2016 Hearing

              On Friday, September 9, 2016, the circuit court held a

hearing scheduled to begin at 4:00 p.m., the nature and scope of

which is not discernible from the public record.2             Following the

proceeding, the circuit court entered an order sealing the

entire legal file in the case.          On September 16, the court filed

a second order superseding its September 9 sealing order.

              Then, on October 11, 2016, the circuit court issued a

third order setting aside its September 9 and September 16

sealing orders.       The court concluded that “[u]pon further review

. . . the prior orders were overly broad in that they resulted

in the sealing of the entire legal file pertaining to both

Defendants.”      The court redefined the scope of the previous

order to seal “those documents, court minutes, transcripts and

other information relating to the September 9, 2016 proceeding,”

including the two previous orders that it had set aside.

              In its October 11 order, the circuit court stated that

it had been advised that the proceedings in this case related to

potentially one or more ongoing investigations.            Without

      2
              The Honorable Rom A. Trader presided.




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providing further details, the court concluded that public

disclosure of the September 9, 2016 proceeding was substantially

likely to interfere with these ongoing investigations and that

less drastic alternatives to partially sealing the record were

not viable to maintain the integrity of the law enforcement

operations.    The court thus held that the “the public’s right of

access must yield to the compelling investigatory needs of law

enforcement.”      The court further directed the State and Masunaga

to timely inform it when circumstances change such that

rescinding the order would be appropriate.

           As a result of the court’s order, all documents and

information relating to the September 9, 2016 hearing remained

fully sealed and inaccessible to the public, including the two

previous sealing orders.3

                       2. Motion to Unseal Records

           On September 29, 2017, Grube, a reporter for Honolulu

Civil Beat, Inc. (Civil Beat), filed a motion to unseal


     3
            The public docket entries for the sealed documents now read in
some variation as follows:

           Other

           Converted DOC ID: SEAL, DOC Name: (SEALED) DOCUMENT (PER
           ORDER REMOVING DOCUMENTS FILED ON SEPTEMBER 9, 2016 &
           SEPTEMBER 16, 2016 FROM DOCKET & SEALING) (CALL LDB),
           Comments: NOTE: REFER TO DOCKET NO 59 – DOCUMENT SEALED AS
           PART OF DOCKET NO 59)




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“whatever documents were sealed” by the October 11, 2016 order.

The motion was based on the “constitutional right of access

provided by the First Amendment of the U.S. Constitution and

article I, section 4 of the Hawaii Constitution.”

                        a.    October 31, 2017 Hearing

            A hearing on the motion to unseal was held on October

31, 2017.    At the opening of the hearing, Grube identified

himself as “Nick Grube, Honolulu Civil Beat.”            When the court

then asked if he was representing Civil Beat’s interest in the

matter, Grube responded “Uh-huh.”          The court explained to Grube

that under Hawaii law, business entities must be represented by

an attorney.    Grube objected, stating that he made the motion on

his own and would like to proceed pro se.          Citing the manner in

which the motion had been captioned,4 the court declined to allow

Grube to represent himself: “[A]lthough you, yourself, may be

      4
            In the space at the top left of the center of the first page of
the motion to unseal, the following was indicated:

            NICK GRUBE

            Honolulu Civil Beat Inc.

            [address]

            [City, State, zip code]

            [phone]

            [fax number]

            [email address]




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partially making this request, it was filed under the caption

you, as representing Civil Beat.”        The court continued the

hearing to November 7, 2016, instructed Grube to make inquiries

as to whether Civil Beat would retain an attorney, and ordered

the State and the defendants to file responses to Grube’s motion

to unseal.

                  b.   Responses to Motion to Unseal

            Masunaga and Ahn filed statements of no opposition to

Grube’s motion.    Masunaga indicated that she had not been fully

advised by her prior counsel regarding the motion to seal and

had not given prior counsel permission to make representations

regarding the motion on her behalf.        She also stated that she

believes the sealing request was made to protect certain

individuals related to the prosecutor then assigned to the case,

whom her prior counsel was also representing in a separate

criminal matter in federal court.

            The State filed an opposition to Grube’s motion,

arguing that the circuit court properly identified the State’s

compelling interest in preserving the integrity of

investigations and sufficiently tailored its order to serve that

interest.    The opposition included a declaration by a deputy




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prosecuting attorney averring that the investigations identified

in the sealing order remained ongoing.5

       c.    November 7, 2017 Hearing on the Motion to Unseal

            On November 7, 2017, the court held the continued

hearing on the motion to unseal.           At the outset of the hearing,

Grube, through his counsel, again objected to the circuit court

requiring him to retain counsel.           Counsel clarified that he was

representing Grube in his personal capacity and not Civil Beat,

and he further stated that Grube was asserting his personal

constitutional right of access.            The court responded that the

contents of the motion and the manner in which it was captioned

led the court to believe Grube was representing Civil Beat’s

interests, which only a licensed attorney was permitted to do

under relevant Hawaii law.

            Regarding the unsealing motion, the court engaged the

deputy prosecuting attorney appearing for the State in the

following colloquy:

                  THE COURT: . . . [F]irst of all, is the -- is -- are
            there one or more investigations that are currently active
            and ongoing that relate to the instant case?

                  [PROSECUTOR]:   Yes, your Honor.



      5
            The prosecutor initially assigned to Masunaga’s case, whom
Masunaga’s prior defense counsel represented in a separate federal criminal
case, did not sign the submissions or enter court appearances related to
Grube’s unsealing motion, including the petition currently before this court.




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                THE COURT: And the information and documents that
          were previously sealed by virtue of the Court’s October 11,
          2016 order, do these materials and information, do they
          relate to these one or more investigations?

                [PROSECUTOR]:   Yes, your Honor.

                THE COURT: All right. And in your view, would
          disclosure of those sealed materials substantially
          interfere with or have an adverse impact on any of these
          investigations?

                [PROSECUTOR]:   Potentially very serious and adverse,
          your Honor.

                THE COURT: All right. And I’m going to ask you: In
          what way or how? I’m not asking you right now for the
          specifics as far as that goes, but I need to understand a
          little bit more in terms of how you believe -- if you can
          explain how disclosure would detrimentally impact those
          investigations. And, basically, without getting into the
          specifics, for example, I think Mr. Grube’s filing and the
          case authority is fairly clear.

                . . . [D]o you have any concerns about potential
          targets of these -- this or these investigations becoming
          informed about this information?

                [PROSECUTOR]:   Yes, your Honor.   Generally, yes.

                THE COURT: And how would that pose a problem?        I
          don’t want to presume anything.

                [PROSECUTOR]: Your Honor, they could either flee or
          destroy evidence. We would also be concerned about safety
          of witnesses.

                THE COURT: And do you have any -- any sense for how
          much longer these investigations or an investigation is
          anticipated to take, if you know?

                [PROSECUTOR]: I do not know, your Honor.     All I can
          say is that it is ongoing.

          Grube then argued through his attorney that the mere

assertion of an ongoing investigation is not sufficient to

override the public’s constitutional right of access to judicial




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records and proceedings.6       Rather, Grube explained, the State

must provide evidence demonstrating an active investigation to

which disclosure would pose clear potential harm, which the

court may then verify through in-camera review.

           Grube urged the court to examine more carefully the

State’s justification for sealing in this case, pointing to

Masunaga’s statement of no opposition in which she disclaimed

any interest in sealing the documents and stated her belief that

the motion was intended to protect individuals associated with

the previously assigned prosecutor.         Given Masunaga’s personal

indifference to the disclosure, Grube argued, the safety of

witnesses in the case was not a valid concern.           Grube also

requested that the court take judicial notice of the federal

criminal case against the prior prosecutor, in which the U.S.

Attorney had argued that the prosecutor and Masunaga’s prior

counsel had a history of improperly exchanging confidential

investigatory information.       Grube contended that, in light of

this alleged history of misused confidential information, the

court should not accept at face value the State’s general

assertions that secrecy is needed to protect an investigation.




     6
            All further arguments and filings attributed to Grube were made
through his retained counsel.



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            Lastly, Grube argued that sealing the entirety of the

sealed documents and their corresponding docket entries was not

narrowly tailored inasmuch as any information deemed to be a

threat to ongoing investigations could be redacted, preserving

the public’s right of access to the remainder of the documents.

            At the conclusion of the hearing, the circuit court

orally denied the motion to unseal, stating that it “accept[ed]

the prosecutor’s representations” and was not going “to attempt

to inject the Court’s nose into the investigations that are

ongoing.”    The court emphasized that the State and Masunaga were

required to inform the court should circumstances change such

that the sealing order was no longer needed.

d.    Findings of Fact, Conclusions of Law, and Order Denying the
                         Motion to Unseal

            On November 24, 2017, the circuit court entered its

findings of fact, conclusions of law, and order denying the

motion to unseal.     The court found that there were legitimate

concerns that disclosure of the documents would adversely impact

one or more ongoing investigations and the safety of

individuals.    The court then reaffirmed all the prior rulings

made in the sealing order, stating that “the public’s qualified

right to access must defer to the State’s compelling and

substantial interest in sealing the subject records” because the




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sealing was “essential to preserve higher values” and narrowly

tailored.

                  B.    Proceedings Before this Court

    1.    Grube’s Petition for Writ of Prohibition and Writ of
                              Mandamus

            On December 29, 2017, Grube filed a petition with this

court seeking a writ of prohibition (1) prohibiting the circuit

court from enforcing any order to seal records and (2)

prohibiting the circuit court from requiring him to retain an

attorney in order to assert his public access claim.             Grube also

sought a writ of mandamus directing the circuit court to comply

with the standards for sealing set forth in Oahu Publications

Inc. v. Ahn, 133 Hawaii 482, 331 P.3d 460 (2014).7

            Grube argues that, under Ahn, vague statements that

records in a criminal case may interfere with a separate law

enforcement investigation are not sufficient to overcome the

strong constitutional presumption that criminal proceedings and

judicial records are open to the public.          (Citing 133 Hawaii at

507, 331 P.3d at 458.)      While Grube acknowledges that, under the

right circumstances, harm to an active criminal investigation

may overcome the public’s constitutional right of access, he


      7
            Because unsealing the currently sealed documents will require an
order by the circuit court, we interpret Grube’s mandamus petition to also
request an order directing the circuit court to unseal the documents.



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maintains that proof of such a compelling interest requires more

than an unsubstantiated assertion by the State.          The circuit

court therefore erred, Grube argues, by deferring to the State’s

asserted justifications and failing to insist on evidence to

support specifically identified threats to the investigation.

          Grube also contends that the scope of the circuit

court’s order was excessive because the court did not attempt to

learn the nature of the ongoing investigation in order to assess

whether redaction would sufficiently serve law enforcement’s

compelling interest.     The sealing order was therefore not

narrowly tailored, Grube argues, and erasing all references to

the scope and nature of the September 9, 2016 proceeding

deprived the public of any meaningful opportunity to contest the

sealing or suggest viable alternatives.

          Lastly, Grube contends that he had asserted his

personal constitutional right of access and thus should have

been permitted to represent himself under Hawaii Revised

Statutes (HRS) § 605-2 (1993).8       Grube explains that “Civil Beat”


     8
          HRS § 605-2 provides in relevant part as follows:

          Except as provided by the rules of court, no person shall
          be allowed to practice in any court of the State unless
          that person has been duly licensed so to do by the supreme
          court; provided that nothing in this chapter shall prevent
          any person, plaintiff, defendant, or accused, from
          appearing in person before any court, and there prosecuting
          or defending that person’s, plaintiff’s, defendant’s, or

                                                              (continued . . .)

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was included in the caption of his motion in order to comply

with Hawaii Rules of Penal Procedure (HRPP) Rule 2.2(d)(1)

(2012),9 which requires a litigant to list an office address on

all filings.    The circuit court therefore erred, Grube contends,

by requiring him to retain an attorney in order to object to the

sealing of judicial records.

                    2.    Responses to Grube’s Petition

            By order entered on January 25, 2018, this court

directed an answer to the petition.           Judge Trader notified the

court of his intent not to submit a response.             Ahn and Masunaga

each filed a response of no position.           Masunaga’s answer

reiterates that she was never fully advised by her prior counsel

regarding the motion to seal and did not authorize any

representations regarding the motion.           Masunaga further restates

her belief that the sealing request was made to protect the

(. . . continued)

            accused’s own cause, without the aid of legal counsel . . .
            .
      9
            HRPP Rule 2.2(d) provides in relevant part as follows:

            (d) Form of First Page of a Document. Except as provided
            in paragraph (f), the first page of each document shall be
            in the following form:

                    (1) The space at the top left of the center of the
                    page shall contain the name, attorney number, office
                    address, telephone number, facsimile number (if any),
                    and electronic mail address of the attorney for the
                    party in whose behalf the document is filed, or of
                    the party if appearing pro se[.]




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attorney prosecuting her, whom her prior counsel was

simultaneously representing in a separate proceeding, and that

her prior counsel did not properly consider whether the sealing

would be in her best interest.

           The State filed an answer opposing Grube’s petition in

which it argues that Grube’s contentions amount to assertions

that the circuit court erred.        Mere error, the State contends,

does not constitute a flagrant and manifest abuse of discretion

such that issuance of a writ of mandamus or prohibition is

appropriate.    The State also argues that the circuit court’s

October 11, 2016 order properly identified the State’s

compelling interest in preserving the integrity of ongoing

investigations.     The order was also narrowly tailored to serve

that interest, the State maintains, because it was limited to

one day of proceedings rather than the entire file.            The State

further contends that the court rightly declined to allow Grube,

a non-attorney, to appear in a representative capacity for Civil

Beat because HRS § 605-1410 prohibits the unauthorized practice

of law.


      10
           HRS § 605-14 (1993 & Supp. 2017) provides in relevant part as
follows:

           It shall be unlawful for any person, firm, association, or
           corporation to engage in or attempt to engage in or to
           offer to engage in the practice of law, or to do or attempt
           to do or offer to do any act constituting the practice of

                                                             (continued . . .)

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            Attached to the State’s answer is the declaration of a

deputy prosecuting attorney.          The prosecutor avers that he has

reviewed the records and files relating to this case.

Substantively, the prosecutor’s declaration states only that

“[i]nvestigations into matters related to information presented

at the September 9, 2016 proceeding are still ongoing.               Because

the investigation is ongoing, the Circuit Court’s order to seal

the proceedings remains valid.”

                                II. DISCUSSION

                          A.    The Motion to Unseal

            The First Amendment to the U.S. Constitution and

article I, section 4 of the Hawaii Constitution grant the public

a right of access to court proceedings in criminal cases.11                 Oahu

Publ’ns Inc. v. Ahn, 133 Hawaii 482, 494, 496, 331 P.3d 460,

472, 474 (2014).     The right is not limited to merely observing

criminal trials.     See In re The Herald Co., 734 F.2d 93, 98 (2d

Cir. 1984) (“It makes little sense to recognize a right of


(. . . continued)

            law, except   and to the extent that the person, firm, or
            association   is licensed or authorized so to do by an
            appropriate   court, agency, or office or by a statute of the
            State or of   the United States.

      11
            Article I, section 4 of the Hawaii Constitution safeguards the
right of public access to criminal trials at least to the extent of the First
Amendment to the U.S. Constitution, and it may afford greater protections.
Oahu Publications Inc. v. Ahn, 133 Hawaii 482, 494, 331 P.3d 460, 472 (2014).




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public access to criminal courts and then limit that right to

the trial phase of a criminal proceeding, something that occurs

in only a small fraction of criminal cases.”).           Rather, this

court has indicated that the public has a constitutional right

of access to criminal proceedings generally, as well as the

records thereof.12     See Ahn, 133 Hawaii at 498-99, 331 P.3d at

476-77 (applying qualified right to sealed transcript of court

proceedings).

           The right of public access corresponds with our

system’s “deeply ingrained” traditional mistrust for secret

trials, which has led “the general policy of open trials [to]

become firmly embedded in our system of jurisprudence.”             Gannett

Pac. Corp. v. Richardson, 59 Haw. 224, 228, 580 P.2d 49, 54

(1978).   The right of access thus functions not only to protect

the public’s ability to obtain information--a requisite “to the

enjoyment of other First Amendment rights”--but also “as a

safeguard of the integrity of our courts.”          Ahn, 133 Hawaii at

494-95, 331 P.3d at 472-73 (quoting Globe Newspaper Co. v.


     12
            The constitutional right of access does not extend to particular
documents and proceedings that have been traditionally closed to the public
and for which public access would not logically have a positive effect on the
functioning of the process at issue. Ahn, 133 Hawaii at 494, 331 P.3d at
472. The State does not argue that the constitutional right of public access
is wholly inapplicable to the September 9 proceeding and the records thereof,
and our review of the sealed materials confirms that the hearing and
documents fall within the scope of the constitutional right.




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Superior Court for the Cty. of Norfolk, 457 U.S. 596, 604

(1982); State v. Hashimoto, 47 Haw. 185, 200, 389 P.2d 146, 155

(1963)).   “The corrective influence of public attendance at

trials for crime” serves to limit “unfairness, discrimination,

undue leniency, favoritism, and incompetence” in our

administration of justice.      Id. at 495, 331 P.3d at 473 (quoting

Territory v. Scharsch, 25 Haw. 429, 436 (1920)); Gannett Pac.

Corp., 59 Haw. at 230, 580 P.2d at 55.         In short, open courtroom

proceedings are “important to the liberty of the people.”

Scharsch, 25 Haw. at 436.

           Notwithstanding these serious considerations, the

public’s constitutional right of access is not absolute.            Ahn,

133 Hawaii at 496, 331 P.3d at 474.        In “rare and compelling

circumstances,” court proceedings may be closed to protect an

interest “that outweighs the value of openness.”           Id. at 495-96,

331 P.3d at 473-74 (quoting Honolulu Advertiser, Inc. v. Takao,

59 Haw. 237, 238, 580 P.2d 58, 60 (1978); Press–Enter. Co. v.

Superior Court of Cal., Riverside Cty. (Press-Enter. Co. I), 464

U.S. 501, 510 (1984)); cf. In re Knight Pub. Co., 743 F.2d 231,

234 (4th Cir. 1984) (“Nonetheless, there is a strong presumption

in favor of openness.”).      We held in Ahn that, when a party or

trial court seeks to prevent public access to criminal

proceedings or the records thereof, both procedural and



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substantive requirements must be satisfied to overcome the right

of public access.    133 Hawaii at 497, 331 P.3d at 475.          We now

consider each requirement with regard to the sealed documents in

this case.

   1.   The Procedural Requirements to Seal Documents or Close
                        Court Proceedings

          As set forth in Ahn, the “procedural prerequisites to

entry of an order closing a criminal proceeding to the public

are (1) those excluded from the proceeding must be afforded a

reasonable opportunity to state their objections; and (2) the

reasons supporting closure must be articulated in findings.”

133 Hawaii at 497-98, 331 P.3d at 475-76 (quoting United States

v. Brooklier, 685 F.2d 1162, 1167-68 (9th Cir. 1982)).             These

“requirements are not mere punctilios, to be observed when

convenient.”   Phoenix Newspapers, Inc. v. U.S. Dist. Court for

Dist. of Ariz., 156 F.3d 940, 951 (9th Cir. 1998).           As the

responses to the petition in this case demonstrate, often

“parties to the litigation are either indifferent or

antipathetic to disclosure requests.”          Id.   Thus, these

procedures “provide the essential, indeed only, means by which

the public’s voice can be heard.”        Id.    Further, the procedures

ensure that the trial judge is apprised of the relevant

interests at stake in order to render an informed decision, and

they provide a basis for the public and reviewing courts to

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fairly assess the judge’s reasoning, thus protecting trust in

the judicial process.      Id.

            Under the first requirement, the public must be

afforded both notice of the closure and an opportunity to be

heard.    Id.   The notice must be “calculated to inform the public

that its constitutional rights may be implicated in a particular

criminal proceeding.”      United States v. Criden, 675 F.2d 550,

559 (3d Cir. 1982).      As the U.S. Court of Appeals for the Second

Circuit has stated, it is “entirely inadequate to leave the

vindication of a First Amendment right to the fortuitous

presence in the courtroom of a public spirited citizen willing

to complain about closure.”       Application of The Herald Co., 734

F.2d 93, 102 (2d Cir. 1984).       Thus, motions requesting closure

must be docketed a reasonable time before they are acted upon.13

Brooklier, 685 F.2d at 1168.        What constitutes a reasonable time

is “dictated by circumstances,” Criden, 675 F.2d at 559, but it

must generally be sufficient to afford the public an opportunity




     13
            The moving party may request leave to file supporting evidence
for its sealing motion ex parte and under seal pending the court’s
disposition of the motion. See Washington Post v. Robinson, 935 F.2d 282,
290 (D.C. Cir. 1991). In the event the motion to seal is denied, the party
may request to withdraw the supporting evidence prior to disclosure. See
State v. McEnroe, 174 Wash. 2d 795, 804-05 (2012).




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to intervene prior to the sealing.14         See In Re The Herald, 734

F.2d at 102.

            Once notice is provided, a hearing must be held under

procedures adequate to afford the public a meaningful

opportunity to object or offer alternatives to the closure.

Phoenix Newspapers, 156 F.3d at 949.         Even when the public by

necessity lacks full knowledge of the basis of the motion to

seal, its participation in the hearing allows the judge to

consider other relevant interests and possible alternatives to

sealing, thus providing a more informed basis for the

determination.     See id. at 951; Criden, 675 F.2d at 560.

            Here, the circuit court did not fulfill the procedural

requirements of providing notice and an opportunity to be

heard.15   It does not appear that the court provided notice to

the public of the in-court motion to seal the entire legal file,

      14
            In very limited circumstances, a compelling interest may require
a court to immediately close proceedings or seal documents. Even when an
immediate closure or sealing order is necessary, public notice and an
opportunity to be heard should follow as promptly as feasible, with the
judge’s reasons for departing from the normal procedure “set forth, under
seal if appropriate, for eventual appellate scrutiny.” In Re The Herald, 734
F.2d at 102 n.7; accord Oahu Publ’ns Inc. v. Takase, 139 Hawaii 236, 247, 386
P.3d 873, 884 (2016) (holding that a court may immediately seal filed
documents to protect wrongfully included personally identifying information
provided that notice and an opportunity to request a hearing promptly
follow).
      15
            We also note that neither the circuit court’s signed September 9
sealing motion nor the superseding September 16 sealing order was accompanied
by written findings, as procedurally required under Ahn. See 133 Hawaii at
497-98, 331 P.3d at 475-76.




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nor did it permit the public an opportunity to be heard before

it ordered that the records of the September 9 proceeding be

sealed.

          The September 9 proceeding was also scheduled near the

end of the business day late on a Friday afternoon, and the

order to seal was entered after the normal close of business.

The court subsequently removed all entries associated with the

September 9 proceeding and the motion to seal from the docket

entirely, leaving only the October 11 order to seal as evidence

that the proceeding and sealing took place.          “Under these

circumstances, even the most vigilant of reporters could not

have known that their right of access was being denied.”

Criden, 675 F.2d at 560.      It is thus unsurprising that nearly a

year elapsed before an interested member of the public became

sufficiently aware of the events to file a motion to unseal.

          As we have stated, “the standards promulgated by the

United States Supreme Court place the responsibility on the

trial court to provide notice that a compelling interest may

necessitate closure of a proceeding, and afford an opportunity

for the public to be heard.”       Ahn, 133 Hawaii at 498, 331 P.3d

at 476.   The procedures employed by the circuit court were

plainly insufficient to fulfill this responsibility.




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  2.   The Substantive Requirements to Seal Documents or Close
                        Court Proceedings

          The right of access protected by the First Amendment

and article I, section 4 of the Hawaii Constitution can only be

overcome by findings that “the closure is essential to preserve

higher values” and that the closure is “narrowly tailored” to

serve that interest.     Ahn, 133 Hawaii at 498, 331 P.3d at 476;

see also Globe Newspaper Co., 457 U.S. at 606–07 (“Where . . .

the State attempts to deny the right of access in order to

inhibit the disclosure of sensitive information, it must be

shown that the denial is necessitated by a compelling

governmental interest, and is narrowly tailored to serve that

interest.”).   Thus, the substantive factors that the trial court

must consider in its written findings are “(1) [the] closure

serves a compelling interest; (2) there is a substantial

probability that, in the absence of closure, this compelling

interest would be harmed; and (3) there are no alternatives to

closure that would adequately protect the compelling interest.”

Ahn, 133 Hawaii at 497–98, 331 P.3d at 475–76.

          In Ahn, we emphasized that, to find that the strong

presumption of openness has been overcome, a court must make a

record of “specific findings” that these substantive

requirements have been met.      133 Hawaii at 507, 331 P.3d at 485

(emphasis added).

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            The trial court may not rely on generalized concerns, but
            must indicate facts demonstrating compelling interest
            justifying the continued sealing of the documents.
            Additionally, the court must specifically explain the
            necessary connection between unsealing the transcript and
            the infliction of irreparable damage resulting to the
            compelling interest.

Id. (emphases added) (quotes and citations omitted); see also

Moana v. Wong, 141 Hawaii 100, 113, 405 P.3d 536, 549 (2017)

(rejecting the use of vague assertions and requiring specific

details when identifying “compelling circumstances” sufficient

to overcome the strong presumption that the standard time

limitation in Hawaii Rules of Penal Procedure Rule 5(c)

applies).    The trial court’s findings, which may themselves be

partially filed under seal when necessary, must contain

sufficient detail for a reviewing court to evaluate each of the

criteria, including the strength of the interest weighing toward

closure or sealing, the potential that disclosure will cause

irreparable harm to that interest, and the feasibility of

protecting the interest through alternate methods.            See Phoenix

Newspapers, 156 F.3d at 949-50.

    a. Identifying a Compelling Interest Served by Closure or
                             Sealing

            Under the first substantive requirement to close court

proceedings or seal court records, the asserted government

interest served by nondisclosure must be “compelling.”             Ahn, 133

Hawaii at 497–98, 331 P.3d at 475–76.         To qualify as compelling,



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the interest must be of “such gravity as to overcome the strong

presumption” in favor of openness.        See Moana, 141 Hawaii at

111, 405 P.3d at 547.     Although privacy rights may in some

instances rise to the level of compelling, simply preserving the

comfort or official reputations of the parties is not a

sufficient justification.      In re McClatchy Newspapers, Inc., 288

F.3d 369, 374 (9th Cir. 2002) (“Who could or would deny that

reputation is a valuable asset? . . . But injury to official

reputation is an insufficient reason “for repressing speech that

would otherwise be free.” (quoting Landmark Commc’ns, Inc. v.

Virginia, 435 U.S. 829, 841–42 (1978))); Doe v. Univ. of

Montana, No. CV 12-77-M-DLC, 2012 WL 2416481, at *4 (D. Mont.

June 26, 2012) (“Reduced to its essence, the joint request to

keep this case file sealed reflects a determination by the

parties, based on their respective individual interests, that

they will mutually benefit from maintaining the secrecy of this

federal proceeding. . . . But lost in all of this is the valid

and compelling interest of the people . . . .”).           Rather, to

warrant departing from the “tradition of public access . . .

firmly embedded in our system of jurisprudence,” the asserted

interest must be of such consequence as to outweigh both the

right of access of individual members of the public and the

general benefits to public administration afforded by open



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trials.   See Ahn, 133 Hawaii at 495, 331 P.3d at 473 (internal

quotes and citations omitted).

           Here, the circuit court’s October 11, 2016 sealing

order and November 24, 2017 order denying the motion to unseal

cite law enforcement’s interest in preserving the integrity of

ongoing investigations and assert that disclosure would

interfere with these operations.          The November 24 order also

cites a concern that disclosure of the information may adversely

impact the safety of individuals.         As Grube acknowledges and

other courts have held, these concerns may be compelling

interests sufficient to overcome the strong access presumption

under the right circumstances.16



      16
            Because this jurisdiction has not yet addressed when preserving
the integrity of an ongoing investigations constitutes a compelling interest,
the State analogizes the present case to Times Mirror Co. v. United States,
873 F.2d 1210, 1214 (9th Cir. 1989), and In re The Macon Telegraph Publishing
Co., 900 F. Supp. 489, 491 (M.D. Ga. 1995), in which federal courts denied
motions by the media to unseal search warrant documents associated with
ongoing investigations. The courts in Times Mirror and Macon Telegraph did
not reach the question of whether the sealing served a compelling government
interest, however, because they determined that the First Amendment qualified
right of public access did not extend to warrant applications and affidavits
in support thereof. Times Mirror, 873 F.2d at 1216; Macon Tel., 900 F. Supp.
at 491-92; contra In re Search Warrant for Secretarial Area Outside Office of
Gunn, 855 F.2d 569, 573 (8th Cir. 1988) (concluding that the right of access
does extend to search warrant applications and supporting materials, but
holding the right was overcome by a compelling interest because the
“documents describe[d] in considerable detail the nature, scope and direction
of the government's investigation and the individuals and specific projects
involved.”). This case involves neither a search warrant application nor an
affidavit in support thereof, and thus we do not address whether the
constitutional right of public access would apply to such documents. See
supra, note 12.




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            The circuit court’s findings here, however, are fully

lacking in the specificity required to demonstrate a compelling

interest.    The findings, which could have been entered partially

under seal if necessary to preserve truly confidential matters,

provide no details of any ongoing investigations and their

relation to the September 9 proceeding.          In the absence of such

details, there is nothing by which the court could have

determined that the asserted interest was of sufficient gravity

to displace the strong presumption in favor of openness.17

Similarly, the findings contain no information regarding how

disclosure would impair these investigations or pose a danger to

specific individuals.18

            These indefinite findings are nearly identical to

those the Ninth Circuit expressly rejected in Phoenix

Newspapers, Inc. v. U.S. District Court for District of Arizona,

156 F.3d 940, 950 (9th Cir. 1998), which this court cited with

approval in Ahn.     133 Hawaii at 498, 331 P.3d at 476.         In



      17
            There is nothing in the sealed documents to demonstrate on their
face that disclosure would pose a threat to an interest of adequate gravity
to overcome the public’s constitutional right of access.
     18
            The State responded to a series of questions during the November
7 hearing by expressing nonspecific concerns that disclosure might allow a
suspect to learn of an investigation and flee, destroy evidence, or harm a
witness. The circuit court’s findings did not include these details, which
would have been too generalized and unsupported to warrant closure in any
event.




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Phoenix Newspapers, the trial court entered findings prior to

sealing a court transcript indicating only that the court had

“been advised that [a jury tampering] investigation is ongoing

and . . . in a posture that the disclosure of the transcript

would constitute a serious risk of compromising the

investigation.”    156 F.3d at 950.      Holding that the substantive

requirements for sealing had not been met, the Ninth Circuit

stated,

          At no time did the [trial] court specifically explain the
          necessary connection between unsealing the transcript and
          inflicting irreparable damage upon the security concerns it
          invoked as a compelling interest. . . . [N]either in the
          written closure orders nor in the hearings themselves did
          the court specify just how security would be thwarted[.] .
          . . Far from allowing meaningful appellate review of the
          closure order, these general statements, which simply
          stated that security interests compelled closure, . . .
          reveal nothing about the specific character of the risk to
          the jury tampering investigation that would result from
          unsealing the transcript. . . . Simply put, there was no
          evidence in the record, nor were any satisfactory findings
          entered, establishing why release of the transcripts would
          endanger juror safety.

Phoenix Newspapers, 156 F.3d at 950 (emphases added) (quotes and

citations omitted).

          Just as in Phoenix Newspapers, the circuit court here

simply asserted that a security risk existed without

meaningfully identifying the connection between specific

individuals or investigations and the particular irreparable

harm that would result from disclosure of the sealed documents.

We held in Ahn that specific findings are necessary to satisfy

the first substantive requirement for sealing or closure, and

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this requirement was unmet in this case.         133 Hawaii at 504, 331

P.3d at 482.

               b. The Substantial Probability of Damage

            Under the second substantive requirement set forth in

Ahn, a court must find that disclosure is sufficiently likely to

result in irreparable damage to the identified compelling

interest.   133 Hawaii at 507, 331 P.3d at 485.         It is not enough

that damage could possibly result from disclosure, nor even that

there is a “reasonable likelihood” that the compelling interest

will be impeded; there must be a “substantial probability” that

disclosure will harm the asserted interest.          Press-Enter. Co. v.

Superior Court of Cal. for Riverside Cty. (Press-Enter. Co. II),

478 U.S. 1, 15 (1986) (rejecting the lesser “reasonable

likelihood” standard as violating the First Amendment).

Further, the potential harm cannot be fleeting or readily

curable through remedial measures; it must be irreparable in

nature.   Ahn, 133 Hawaii at 507, 331 P.3d at 485; Phoenix

Newspapers, Inc. v. U.S. Dist. Court for Dist. of Ariz., 156

F.3d 940, 949-50 (9th Cir. 1998).

            The findings included with the circuit court’s October

11 order stated only that “[t]he Court finds and concludes that

public disclosure of the September 9, 2016 proceedings, is

substantially likely to interfere with and have an adverse


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impact on potentially one or more of . . . ongoing

investigations.”19     This bare recitation of the legal standard is

not adequately specific to support that harm to the State’s

asserted interest would be the substantially likely outcome if

the sealed documents were disclosed.         Indeed, as discussed

above, the court’s findings did not include specific details

demonstrating that interference with an ongoing investigation

was a possible result of disclosure, much less a substantially

probable one.     The findings also did not address whether the

posited potential harm would be irreparable.           Because the

circuit court did not make any such specific findings, the

second substantive requirement for sealing was also not

satisfied in this case.

                           c. Narrow Tailoring

            Under the third substantive requirement for sealing, a

court must make findings demonstrating that “there are no [less

restrictive] alternatives to closure that would adequately

protect the compelling interest.”         Oregonian Pub. Co. v. U.S.

Dist. Court for Dist. of Or., 920 F.2d 1462, 1466 (9th Cir.

1990) (citing Press-Enter. Co. II, 478 U.S. 1, 13–14 (1986));

accord Ahn, 133 Hawaii at 504, 331 P.3d at 482.           “Even where

     19
            The probability of harm from disclosure was not addressed in the
circuit court’s order denying Grube’s motion to unseal.




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denial of access is appropriate, it must be no greater than

necessary to protect the interest justifying it.”           United States

v. Brooklier, 685 F.2d 1162, 1172 (9th Cir. 1982).           Thus, where

a feasible alternative exists that would protect the compelling

interest while avoiding or minimizing impairment of the public’s

constitutional right of access, total sealing is inappropriate.

Id. at 1169; see also Oregonian Pub. Co., 920 F.2d at 1467 n.1

(“The district court did not consider alternatives to closure

that might protect Wolsky’s interests. . . . The district court

might have considered redacting portions of the plea agreement,

or disclosing the agreement but placing Wolsky in a witness

protection program, or recommending that Wolsky be placed in

protective custody while in prison.”).

          As with the first two substantive requirements, the

trial court’s findings must be made with adequate specificity

for a reviewing court to ascertain the court’s reasoning, and

the trial court may not “base its decision on conclusory

assertions alone.”    Oregonian Pub. Co., 920 F.2d at 1466 (citing

Press-Enter. Co. II, 478 U.S. at 13–14).         The court should

therefore make findings regarding specific alternatives and set

forth its reasons for rejecting each.        Id.; United States v.

Criden, 675 F.2d 550, 560 (3d Cir. 1982) (“There is a fairly

broad consensus that, before a court closes a pretrial criminal

hearing, it must at least consider alternatives to closure and

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explicitly state its reasons on the record for rejecting such

alternatives.”).

           Here, the circuit court’s October 11 order stated only

that the court “considered whether less drastic alternatives”

would “preserve law enforcement’s compelling need to conduct its

investigations” and concluded “that there are no other less

restrictive alternatives which are viable.”           The November 24

order denying Grube’s motion to unseal made no further reference

to alternatives except to state the court’s belief that its

order was narrowly tailored.        Neither order specifically

discussed any alternatives and thus did not consider the

feasibility of any possible alternatives.          Assuming a compelling

interest was present in this case and irreparable harm was

substantially likely to result, such alternatives might have

included, for example, redaction of specific information in a

document or sealing limited to a very restricted time period

when true risk was present.20




      20
            At a minimum, the circuit court should also have considered the
risks from disclosure with respect to each of the individual documents to
justify its sealing. And, even assuming that procedural and substantive
requirements to seal any of the documents had been met, the court should have
scheduled periodic review hearings to determine whether the reasons
justifying the sealing continued to apply. It was not sufficient to simply
order the parties to alert the court when circumstances change because all
too often “parties to the litigation are either indifferent or antipathetic
to disclosure requests.” Phoenix Newspapers, 156 F.3d at 951.




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          A trial court’s pro forma statement that alternatives

were considered and rejected “does not afford a basis for

determining whether the court applied the correct standard.”

Brooklier, 685 F.2d at 1169.       There is nothing in the circuit

court’s findings from which we can judge if the sealing was “no

greater than necessary to protect the interest [assertedly]

justifying it.”     Id. at 1172.    Accordingly, the third

substantive requirement for sealing was also not fulfilled in

the present case.

                       3. Mandamus is Warranted

          Because the right of the public to access criminal

proceedings is constitutionally protected, firmly established in

our tradition, and crucial to the functioning of our justice

system, there is a strong presumption that court proceedings and

the records thereof shall be open to the public.           Ahn, 133

Hawaii at 508, 331 P.3d at 486.       In light of these weighty

concerns, this court held in Ahn that the strong presumption may

be overcome only when strict procedural and substantive

requirements have been met.        Id. at 497, 331 P.3d at 475.

Because one of these procedural requirements and all three of

the substantive requirements were not satisfied in this case,

the circuit court erred by ordering all documents related to the




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September 9 proceeding sealed from the public.           Grube is

therefore entitled to the writ of mandamus he seeks.21

                  B. Grube’s Right to Proceed Pro Se

           Grube also challenges the circuit court’s directive

that he retain counsel to assert his objections to the sealing

of the documents.     Grube contends that, throughout his motion to

unseal, he used the first person and personally signed all the

pleadings.    Grube explains that the Civil Beat address

referenced in the motion appears in the “office address” portion

of the caption to comply with HRPP Rule 2.2(d)(1).

           The public’s constitutional right of access is not

unique to the news media.       See Gannett Pac. Corp. v. Richardson,

59 Haw. 224, 229-30, 580 P.2d 49, 54 (1978) (“The right of media

representatives to be present is derived from their status as

     21
            The State argues that, notwithstanding any error in the circuit
court’s ruling, the grant of a writ of mandamus is an inappropriate remedy.
(Citing Kema v. Gaddis, 91 Hawaii 200, 204, 982 P.2d 334, 338 (1996).)
Assuming that Grube, a non-party to the underlying criminal case, would be
able to directly appeal the circuit court’s order, contra Gannett Pac. Corp.,
59 Haw. at 235, 580 P.2d at 58, the delay inherent in the appellate process
would render the eventual release of the documents untimely. Because the
right of public access exists to provide members of the public with
contemporary information about matters of current public interest so that
they may effectively exercise their First Amendment rights, the belated
release of records to which the public is rightfully entitled is not an
adequate remedy. In light of these considerations, we hold the circuit
court’s order satisfies the standards for mandamus. See Breiner v. Takao, 73
Haw. 499, 502, 835 P.2d 637, 640 (1992) (“[M]andamus is the appropriate
remedy where the order of the court imposed a restraint on free speech rights
unrelated to the merits of the criminal trial and thus could not be raised on
appeal.”); CBS, Inc. v. U.S. Dist. Court for Cent. Dist. of Cal., 765 F.2d
823, 825 (9th Cir. 1985) (“Mandamus is the appropriate procedure for CBS to
seek review of the orders denying it access to the sealed documents.”).




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members of the general public.”).        Any member of the public may

assert a personal right to access judicial proceedings and

records.   Oahu Publ’ns Inc. v. Ahn, 133 Hawaii 482, 496, 331

P.3d 460, 474 (2014).

           Additionally, the right of self-representation exists

in both criminal and civil proceedings.         State v. Hutch, 75 Haw.

307, 318, 861 P.2d 11, 18 (1993); In re Ellis, 53 Haw. 23, 29,

487 P.2d 286, 290 (1971).      This is reflected in Hawaii statutes

regulating the practice of law, which expressly preserve the

right of every natural person to “appear[] in person before any

court, and there prosecut[e] or defend[] that person’s,

plaintiff’s, defendant’s, or accused’s own cause, without the

aid of legal counsel.”     HRS § 605-2.

           Here, there was nothing in Grube’s motion that was

clearly inconsistent with the filing being an assertion of

Grube’s personal constitutional right of access to court

proceedings and records.      The inclusion of “Civil Beat” in the

caption of the motion was consistent with HRPP Rule 2.2(d)(1)’s

requirement that litigants include an office address with all

filings.   Therefore, under Hawaii statute and precedent, Grube

was permitted to prosecute his own cause before the circuit

court, and the court erred by requiring him to retain counsel to

enforce his personal right.


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                            III. CONCLUSION

          Neither the procedures nor the substantive reasons

employed by the circuit court fulfilled the requirements to

overcome the public’s constitutional right of access to court

proceedings and records that this court set forth in Oahu

Publications Inc. v. Ahn, 133 Hawaii 482, 497-98, 331 P.3d 460,

475-76 (2014).    Accordingly, we hold that the circuit court

erred in denying Grube’s motion to unseal.         We also hold that,

because the constitutional right of access inheres in all

members of the public and Grube asserted this interest as an

individual, the circuit court erred in refusing to allow Grube

to appear pro se and requiring him to obtain counsel.

          Accordingly, we grant Grube’s petition for a writ of

mandamus and order that the circuit court unseal the documents.

The effective date of our directive shall be ten calendar days

after the filing of this opinion, unless within the ten days the

State requests a hearing to provide additional evidence to

demonstrate that the documents or some portion thereof must

remain sealed to serve a governmental interest of sufficient

gravity to overcome the public’s constitutional right of access.

Upon such request, the circuit court shall promptly set, docket,

and hold a hearing, then expeditiously prepare specific findings

in conformance with the substantive requirements set forth in



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this opinion if these requirements have been met; otherwise, our

order shall take immediate effect.        We further grant Grube’s

petition for a writ of prohibition in part and order that Grube

be permitted to represent his own interests in all further

matters related to this proceeding.        We deny Grube’s petition

for a writ of prohibition insofar as it seeks an order

prohibiting the circuit court from enforcing its sealing order

because we deem it unnecessary in light of our disposition.


Robert Brian Black                       /s/ Mark E. Recktenwald
for petitioner
                                         /s/ Sabrina S. McKenna
Robyn B. Chun
                                         /s/ Richard W. Pollack
for respondent judge
the Honorable Rom A. Trader              /s/ Michael D. Wilson

Duane M. Kokesch                         /s/ Matthew J. Viola
for respondent
State of Hawaii

Andrew T. Park
for respondent
Alan Ahn

William A. Harrison
for respondent
Tiffany Masunaga




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