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  Judicial Independence in Hawaii


League of Women Voters of Hawaii


July 2003



A Project of the League of Women Voters US Education Fund

Supported by a grant from the
Program on Law & Society by the Open Society Institute
In-kind and monetary contributions from members of the
League of Women Voters of Hawaii

Resource material supplied by the following organizations:
American Bar Association
American Judicature Society
Brennan Center for Justice
Constitution Project with support of The Century Foundation
Hawaii State Judiciary
Justice at Stake


The League of Women Voters of Hawaii would like to thank the following agencies, organizations and individuals whose contributions made this work possible:

Hawaii State Supreme Court, Ronald Moon, Chief Justice
Hawaii State Judiciary, Marsha Kitagawa, Public Affairs Director
Hawaii State Judiciary, James Branham, Esq., Staff Attorney
William S. Richardson School of Law, University of Hawaii/Manoa, Lawrence Foster, Esq.
Hawaii State Bar Association, Alan Van Etten, Esq.
Hawaii Chapter, American Judicature Society, Larry Okinaga
Hawaii Chapter, American Judicature Society, "Hod" Burnham Greeley, Esq.
Hawaii Women Lawyers, Emi Monta
Hawaii Association of Trial Lawyers
Judicial Performance Review (Rule 19) Committee, Colleen Hirai, Chair
Judicial Selection Commission, Amy Agbayani, Chair and members
Hawaii Commission on Judicial Conduct, Gerald Y. Sekiya, Chair
Jim Dooley
Ian Lind
William Miller
Randy Roth
Robert Rees
Senator Les Ihara, Jr.

League Project Members: Jean Aoki, Laure Dillon, Arlene Kim Ellis, George Fox, Evangeline Funk, Edward and Grace Furukawa, Evalyn Inn, Jaurene "Jo" Judy, Suzanne Meisenzahl, Jacqueline Parnell, Malia Schwartz, Ray Scheele, and Mary Anne Raywid.

Selection of Judges
Judicial Selection Commission
Initial Appointment
Retention/ Reappointment
Evaluation of Judges
Judicial Performance Program
Judicial Evaluation Review Panel
Judicial Conduct
Commission on Judicial Conduct
Funding the Judiciary
Judicial Budget
Judicial Salary Commission
Final Reflections
End notes

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Most of us will never see the inside of a courtroom except as spectators, potential jurors, or through the prisms of television and movie cameras, but decisions made by judges and justices on the interpretation and applications of constitutional, statutory, and common laws have far-reaching consequences on our lives. We depend on our courts to fairly and impartially apply our laws in settling civil disputes, adjudicating and sentencing criminals, and protecting the rights of all people guaranteed by our state and federal constitutions.

Fair and impartial are the root and operative words, and they can only be nurtured if our courts and the judiciary as an institution remain independent from political, economic and social pressures.

The Brennan Center For Justice at NYU School of Law defines judicial independence as:

"the freedom we give judges to act as principled decision-makers. The independence is intended to allow judges to consider the facts and the law of each case with an open mind and unbiased judgment. When truly independent, judges are not influenced by personal interest or relationships, the identity or status of the parties to a case, or external economic or political pressures."

Of course, judicial independence applies not only to individual judges in their adjudication of cases, but to the whole judicial system. Does Hawaii's judiciary enjoy the independence to act as an important co-equal partner in our tripartite government? Can it operate free from political, economic, and social pressures to serve as the check and balance to the other two branches-- the executive and the legislative?

In discussing the threats to judicial independence, one of the Brennan Center's articles comments that ".... judicial independence can flourish only as long as society has confidence in the impartiality of judges. Without faith that judges for the most part act neutrally and fairly, the public has no reason to defend the judiciary as a separate and powerful third branch of government."

It was this same reasoning on our part that sent the League of Women Voters' Judicial Independence Project Committee on a tour of discovery of our state judiciary.

Maile Bay, President
League of Women Voters of Hawaii

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League of Women Voters of Hawaii
Submitted, December 18, 2001, National League of Women Voters
Revised, June 30, 2003

The League of Women Voters of Hawaii (LWVHI) is a council of local leagues, with a 15 member board for 2001-2004. The presidents of the local leagues – Honolulu (Island of Oahu), Kauai (Island of Kauai), and Maui (Island of Maui), and one of the co-presidents of Hawaii County (Island of Hawaii) – are automatically members of the State board. Most of the other board members are also active members of their local leagues.


In the absence of any glaring systemic problems that are obvious threats to judicial independence such as the election of judges, we decided to explore the whole judicial system on the premise that the degree of independence our citizens would recognize as necessary for the proper functioning of the judicial branch is dependent on their perceptions of the soundness of that system. In order for citizens to accept the importance of and need for judicial independence, we need to be convinced that we have a system dedicated to equal access to justice and the fair adjudication of cases in accordance with the laws of our state and our nation. Therefore, we have devoted our time to exploring our judicial system, its structure, the checks and balances put in place to identify and resolve problems, problems encountered in the past, and weaknesses and strengths perceived and real today.

This was quite an experience, for most of us really knew very little about the structure of the judiciary. Piece by piece, we explored it – gathered brochures and committee reports, the judiciary's own studies and plans for improving services, interviewed the members of the various commissions and committees and individual members of the legal community and some of its critics, gathered newspaper and magazine articles about events that had occurred decades back, read current criticisms and the counter arguments of knowledgeable people inside and outside of the judiciary.

While this report is meant to be an overview of Hawaii's judicial system, it is based on those interviews we were able to conduct and those articles that we were able to gather and read in the limited time available. As such, it conveys our views and opinions about the system. During the process, we identified areas we would like to explore further, but we have set those aside for further study after this project is completed.

It is our conclusion, as well as the conclusion of most of the more vocal critics, that we have a sound judicial system. We have a system of selecting judges that avoids the abuses, real or perceived, of electing judges. In addition, our system includes a program to regularly evaluate judges and a commission on judicial conduct. While we have experienced problems in the past and will likely encounter others in the future, most of them have been identified and resolved over time.

As we indicate in our report, where doubts remain, most of the issues can be alleviated or avoided through greater transparency built into the system.

Hawaii's Courts

The Hawaii State Judiciary encompasses a statewide system consisting of courts of appeal and trial courts. Appellate level courts include the supreme court and intermediate court of appeals. In addition, there are special courts such as the land court, and tax appeals court. The Hawaii Supreme Court consists of a chief justice and 4 associates; the Intermediate Court of Appeals consists of a chief judge and 3 associates. The 2003 Hawaii Legislature added funding for two more judges at the Intermediate Court of Appeals. As of this writing, those positions are in the process of being filled. At present there is one woman on the Intermediate Court of Appeals and one on the Supreme Court.

District and circuit level courts operate in four counties: first judicial circuit, Oahu; second judicial circuit, Maui; third judicial circuit, Hawaii; and the fifth judicial circuit, Kauai (there is no fourth circuit court). As of May 14, 2003, on Oahu, there were 23 circuit (12 women), 9 family (2 women), and 14 district court judges (6 women). On Maui, there were 3 circuit (0 women), 1 family (0 women), and 4 district (2 women) court judges. On Hawaii (Big Island) there were 2 circuit (0 women), 4 district (1 woman), and 2 family (0 women) court judges. Kauai had 2 circuit (0 women) and 2 district court (1 woman) judges. Among the four counties, there were 50 per diem district and family court judges (16 women) who are appointed by the Chief Justice. Unlike most other states, all of Hawaii's courts are contained within an integrated system funded by one source – the State Legislature. A central administrative office, headed by a director appointed by the Chief Justice with the approval of the Supreme Court, assists in supervising operations. Court rules, procedures, and forms are consistent throughout all judicial circuits.

All judges/justices, except per diem, in Hawaii are appointed by either the Governor or Chief Justice from a list compiled by a commission established by the State Constitution, then confirmed by the Senate, as is more fully described below. The Hawaii Constitution requires that judges/justices be citizens of the state and the United States and licensed to practice law by the Hawaii Supreme Court for 10 years to be appointed to the supreme court, the intermediate court of appeals, or the circuit court and for 5 years to be appointed to the district court.

Chief Justice Ronald Moon has initiated many programs to aid the public when accessing the courts. For example, the Ho'okele program (Ho'okele means 'to guide' in Hawaiian) places concierge desks inside the front entrances of both the District Court and the Circuit Court buildings. Among other things, the concierge staff directs those unfamiliar with the legal system to the appropriate offices and programs within the courthouse and helps them find where their cases are being heard and/or refers them to appropriate outside agencies. Other programs have improved the quality of justice for Hawaii's large immigrant population through such things as free, recorded telephone messages in seven languages and a directory of bilingual attorneys and legal assistants. Adult Drug Courts were initiated for the purpose of emphasizing treatment and rehabilitation. Achieving Court Excellence is an ambitious program setting out 29 goals to improve service to the public by increasing efficiency, eliminating duplication, and adding flexibility in resources, through the statewide, unified court management information system.1

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Judicial Selection Commission

The Judicial Selection Commission, established by the 1978 Hawaii Constitutional Convention, is composed of nine members, no more than four of whom may be lawyers, selected or elected as follows:

  • 2 members selected by the Governor

  • 2 members selected by the Speaker of the Hawaii House of Representatives

  • 2 members selected by the President of the Hawaii Senate

  • 1 member selected by the Hawaii Chief Justice

  • 2 members elected by the members of the Hawaii State Bar Association

Prior to 1978, the Governor appointed the supreme court justices and circuit court judges, and the Chief Justice of the Supreme Court appointed all district court judges. The 1978 Hawaii Constitutional Convention established the Judicial Selection Commission in an attempt to remove political influence and favoritism in the selection of judges. Under the constitutional provisions, the Governor would appoint 3 commissioners, the Chief Justice 2, and the House Speaker and the Senate President 1 each with the Hawaii State Bar Association electing 2 of its members to serve on the commission. U.S. District Court judge Samuel P. King said at that time that it was misleading to voters to characterize the commission as a way of selecting judges by merit that also eliminated all politics. Hawaii State Bar Association President Daniel Case said that the bar association was going to endorse the commission process, but felt that by giving the Governor 3 appointments, it stacked the deck in favor of the politicians.2

In 1993, responding to the public's perception that the commission lacked independence among other issues, a citizens' conference was sponsored by the HSBA, the American Judicature Society, the Hawaii State Judiciary and a few others. Over 125 citizens, many of them representatives of civic organizations, were invited to attend. Among the many recommendations for reform of the judicial selection process, four required constitutional amendments. One of the proposed amendments reduced the Governor's and the Chief Justice's appointment of commissioners and increased that of the House Speaker and the Senate President. Another proposed amendment reduced the number of Circuit court nominees submitted by the Judicial Selection Commission from a list of "not less than six" to "not less than four and not more than six". This proposed amendment alleviated the problem of the commission sometimes having to relax the standards to identify six qualified nominees. One other proposed amendment provided for Senate approval of district court judges. In addition, the proposed amendments required that at all times at least one commissioner be a resident of a neighbor island county.

The Hawaii Legislature placed these proposed amendments on the ballot in the 19943 election, and voters approved all four. However, the State's Attorney General challenged the validity of the amendments based on alleged procedural errors. It was not until January of 19974 that the Hawaii Supreme Court upheld the validity of the amendments.

Issue: Political influence

There has been a continuing debate over the political nature of the appointment of the commissioners. In 1993, for example, the local newspaper ran several articles that suggested the public didn't trust commission members to act independently in selecting nominees for open judgeships.5 While acknowledging that the commission process was superior to the prior process of direct selection of judges by the governor and chief justice, the public still perceived the selection of commission members as influenced by politics. At that time, Lieutenant Governor (then, Governor) Ben Cayetano suggested that the judicial selection process would be improved if the governor and chief justice were removed as appointees of commission members.

In 1997, another appointment to the commission created more accusations that politics was inappropriately involved in the process. The then-Senate President appointed to the commission a person considered the most powerful lobbyist in the state at the time, the director of the United Public Workers Union, Gary Rodriggues. One editorial said "this appointment contradicts the idea of keeping politics out of the judiciary."6 In part, the media reaction was to a requirement in the State Constitution that no judicial selection commission member take an active part in political management or in political campaigns. (Article VI, Section 4) Many felt that this commissioner's activities and position contravened the Constitution's intent.

Media coverage over this appointment increased later in 1999 when he was investigated by the Department of Labor and then criminally indicted.7 Pending trial, the commissioner at first continued to serve on the judicial selection commission despite calls for him to resign.8 He finally did recuse himself. However, this commissioner was the only member of the commission from the outer islands (resident of Kauai); therefore, the outer islands was not technically represented on the commission. Commissioner Rodrigues ended his term in April 2002. When the current Senate President appointed a commissioner from Oahu, he was notified that the appointment must be someone from one of the neighbor islands. He resisted. It was not until the Statue Judicial Selection Commission petitioned the State Supreme Court for a writ of mandamus directing the President to fulfill his constitutional obligations that the Senate President relented.

A seat on the Judicial Selection Commission is highly coveted, and the authority to make appointments is not taken lightly. Because the commissioners sit for 6-year terms, the opportunity for any one appointing authority to make a selection does not occur often, or may not arise more than once for any appointing authority. Unfortunately, the State Constitution does not stipulate which appointing authority should make the neighbor island selection. Barring some disruption to the appointment cycle, it seems that the Senate President will always be the one to select someone from the outer islands. If the Senate President is someone from the outer islands, this may be a welcome opportunity, but the fact remains that unless some other appointing authority, by choice or by design, selects a neighbor islander, the responsibility may always rest with the Senate President.

Another controversy involved the Bishop Estate, established through the Will of Princess Bernice Pauahi Bishop in 1884. The Will provided that the five estate trustees "are appointed by the members of the state Supreme Court, acting as private individuals"9 These were lucrative positions. For example, "from 1986 to 1988, the trustees were paid $1.57 million each in commissions." Some felt that the selection process added "to the potential for conflicts of interest, real or perceived, between an estate that is Hawaii's largest private landholder and a Supreme Court that sets the rules regarding many land, tax development and other matters."10 In 1994, the Bishop Estate controversy reached to the Judicial Selection Commission when Gerard Jervis was chosen by the justices as a trustee. "As a member of the state Judicial Selection Commission, Jervis had helped interview the five [Supreme Court Justices] when they applied to the high court."11 In 1997, after extensive adverse publicity and public discussion, the justices announced that they would give up selecting future trustees. This decision dispelled most of the perceptions of political horse trading and conflicts of interest among the three branches of government and the Judicial Selection Commission.12

Hawaii's commission system has evolved over time into one that minimizes the grave problems surrounding the election of judges used in other states. It is based on selection of nominees through an independent commission followed by appointment by either the Governor or Chief Justice and then confirmation by the Senate. While the historical development has at times seemed political or been tumultuous, as reflected in the examples chosen for this report, the commission process overall appears sound.

Suggestions – compiled from various sources (not necessarily endorsed by LWV)

  1. Eliminate the Judicial Selection Commission and return to direct appointments.

  2. Elect judges.

  3. Require confirmation of nominees to the Judicial Selection Commission by the Senate.

  4. Revise Judicial Selection Commission rules to clarify and specify politically active. Preamble, Section 3C reads, "No commissioner shall take an active part in political management or in political campaigns."

  5. Publicize complete biographies of Judicial Selection members at the time of appointment.

  6. Appoint more women to the Judicial Selection Commission (see discussion under initial Appointment," below).

  7. Require that at least one of the governor's two appointments to the Judicial Selection Commission be from an outer island; or have the State Bar Association elect one of its members from an outer island; or rotate the responsibility of appointing/electing the outer island member.

Selection of Judges - Initial Appointment

All judicial vacancies are advertised in the local newspaper to solicit applications. The Judicial Selection Commission Rules require the Commission to review an applicant or nominee's background, professional skills, and character with attention to:

  • integrity & moral courage

  • legal ability & experience

  • intelligence & wisdom

  • compassion & fairness

  • diligence & decisiveness

  • judicial temperament

  • such other qualities as the Commission deems appropriate.

District and district family court judges are appointed to six year terms by the Chief Justice of the Supreme Court who selects a nominee from a list of not less than six names submitted for each opening by the Judicial Selection Commission. A judicial selection commission rule allows an applicant's name to be included on more than one list of nominees for different judicial office vacancies. (Rule 11)

All appointments are subject to Senate confirmation according to strict thirty day timelines. Procedures for failures to either appoint or confirm within the timelines are also set out in the Hawaii State Constitution, Article VI, Section 3.

Issue: Secrecy

The State Constitution, Article VI, Section 4, provides that the "deliberations of the commission shall be confidential." One argument against releasing the names of those who are being considered by the Judicial Selection Commission is that it leads to inappropriate lobbying and possible release of sensitive personal information. It may also keep good candidates from pursuing a judicial position. After the Judicial Selection Commission was established, its practice was to keep both its deliberations and the final list of candidates secret. In 1993, a lawsuit was filed asking the court to order the commission to make public the names on the list of finalists sent to the appointing authorities. In, Pray v. The Judicial Selection Commission (1993)13, the court stated that the commission had the discretion to keep the list confidential or not, but once the list goes to the appointing authorities, it can be made public by those authorities.14 A Citizens Conference on Judicial Selection studied the issue and recommended that the list of finalists be made public.15 Shortly after this, both the Chief Justice and the Governor stated that they would release the list of names but only after the Senate confirmation of the nominees, and that elicited protest in the media.16

As recently as 1996, release of the names of the finalists was cautioned against because it created "intense pressures and lobbying," and "can turn into a distraction and even disrupt the balanced approach that should characterize a search."17 On the other hand, many believe that political insiders will know the names of finalists and will lobby for their candidate, so release of the names simply levels the lobbying field. Currently, the judicial selection commission does not release the final list of names. Although the current Chief Justice releases the names, there is no guarantee that his successor will. In his last appointment, the governor (Cayetano) released only the names of his nominees; he released the list of finalists after confirmation of the nominees. Since 1999, the Chief Justice has made the entire list of finalists public and asked for public comment prior to appointment and confirmation.18 Prior to making her appointments, current Governor Linda Lingle made public two lists of nominees, one list for a state supreme court vacancy and one list for a circuit court vacancy.19

Another issue surrounding secrecy of the list of nominees is the public's perception that between the time the list goes to the governor or chief justice and the selection is made, that there can be changes made to the list. For example, the 1997 newspaper article, "Broken Trust," addressed this issue as follows:

"A little known fact is that when Justices Robert G. Klein and Steven H. Levinson were selected in 1992, both names were not on the first list submitted by the commission. According to our sources, Waihee simply sent the list back, saying he wanted either a new list or an expanded one. ... Both names were on the revised list and they were the ones who got appointed."20

This may or may not have been an isolated incident. However, once the public perceives something underhanded has occurred that perception is difficult to overcome.

Issue: Women and Minority Appointments.

Hawaii is uniquely positioned so that it represents a cross-section of many of the world's cultures, and therefore, under-representation of minorities has not been raised as a glaring problem in our judicial system. According to the Hawaii State Bar Association, as of September 2001, there were a total of 3,767 active attorneys in Hawaii. Of those, 2,940 were in private practice, 88 judges, and 739 government employees. Of this total, 1,243 were women, and of those, 854 were in private practice, 32 were judges, and 357 were government employees. There are about the same percentage of female judges as there are licensed and active female attorneys; however, women are not represented equally at all levels of the judiciary or on all the islands.

Issue: Political influence

It appears that a large number of judicial appointments are persons with political backgrounds (i.e., political appointees or legislators), rather than attorneys from private practice. While many new attorneys apply for government positions to gain experience before going into private practice, the highly publicized appointments of persons with political backgrounds to high-level judgeships, some criticized for not having suitable experience, gives the appearance of political favoritism. This is not to imply that all such appointees lack qualifications to become effective judges; but once a perception of favoritism is formed it can undermine the public's faith in an impartial judiciary. It may also increase the likelihood of public criticism and discourage attorneys in private practice from applying for judgeships.

Before the 1994 constitutional amendments, one of the then-Governor's choices for the State Supreme Court did not win Senate confirmation. Her appointment had provoked a storm of protest, including the charge that she lacked judicial experience. As one article pointed out, she was a former member of the State Land Use Commission, current member of the State Board of Land and Natural Resources, married to the then-Governor's ex-Attorney General.21 One prominent Senator, who had voted against the then-Governor's choice, said that his vote was based on his constituents' feelings that her nomination was a political move. In addition, the Senator commented that he thought the judicial selection process was "flawed and in need of repair."22 After the nominee's failure to win confirmation, the subsequent nominee was confirmed despite criticism about qualifications and assertions that it was political. This nominee was a former state insurance commissioner and state labor director.

The prominent Senator mentioned above lost his bid for re-election in 1996, but was appointed by the Governor as Insurance Commissioner. In 1998, the now ex-Senator was selected by the Governor for a circuit court opening. Despite opposition from the City Prosecutor who felt the ex-Senator did not have sufficient courtroom trial experience,23 the Senate confirmed him. In written commentary in 1998, Federal District Court Judge King stated that while the perception of political favoritisms had clouded appointments in the past, recent "criticisms stem from doubts about the standards for selection actually used by the commission."24

We want to emphasize that there are also examples of the system working well. One involved the appointment of a judge during the summer of 2000. In a special session of the legislature, the confirmation of an appointee to the Intermediate Court of Appeals was strongly opposed by certain groups because of the attorney's representation of same-sex couples' suit in court that would allow them their right to be married under the "due process and equal protection" clause of the State's Bill of Rights. Rallies and a packed gallery in the Senate chamber marked the confirmation process, with loud reactions to speeches by individual senators for and against the confirmation. Numerous letters were written to the papers both pro and con. Steady support from members of the legal community, academics, and others that attested to the widely-acclaimed qualifications of this appointee led to his final confirmation by a vote of 14 to 8, with 3 absent. So, despite a history that has included a court challenge to the commission's procedures and several controversial appointments to judicial positions, the commission system overall appears to allow for public discussion and debate about nominees.

Suggestions compiled from various sources (not necessarily endorsed by LWV)

  1. The Judicial Selection Commission should revise its rules to release the list of names at the same time it sends the list to the Governor and Chief Justice.

  2. More attorneys, including women, from the private sector with the appropriate experience should be encouraged to apply for judgeships.

  3. The Judicial Selection Commission should revise its Rule 7A which states "Commissioners may actively seek out and encourage qualified individuals to apply for judicial office." While the Judicial Selection Commission, as a whole, should educate and encourage qualified attorneys to seek judicial appointments, the rule as currently worded leaves the wrong impression.

  4. Change some of the judicial appointments to a lifetime tenure, such as is done in Federal Court.

  5. Because the process of judicial selection begins with the Judicial Selection Commission, every effort should be made to include women in the selection process. It was noted that the Hawaii State Bar Association has not yet elected a woman member to the Commission.

Selection of Judges - Retention/Reappointment

Pursuant to Article VI, Section 3 of the Hawaii State Constitution, any judge or justice seeking retention must notify the Judicial Selection Commission at least six months before expiration of the term of office. According to the Rules of the Judicial Selection Commission, they investigate the qualifications of a judge/justice to remain in office. The Commission advertises the potential retention in the local newspaper. The Commission considers any evaluations (discussed below) of judges, as well as public input, and information from agencies such as the Prosecutor's Office, Public Defender's Office, and Legal Aid. Information is also solicited from the Hawaii State Bar Association. The Commission is required by its rules to interview the petitioner for retention, to make a determination that the petitioner should or should not be retained in office, and to issue an order of such retention or denial of that retention (Rule 12). The Judiciary issues a News Release on retentions.

Issue: Secrecy

Because the proceedings of the Judicial Selection Commission are confidential, the information used to determine whether a judge should be retained is not made public. In addition, the order of either retention or denial of retention, while a public record, is not automatically published. The public becomes aware of the failure to retain a judge only if it is the subject of media attention. For example, in 1990, a family court judge was denied reappointment because the then-Honolulu City Prosecutor called him soft on spouse abusers.25

Suggestions compiled from various sources (not necessarily endorsed by LWV)

  1. Media should make more of an effort to publish Judicial Selection Commission orders and other statistics.

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Judicial Performance Program

In 1993, the Supreme Court established the Judicial Performance Program (Rule 19 Committee) to promote judicial competence and excellence among Hawaii state judges. The program evaluates judges at periodic intervals during their tenure, based on their legal ability, judicial management skill, comportment, and as applicable, their skills in settlement and/or plea agreement ability.

Rule 19.3 states, "the Chief Justice shall appoint a special committee to implement and administer the program according to such procedures deemed necessary by the committee and approved by the supreme court. The committee shall consist of thirteen members – three nonlawyers, the administrative director of the judiciary, six members of the bar of the supreme court, and three judges. The Chief Justice shall designate the chair and vice-chair of the committee and the length of terms of all committee members." The members do not receive compensation for their services.

The administrative director of the judiciary provides staff and other assistance to the committee. According to Rule 19.5b, all information is confidential "and shall not be made available to any tribunal, board, agency, governmental entity, or person, other than the Chief Justice." There is a designated judiciary employee who has responsibility for the handling of all completed evaluations.

All eligible full-time judges are evaluated by attorneys who have appeared before the judge on substantive matters. Those attorneys who made the largest number of appearances before that judge are chosen first, until as close to 150 attorneys are identified for the survey. The attorneys are asked to respond confidentially to a series of multiple-choice questions that range from one for poor to five for excellent, and to provide any helpful written comments.

Although the Judicial Performance Program was initiated in 1991, it was not until 1999 that it began to show progress in reaching its objectives to evaluate all circuit court judges three times during their 10-year terms, and to evaluate district court judges twice during their 6-year terms. Dissatisfied with the slow pace, sometime in 1998, a committee of the Hawaii State Bar Association called for its own evaluation program and proposed that individual evaluations of judges be published. This provided a great deal of public debate, both pro and con.

Only 17 judges had been evaluated in the first 8 years as of March 1999, according to a Star-Bulletin article by Ian Lind. Seventeen more were expected to be completed by the end of 1999. The 6th Report on the Judicial Performance Program dated January 11, 2001, showed that 11 Circuit Court judges, 8 Family Court judges, and 10 District Court judges were evaluated between August and December of 2000.

At present, returns average 31% of the total sent out. In the December 20, 2002 report, 1500 survey forms were sent out for the evaluation of 10 circuit court judges. Four hundred and seventy-eight completed forms were returned for an average of 32%. For the evaluation of eight family court judges, 1200 forms were mailed out and 355 responses were received for a 30% return.

If there are less than twenty returns for any one judge, that evaluation is considered incomplete. The data is then collected and forwarded to the Chief Justice for use by the Judicial Evaluation Review Panel (discussed below), which is responsible for discussing the results with individual judges. The Judicial Performance Program has released eight reports beginning in May 1994. The last was December 20, 2002.

Issue: Secrecy

In an article in 1999, an attorney who asked to remain unnamed stated, "People are scared to comment because judges are their bread and butter."26 Despite the Judiciary's efforts to ensure confidentiality, the League received input from attorneys that indicated there was a hesitancy to fill out evaluation forms or to speak out about the judicial evaluation system for fear of reprisal.

Issue: Political influence

The Rule 19 committee is appointed by the Chief Justice. In 1999, a series of newspaper articles discussed the history of the evaluations process. The article pointed out that a decade before an evaluation proposal was made by the Hawaii State Bar Association. The then chief justice adopted his own proposal which became Rule 19 and preempted the Hawaii State Bar Association's proposal.27 In 1999, a committee of the Hawaii State Bar Association proposed that they handle the judicial evaluations. They proposed releasing the names of the judges evaluated along with the results of each judge's evaluation. According to the Sixth Report on the judicial Performance Program, there was a compromise reached and the judiciary has continued handling the evaluations.28

Issue: Usefulness of Information.

The information in the reports released by the Judicial Performance Program is given for circuit, family, and district court judges. Mean scores with a standard deviation are provided. While past reports did not indicate what percent of evaluations were returned by judge, or even by category (such as district court or family court), the latest report has attempted to provide more useful information. For example, there are tables that show the number of judges by court (such as district court or circuit court) who fell above or below the mean. Statistics, like legalese, can seem confusing to those who don't work with them every day, and lead to a criticism that they obscure more than they enlighten.

While the history of the evaluation program has been marked by some debate over its effectiveness, we want to point out that Hawaii is only one of a small number of states that provides evaluations of judges. We noted the many volunteers who give their time to the evaluation program. The Judiciary acknowledges that the rate of returns is low and continues to try to improve their statistics as well-as ensure confidentiality of the evaluations.

Suggestions compiled from various sources (not necessarily endorsed by LWV)

  1. While retaining the Rule 19 committee, have the completed evaluations returned to an independent group before the information is turned over to the judiciary.

  2. While retaining anonymity of individual judges, revise some of the statistical information to provide relevant information on actual judicial performance. For example, the statistics published annually by the Judicial Performance Commission should include a range and not just an average score. In addition, they should include the number of judges who fall within each point on the range.

  3. Consider conducting a poll of all active bar members for input on suggested changes and/or other suggestions for changes that will lessen criticism of either the process or the judiciary.

Judicial Evaluation Review Panels

The Judicial Evaluation Review Panel, begun in 2001 by Chief Justice Moon, consists of former judges, members of the public knowledgeable in the law, and retired practitioners, all appointed by the Chief Justice from a list recommended by the Rule 19 Committee. They assist the Chief Justice with evaluations. The panel is separated into three panels, each consisting of one former judge, one non-practicing attorney, and one member of the public. The three panels are former judge, one non-practicing attorney, and one member of the public. The three panels are responsible for working with judges from the circuit, family, and district courts, meeting with recently evaluated judges to discuss the judges' performance, and providing guidance and counsel to the judges.

Top    Selection    Evaluation    Conduct    Funding    Final   


Commission on Judicial Conduct

Pursuant to Article VI, Section 5, Hawaii State Constitution, as amended in 1978, the "supreme court shall create a commission on judicial discipline." The Commission on Judicial Conduct has authority to investigate and conduct hearings concerning allegations of misconduct or disability and to make recommendations to the Supreme Court concerning reprimand, discipline, suspension, retirement or removal of any justice or judge." The current Commission consists of "seven members appointed by the Supreme Court for staggered three-year terms." Three of the members are attorneys and four "shall be citizens who are not active or retired judges or lawyers."

The Committee meets monthly. Complaints must be submitted in writing and all such complaints are reviewed, and an initial determination is made whether there is sufficient cause to proceed. Pursuant to its rules, the committee can undertake an investigation on its own initiative such as when cases of unethical conduct come to its attention through media reports or other sources. The Committee makes such investigation and requests such other information as it deems necessary. The Committee has the option in difficult cases to request the appointment of special counsel to conduct formal hearings.

The Commission has authority to make recommendations of discipline to the Supreme Court. In addition, upon request, the Commission issues advisory opinions to aid in the interpretation of the Code of Judicial Conduct. The Commission publishes annual information on the substance and disposition of complaints by general category and without identifying information. This Commission governs judicial conduct in the same way that the State Ethics Commission governs conduct of state employees.

Issue: Lack of Information to the public

All of the Commission's proceedings are confidential. There is currently a serious allegation of misconduct of a sitting judge; however, after almost two years, no information on the status of this case has been released. This gives the appearance that if anything is happening, it is taking too long, especially if the judge continues on the bench.

Suggestions compiled from various sources (not necessarily endorsed by LWV)

  1. On cases that take a long time, some information on progress should be made public.

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Judicial Budget

The Judiciary's biennium and supplemental budgets are developed based on input received from all court programs. The Judiciary's Policy and Planning Division Budget Officer consolidates the individual requests and prepares a consolidated budget that is approved by the senior staff and the Chief Justice. It is then submitted directly to the Legislature, Hearings are held before the House and Senate Judiciary committees and before the House Finance and the Senate Ways and Means committees. Differences are resolved through a House-Senate Conference Committee, and members of each house vote on the final recommendations. The budget proposal may be altered by any of the committees or by floor amendments in either house.

Issue: Funding of the Judiciary

In general, this does not seem to be any more of a problem for the judiciary than for any other branch of government or agency.

Issue: Overly restrictive language

In the 2001 legislative session, the Senate-passed Judiciary budget bill was significantly changed by the House with both decreases in specific areas of funding and language added to the bill that attempted to put limits on where dollar amounts could be expended. The Senate Committee report refers to the House actions "...as being unjustifiably cumbersome and unnecessarily restrictive to the administration and autonomy of the Judiciary." The Judiciary's written testimony referred to the House Bill's inclusions as "... a number of what we believe were overly restrictive provisos included in the H.D. 1 version of the Judiciary budget bill. Had those provisos been allowed to remain in the bill, we believe that they would have blurred the lines that separate the three branches of government. We were concerned that the provisos in H.D. 1 would infringe on the Chief Justice's authority to manage the Judiciary."

Suggestions compiled from various sources (not necessarily endorsed by LWV)

  1. Continue to monitor this area during the legislative session.

Judicial Salary Commission

Article Vl, Section 3, Hawaii State Constitution provides that there shall be a salary commission "to review and recommend salaries for justices and judges of all state courts."

Issue: Political influence

Judicial salary adjustments must be approved by the legislature and the political climate never seems to be right for such adjustments; thus a major campaign must be mounted to obtain a salary adjustment for Hawaii state judges. Generally, a salary adjustment has come only after a number of years have lapsed. There are always concerns about why these "high" paid public servants should be asking for an increase in their salary. For example, in 1973, one associate justice of the State Supreme Court sued the then-Governor for the same pay raise that other nonunion government employees had received.29 In 1997, the Governor vetoed a bill that would have given judges a 12 percent pay raise.30 In an editorial criticizing the Governor's veto, the writer stated that the "judiciary is paying the price of being independent, not being organized, not a union, which is to say it has no political clout."31 The issue surfaced again in 1998, when it was pointed out in a letter signed by the State Judicial Council (15-member body that advises the Hawaii Supreme Court) that "Hawaii's judges are the only judges in the country who have not had a raise in eight years."32 The salary issue was debated through 1999 and into 2000 when a bill increasing judicial salaries was finally signed.33

Suggestions compiled from various sources (not necessarily endorsed by LWV)

  1. In his 2001 State of the Judiciary speech, Justice Moon said the Judicial Salary Commission will order an independent study to identify a better way to determine judicial salary adjustments.34

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Judicial criticism comes from either inside or outside of the system. For example, criticism by the prosecutor's office or from attorneys is from the inside, while criticism from the media, legislature (sometimes), and private citizens is from the outside, Individual case decisions in both the trial and appeal's courts generate criticisms from the litigants and their attorneys. Actions by members of the judicial system, not necessarily judges, also can be criticized as "political," or "secret." Generally speaking, all criticism plays a role in the public's perception of how well the judiciary functions and therefore can affect judicial independence. However, suggestions that the judicial system should never be criticized may be just as harmful as is criticism that is inaccurate or misleading. As is often the case, there must be a balance, and that requires an understanding of what is legitimate criticism and what is not. To ensure an independent judiciary, education about the judicial system as well as a dialogue between those on the inside and the outside would seem to be most beneficial. Thus, this report makes some recommendations for an education campaign.

However, there are a few final comments to be made about judicial criticism and judicial independence. As discussed in this report, although Hawaii has a merit system of judicial selection that closely follows the model set forth by the American Judicature Society, it is not without controversy. One such issue relates to the way in which criticism is handled. For example, recently, the Hawaii Supreme Court was chastised in the media for several alleged indiscretions and not working hard enough.35 The President of the Hawaii State Bar Association responded to the perceived criticism, and this generated a further response.36 Although it's not clear, the HSBA President may have written because of the Association's amendment to its Board Policy Manual in July 2001, which enabled the HSBA President to "appoint attorneys with expertise in certain practice areas to assist in formulating a rapid response to unjust criticism with respect to judges and the judicial system."37 What added to the confusion, and perhaps lessened the credibility of the HSBA President's response, was that he is actively engaged as a member of the Chief Justice's Rule 19 Committee. In other words, on whose behalf is he speaking?

Another recent article in the paper criticized a state Supreme Court ruling on what's called "Meagan's Law." The writer was formerly an assistant U.S, attorney in the District of Hawaii,38 and therefore, may appear to readers to speak as an authority. This short article was printed without any counter-argument. However, the writer's appeal was to the reader's emotions and didn't provide a full and complete discussion of the Supreme Court's written decision. The public deserves to receive information that is as fair and complete as is possible to provide. Judicial independence can quickly be undermined by arguments and counter-arguments from insiders that are less than open, accurate, and complete.

Unjust criticism, and we include in that category inaccurate or incomplete media coverage, of the judicial system or its judges, should generate a healthy debate and dialogue. Free speech requires it and an independent judiciary will gain from it. It is laudable that the HSBA, for example, has a policy for responding to "unjust" criticism, and we note that this policy almost parallels the American Bar Association's recommendations for such responses. On the other hand, great care should be taken that the person responding be seen as objective, and that the response point to how the criticism is "unjust."

Judicial criticism that erodes independence can also come through legislation. The most notable recent instance of interference in judicial affairs by the legislature in Hawaii occurred in 1998 when it proposed and the citizenry adopted a constitutional amendment that modified an equal rights provision of the state constitution to allow the legislature to discriminate on the basis of sex when it defines marriage. This action was in direct response to the expectation that the Supreme Court would rule in favor of the homosexual couples who had applied for and been denied marriage licenses. The pressure on the Legislature to intercede and amend the constitution was intense. The effort was strongly opposed by LWVHI, the ACLU, and other groups, to no avail. The public was so focused on the emotional marriage issue that the implications of giving the legislature the right to restrict Constitutional rights, even for a small group, was lost. In ratifying the amendment, the citizens of Hawaii narrowed the meaning of "equal protection."

As has been pointed out in this report, another criticism has been the perceived pressure by the Governor and other politically powerful figures on the Judicial Selection Commission to recommend certain persons for appointment. Occasionally, some people see appointments as political "rewards," and consequently, the judicial system is not viewed as independent It has been alleged that a governor rejected a list submitted by the Commission that failed to contain the name of a person he wished to appoint to a judgeship. A related criticism is the perception that judges are automatically reappointed, regardless of their performance on the bench. In fact, this is not true. The evaluation of judges for retention follows the same review process by the Judicial Selection Commission as that used for initial selection. A misinformed or uninformed public seems to help perpetuate these perceptions about the judicial selection process. Therefore, full disclosure of as many facts as are available, a media that responsibly covers the judicial system, as well as education of the public could help alleviate some unjust criticisms.

Systems like to perpetuate themselves, and one way to do that is by surrounding and filling them with like-minded people. Even with the best of intentions, like-minded people are sometimes unwilling or reluctant to make changes to a system that seems perfectly all right to them. Given its history, it is even more important to pay attention to minor criticisms that may seem to some insignificant because, as already mentioned, it is the public's perception that can ultimately undermine the judicial independence that we seek. If through these small things the public perceives a closed, secret, and politically-influenced judicial system, then over time that will work to erode the judiciary's necessary independence.

When the Judicial independence committee of the League of Women Voters of Hawaii began this study, we listed some of the things that might be the greatest threats to judicial independence in Hawaii. These included unfair criticism of judges and judicial decisions, underfunding and coercive budgetary restrictions imposed on the judiciary by the legislature, undue interference by the legislative and executive branches of government in judicial selection, and ignorance of the importance of an independent judiciary by almost everyone. As we complete our investigation, we feel that as a threat to judicial independence, the last issue demands our immediate attention. The judiciary has undergone some severe crises and suffered numerous criticisms in the last twenty years or more, and it has improved. But fueled by a lack of knowledge about how the system works, public confidence has lagged. It has not been helped by a lack of transparency that plagues all of the branches of government in Hawaii. Therefore, the education phase of League's project will attempt to address ways to increase public understanding of the judicial process and the importance of judicial independence.

Finally, while this report has pointed to some of the contentious issues surrounding the judicial system, we want to emphasize its relative health. Thus, we conclude that our system is in pretty good shape. Compared to some other states, it is in excellent shape. While it is not entirely free from controversy, it is a much better system than systems in many other states, especially those which include the election of judges.

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End Notes

1 See, Summary of State and Local Justice: Improvement Activities-2001. Paula A Nessel & John J. Sweeney, Eds. American Bar Association Coalition for Justice, 2001, pp 135-142.
2 Star-Bulletin, September 23, 1978,
3 Honolulu Advertiser, November 2, 1994, Editorial
4 Honolulu Advertiser, January 31, 1997, Kim Murakawa
5 Star-Bulletin, February 28, 1993, James Koshiba
6 Star-Bulletin, May 20, 1997, Editorial
7 Star-Bulletin, September 3, 1999, Ian Lind
8 Honolulu Advertiser, March 9, 2001, David Waite
9 Honolulu Advertiser, December 16, 1989, "The Bishop Estate at a Glance"
10 Sunday Advertiser, October 4, 1992, "Bishop Estate"
11 Honolulu Advertiser, November 11, 1994, Ken Kobayashi
12 Honolulu Advertiser, December 21, 1997, "Justices say why they won't appoint trustees"
13 75 H 333 (1993)
14 See also, Star-Bulletin, November 12, 1993, Editorial
15 Honolulu Advertiser, November 24, 1993
16 Star Bulletin, December 4, 1993
17 Honolulu Advertiser, July 19, 1998, "Commentary," Cazimero
18 Star-Bulletin, March 24, 1999, "Courts"; see also, Star Bulletin, February 10, 2000, "Public May Comment on judicial nominees."
19 Pacific Business News, March 28, 2003, "Judicial nomination lists given to governor."
20 Star-Bulletin, August 9, 1997, "Broken Trust"
21 Honolulu Advertiser, February 25, 1993, Thomas Kaser
22 Honolulu Advertiser, February 25, 1993, Thomas Kaser
23 Honolulu Advertiser, February 5, 1999, Associated Press
24 Honolulu Advertiser, July 19, 1998, Commentary
25 Star-Bulletin, March 8, 1990, Lee Catterall
26 Star Bulletin, March 8, 1999, Ian Lind
27 Star-Bulletin, March 8, 1999, Jan Lind
28 See, Sixth Report on the Judicial performance Program, The Judiciary State of Hawaii, January 11, 2001, p 1.
29 Honolulu Advertiser, July 19, 1973, "State high court justice files suit for salary hike."
30 Star-Bulletin, June 24, 1997, William Kresnak
31 Honolulu Advertiser, June 29, 1997, George Chaplin
32 Honolulu Advertiser, April 26, 1998, Letter to Editor
33 Honolulu Advertiser, February 17, 2000, Kevin Dayton
34 Honolulu Advertiser, January 24, 2001, Arakawa
35 Honolulu Weekly, July 25-31, 2001, Robert Rees
36 Honolulu Weekly, August 15-21, 2001, Letters
37 Hawaii Bar Journal, July 2001, p 16, "Board Actions.
38 Honolulu Advertiser, December 4, 2001, A12, Bennett

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