Private: Judicial Selection in Hawaii

by Sean Aronson, president, ACS student chapter at University of Hawaii at Manoa William S. Richardson School of Law

The Hawaiian Kingdom existed as a sovereign nation for nearly one hundred years (1795 – 1893) before the United States overthrew the Kingdom in an illegal, bloodless coup d’état. Although the United States apologized for this illegal act in 1993, to date the U.S. has not offered any compensation or redress for it. The overthrow still casts a long shadow in Hawaii and divides the people, with some who question the state judiciary as a legitimate body. Just last month Native Hawaiians met to form an independent government with a separate constitution.

On November 27, 2015, First Circuit Court Judge Jeanette Castagnetti issued a ruling, ordering the state legislature to provide sufficient funding to the State Department of Hawaiian Homelands (DHHL) which is constitutionally mandated to “enable native Hawaiians to return to their lands in order to fully support self-sufficiency for native Hawaiians.” Judge Castagnetti ruled legislators would have to make available $18 million to DHHL this year to comply with Article XII of the Hawaii State Constitution, which requires the legislature to “make sufficient sums available” for the department’s administrative and operating budget. Many legislators viewed this decision as an intrusion into their legislative powers and sought retaliation through a series of proposed bills attacking the judiciary.

The attacks began with a judicial elections bill that proposed open voting on judicial positions by the general electorate. The subsequent hearing saw Hawaii’s tight-knit legal community come out strong in opposition. After a meeting to discuss strategy, Richardson School of Law ACS chapter and individual students submitted testimony in opposition to the open elections initiative. The bill was defeated on the senate floor, but the struggle continued through an attack on the retention process. The senate quickly pushed through a bill that would require a senate hearing for every judicial reappointment. The proposed bill also required a reappointment hearing every six years, instead of the present 10 years. That bill was also defeated.

The last attack on the judiciary by the legislature was perhaps the most insidious. SB 2006 limited the retirement benefits of future and current judges. Currently, judges, in addition to legislators, fire fighters, and police officers, are credited on retirement with three percent of their salary for each year of service. The bill reduced this to two percent for judges appointed, reappointed, or promoted after June 30. This time opposition came from all corners of Hawaii, including the state teachers union and many other government employees. The state retirement agency reported that singling out judges for a separate system would cost more money than any savings reaped from the cut. On March 23, 2016, the bill was also defeated. Consequently, the remaining attacks can only come through the budget, which limits the influence legislators can wield over the judiciary.

The judicial selection process as it is today requires that all judicial vacancies be vetted by the Judicial Selection Commission (JSC) and voted on through secret ballot. The JSC is a body of nine members, composed of no more than four attorneys, with appointments from the Governor’s office, Chief Justice of the Hawaii Supreme Court, Senate President, and House Speaker filling the remaining seats. The JSC makes the initial selections, which are then subject to senate hearings.

In addition to submitting testimony against the judicial attacks, ACS-Richardson held an event for the community on March 16. Retired Supreme Court Justice Steven Levinson, former Governor Waihee, Lisa Munger (Goodsill, Anderson, Quin, and Stifel) and trial attorney Michele Luke (Kesner, Umebayashi, Bain, and Matsunaga) emphasized the political nature of the bills. Gov. Waihee offered his perspective, backed by many stories from the constitutional convention of 1978―one related to the law school’s namesake William S. Richardson, who not so subtly suggested that the Chief Justice have a representative on the Selection Commission. Lisa Munger and Michele Luke spoke about the dangers of politicizing the selection process in such a small state―where all politics is truly local. Specifically, they warned of decisions favoring the elite over the socially disadvantaged, and the potential for well-qualified attorneys to avoid becoming judges if they would have to raise money to run a campaign.

With so much at stake, ACS Richardson will continue to keep an eye on these potential attacks in this legislative session and beyond.