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Politics in Hawaii: Is Something Broken?

From the Bishop Estate scandal of the 1990s to today’s Act 221 and Department of Education governance, politics in Hawai‘i is plagued by a lack of transparency and accountability.


(page 4 of 7)

Deliberately or not, what the Legislature did away with is not politics, but—you guessed it—transparency and accountability.


Some people defend the new regent-selection panel by pointing out that it is similar to Hawaii’s Judicial Selection Commission. Well, it is. That’s the problem.


Here’s an excerpt from something that Judge Samuel King wrote years ago: “The Judicial Selection Commission is not removed from politics. Members are selected by a political procedure and play their own brand of politics. Whether good politics or bad politics we cannot tell, because they operate in carefully guarded secrecy.”


On Judges and Justice

What I’m about to share disturbs me deeply, both as a lawyer who works within the system of justice, and as a citizen. There is an absence of transparency and accountability, for sure, but there are additional elements that also cannot be tolerated in any democracy.


In Hawaii, when a judge’s term in office is about to end, the Judicial Selection Commission decides whether to grant another term to that judge. In the case of a State Supreme Court justice, each term is 10 years.


The first retention decision after the Bishop Estate controversy occurred in early 2002. It involved only Associate Justice Steven Levinson, but would soon be followed by positive retention decisions for the other two justices who had appointed Bishop Estate trustees, Chief Justice Ronald Moon and Associate Justice Paula Nakayama—justices Robert Klein and Mario Ramil had since resigned from the court.


Three of the authors of the original “Broken Trust” essay wanted to provide input into the retention-decision process. We believed that those justices had impaired public confidence by turning the appointment of trustees into a political patronage system. Compounding the problem, they had decided legal disputes involving their handpicked trustees—an egregious conflict of interest. As the Star-Bulletin editorialized in 1997, “Trustee selections made by the justices have been lamentable because political motivation was evident.” At the same time, The Honolulu Advertiser asserted that this political motivation was, in fact, the intent of the state’s dominant Democratic party, writing, “The late Gov. John Burns and his army of loyalists … made no secret of their agenda … In order to pursue their goals … they needed to exert control over the key institutions. Influence over Bishop Estate was part of that plan.”


To the “Broken Trust” essay authors, it was inconceivable that the Judicial Selection Commission would give any of those justices another 10-year term in office. We were told by the Commission that oral testimony would not be permitted, but that we could submit our thoughts in writing. We did so, preparing a 10-page, single-spaced memo that detailed the many ways in which the justices’ actions had weakened the public’s trust in the justice system. We submitted nine copies to the Commission’s office. And then we waited.


Eventually the Commission announced that the justice in question had been given another 10-year term.


Sometime later, I happened to bump into a member of the Judicial Selection Commission at the airport. I tried to be pleasant, but made it clear that the “Broken Trust” essay authors could not have been more disappointed with the decision to give that justice another 10 years. The Commission member was apologetic, saying that it had been a very difficult decision, and that the outcome had been decided by a single vote. I said, “Look, if you think you’re going to make me feel better by telling me that the vote was close, you just don’t get it. I don’t see how any intelligent, well-intentioned person could read our memo and vote to give that justice another 10 years.”


He looked at me kind of funny, and said, “What memo?”


I said, “You know, the memo that the ‘Broken Trust’ authors submitted.”


His eyes widened as he said, “I never saw that; nobody said anything about a memo like that.”


If he was telling me the truth, and, based on the spontaneity of his response I think he was, it suggests that Commission members made their decision without even considering the very troubling information that can now be found in the Broken Trust book.


How is it that a system of justice is able to operate this way? A key part of the problem is that Chief Justice Moon’s control over the judiciary’s resources, calendar and staffing is virtually absolute. For example, when the long-time staff person at the Judicial Selection Commission decided to retire, Moon insisted on naming her replacement.  Commission members objected, but Moon refused to back down: the new staff person would be of his choosing, or there would be no new staff person.


You may recall that, following publication of the “Broken Trust” essay, the justices agreed to step aside and let substitute justices decide Bishop Estate matters. Yet, Moon insisted on handpicking the substitutes. I wish someone would explain to me how a person can be too personally involved to decide the matter himself, yet not too personally involved to handpick those who will decide it. I know of no other state where the chief justice maintains so much control over so many aspects of the judiciary as in Hawaii.


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