DOCSLIB.ORG

Testimony of the Department of the Attorney General Thirtieth Legislature, 2019 on the Following Measure: H.B. No. 1311

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Testimony of the Department of the Attorney General Thirtieth Legislature, 2019 on the Following Measure: H.B. No. 1311 TESTIMONY OF THE DEPARTMENT OF THE ATTORNEY GENERAL THIRTIETH LEGISLATURE, 2019 ON THE FOLLOWING MEASURE: H.B. NO. 1311, PROPOSING AMENDMENTS TO ARTICLE VI OF THE CONSTITUTION OF THE STATE OF HAWAII TO AMEND THE MANNER IN WHICH JUSTICES AND JUDGES ARE APPOINTED, CONSENTED TO, AND RETAINED. BEFORE THE: HOUSE COMMITTEE ON JUDICIARY DATE: Tuesday, February 12, 2019 TIME: 4:00 p.m. LOCATION: State Capitol, Room 325 TESTIFIER(S): Clare E. Connors, Attorney General, or Robyn Chun, Deputy Attorney General Chair Lee and Members of the Committee: The Department of the Attorney General offers the following comments and suggests amendments to House Bill No. 1311. This bill proposes amendments to article VI of the Hawaiʻi Constitution pertaining to the manner in which state district court judges are appointed and judges and justices are retained for an additional term and extends the time period from 30 to 90 days for certain decisions to be made or actions to be taken in the appointment and consent process. With respect to the question appearing on the ballot, the question as stated (see page 8, line 12, to page 9, line 3) should be clarified. It consists of three related, but independent questions to which a voter should be allowed to separately answer “yes” or “no”. However, as it appears in this bill, it is unclear whether each question can be answered separately or whether the question asks for a single all or nothing “yes” or “no” vote to all three questions. This potential confusion can be addressed by setting forth three separate questions for each of the three amendments in this bill and by providing a box to check for “yes” and a box to check for “no” for each question. See article XVII, section 2 of the Hawaiʻi Constitution (“each amendment shall be submitted in the form of a question embracing but one subject; and provided further, that each question shall have designated spaces to mark YES or NO on the amendment”); Id., HB1311_ATG_02-12-19_JUD_Comments Testimony of the Department of the Attorney General Thirtieth Legislature, 2019 Page 2 of 3 article XVII, section 3 (requirements for ratification of amendments proposed by the legislature shall be the same as provided in section 2 of this article for ratification at a general election). With respect to the change in the time period for certain action to be taken in the appointment and consent process, the question posed on page 3, lines 3-7, is vague with respect to the reference to “certain processes.” We suggest revising the first question as follows: Should the deadlines for the following actions or decisions be extended from 30 to 90 days: (a) For the governor to appoint a person from a list of not less than 4 and not more than 6 nominees to fill a vacancy in the office of the chief justice, supreme court, intermediate appellate court and circuit courts; (b) If the governor fails to make an appointment to fill a vacancy in the office of the chief justice, supreme court, intermediate appellate court and circuit courts within 90 days of receipt of the list of nominees from the judicial selection commission, the appointment shall be made by the judicial selection commission with the consent of the senate; (c) If the senate fails to reject any appointment to fill a vacancy in the office of the chief justice, supreme court, intermediate appellate court and circuit courts within 90 days after receipt of the governor’s appointment, the senate shall be deemed to have consented to the appointment; and (d) If the chief justice fails to make an appointment to fill a vacancy in the district court within 90 days of receipt of a list of not less than 6 nominees from the judicial selection commission, the appointment shall be made by the judicial selection commission with the consent of the senate. In addition, the second question regarding the appointment process for district court judges should be clarified. We suggest revising the question to read: “Should the process to appoint, consent to, and retain a district court judge for a term of office be amended to make the senate consent procedures for district court judgeship nominees the same as the HB1311_ATG_02-12-19_JUD_Comments Testimony of the Department of the Attorney General Thirtieth Legislature, 2019 Page 3 of 3 senate consent procedures for supreme court justices and intermediate court of appeals and circuit court judges?” With respect to the third question, for clarity we suggest amending the question to read: “Should the senate be authorized to approve or reject a subsequent term of office for a justice or judge who has asked to be retained?” There are otherwise no legal concerns with this bill. Thank you for the opportunity to testify on House Bill No. 1311. HB1311_ATG_02-12-19_JUD_Comments The Judiciary, State of Hawai‘i Testimony to the House Committee on Judiciary Representative Chris Lee, Chair Representative Joy A. San Buenaventura, Vice Chair Tuesday, February 12, 2019 4:00 PM State Capitol, Conference Room 325 by Rodney A. Maile Administrative Director of the Courts Bill No. and Title: House Bill No. 1311, Proposing Amendments to Article VI of the Constitution of the State of Hawaii to amend the Manner in which Justices and Judges are Appointed, Consented to, and Retained. Judiciary’s Position: The Judiciary respectfully, but strongly, opposes this bill, which would radically restructure the system for retaining justices and judges in Hawaiʻi. 1. It is the Judiciary’s responsibility to protect individual freedoms under the constitution. This bill would undermine the independence of Hawaiʻi’s judiciary by transforming the judicial retention system from one based on merit and competency to one that would be inherently susceptible to political considerations. 2. The basic structure of the current system has served Hawai‘i well. While we always look for possible improvements to how the system operates, this bill would fundamentally restructure the process. 3. The current system was adopted at the 1978 Constitutional Convention. It reflects a careful balancing of various interests and views, ensuring judicial accountability while preserving judicial independence. Judicial independence means that judges have the ability to decide cases by applying the law to the facts of each case, without outside pressure or influence. This bill would fundamentally restructure the process and have substantial negative consequences. House Bill No. 1311, Relating to Constitutional Amendment; Justices; Judges; Senate Consent Procedures; Term Renewals House Committee on Judiciary Tuesday, February 12, 2019 4:00 PM Page 2 The nine members of the Judicial Selection Commission (Commission), a majority of whom must be non-lawyers, decide whether to retain a judge at the end of the judge’s term. The political branches of government are guaranteed a significant voice, since the Senate and House leadership appoint a total of four of the members of the Commission, and the Governor appoints two. 4. A political process for judicial retention would not elicit the quality of information available to the Commission, which reviews confidential attorney and juror evaluations of the judges, and conducts confidential interviews with respected resource persons in the community. 5. The Commission also obtains public input, by publishing newspaper ads seeking comment, as well as posting requests for comment on the Judiciary website. 6. After more than 40 years of the current merit-based system, Hawai‘i has the most diverse judiciary in the nation. This bill may deter qualified, experienced, and diverse lawyers from seeking judgeships. 7. The bill has the effect of placing final retention authority in one part of one branch of the government in place of a system that includes representation from all branches of government. This Bill Would Undermine The Independence Of The Courts By Politicizing The Process The current retention system supports the Judiciary’s commitment to the rule of law and encourages public trust in the courts by providing the Judiciary with the independence necessary to make decisions based on the law, free of outside pressure or influence. “Those who undertake to resolve disputes between citizens, corporations, or government . cannot allow control, real or imagined, to influence their decisions; cannot allow the public to believe or even perceive that the decision maker owes allegiance to one side or the other.”1 In other words, justice must not only be done according to the law—the parties before the court and the general public must understand that justice is being done.2 House Bill No. 1311 is similar to measures introduced during past legislative sessions that also proposed significant changes to the judicial retention process by giving 1 Penny J. White, Judicial Courage and Judicial Independence, 16 J. Nat’l Ass’n Admin. L. Judges 165. (1996) available at http://digitalcommons.pepperdine.edu/naalj/vol16/iss2/1. 2 Id. at 166 (quoting Judge John Parker, The Judicial Officer in the United States, 20 TENN. L. REV. 703, 705–06 (1949)). House Bill No. 1311, Relating to Constitutional Amendment; Justices; Judges; Senate Consent Procedures; Term Renewals House Committee on Judiciary Tuesday, February 12, 2019 4:00 PM Page 3 the Senate the authority to reject or approve subsequent terms of office for justices and judges.3 In response, many members of the legal profession and community expressed concern that the proposed changes to the retention process would erode the independence of the Judiciary as an institution, and undermine judges’ ability to decide cases based on the constitution, rules of law, and facts presented without fear of reprisal from outside interests. Subsequent to the introduction of those bills, the American Judicature Society’s Special Committee on Judicial Independence and Accountability issued a report reaffirming that Hawaiʻi’s current system of judicial retention promotes a fair and impartial administration of justice.
Load more

Recommended publications
  • Broken Trust
    Introduction to the Open Access Edition of Broken Trust Judge Samuel P. King and I wrote Broken Trust to help protect the legacy of Princess Bernice Pauahi Bishop. We assigned all royal- ties to local charities, donated thousands of copies to libraries and high schools, and posted source documents to BrokenTrustBook.com. Below, the Kamehameha Schools trustees explain their decision to support the open access edition, which makes it readily available to the public. That they chose to do so would have delighted Judge King immensely, as it does me. Mahalo nui loa to them and to University of Hawai‘i Press for its cooperation and assistance. Randall W. Roth, September 2017 “This year, Kamehameha Schools celebrates 130 years of educating our students as we strive to achieve the thriving lāhui envisioned by our founder, Ke Ali‘i Bernice Pauahi Bishop. We decided to participate in bringing Broken Trust to an open access platform both to recognize and honor the dedication and courage of the people involved in our lāhui during that period of time and to acknowledge this significant period in our history. We also felt it was important to make this resource openly available to students, today and in the future, so that the lessons learned might continue to make us healthier as an organization and as a com- munity. Indeed, Kamehameha Schools is stronger today in governance and structure fully knowing that our organization is accountable to the people we serve.” —The Trustees of Kamehameha Schools, September 2017 “In Hawai‘i, we tend not to speak up, even when we know that some- thing is wrong.
    [Show full text]
  • JOURNAL Second Special Session of 2007
    J O U R N A L of the SENATE OF THE TWENTY - FOURTH LEGISLATURE of the STATE OF HAWAII _____________________ Second Special Session of 2007 Convened Wednesday, October 24, 2007 Adjourned Wednesday, October 31, 2007 TABLE OF CONTENTS PAGE First Day, Wednesday, October 24, 2007 ............................................................................................................. 1 Second Day, Thursday, October 25, 2007 ............................................................................................................ 8 Third Day, Friday, October 26, 2007 .................................................................................................................... 9 Fourth Day, Monday, October 29, 2007 ............................................................................................................... 10 Fifth Day, Tuesday, October 30, 2007 .................................................................................................................. 29 Sixth Day, Wednesday, October 31, 2007 ............................................................................................................ 39 Communications received after adjournment: Governor’s Messages .................................................................................................................................. 53 House communications ............................................................................................................................... 53 Appendix: Standing Committee Reports ....................................................................................................................
    [Show full text]
  • TESTIMONY SCR40/SR25 LATE LATE Testimony TESTIMONY of the STATE ATTORNEY GENERAL Twenty-FIFTH LEGISLATURE, 2009
    TESTIMONY SCR40/SR25 LATE LATE TESTiMONY TESTIMONY OF THE STATE ATTORNEY GENERAL TwENTY-FIFTH LEGISLATURE, 2009 ON THE FOLLOWING MEASURE: S.R. NO. 25, URGING THE GOVERNOR AND THE ATTORNEY GENERAL TO WITHDRAW THE APPEAL TO THE UNITED STATES SUPREME COURT OF THE HAWAII STATE SUPREME COURT DECISION, OFFICE OF HAWAIIAN AFFAIRS V. HOUSING AND COMMUNITY DEVELOPMENT CORPORATION OF HAWAII, 11.7 HAWAII 174 (2008). BEFORE THE: SENATE COMMITTEE ON WATER, LAND, AGRICULTURE, AND HAWAIIAN AFFAIRS AND ON JUDICIARY AND GOVERNMENT OPERATIONS DATE: Tuesday, February 17, 2009 TIME: 3:15 PM LOCA:rION: State Capitol, Room 211 TESTIFIER(S): Mark J. Bennett, At torney General or Lisa M. Ginoza, First Deputy Attorney General Chairs Hee and Taniguchi and Members of the Committees: The Department of Attorney General opposes this resolution. The resolution requests the Governor and Attorney General to withdraw the pending appeal described in the resolution's title. The Governor and her Administration are fully committed to the support of Native Hawaiian rights. This support has been concretely expressed by, among other things, resumption of ceded land payments to OHA, unwavering support of the Aka~a Bill, vigorous defense of numerous federal court lawsuits seeking to cripple or destroy programs seeking to better the condition of Native Hawaiians, including OHA itself, and a strenuous effort, with the help and ultimately the endorsement of OHA, to resolve outstanding issues relating to ceded land revenues. This lawsuit was filed in 1994. Although the lawsuit sought to stop all ceded lands transfers (in addition to two particular transfers), the State '.s defense sought to preserve intact the State's right to manage the ceded lands for the benefit of all its citizens.
    [Show full text]
  • Learning from Each Other. the Official Proceedings of the International Symposium of Japan-America Societies (1St, Honolulu, Hawaii, June 18-21, 1995)
    DOCUMENT RESUME ED 407 323 SO 027 228 AUTHOR Correa, E. Shan, Ed. TITLE Learning from Each Other. The Official Proceedings of the International Symposium of Japan-America Societies (1st, Honolulu, Hawaii, June 18-21, 1995). INSTITUTION Japan-America Society of Hawaii, Honolulu. PUB DATE Mar 96 NOTE 296p.; Session Three on "Education: Critical Issues and New Directions" is of particular interest to educators. AVAILABLE FROM The Japan-America Society of Hawaii, P.O. Box 1412, Honolulu, HI 96806; telephone: 808-524-4450. PUB TYPE Collected Works Proceedings (021) EDRS PRICE MF01/PC12 Plus Postage. DESCRIPTORS *Asian Studies; *Developed Nations; Diplomatic History; Foreign Countries; Foreign Policy; International Cooperation; *International Relations; *International Trade; Japanese American Culture; Japanese Culture; Social Science Research; World Affairs IDENTIFIERS Japan America Societies ABSTRACT This book provides a compilation of addresses and panel presentations from the 1995 International Symposium of Japan-America Societies. Twenty-nine eminent speakers and presenters, authorities on topics ranging from economics to education, shared dialogue with delegates who gathered for elite. first-ever meeting of members of Japan America Societies from both sides of the Pacific>The introductory materials and overview contain the observations of t2le editor, Compiled from notes taken during the conference and supplemented by audiotapes provided by Simul International. The second section of the Proceedings contains the documents of those presenting
    [Show full text]
  • News Release 2017-108 August 14, 2017
    DEPARTMENT OF THE ATTORNEY GENERAL DAVID Y. IGE GOVERNOR DOUGLAS S. CHIN ATTORNEY GENERAL For Immediate Release News Release 2017-108 August 14, 2017 20 YEARS AGO, BISHOP ESTATE SCANDAL LED TO STRICT CHARITIES OVERSIGHT IN HAWAII HONOLULU – The essay titled “Broken Trust”, published on August 9, 1997 by the Honolulu Star Bulletin, reported widespread corruption involving Bishop Estate, the largest private property owner in the State of Hawaii, and led to the formation of a charities regulation group in the Hawaii Department of the Attorney General that exists to this day. Now-retired University of Hawaii law professor Randall Roth and the late Judge Samuel P. King, along with prominent Hawaiian community members Walter Heen, Gladys Brandt, and Charles Kekumano, wrote the essay that exposed the Bishop Estate scandal involving the trustees of one of the largest charitable trusts in the United States. Attorney General Doug Chin said: “Under former Governor Ben Cayetano, Hawaii Attorney General Margery Bronster began legal proceedings to remove the culpable trustees. We appreciate their example. For 20 years, the Department of the Attorney General has maintained strict oversight over organizations that solicit charitable contributions in Hawaii. Our office is nationally recognized for its pioneering oversight program.” For information regarding the Hawaii Charity Registry, see http://ag.ehawaii.gov/charity . ### For more information, contact: Joshua A. Wisch Special Assistant to the Attorney General Phone: (808) 586-1284 Email: [email protected] Web: http://ag.hawaii.gov Twitter: @ATGHIgov .
    [Show full text]
  • Conditional Cross-Petition for Cert
    No. _________ ================================================================ In The Supreme Court of the United States --------------------------------- ♦ --------------------------------- EARL F. ARAKAKI, et al., Cross-Petitioners, v. LINDA LINGLE, et al., Cross-Respondents. --------------------------------- ♦ --------------------------------- On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit --------------------------------- ♦ --------------------------------- CONDITIONAL CROSS-PETITION FOR A WRIT OF CERTIORARI --------------------------------- ♦ --------------------------------- H. WILLIAM BURGESS (HI 833) 2299-C Round Top Drive Honolulu, Hawaii 96822 Telephone: (808) 947-3234 Facsimile: (808) 947-5822 E-mail: [email protected] Attorney for Cross-Petitioners ================================================================ COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 OR CALL COLLECT (402) 342-2831 i QUESTIONS PRESENTED 1. Whether Cross-Petitioners have standing as beneficiaries of Hawaii’s ceded lands trust: to challenge federal laws which require the present trustee (State of Hawaii) to breach its fiduciary duties (i.e., the duty of impartiality and the duty not to comply with illegal trust terms); and to sue Hawaii state officials to enjoin them from breaching the same fiduciary duties;1 2. Whether Cross-Petitioners have standing as state taxpayers: to challenge federal laws which require the State of Hawaii to engage in racial discrimination; and to sue to enjoin state officials
    [Show full text]
  • Report to the Attorney General of the State of Hawaii
    Report to the Attorney General Of The State of Hawaii Preliminary Findings Relating To Political Activities of The Kamehameha Schools Bishop Estate Presented By Goodenow Associates, Inc. Honolulu, Hawaii January 24, 2000 TABLE OF CONTENTS TABLE OF CONTENTS FOREWORD EXECUTIVE SUMMARY INTRODUCTION ENGAGEMENT PRE-WALL INVESTIGATION CRIMINAL ASSIGNMENT REGARDING REFERRAL FROM CSC Areas of Recommended Investigation Cost Reductions Provided to the DAG CHARGING OF MARSHALL IGE REFERRAL OF POTENTIAL DEFENDANT IN TAX MATTER INVESTIGATION OF KSBE GOVERNMENT RELATIONS DEPARTMENT Namlyn Snow Snow Safe Documents Snow Safe Documents Waiver of Privilege DIRECTION TO HALT ACTIVE INVESTIGATION DIRECTION TO PROVIDE REPORT FOR CAMPAIGN SPENDING COMMISSION PRELIMINARY FINDINGS REGARDING KSBE INVOLVEMENT IN GOVERNMENT INDICATIONS OF KSBE DELIBERATELY OBTAINING INFLUENCE IN GOVERNMENT Introduction Trustees Views “Only Government Could Hurt Us, Period.” “In Hawaii, Only The Government Has More Power,” Government Relations Department Namlyn Snow Alika Thompson Dawn Farm-Ramsey GRD ACTIVITIES TO INFLUENCE COMMUNITY GROUPS Influencing Community Group Decisions Regarding KSBE Trustees Notified Of Legislative Support Networks GRD INTELLIGENCE COLLECTION ACTIVITIES Milton Holt Robert Lindsey Intelligence Gathering Relating to Opponents of KSBE Positions 2 Release Of Gathered Intelligence MONITORING ELECTIONS ELECTION ACTIVITIES Political Activity Prohibitions Known By KSBE Lobbying Briefing Material Employee Handbook Fund-raise Tickets & Other Political Process The KSBE Fund-raising Ticket Handling Process Logging the Tickets at GRD Paul Cathcart/Neil Hannahs Ticket Experience “Eh, Is This Legislator, This Councilman, Friendly to Us?” Volumes of Tickets Received “... Inevitably That Committee Chair Puts You On Their Campaign Mailing List...” Selling Political Fund-raising Tickets Donald Clegg “Whether They Like The Mayor Or Not..
    [Show full text]
  • Ka Wai Ola OOHA; OHA and Its Kahuna Kuhilcuhi Pu'uone Today As He Did Since 1977, I Probably Could • Legibly Igned by the Author; and Housing Divi- Crack This Case
    Volume'l3 No.10 Sponsored by with Ka Wai Ola 0 OHA, Office of Hawaiian Affairs 711 Kapi"·olani Blvd., Suite 500 Honolulu, Hawai"i 96813-5249 Volume 13, Number 10 ' Okakopa (October) 1996 OFFICE OF HAWAIIAN AFFAIRS 11TH ELI V I N G \IV ATE R 0 F 0 H A " State denies Hawaiians airport revenues By Barbra An Pleadwell "Justice is justice," Hee repeated. Hee is calling upon the airline industry to lands. In a landmark Circuit The courts ordered the state to improve seek justice. Court Judge Daniel Heely ruled 20 percent The Office of Hawaiian Affairs (OHA) conditions for prisoners at the O'ahu "We call upon the state, Jeff Watanabe, of revenues from the following operations will not stand by while the state and the Community Correctional Center and the Margery Bronster, and the airline industry are owed Hawaiians: airline industry snipe about money owed to Women's Community Correctional Center. to stand for Hawaiians. The Hawaiian peo- • Duty Free Shoppers' (DFS) in Waikild native Hawaiians. The U.S. Justice Department ordered the ple are more than local color used to attract (shoppers must pick up their purchases at "Justice is justice," state to improve condi- tourists." the airport DFS location) said OHA Chairman tions at Kane'ohe's Hee says OHA will educate legislators • Hilo Hospital Clayton Hee. "We call upon the Hawai'i State Hospital. about this issue, and legally prepare to pre- • 67 low-income Hawai'i Housing "OHA must take state ... and the air- The federal court vent attacks on Act 304.
    [Show full text]