An Analysis of the Possible Negative Effects of Judicial Elections on Hawaiʻi’S Legal Community

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An Analysis of the Possible Negative Effects of Judicial Elections on Hawaiʻi’S Legal Community Electing the Bench: An Analysis of the Possible Negative Effects of Judicial Elections on Hawaiʻi’s Legal Community Sara Hayden* I. INTRODUCTION ..................................................................................115 II. BACKGROUND ON JUDICIAL SELECTION ............................................118 A. Current Judicial Selection Systems Nationwide ........................ 118 B. Issues Regarding Judicial Elections ......................................... 123 1. Effects of Fundraising on Judicial Impartiality ................. 124 2. Negative Impacts on Judicial Retention and Diversity ..... 126 3. Lack of Candidate Information for Voters......................... 129 III. JUDICIAL ELECTIONS IN WASHINGTON STATE ................................... 131 A. Judicial Elections in Washington: History and the Elections Process ...................................................................................... 131 B. Issues Surrounding Washington Judicial Elections .................. 133 IV. MERIT SELECTION IN HAWAIʻI AND THE CASCADING IMPACTS OF JUDICIAL ELECTIONS ........................................................................ 137 A. History of Judicial Selection in Hawaiʻi .................................. 138 1. Merit Selection in Hawaiʻi: History and Procedures........ 139 2. The Hawaiʻi Judicial Selection Commission: Composition and Process .................................................. 140 B. Potential Effects of Judicial Elections in Hawaiʻi ................... 142 1. Judicial Election Bills Used as Legislative Attempts to Regulate the Hawaiʻi Judiciary ......................................... 142 2. Negative Impacts on Diversity and Judicial Retention in the Hawaiʻi Judiciary......................................................... 150 3. Impacts of Campaigning and Fundraising on Hawaiʻi’s Judiciary and Legal Community ....................................... 153 V. REFORM HAWAIʻI’S MERIT SELECTION PROCESS AS AN ALTERNATIVE TO JUDICIAL ELECTIONS ............................................ 157 VI. CONCLUSION .................................................................................... 161 * J.D. candidate, 2018, William S. Richardson School of Law, University of Hawai‘i at Mānoa; MA, BA, University of Hawai‘i at Mānoa. Thank you to Senator Gilbert Keith-Agaran, William S. Richardson School of Law Dean Aviam Soifer, Judge Donald Horowitz, Governor John D. Waiheʻe III, and Chief Justice Mark Recktenwald for their time and willingness to assist me in my research; Professor D. Kapuaʻala Sproat for her constant encouragement and guidance; and to my family and my husband Marcus for their unwavering support. 2016 Hayden 115 I. INTRODUCTION During the 2016 Session, the Hawaiʻi Legislature heard a slate of bills that would detrimentally affect Hawaiʻi’s procedures for judicial selection and retention.1 Introduced by Senator Gilbert Keith-Agaran, chair of the Committee on Judicial Affairs, and House Speaker Representative Joseph Souki, the six bills proposed: (1) a constitutional amendment to change Hawaiʻi’s merit selection process of appointing state judges to a judicial election system to elect judges to the courts; (2) that the Judiciary, the State Office of Elections, and the Campaign Spending Commission study methods of implementing judicial elections; and (3) a constitutional amendment to amend the timeframe to renew the term of office of a justice or judge and require consent of the senate to renew the justice’s or judge’s term.2 If enacted, any of these measures would change processes that have been in effect for the past thirty-eight years.3 The local legal community stood united in strong opposition to the measures, attracting media attention from both state and national news 1 S.B. 2239, 28th Leg., (Haw. 2016); S.B. 2238 S.D. 1, 28th Leg., (Haw. 2016); S.B. 2420 S.D. 1, 28th Leg., (Haw. 2016); H.B. 2138, 28th Leg., (Haw. 2016); H.B. 2139, 28th Leg., (Haw. 2016); H.B. 2140, 28th Leg., (Haw. 2016). 2 S.B. 2239, 28th Leg., (Haw. 2016); S.B. 2238 S.D. 1, 28th Leg., (Haw. 2016); S.B. 2420 S.D. 1, 28th Leg., (Haw. 2016); H.B. 2138, 28th Leg., (Haw. 2016); H.B. 2139, 28th Leg., (Haw. 2016); H.B. 2140, 28th Leg., (Haw. 2016). Democratic Senator Keith- Agaran represents Senate District 5 (Wailuku, Waiheʻe, and Kahului) on the Island of Maui. Senator Gilbert Keith-Agaran, HAW. ST. LEG., http://capitol.hawaii.gov/memberpage.aspx?member=keithagaran&year=2016 (last visited June 14, 2016). He first served as a state representative from 2009-2013 before running for his senate seat. Id. As of 2016, Senator Keith-Agaran is a practicing attorney and a partner at Takitani, Agaran & Jorgensen, a law firm based on Maui. Id. Representative Souki, also a Democrat, represents House District 8 (Kahakuloa, Waiheʻe, Waiehu, Puuohala, Wailuku, and Waikapu) and has been a legislator since 1982. Representative Joseph M. Souki, HAW. ST. LEG., http://capitol.hawaii.gov/memberpage.aspx?member=souki&year=2016 (last visited June 14, 2016). As of 2016, he is a licensed realtor in Hawaiʻi. Id. Note that Representative Souki is the Speaker of the House, but is not a member of the House Committee on Judiciary. Id. 3 Lawrence S. Okinaga, Judicial Selection in Hawaii, 10-JUL HAW. B.J. 100 (2006), available at Westlaw. The Hawaiʻi judicial selection process and the retention of judges were set at the 1978 Constitutional Convention and were enacted in 1979. Id. The State Office of Elections conducts primary and general elections, along with voter, candidate, and political party registration, in the State of Hawaiʻi. See generally ST. OF HAW. OFF. OF ELECTIONS, http://elections.hawaii.gov/ (last visited Aug. 13, 2016). The Campaign Spending Commission enforces the campaign spending laws for political candidates by requiring campaign spending reports for political candidates and elected officials and educates political candidates and the public on the campaign spending laws. ST. OF HAW. CAMPAIGN SPENDING COMM’N, http://ags.hawaii.gov/campaign/ (last visited Aug. 13, 2016). 116 Asian-Pacific Law & Policy Journal Vol. 18:1 outlets.4 Various legal groups and organizations, such as the Hawaiʻi Women Lawyers; the American Judicature Society; the Hawaiʻi State Bar Association; law students; individuals; and the Judiciary itself, all submitted testimony in opposition to the bills.5 Justice at Stake, a nonpartisan national organization that promotes fair and impartial courts, explained its opposition: “It would be a tremendous disservice to the citizens of Hawaiʻi to do away with the merit selection system that has served the state well since 1978.”6 An editorial in Honolulu Civil Beat called the bills a “transparent cover for what really amounts to a naked attempt to relocate power from the executive branch to the Senate, where the judiciary chair’s standing would gain significantly.”7 After the initial hearing on February 10, 2016, an unpersuaded Senate Committee on Judicial Affairs passed S.B. 2238, S.B. 2239, and S.B. 2420, moving Hawaiʻi a step closer to implementing judicial elections.8 4 See Nathan Eagle, Hawaii Judges, AG Don’t Want To Be Elected, HONOLULU CIVIL BEAT, (Feb. 12, 2016), http://www.civilbeat.com/2016/02/hawaii-judges-dont- want-to-run-for-office/; Peter Hardin, JAS Urges Hawaii Legislators to Preserve Merit Selection, GAVEL GRAB (Feb. 10, 2016), http://gavelgrab.org/?p=102375; Jim Mendoza, Bill Calling for Election for Judges Dies in Committee, HAW. NEWS NOW (Mar. 2, 2016), http://www.hawaiinewsnow.com/story/31372192/bill-calling-for-election-for-judges- dies-in-committee; Pierre Omidyar et al., Judicial Elections: A Solution Without a Problem, HONOLULU CIVIL BEAT (Feb. 26, 2016), http://www.civilbeat.com/2016/02/judicial-elections-a-solution-without-a-problem/. 5 Relating to Judicial Elections, Hearing on S.B. 2238 Before S. Comm. on Judiciary and Labor, 28th Leg. 22-23 (Haw. 2016) (statement of Hawaiʻi Women Lawyers) [hereinafter Hearing S.B. 2238]; Hearing S.B. 2238 (statement of American Judicature Society); Proposing an Amendment to Article VI of the Constitution of the State of Hawaii Relating to the Selection and Retention of Comm. and Judges, Hearing on S.B. 2239 Before S. Committee on Judiciary and Labor, 28th Leg. 15-18 (Haw. 2016) (statement of Haw. St. Bar Ass’n) [hereinafter Hearing S.B. 2239]; Hearing S.B. 2238 (statement of the Judiciary of the St. of Haw.). 6 Peter Hardin, JAS Urges Hawaii Legislators to Preserve Merit Selection, JUSTICE AT STAKE CAMPAIGN: GAVEL GRAB (Feb. 10, 2016), http://gavelgrab.org/?p=102375. 7 E.g., Omidyar et.al., supra note 4. 8 Relating to Judicial Elections, S.B. 2238 S.D. 1, 28th Leg., (Haw. 2016), http://capitol.hawaii.gov/measure_indiv.aspx?billtype=SB&billnumber=2238; Proposing an Amendment to Article VI of the Constitution of the State of Hawaii Relating To The Selection and Retention of Justices and Judges, S.B. 2239, 28th Leg., (Haw. 2016), http://capitol.hawaii.gov/measure_indiv.aspx?billtype=SB&billnumber=2239; Proposing an Amendment to Article VI, Section 3, of the Constitution of the State of Hawaiʻi to Amend the Timeframe to Renew the Term of Office of a Justice or Judge and Require Consent of the Senate for a Justice or Judge to Renew a Term of Office, S.B. 2420 S.D. 1, 28th Leg., (Haw. 2016), http://capitol.hawaii.gov/measure_indiv.aspx?billtype=SB&billnumber=2420. 2016 Hayden 117 Although all measures were eventually deferred by the Senate Committee on Judicial Affairs and the House Committee on Judiciary, the significant threats of this legislation
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