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
I.
115
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
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).
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). Democratic Senator KeithAgaran 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.
2
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. C AMPAIGN SPENDING COMM’N, http://ags.hawaii.gov/campaign/ (last visited
Aug. 13, 2016).
3
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
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-dontwant-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-judgesdies-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/.
4
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.).
5
Peter Hardin, JAS Urges Hawaii Legislators to Preserve Merit Selection,
JUSTICE AT STAKE
CAMPAIGN:
GAVEL GRAB
(Feb.
10,
2016),
http://gavelgrab.org/?p=102375.
6
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
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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 linger. 9
The Legislature
acknowledged that an amendment to the State Constitution could not be
considered without further discussion of whether a judicial election system
could be implemented in Hawaiʻi. 10 This legislation requires a review of
the current merit selection system in Hawaiʻi to determine its effectiveness
in selecting capable and qualified judges within the Judiciary.11 The
question is: if the merit selection system is problematic, would a
nonpartisan judicial election system be better suited for Hawaiʻi, while
still maintaining government’s checks and balances?12
This article proposes that Hawaiʻi’s merit selection system is
appropriate and necessary for selecting judges, and that judicial elections
would be problematic for judicial selection and retention, and maintaining
checks and balances in Hawaiʻi. Part II provides an overview of different
judicial selection systems implemented throughout the United States and
the various issues that result from judicial elections. 13 Part III provides an
in-depth analysis of the judicial election system used by Washington, a
state that implemented judicial elections for over one hundred years.14
Part IV analyzes Hawaiʻi’s current merit selection system and discusses
how a model election system such as Washington’s would impact judicial
selection in Hawaiʻi. 15 Part V details recommendations on how the
current merit selection process could be reformed, based on the
Washington model. 16
See Hearing S.B. 2238, supra note 5 (statement of the Judiciary of the St. of
Haw.) (“This bill would result in far-reaching ramifications not only to the judicial branch
of this state, but to Hawaii’s government as a whole.”); 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-judgesdies-in-committee; Eagle, supra note 4.
9
10
E.g., S. Stand. Com. Rep. No. 2481 (2016) (Com. Rep.).
E.g., Interview with Gilbert Keith-Agaran, Sen. and Chair of Senate Comm.
on Judiciary and Labor, in Honolulu, Haw. (May 27, 2016) [hereinafter Keith-Agaran
Interview].
11
See id.. Senator Keith-Agaran envisions that judicial elections in Hawaiʻi
would be nonpartisan. Id.
12
13
See infra Part II.
14
See infra Part III.
15
See infra Part IV.
16
See infra Part V.
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II. BACKGROUND ON JUDICIAL SELECTION
Judicial elections were first implemented in 1832, starting with
Mississippi adopting, via state constitution, elections for its appellate
judges and supreme court justices. 17 Historians believe that the movement
to adopt judicial elections was due to a desire to remove the partisanship
resulting from the gubernatorial appointment of judges.18 Proponents
hoped that, by having a judge elected to a seat, judges would be selected
based on strong legal skill and judicial temperament, strengthening the
judiciary, which would in turn uphold the checks and balances inherent in
government, rather than appointing someone who would fulfill the
political aspirations of the appointing official. 19 Following Mississippi’s
constitutional adoption, twenty-two states implemented judicial elections,
while the remaining states used different selection methods.20
A.
Current Judicial Selection Systems Nationwide
Judicial selection methods are divided into five categories:
partisan elections, nonpartisan elections, merit selection, democratic
appointment, and the hybrid model. 21 While this article focuses on
judicial elections, an overview of the national judicial selection systems is
necessary to understand the issues surrounding Hawaiʻi’s proposed
judicial election legislation.
Partisan elections for judges are similar to elections for other
offices that use party affiliations on the ballot. 22 Democratic or
E.g., Jed Handelsman Shugerman, Economic Crisis and the Rise of Judicial
Elections and Judicial Review, 123 HARV. L. REV. 1061, 1066 (2010); Kermit L. Hall,
The Judiciary on Trial: State Constitutional Reform and the Rise of an Elected Judiciary
1846-1860,
FRONTLINE,
http://www.pbs.org/wgbh/pages/frontline/shows/justice/howdid/kermit.html (last visited
June 13, 2016).
17
E.g., Hall, supra note 17; CRAIG KUGISAKI, HAWAI ʻI CONSTITUTIONAL
CONVENTION STUDIES 1978: ARTICLE V: THE J UDICIARY 27 (Legislative Reference
Bureau, 1978); Shugerman, supra note 17, at 1066. President Andrew Jackson called for
judicial elections in the 1820s, but judicial elections did not emerge until after the height
of the Jacksonian Era in American politics. E.g., Shugerman, supra note 17, at 1073.
18
E.g., KUGISAKI, supra note 18, at 27; Okinaga, supra note 3; Roy A.
Schotland, Myth, Reality Past and Present, and Judicial Elections, 35 IND. L. REV. 659,
666 (2001-2002); Hall, supra note 17.
19
AMERICAN BAR ASSOCIATION COALITION FOR JUSTICE, JUDICIAL SELECTION:
THE PROCESS OF CHOOSING JUDGES 5 (A.B.A., 2008) [hereinafter A.B.A.]; Chris W.
Bonneau, A Survey of Empirical Evidence Concerning Judicial Elections, THE
FEDERALIST SOC’Y FOR LAW AND PUB. POLICY 3 (2012), http://www.fedsoc.org/library/doclib/20120719_Bonneau2012WP.pdf
20
21
A.B.A., supra note 20, at 5-6; Bonneau, supra note 20, at 3.
A.B.A., supra note 20, at 6; ALICIA BANNON, RETHINKING J UDICIAL
SELECTION IN STATE COURTS 4 (Brennan Center for Justice at New York University Law
School, 2016); Bonneau, supra note 20, at 3.
22
2016
Hayden
119
Republican candidates are selected in a partisan primary election and then
placed on the ballot for the general election. 23 The six states that
participate in partisan elections also require their sitting judges to run for
reelection.24 Three states allow for retention elections for judges. 25 In
retention elections, voters are asked if a judge should be reelected for
another turn; the ballot usually consists of a “Yes” or “No” question.26
The difference between nonpartisan and partisan elections is that in
nonpartisan elections, the candidate’s party affiliation is not indicated on
the ballot.27 Sixteen states participate in nonpartisan elections. 28 Most
nonpartisan elections conduct primary elections to narrow down
candidates for the general election. 29 It is important to note that even in
nonpartisan elections there may be some aspects of a bipartisan election
present. For example, Ohio has a partisan primary with a nonpartisan
general election and Michigan has judicial candidates nominated via their
party caucus, but with no party affiliation mentioned during the general
election.30 Nonpartisan elections may also require candidates to face
reelection for another term; however, in Montana, an incumbent judge’s
election may be converted to a retention election if there is no opponent. 31
States not participating in judicial elections use other methods,
such as merit selection, to choose judges. In merit selection, also known
as the “Missouri Plan,” the governor selects judges from a list of
candidates generated by a “judicial nominating commission.”32 Close to
the end of a judge’s term, if she wishes to be retained, then she must
“stand for retention by the electorate” with simply an unopposed “Yes” or
“No” vote on the ballot.33 If the judge is not retained, then the
23
A.B.A., supra note 20, at 6; Bonneau, supra note 20, at 3.
BANNON, supra note 22, at 4-5. Alabama, Illinois, Louisiana, Michigan, New
Mexico, Pennsylvania, and Texas are the states where judges are elected by partisan
election. Id.
24
Id. The three states that allow for the retention of judges are: Illinois, New
Mexico, and Pennsylvania. Id.
25
26
Bonneau, supra note 20, at 3. See A.B.A., supra note 20, at 4.
27
BANNON, supra note 22, at 4; Bonneau, supra note 20, at 3.
BANNON, supra note 22, at 4-5. Arkansas, Georgia, Idaho, Kentucky,
Michigan, Minnesota, Mississippi, Montana, Nevada, North Carolina, North Dakota,
Ohio, Oregon, Washington, West Virginia, and Wisconsin. Id.
28
29
E.g., A.B.A., supra note 20, at 6; Bonneau, supra note 20, at 3.
30
E.g., A.B.A., supra note 20, at 6; Bonneau, supra note 20, at 3.
31
E.g., Bonneau, supra note 20, at 3.
32
E.g., A.B.A., supra note 20, at 6; Bonneau, supra note 20, at 4.
33
E.g., A.B.A., supra note 20, at 6; Dmitry Bam, Voter Ignorance and Judicial
Elections, 102 KY. L. J. 553, 559 (2013-2014); Bonneau, supra note 20, at 4.
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commission will submit a new list of names to the governor. 34 Fourteen
states participate in the Missouri Plan method of selection. 35
Similar to merit selection is the democratic appointment method of
judicial selection, in which judges are appointed by either the Governor or
the Legislature.36 In Connecticut, Delaware, District of Columbia, Maine,
Massachusetts, New Hampshire, New Jersey, New York, and Rhode
Island, judges are appointed via gubernatorial appointment; in South
Carolina and Virginia, the judges are appointed via legislative
appointment.37 New Jersey’s and Maine’s judges are retained via
gubernatorial reappointment. 38 The other states that participate in
democratic appointment have some aspects of judicial elections.
California’s retention system requires that judges be retained from a
statewide retention election, while Virginia and South Carolina’s judges
are subject to a legislative election. 39
The last method of judicial selection is the hybrid selection system
(“hybrid system”), which combines the selection aspects of the Missouri
Plan with gubernatorial appointment. 40 Four states, including Hawaiʻi, use
the hybrid system to select judges. 41 The judges are selected by a
nominating commission and are then confirmed by the governor or the
general assembly.42 Except for Massachusetts, New Hampshire, and
Rhode Island, the procedure for judicial retention in these states are either
gubernatorial or legislative reappointment or a retention election. 43
One important aspect of the Missouri Plan and the hybrid system is
the use of the judicial nominating commission to vet and select judicial
candidates.44 A judicial nominating commission typically consists of both
lawyers and non-lawyers selected by the Governor or other elected
34
Bonneau, supra note 20, at 4.
E.g., BANNON, supra note 22, at 4-5. Those fourteen states are: Alaska,
Arizona, Colorado, Florida, Indiana, Iowa, Kansas, Missouri, Nebraska, Oklahoma,
South Dakota, Tennessee, Utah and Wyoming. Id.
35
36
E.g., BANNON, supra note 22, at 5; Bonneau, supra note 20, at 4.
37
E.g., A.B.A., supra note 20, at 5-6; Bonneau, supra note 20, at 4.
38
E.g., Bonneau, supra note 20, at 4.
39
E.g., BANNON, supra note 22, at 5; Bonneau, supra note 20, at 4.
40
BANNON, supra note 22, at 5; Bonneau, supra note 20, at 4.
BANNON, supra note 22, at 5. The remaining states are California, Maryland,
and Vermont. Id. See also A.B.A, supra note 20, at 7.
41
42
E.g., Bonneau, supra note 20, at 4.
E.g., Bonneau, supra note 20, at 4. Unlike the hybrid system states that
require retention elections, Massachusetts allows for life tenure for judges, and New
Hampshire and Rhode Island allow for tenure until the age of 70. Id.
43
44
E.g., A.B.A, supra note 20, at 6.
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officials.45 Some states require that equal numbers of both political parties
be appointed to the commission to ensure balanced partisanship.46 While
the guidelines and procedures of selection criteria differ from state to state,
most of the rules for the commissions’ processes are statutorily or
constitutionally defined in each state. 47 Hawaiʻi’s Judicial Selection
Commission is defined in the state constitution.48 The details of the
45
Id. For example, Arizona’s nonpartisan nominating commission for appellate
court appointments consists of:
[T]he chief justice of the supreme court, who shall be
chairman, five attorney members, who shall be nominated by the board
of governors of the state bar of Arizona and appointed by the governor
with the advice and consent of the senate in the manner prescribed by
law, and ten nonattorney members who shall be appointed by the
governor with the advice and consent of the senate in the manner
prescribed by law.
ARIZ. CONST. art. 6 § 36 (West, Westlaw through 2016 amendments).
Vermont’s Constitution provides the following specifications for the Judicial
Nominating Board for the nomination of Supreme Court Justices, Superior judges, and
magistrates:
The Board shall consist of 11 members who shall be selected as
follows:
(1) The Governor shall appoint two members who are not attorneys at
law.
(2) The Senate shall elect three of its members, not all of whom shall be
members of the same party, and only one of whom may be an attorney
at law.
(3) The House shall elect three of its members, not all of whom shall be
members of the same party, and only one of whom may be an attorney
at law.
(4) Attorneys at law admitted to practice before the Supreme Court of
Vermont, and residing in the State, shall elect three of their number as
members of the Board. The Supreme Court shall regulate the manner
of their nomination and election.
VT. CONST. ch. 2 § 601 (West, Westlaw through 2016 amendments).
See generally Judicial Selection: An Interactive Map, BRENNAN CENTER FOR
JUSTICE, http://judicialselectionmap.brennancenter.org/?court=Supreme (last visited Aug.
15, 2016).
E.g., A.B.A, supra note 20, at 6. New York requires that for its twelve
member nominating commission, of the four members appointed by the governor, “no
more than two [members] shall be enrolled in the same political party.” N.Y. Election
Law § 6 (McKinney 2016). The same political party requirement applies to the four
members appointed by the chief judge of the court of appeals. Id.
46
47
Id.
48
HAW. CONST., art. VI, § 4 (West, Westlaw through Nov. 2014 amendments).
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Hawaiʻi Judicial Selection Commission will be discussed later in Part IV
of this article.49
While each selection method has advantages and disadvantages,
there is overwhelming criticism of judicial elections due to their negative
impacts on state judiciaries. 50 Dating back to 1937, the American Bar
Association (“A.B.A.”) recognized rising negative implications of judicial
elections and that “[E]lectors are without information or competency to
appraise the real merits of a judge and are too sensitive to prejudices and
to political manipulation.”51 The Honorable Charles M. Thomson, a
Chicago judge, wrote about Illinois’ judicial elections creating politicians
out of judges: “Our experience has been that by and large we have on our
bench some good judges, I will admit, even in that unspeakably bad
system, but in large measure a bunch of judicial politicians, who just play
politics morning, noon and night.”52 Following these discussions, the
A.B.A. published its first resolution in favor of merit selection and a
judicial nominating commission “as the most acceptable substitute
available for direct election of judges.”53 While judicial elections’ origins
stem from democratic ideology, judicial elections raise numerous issues
that create a negative impact on state judiciaries. 54
49
See infra at p. 39.
50
See KATE BERRY, HOW JUDICIAL ELECTIONS IMPACT CRIMINAL CASES 3-4
(Brennan Center for Justice at New York University School of Law, 2015); JOANNA
SHEPHERD, JUSTICE AT RISK: AN EMPIRICAL ANALYSIS OF CAMPAIGN CONTRIBUTIONS
AND JUDICIAL DECISIONS 5-9 (Am. Constitution Soc’y for Law and Pol’y, 2013); Malia
Reddick, Michael J. Nelson, & Rachel Paine Caufield, Racial and Gender Diversity on
State Courts: An AJS Study, 48 JUDGES J. 1, (2009),
http://www.judicialselection.us/uploads/documents/Racial_and_Gender_Diversit
y_on_Stat_8F60B84D96CC2.pdf).
51
Hon. John Perry Wood, Basic Propositions Relating to Judicial Selection—
Failure of Direct Primary—Appointment Through Dual Agency—Judge to “Run on
Record,” 23 A.B.A. J. 102, 103 (1937).
Hon. Charles M. Thomson, What Experience Has Shown Chicago as to
Elective Method of Choosing Judges—Constitutional Amendment Sought, 23 A.B.A. J.
102, 103 (1937). The A.B.A. is a national legal organization for legal professionals and
law students. About the American Bar Association, AMERICAN BAR ASSOCIATION,
http://www.americanbar.org/about_the_aba.html (last visited Aug. 14, 2016).
52
53
Hon. John Perry Wood, Resolution on Judicial Selection, 23 A.B.A. J. 102,
105 (1937).
See A.B.A, supra note 20, at 8; Rachel Caulfield, Judicial Elections: Today’s
Trends and Tomorrow’s Forecast, 46 JUDGES J. 6, 6-7 (2007). During the 1800s, the
expansion of democratic ideology led to an increase of popular elections for public
offices. Shugerman, supra note 17, at 1069.
54
2016
Hayden
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123
Issues Regarding Judicial Elections
In Williams-Yulee v. Florida Bar, Chief Justice Roberts opined that
the role of a judge is different than that of an elected official. 55 Chief
Justice Roberts elaborated: “Politicians are expected to be appropriately
responsive to the preferences of their supporters.
Indeed, such
‘responsiveness is key to the very concept of self-governance through
elected officials.’”56 A judge’s role is different, however, as the judge is
“not to follow the preferences of his supporters, or provide any special
consideration to his campaign donors. A judge instead must ‘observe the
utmost fairness,’ striving to be ‘perfectly and completely independent,
with nothing to influence or controul [sic] him but God and his
conscience.’”57 Further differences between an elected official and a
judge are that an elected official is a member of a governing body that
develops broad social policies and laws, whereas a judge makes decisions
that can directly impact an individual party. 58 An elected official may act
to please her constituency; a judge instead makes decisions against the
majority and popular belief to defend individual and minority rights. 59
If a judge is different from a politician, and both have separate
roles in the creation and administration of laws, then how can a judge
function differently from a politician if elected to her seat? 60 Judicial
elections can compromise a judge’s role, which is to remain impartial
when deciding cases, and be “completely independent,” per Chief Justice
Roberts.61 Studies reflect that campaigning and the nature of elections in
general have led to numerous issues involving the quality of judicial
decision-making, the quality of reputable judicial candidates, and the
diversity of judges.62
Williams-Yulee v. Florida Bar, 135 S. Ct. 1656, 1667 (2015) (quoting
McCutcheon v. Federal Election Comm’n, 134 S. Ct. 1434, 1462 (2014)). The Florida
Bar Association filed a disciplinary complaint against Plaintiff, an attorney and judicial
candidate, alleging that Plaintiff violated the state judicial conduct rule prohibiting
judicial candidates from personally soliciting campaign funds. Id. at 1663-64.
55
56
Id. at 1667 (quoting Justice Ginsberg’s dissent in Republican Party of Minn.
v. White, 536 U.S. 765, 790 (2002)).
Id. (quoting Address of John Marshall, in Proceedings and Debates of the
Virginia State Convention of 1829-1830, p. 616 (1830)).
57
E.g., William R. Andersen, Judicial Selection in Washington—Taking
Elections Seriously, 33 SEATTLE U. L. REV. 605, 606 (2009-2010).
58
59
E.g., Bam, supra note 33, at 564.
60
See generally Anderson, supra note 58, at 605-06.
61
Williams-Yulee, 135 S. Ct. at 1667. See also A.B.A, supra note 20, at 8.
62
See BANNON, supra note 22, at 10-16.
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Effects of Fundraising on Judicial Impartiality
Most issues with judicial elections stem from the need for
candidates to campaign for their seats. 63 The most successful judicial
election campaigns are the ones that raise the most money. 64 In turn, the
need for judges to fundraise for successful campaigns has created: (1) an
increase in campaign contributions by special interest groups, and (2) a
surge in campaign spending by judges. 65 The outcome of cases such as
Citizens United v. Federal Election Commission, which held that
corporations could provide funding for campaign advertising to persuade
voters, has led to an increase of special interest groups’ influence in
judicial elections and a related growth in campaign spending, almost
doubling the amounts within twenty years. 66 Further complicating
matters, the Supreme Court’s ruling in Republican Party of Minnesota v.
White, which held that the rules barring judicial candidates from
announcing their positions on issues involving law and policy violated the
First Amendment, has affected judicial campaign speeches, allowing for
more questioning by special interest groups about candidates personal
opinions, shaping the outcomes of elections by focusing on controversial
issues such as religion, same-sex marriage, abortion, etc. 67 Attorney and
scholar Alicia Bannon explains that the influence of wealthy special
interest groups is problematic because these interests “are able to shape
the ideological direction of the courts by spending large amounts of
money on judicial candidates who share their worldview.”68
One area of campaign advertising in judicial elections that has seen
a major increase is television advertising. 69 Law professor Joanna
Shepherd’s study revealed that “candidates and interest groups have
realized that television advertising is effective in increasing name
recognition and support for favored candidates, or alternatively, attacking
their opponents” and that during “the 2009-10 election cycle, $16.8
million was spent on television advertising, making it the costliest
nonpresidential election cycle for TV spending in judicial elections.”70 As
63
See A.B.A, supra note 20, at 8.
64
See BANNON, supra note 22, at 8 (citing SCOTT GREYTAK, ET AL.,
BANKROLLING THE BENCH: THE NEW POLITICS OF JUDICIAL ELECTIONS 2013-14 1-2
(Laurie Kinney, ed. 2015)).
65
Caulfield, supra note 54, at 7; SHEPHERD, supra note 50, at 1, 6.
66
See Caulfield, supra note 65, at 7 (2007).
67
Republican Party of Minnesota v. White, 536 U.S. 765, 787-88 (2002). E.g.,
SHEPHERD, supra note 50, at 8; Caulfield, supra note 54, at 8.
68
BANNON, supra note 22, at 6.
69
SHEPHERD, supra note 50, at 5.
70
Id.
2016
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125
a result, different organizations have realized that they, or their cause, can
benefit from judicial elections by supporting a particular judge in his or
her election.71
Currently, business groups contribute more to television
advertising in judicial elections than lawyer and lobbyist groups. 72
Shepherd’s study found that “in 2006, business groups were responsible
for over 90 percent of the television advertising paid for by interest
groups.”73 There is also a correlation between the top fundraisers and
candidates who win elections and the candidates who use the most
television advertising. 74 Themes in television ads may also vary between
by types of elections. 75 In the 2013-2014 state Supreme Court justice
elections, while many candidates ran “traditional ads” focusing on their
“experience, values, and qualifications,” there was an increase in criminal
justice “soft on crime” negative ads towards opponents. 76
Often times, judges feel the additional pressure of fundraising and
the cascading impacts “concerning relationship between money and
judging;” for example, how the influence of fundraising has also affected
courtroom decisions. 77 A disturbing result of the influence of special
interest groups in judicial elections is the compromised impartiality of
judges in decision-making on the bench. 78 Judges who receive campaign
contributions have admitted that these contributions influence their
decisions.79
Studies suggest a relationship between campaign
contributions and favorable rulings in the courts, and that judges regularly
hear cases from campaign supporters. 80 Although judges should recuse
themselves while in front of a campaign supporter, scholars cite weak
recusal rules as allowing opportunities for this influence to persist.81
Aside from elected judges’ impartiality hindered by hearing cases from
71
Id.
Id. Shepherd notes that plaintiffs’ bar and “their agents” contribute mostly to
Democratic candidates, with the contributions supporting “liberal” outcomes. SHEPHERD,
supra note 50, at 3, 21 n. 25.
72
73
SHEPHERD, supra note 50, at 6.
74
Id.
SCOTT GREYTAK ET AL., BANKROLLING THE BENCH: THE NEW POLITICS
JUDICIAL ELECTIONS 2013-14 48-49 (Laurie Kinney, ed. 2015).
75
76
Id. at 48.
77
E.g., SHEPHERD, supra note 50, at 6.
OF
E.g., A.B.A, supra note 20, at 8; BANNON, supra note 22, at 6; SHEPHERD,
supra note 50, at 7.
78
79
E.g., SHEPHERD, supra note 50, at 7.
80
E.g., BANNON, supra note 22, at 8.
81
E.g., id. at 9.
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their campaign donors, elected judges are also faced with how the
outcomes of their decisions impact their future on the bench. 82
2.
Negative Impacts on Judicial Retention and Diversity
Stemming from the need to campaign for seats, judicial elections
have negative effects on judicial retention for sitting judges and the
bench’s diversity.83 As detailed in Part II.A., many judges must undergo
retention elections upon completion of their terms.84 Retention elections,
which typically consist of a “Yes” or “No” vote on an incumbent, were of
little interest because they were low-cost races and required minimal
attention.85 Now retention elections have instead become high profile
areas of interest for special interest groups.86 Judges may worry about
harsh public reactions to their decisions, and, as a result, may fear
retaliation in their retention elections. 87 Another symptom of retention
elections is that the racial or gender biases of voters or special interest
groups may compromise diversity on the bench. 88
Shepherd’s study regarding business contributions in judicial
elections found that the ideological climate of the public or government
may cause a judge to fear negative consequences based on an unpopular
decision.89 An elected judge may worry that a particular decision will
upset the public and may cost her votes or even a re-election.90 This belief
contradicts the ideal role of a judge, which is to stand up against the
majority in defense of the minority or individual. 91 Judges often hear
cases relating to controversial or high profile issues with the understanding
82
See id.
See A.B.A, supra note 20, at 8-9; BANNON, supra note 22, at 12; SHEPHERD,
supra note 50, at 12; Maida R. Milone, States’ High Courts Sorely Lacking in Diversity,
THE
NAT’L
LAW
JOURNAL,
(June
6,
2016),
http://www.nationallawjournal.com/id=1202759242829/States-High-Courts-SorelyLacking-in-Diversity?slreturn=20160522172558.
83
84
Bonneau, supra note 20, at 4; see supra Part II.
85
E.g., Bam, supra note 33, at 559; Bonneau, supra note 22, at 4; SCOTT
GREYTAK ET AL., supra note 75, at 4; JOHN F. KOWAL, JUDICIAL SELECTION FOR THE 21ST
CENTURY 3 (Brennan Center for Justice at New York University School of Law, 2016).
86
E.g., SCOTT GREYTAK ET AL., supra note 75, at 6; KOWAL, supra note 85, at 3.
87
E.g., SCOTT GREYTAK ET AL., supra note 75, at 22.
88
Lawrence Baum, Judicial Elections and Judicial Independence: The Voter’s
Perspective, 64 OHIO ST. L.J. 13, 23 (2003).
89
SHEPHERD, supra note 50, at 12.
90
See Bam, supra note 33, at 564.
91
See id.; BANNON, supra note 22, at 12.
2016
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that they must make a correct decision, even if unpopular. 92 As elected
judges face a retention election for their seat, the fear of upsetting the
public and being unseated based on an unpopular decision influences their
decision-making in various cases.93 Judges that face reelection may avoid
making unpopular rulings or may decide cases depending on the political
ideology of the general public. 94 As Alicia Bannon explains, “[E]lected
judges tend to decide cases according to the political preferences of voters
— and that when voters’ preferences change, judges’ behavior follows.”95
While most in the legal profession believe that judges’ correct yet
unpopular decisions should not be used to penalize them or unseat them,
this tactic has been successful in changing the ideology of various courts.96
Further, the increased pressure of decision-making and campaigning in
retention elections has exposed judges to increased and “new pressures
[for those] . . . who had previously been largely insulated from politicized
judicial elections.”97 The threat of politicized retention elections,
combined with a perceived opportunity “to change the ideological
composition of a court” by replacing a judge with another, is an added
stressor that may keep judges from ruling impartially or even ruling more
harshly.98
Judicial elections also impact the diversity of state judiciaries. In
2010, the Brennan Center reported that most judiciaries do not reflect the
diversity in their states.99 This lack of diversity harms the public
confidence in the courts while at the same time creating “a jurisprudence
uninformed by a broad range of experiences.”100 Judicial partisan and
nonpartisan elections are criticized for frustrating judicial diversity, as
many minorities who become elected face difficulty being reelected in
retention elections. 101 The National Law Journal reported that nonpartisan
92
E.g., BANNON, supra note 22, at 12.
93
E.g., id. at 12-13.
94
Id.
95
BANNON, supra note 22, at 13.
96
E.g., Bam, supra note 33, at 561.
97
KOWAL, supra, note 85, at 3.
98
KOWAL, supra note 85, at 3 (quoting SCOTT GREYTAK ET AL., BANKROLLING
BENCH: THE NEW POLITICS OF J UDICIAL ELECTIONS 2013-14, at 4 (Laurie Kinney
ed., 2015)). The Brennan Center for Justice at the New York University School of Law
reported that when faced by the pressures of reelection, some judges may rule more
punitively towards criminal defendants. KOWAL, supra note 85, at 3, 13.
THE
99
Constance Anastopoulo & Daniel J. Crooks III, Race and Gender on the
Bench: How Best to Achieve Diversity in Judicial Selection, NW. J. L. & SOC. POL’Y 174,
176 (2013).
100
BANNON, supra note 22, at 14.
101
E.g., CIARA TORRES-SPELLISCY, MONIQUE CHASE, EMMA GREENMAN,
128
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judicial elections resulted in the least amount of diversity in those states,
as the voters can only refer to candidates’ names, but not political
affiliations, when casting their vote. 102 Nonpartisan election states,
regardless of conservative, liberal, or moderate populations, all had low
numbers of minority judges. 103 On the contrary, partisan elections had
slightly higher numbers of minority judges on the bench, with the
exception of three low-minority-population states, which have no judges
of color on their state courts.104 This implies that racial bias in judicial
elections has some impact on the number of minorities on the bench. 105
The A.B.A. argues that the same could be said about women judges; the
jurisdiction and the ideology surrounding its electorate could minimize the
number of women who are elected. 106
Critics of merit selection or appointment processes argue that these
processes do not contribute to diversity of state judiciaries because the
recruitment efforts fail to attract minority or women potential
applicants.107 The argument is that many do not want to leave their law
firms, where they are highly valued and where the application processes
are more transparent, or they do not want to risk the substantial pay cut
from their law firm salary.108 This rationalization, however, does not
criticize the selection process itself—the criticism is of a judge’s salary or
of the job security with a law firm. Merit selection systems have
opportunities to amend procedures to increase transparency and to create
pro-diversity initiatives.109 Merit selection does not reduce the number of
minorities on the bench, unlike judicial elections, which have more
opportunities to eliminate minorities and women with a “No” vote.110
IMPROVING JUDICIAL DIVERSITY 29 (Brennan Center for Justice at New York University
School of Law, 2010); Milone, supra note 83.
E.g., Milone, supra note 83 (“In the 15 states that hold some form of
nonpartisan judicial elections for supreme and/or intermediate appellate courts, a mere
9.6 percent of the judges, 31 of the 322 seats, are people of color. Of those 15 supreme
courts, eight have no justices of color at all.”).
102
103
Id.
104
Id. These states are Alabama, West Virginia, and Pennsylvania. Id.
105
Id.
106
E.g., A.B.A, supra note 20, at 10.
107
E.g., A.B.A, supra note 20, at 9-10; Anastopoulo & Crooks, supra note 99,
108
Id.
109
A.B.A, supra note 20, at 10.
110
Id.
at 176.
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129
Lack of Candidate Information for Voters
The remaining issue of judicial elections is the lack of candidate
information available to voters. Much of the criticism involving the voters
in judicial elections is directed towards the lack of information provided to
voters, who essentially hold the “power” to elect the judge. 111 This is
problematic because voters potentially make informed votes without
understanding the correct “judicial decisions or rule-of-law values.”112 As
mentioned previously, the information provided on the ballot is typically a
list of names, party affiliation if in a partisan election, or, in the case of a
retention election, a “Yes or No” option.113 Without any knowledge about
the making of a judiciary, the background of a judge, the role of a judge
compared to other elected officials, or the actual existence of judicial
elections, the public must use other information differentiate between the
most qualified candidate.114
If voters in judicial elections are uninformed about their
candidates, what other information informs voters regarding who is a
capable judge? Law professor Dmitry Bam argues that voters use other
cues, such as party affiliation, endorsements, race, sex, and gender to
inform themselves as they award votes.115 Past performance and
statements also cue the voter as to the candidate’s ideology and position
on certain topics. 116 While past decisions may be the most helpful cue to
inform voters on the candidates, the candidates, because of judicial ethics
rules, usually do not express their positions on substantive issues. 117
Voter ignorance can have a chilling effect on a judiciary, especially
when the public votes based on other information provided, such as
campaign advertisements. 118 Television advertising in campaigns is
problematic in judicial elections, as campaign ads do not feature the
judicial aspects that are considered in the legal community, such as
“impartiality, fairness, promptness, and diligence.”119 Instead, the ads
attack judges and “manipulate[e] voters and distor[t] their ability to cast
informed votes.”120 When voters use manipulative ad information to
111
Bam, supra note 33, at 565; Baum, supra, note 88, at 19.
112
Bam, supra note 33, at 565.
113
See Bonneau, supra note 22, at 3.
114
Bam, supra note 33, at 565-67.
115
Id. at 569.
116
Id.
See Bam, supra note 33, at 565-67; AMERICAN BAR ASSOCIATION MODEL
CODE OF JUDICIAL CONDUCT R. 2.10 (2010).
117
118
E.g., Bam, supra note 33, at 574.
119
Id.
120
Id. In 2013-2014, the top candidate ad themes were criminal justice, role of
130
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inform a vote, they allow special interest groups or opponents to influence
their votes based on inaccurate information, furthering special interest
groups’ agendas of changing the ideology of the court.121
In addition to the biases perpetuated by campaign advertising, the
lack of candidate information also allows voters to select judges based on
their own personal biases. 122 Political science professor Lawrence Baum
argues that the average voter entering the polling booth often cannot
remember the names of the judicial candidates. 123 If the voter has no
recollection of the candidates’ names, coupled with no other knowledge of
the candidate, it presents opportunities for the voter to insert personal bias,
such as ethnicity or gender, into her decision by simply reading the
candidates’ names on the ballot. 124 Basing a vote on ethnicity or gender
proses two problems: first, the uninformed vote is not grounded in the
candidates’ qualifications or background; and second, the voter has the
opportunity to negate candidates based on ethnicity or gender. 125 If a voter
is biased against an ethnic minority or female candidate, then the
candidate is ruled out based on factors irrelevant to legal competency. 126
When minimal information is provided to voters in judicial elections, the
results are numerous opportunities for uninformed votes, or, rather, votes
based on information irrelevant to the role of a judge.127
Although the literature and studies deconstructing the issues with
judicial elections are plentiful, with numerous arguments against judicial
elections, many states still continue to elect their judges. 128 A comparison
with another state conducting judicial elections would be helpful when
determining whether this system would be beneficial for Hawaiʻi. It is
important to consider a state that has a similar Democratic political
ideology and majority Asian and White demographic.129 Although larger
judges, and maintaining a “traditional” role in the judicial system. See GREYTAK, ET AL.,
supra note 75, at 60.
121
See Bam, supra note 33, at 574; SHEPHERD, supra note 50, at 5.
122
See Baum, supra note 88, at 20.
123
E.g., id. at 64.
124
Id. at 20, 22.
Id. at 23 (“Studies of judicial elections have found that candidates' gender
affects their overall share of the vote and that individual voters may base their choice
heavily on gender. Politicians and candidates themselves widely believe that voters react
to a candidate's ethnicity.”).
125
126
See id.
127
See Bam, supra note 33, at 574, 581; Baum, supra note 88, at 22.
See Bam, supra note 33, at 555 n. 7 (recognizing that “more has been written
about judicial selection than any other topic in law”).
128
See Jeffrey M. Jones, Red States Outnumber Blue for First Time in Gallup
Tracking, GALLUP, (Feb. 3, 2016), http://www.gallup.com/poll/188969/red-states129
2016
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131
in size when compared to Hawaiʻi, Washington is a mostly Democratic
Pacific Western region state with a dominantly White and Asian Pacific
Islander population. 130 The Washington State judicial elections model
could predict what judicial elections could look like in Hawaiʻi.
III. JUDICIAL ELECTIONS IN WASHINGTON STATE
Washington’s judiciary consists of a supreme court, a court of
appeals, a superior court, and municipal and district courts. 131 The
Supreme Court sits nine justices en banc and in panels and the Court of
Appeals sits twenty-two judges in panels. 132 The Superior Court consists
of thirty-one districts in thirty-nine counties, with 179 judges; the
Municipal Court contains 125 courts, with ninety-eight sitting judges; and
lastly the District Court contains forty-four courts in fifty-six locations for
thirty-nine counties, with 109 sitting judges.133
A.
Judicial Elections in Washington: History and the Elections Process
Judicial elections in Washington were enacted via the adoption of
the Washington State Constitution in 1889, which created the five justices
Supreme Court.134 In 1907, the elections were amended to be nonpartisan,
with primary elections to be conducted separately from general
elections.135 If no primary election candidate receives a majority of the
vote, the top two candidates with majority votes are placed on the general
election ballot.136
outnumber-blue-first-time-gallup-tracking.aspx (citing Hawaiʻi as one of the most
Democratic states in the counry); Hawaiʻi, UNITED STATES CENSUS BUREAU,
http://www.census.gov/quickfacts/table/PST045215/15 (last visited Aug. 10, 2016)
(listing Hawaiʻi’s population demographic as 37.3% Asian and 26.7% White).
130
State of Washington, State Data, NAT. CENTER FOR ST. COURTS,
http://www.judicialselection.us/state/index.cfm?state=WA (last visited Aug. 10, 2016);
Population
by
Race,
OFFICE
OF
FINANCIAL
M ANAGEMENT,
http://www.ofm.wa.gov/trends/population/fig306.asp (last visited Aug. 10, 2016).
131
Judicial Selection in the States: Washington, NAT. CENTER FOR ST. COURTS,
http://www.judicialselection.us/judicial_selection/index.cfm?state=WA (last visited Aug.
10, 2016).
Id. Black’s Law Dictionary defines “en banc” as “With all judges present
and participating; in full court.” En Banc, BLACK’S LAW DICTIONARY (10th ed. 2014).
132
133
NAT. CENTER FOR ST. COURTS, supra note 131.
Brief History of the Washington Supreme Court, WASH. COURTS,
https://www.courts.wa.gov/education/?fa=education.supreme (last visited Aug. 10, 2016).
134
135
Id.
WASH. CONST., art. VI §§3, 5 (WEST, WESTLAW THROUGH NOV. 2015
AMENDMENTS); Methods of Judicial Selection: Washington, NAT. CENTER FOR ST.
COURTS,
http://www.judicialselection.us/judicial_selection/methods/selection_of_judges.cfm?state
=WA (last visited Aug. 10, 2016).
136
132
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The judicial election process is set by the Washington Constitution
and the Revised Code of Washington. 137 Potential candidates must
register as a candidate with the Office of Elections for the State of
Washington, and provide information such as a declaration of candidacy
and campaign finance information. 138 If a judge vacates office mid-term,
the Governor may appoint a judge to fill the seat. 139 The Judicial
Recommendation Committee, a subcommittee of the Washington State
Bar Association, reviews candidates for appellate and supreme court
positions and vets candidates for gubernatorial appointment. 140
In 1996, the Washington Judiciary underwent reform efforts
to evaluate its judicial elections. 141 The Walsh Commission, named after
its chair Ruth Walsh, was formed to review the elections system and
recommended: “establishing citizen-based nominating commissions to
screen candidates for interim judicial appointments, imposing campaign
contribution and expenditure limits for judicial elections, developing an
official judicial performance evaluation program, and disseminating voter
pamphlets that provided information about judicial candidates and the
court system.”142 The Legislature did not vote on the reform efforts, and
most of them, with the exception of the voter information pamphlets, were
not fulfilled.143
137
WASH. CONST., art. VI §§3, 5 (WEST, WESTLAW THROUGH NOV. 2015
AMENDMENTS); W ASH. REV. CODE. §§ 2.04, 2.06 (1971). The Revised Code of
Washington are the collected permanent laws in Washington State, similar to the Hawaiʻi
Revised Statutes. See generally Revised Code of Washington, WASHINGTON STATE
LEGISLATURE, http://apps.leg.wa.gov/rcw/ (last visited Aug. 14, 2016); GUIDE TO
GOVERNMENT IN HAWAI ʻI (Claire Marumoto, ed.), at 7 n. 3 (2013)
http://lrbhawaii.org/gd/gdgovhi.pdf (explaining that the Hawaiʻi Revised Statutes are a
compilation of Hawaiʻi’s current laws).
CONGRESS, STATE EXECUTIVES, LEGISLATORS, J UDGES, WASHINGTON STATE
CANDIDATES GUIDE TO THE 2016 BALLOT, OFFICE OF THE SECRETARY OF STATE
ELECTIONS DIVISION (2016), http://www.sos.wa.gov/_assets/elections/candidates/StateCandidates-Guide-2016-v1.pdf.
138
WASH. CONST., art. VI §§3, 5 (WEST, WESTLAW
AMENDMENTS); W ASH. REV. CODE. § 2.04.100 (1971).
139
THROUGH
NOV. 2015
Judicial Recommendation Committee, WASHINGTON STATE BAR
ASSOCIATION, http://www.wsba.org/Legal-Community/Committees-Boards-and-OtherGroups/Judicial-Recommendation-Committee (last visited July 5, 2016); Judicial
Appointments,
WASHINGTON
GOVERNOR,
http://www.governor.wa.gov/officegovernor/official-actions/judicial-appointments-0 (last visited July 5, 2016).
140
DANIEL BECKER AND M ALIA REDDICK, J UDICIAL SELECTION REFORM:
EXAMPLES FROM SIX STATES 44 (American Judicature Society, 2003).
141
142
Id. at 44. See also A.B.A., supra note 20, at 18.
BECKER AND REDDICK, supra note 142, at 45; History of Reform Efforts:
Washington, NAT. CENTER FOR ST. COURTS,
143
http://www.judicialselection.us/judicial_selection/reform_efforts/failed_reform_
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Washington also uses a comprehensive website to provide
information on the upcoming judicial elections to the public. 144 The
website, which is a “nonpartisan, impartial source of information about
judicial elections in the state of Washington,” provides updates and
information on the different judicial elections races from 2006 to the
present.145 County residents can locate their county by name and identify
the different races at each court level, from supreme court to district
court.146 Candidate profiles are also provided for the incumbent judges,
with links to media stories or the candidates’ websites listed.147 One
notable feature of the website is the candidate ratings, which provides a
side-by-side comparison listing of candidates’ ratings given by various
Washington legal associations.148 Washington has attempted to keep
voters informed and updated on the state judicial elections. Although
these efforts are notable, it is not enough to remedy lingering issues from
judicial elections that persist.149
B.
Issues Surrounding Washington Judicial Elections
In 2012, the Washington Supreme Court held in McCleary
v. State of Washington that the state failed to meet its duty to provide
adequate funding for K-12 education as required by a state statute.150
Following the McCleary decision, the Supreme Court struck down a
publicly-voted charter school law and fined the Legislature $100,000 a
day when it failed to produce a detailed school funding plan to be
implemented in 2018. 151
efforts.cfm?state=WA (last visited July 5, 2016).
VOTING FOR JUDGES: AN INFORMATION SOURCE FOR WASHINGTON VOTERS,
http://votingforjudges.org/ (last visited July 5, 2016).
144
145
Id.
146
Id.
147
Id.
Id. For example, Supreme Court Justice Mary Yu has ratings provided from
Cardozo Society, Joint Asian Judicial Evaluation Committee, King County Bar
Association, Latina/o Bar Association, Loren Miller Bar Association, Q-Law – The
LGBT Bar Association, and the Washington Women Lawyers. Id.
148
149
See supra Part II.B.; infra Part III.B..
McCleary v. State, 173 Wash.2d 477, 546-47 (2012); Telephone Interview
with Donald Horowitz, Retired King County Superior Court J. and Senior Assistant Att’y
Gen. for the State of Washington (June 20, 2016) [hereinafter Horowitz Interview].
150
Melissa Santos, Controversial School-Funding Rulings Prompt Crowded
Supreme
Court
Races,
OLYMPIAN,
(June
3,
2016),
http://www.theolympian.com/news/politics-government/article81680857.html; Horowitz
Interview, supra note 150.
151
134
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During the 2016 judicial election, the seats of two supreme court
justices, Mary Yu and Charlie Wiggins, and the Chief Justice Barbara
Madsen, were challenged based on the McCleary decision.152 All three
challenges were orchestrated by Republican state Representative Matt
Manweller, who views the McCleary decision as overreach of the
Judiciary in regulating the Legislature, and is actively supporting the
opponents.153 One of the candidates is a disbarred lawyer who, although
not recruited by the legislators who are supporting this campaign, is
running against the chief justice. 154
The 2016 Washington Supreme Court election is an
example of how Washington’s judicial elections are not free of the issues
that come from judicial elections. In fact, these issues have been looked at
by the Washington State Bar Association (“WSBA”) for a number of
years. Following a 2006 Judicial Selection Task Force report, the WSBA
underwent discussion as to whether judicial elections were “working” in
Washington and whether a new selection method, such as merit selection,
should be considered. 155 The article determined that state confidence in
the Judiciary was “slipping” and the top reasons for changing the judicial
selection method were because many judges in Washington are appointed;
voters are typically uninformed or do not vote; or that quality candidates
do not want to campaign and fundraise. 156 While no change to the judicial
election system has been implemented thus far, a closer look at the
Washington judicial election process shows that judicial impartiality and
retention are already compromised as a result.
The WSBA’s article noted that one of the issues related to
judicial elections was that many Washington judges, rather than elected,
152
Santos, supra note 151. This election is the first election in which all
supreme court justices up for reelection face a challenger. Typically, at least one justice
runs unopposed. Id.
Id. The three opponents are: Law professor David DeWolf, running against
Justice Yu; Kittitas County Prosecutor Greg Zempel, running against Chief Justice
Madsen; and Federal Way Municipal Court Judge Davis Larson, running against Justice
Wiggins. Id. Former United States and Washington state senators assisted in recruiting
opponents to run against the justices. Santos, supra, note 151; Horowitz Interview, supra
note 150.
153
154
Santos, supra, note 151; Horowitz Interview, supra note 150. On August 3,
2016, The Olympian reported that Chief Justice Madsen defeated challenger John
Scannell in the primary election, but may be up against Greg Zempel in the general
election. Walker Orenstein, State’s Chief Justice Unsure She Still Has an Opponent,
OLYMPIAN
(Aug.
3,
2016),
http://www.theolympian.com/news/politicsgovernment/election/article93614807.html.
Hon. John E. Bridges et al., How We Choose Judges: It’s Time for a
Change, WASH. ST. B. NEWS 18 (2008).
155
156
Id. at 18-19.
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are appointed to fill vacated seats left by retired judges. 157 The result is
that most incumbent judges run in uncontested, unchallenged elections. 158
One of the criticisms of this appointment process is that there is no set
public criterion that determines whether an appointed candidate is selected
in the most objective manner. 159 The gubernatorial appointment process,
in its simplest form, reflects the initial concerns that judicial elections
were aimed to eliminate: disproportion within the checks and balances
system.160 In the hopes of rectifying this perception, the WSBA and legal
scholars suggested that the Washington judicial elections would benefit
from a nominating commission to screen candidates for initial selection,
whether it is for gubernatorial appointment or for the election. 161 With a
nominating commission, the dominant gubernatorial presence and
influence over the Judiciary, or at least the appearance of either, is reduced
by allowing the vetting of candidates instead of a straight appointment by
one branch of government. 162
Also, the effects of campaigning also have negative
impacts on the impartiality of Washington judges. The WSBA published
an article highlighting the impact of fundraising on the Washington
Supreme Court’s decision-making.163 Campaigning also impacts the way
that Washington judges will decide controversial case topics. 164 Retired
King County Superior Court Judge Don Horowitz recalled a fellow judge
who would qualify for a pension upon his reelection and also had a young
child.165 The judge explained that he wanted to avoid controversial cases
because he did not want to “look for trouble” and if he came upon a
controversial case, he would be careful about his decision and would pay
particular attention to his language in the decision. 166 The judge
ultimately ran unopposed and retained his seat on the bench.167 Although
there is no concrete method for determining whether this judge, or other
157
Id. at 18.
Bridges et al., supra note 155, at 18. E.g., William R. Andersen, Judicial
Selection in Washington—Taking Elections Seriously, 33 SEATTLE U. L. REV. 605, 608-09
(2009-2010).
158
159
E.g., Andersen, supra note 158, at 609.
160
See Hall, supra note 17.
161
E.g., Bridges et al., supra note 155, at 18; Andersen, supra note 158, at 613.
162
Bridges et al., supra note 155, at 18.
John R. Ruhl, Flood of Money Endangers Perception of Judges’ Impartiality,
WASH. ST. B. NEWS 27, 27 (2008).
163
164
Horowitz Interview, supra note 150.
165
Id.
166
Id.
167
Id.
136
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Washington judges, would be biased in their decisions, the threat of a
judge being partial in decision-making may have drastic impacts on case
results and the Judiciary.
Judicial elections in Washington are not immune from
retention issues, especially regarding women and ethnic minority judges.
The lack of candidate information for voters has highlighted the negative
impacts of racial stereotypes or bias. 168 The re-election campaign of
Washington Supreme Court Justice Steven González was recognized in the
latest Brennan Center report as an example of the negative effects of
judicial elections on retaining minority judges. 169 Alicia Bannon describes
González’ campaign story:
Justice Steven González, who had been appointed to the
Washington Supreme Court and was its first MexicanAmerican justice, faced a surprisingly close election
campaign in 2012. His opponent, lawyer Bruce Danielson,
did not campaign or spend any money on his election, and
was either unrated or rated “inadequate” by bar and lawyers
associations vetting judicial candidates. While González
held onto his seat, Danielson garnered 75 percent of the
vote in some of the (predominantly white) eastern and
central parts of the state. 170
Many hours of campaigning and effort allowed González,
Washington’s first Mexican-American justice, to narrowly keep his seat. 171
González hypothesized his narrow win was due to: 1) only four
Washington counties publishing voter guides about his campaign, thus he
had to make up with radio advertising in certain Western Washington
counties; and 2) voters picking Danielson based on his surname. 172
168
E.g., BANNON, supra note 22, at 15.
169
BANNON, supra note 22, at 15; Horowitz Interview, supra note 150.
170
BANNON, supra note 22, at 15.
Id. (citing Paula Wissel, Racial Bias a Factor in Washington Supreme Court
Election,
Research
Finds,
KPLU.885
(Seattle)
(Sept.
26,
2012),
http://www.kplu.org/post/racial-bias-factor-washington-supreme-court-election-researchfinds)).
171
Steve Miletich, Justice Gonzalez’s Win Raises Questions About Role of
Ethinicity, SEATTLE TIMES, (Aug. 8, 2012), http://www.seattletimes.com/seattlenews/justice-gonzalezs-win-raises-questions-about-role-of-ethnicity/. Yakima County,
one of the counties that Danielson won, did not print a voter guide during this election.
Paula Wissel, Racial Bias a Factor in Washington Supreme Court Election, Research
Finds, KPLU.885 (Seattle) (Sept. 26, 2012), http://www.kplu.org/post/racial-bias-factorwashington-supreme-court-election-research-finds) (quoting a press release by former
Associate Professor of Political Science and Adjunct Law Professor at the University of
Washington Matt Barreto, highlighting his research on the González election outcomes).
172
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University of Washington political scientists recognized that the areas that
voted for Danielson were areas that have “anti-Latino” attitudes with low
records of electing Latinos into government positions. 173 The lack of
candidate information gives voters the opportunity to eliminate candidates
with ethnic names via racial bias and ideology. 174
While there are direct examples of the effects of judicial
elections on the retention of minority judges, there is less information
provided about its impact on women. The number of women judges in
Washington in 2016 is 120 women out of 344 judgeships; in 2012, there
were 140 women out of 432 judgeships.175 Judge Horowitz notes that
women are increasingly more active in the judiciary since he was elected
in 1974; when he was a judge, there were only three female judges in the
state.176 Overall, the diversity of female judges in Washington’s legal
community is strong and judicial elections may have limited impacts on
women.177
Although Washington has made efforts to minimize the
negative effects of judicial elections, the disparate impacts of judicial
elections have not been alleviated. Washington has made efforts to
increase voter awareness and participation to create a more informed voter
population, yet racial bias and outside influences, such as legislators upset
with judicial decisions, still impact judicial elections. Unfortunately,
Washington’s judicial election climate may also indicate what Hawaiʻi
could expect from judicial elections.
IV. MERIT SELECTION IN HAWAIʻI AND THE CASCADING IMPACTS OF
JUDICIAL ELECTIONS
The current structure of Hawaiʻi’s court system is similar to that of
Washington. There are four levels of court systems: the Supreme Court,
which is Hawaiʻi’s highest court; the Intermediate Court of Appeals;
Circuit Court and Family Court; and District Court. 178 At the Supreme
Barreto noted that in those areas, Danielson won almost 75% of the vote. Id.
Wissel, supra note 172. In the most heavily Latino counties in Central and
Eastern Washington, “Latinos only won about 5 percent of city-council and school-board
elections, even though they make up more than 20 percent of the population.” Miletich,
supra note 172.
173
174
E.g., BANNON, supra note 22, at 15; Horowitz Interview, supra note 150.
2016 US State Court Women Judges, NAT’L ASS’N OF W OMEN JUDGES,
https://www.nawj.org/statistics/2016-us-state-court-women-judges (last visited Aug. 15,
2016); Washington State Women Judicial Officers 2012, WASH. COURTS,
http://www.courts.wa.gov/programs_orgs/gjc/documents/ADM%20LST%20GJC%20Wo
men%20Judges%202012%2003%2007.pdf#search=women judicial officers.
175
176
Horowitz Interview, supra note 150.
177
Id.
178
Judicial Selection in the States: Hawaiʻi, NAT. CENTER
FOR
ST. COURTS,
138
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Court, five justices sit en banc; at the Intermediate Court of Appeals, six
judges sit en banc; the Circuit and Family Court has thirty-three court
judges, six of whom are family court judges; and there are twenty-four
district court judges and twelve district family court judges. 179 The
remainder of this article will provide an overview of judicial selection in
Hawaiʻi and will consider the effects that judicial elections would likely
have on the state Judiciary. 180
A. History of Judicial Selection in Hawaiʻi
Although the structure of Hawaiʻi’s court system and Judiciary has
taken different forms throughout history, its judicial selection methods
were always appointive and have not varied. 181 Before the arrival of
foreigners to Hawaiʻi in the 1700s, under Kamehameha I, while there was
no separate judiciary, judicial powers were exercised by the King himself,
his appointed governors, tax officers, and chiefs. 182 The Judiciary evolved
during the Constitutional Monarchy (1840-1893), under Kamehameha III,
but was still under the control of the Executive branch. 183 Members of the
Judiciary were appointed by the King, or elected by the legislative body. 184
The Supreme Court, which had final and appellate jurisdiction, consisted
of the King, the Kuhina Nui (Premier), and four chiefs elected by the
House of the Legislature.185 In the years following, under the Judiciary
Act of 1847, the functions of the Judiciary were made separate from those
of the Executive, and the King was now unable to control judicial
decisions.186 The King, however, still had the power to appoint judges to
the Supreme Court, the Circuit Courts, and the District Courts. 187
http://www.judicialselection.us/judicial_selection/index.cfm?state=HI. Hawaiʻi also has
Land, Tax Appeal, and Environmental Courts, with existing judges from the Circuit and
District Courts appointed to each. See generally Overview of the Hawaiʻi Judicial
System,
HAWAIʻI
STATE
JUDICIARY,
http://www.courts.state.hi.us/general_information/overview (last visited Aug. 14, 2016).
179
Id.
180
See infra Part IV.A. and Part IV.B.
181
See KUGISAKI, supra note 18, at 29.
182
E.g., William S. Richardson, Judicial Independence: The Hawaii
Experience, 2 U. HAW. L. REV. 1, 6 (1979-1981). Kamehameha acted as the court of last
resort, governors oversaw matters for each island, tax officers handled land and tax
matters, and the chiefs were responsible for all other disputes. Id.
183
E.g., Richardson, supra note 182, at 7; Melody Kapilialoha MacKenzie,
Historical Background, in NATIVE HAWAIIAN LAW: A TREATISE 12 (Melody Kapilialoha
MacKenzie et al. eds., 2015).
184
Richardson, supra note 182, at 7; MacKenzie, supra note 183, at 12.
185
Richardson, supra note 182, at 7.
186
Id. at 7-8.
187
Id. at 9-10.
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The appointment of judges still continued following the Monarchy.
After the Overthrow of the Hawaiian Kingdom in 1893, the Republic of
Hawaiʻi (1893-1898) established, via Constitution, a Supreme Court
consisting of a chief justice and two associate justices, all of which were
appointed by the President of the government and confirmed by the
Senate.188 Similarly, the judges for the circuit courts and the district courts
were also appointed by the President and confirmed by the Senate. 189 In
1898, Annexation led to the formation of the Territory of Hawaiʻi (18981959) under the United States via the Organic Act of 1900. 190 The
President of the United States appointed all of Hawaiʻi’s judges, from the
supreme court to the circuit courts. 191
The current structure of the Hawaiʻi Judiciary came into effect
upon Statehood in 1959. 192 When discussions of statehood started in the
1950s, a constitutional convention decided that appointments to the
supreme court and the circuit courts would be made by the Governor, with
the advice and consent of the Senate. 193 Following the enactment of the
State Constitution, at the Constitutional Convention of 1978 (“Con Con
1978”), the Constitution was amended to include the Intermediate Court of
Appeals, along with the current judicial selection processes in effect
today.194
1.
Merit Selection in Hawaiʻi: History and Procedures
Hawaiʻi’s current hybrid system was adopted after Con Con
The Judiciary Committee expressed concerns over political
1978.195
Richardson, supra note 182, at 12. The Hawaiian Kingdom, then ruled by
Queen Liliʻuokalani, was overthrown by the United States. MacKenzie, supra note 183,
at 21.
188
189
Id.
190
Richardson, supra note 182, at 13. The Republic of Hawaiʻi “ceded
socverenty of the islands to the United States under the terms of the Joint Resolution of
Annexation.” MacKenzie, supra note 183, at 27. Title of Hawaiʻi’s public lands,
consisting of 1.8 million acres, was conveyed to the United States. Id. The Organic Act
“confirmed the cession of public lands to the United States and provided specific laws to
administer those lands.” Id.; STEPHANIE M. CHEN, ET AL, E ʻONIPAʻA I KE KULĀIWI: A
LEGAL PRIMER FOR QUIET TITLE & PARTITION LAW IN HAWAIʻI, 8 (2013).
Richardson, supra note 182, at 13; MacKenzie, supra note 183, at 29;
Richard H. Kosaki, Constitutions and Constitutional Conventions of Hawaiʻi, IN
HAWAIIAN JOURNAL OF HISTORY, VOLUME 12 122 (1978).
191
192
Richardson, supra note 182, at 16.
193
Richardson, supra note 182, at 16; Kosaki, supra note 191, at 124.
Richardson, supra note 182, at 16-17. The amendments set forth during the
Constitutional Convention of 1978 were ratified by voters. See generally MARTHA
NOYES, HAWAIʻI CONSTITUTIONAL CONVENTION STUDIES 1978: CONSTITUTIONAL
CONVENTION ORGANIZATION AND PROCEDURES 60 (Legislative Reference Bureau, 1978).
194
195
Richardson, supra note 182, at 46.
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influence from the existing judicial executive appointment system, even
with no evidence of abuse under the process.196 Although there was no
perfect selection method without its criticisms, the Committee preferred
the mechanism that “minimize[d] the likelihood that the best qualified
[would] not be selected.”197
The Committee, after reviewing the different selection methods
used by other states, including judicial elections, decided that “a
nonpartisan commission would minimize the risk [of political abuse]
because a greater number of people, including attorneys and lay persons,
would be involved.”198
A nonpartisan commission of lawyers and
laypersons, free of the influence of partisan politics, would effectively
select nominees.199 The amended Constitution was ratified by the
electorate on November 7, 1978. 200
2.
The Hawaiʻi Judicial Selection Commission: Composition and
Process
The Judicial Selection Commission (“JSC”) was created via the
state Constitution in 1978, and its rules were adopted by the JSC on April
23, 1979.201 Since its creation, the panel has undergone some changes. 202
The current structure of the nine-member JSC consists of appointments by
the following: two appointees from the Governor; two appointees from
the Senate President; two appointees from the House Speaker; one
appointee by the Chief Justice of the supreme court; two members elected
by the State Bar. 203 No more than one of the two gubernatorial
Id.; KUGISAKI, supra note 18, at 26-29. Prior to 1978, Hawaiʻi’s judges were
selected via gubernatorial appointment with advice and consent of the senate. KUGISAKI,
supra note 18, at 29. During the 1968 Constitutional Convention, the gubernatorial
appointment method was continued, the belief being that “those making the selection
were directly accountable to the electorate for their actions.” Id. While judicial elections
were discussed at Con Con 1978, the idea was not well-received. See id. at 31-33. The
delegates of the Con Con 1978 argued that judicial elections would lead to political
influence and abuse, with judges “beholden to campaign contributors.” Hearing S.B.
2238, supra note 5 (statement of the Judiciary of the St. of Haw.).
196
197
KUGISAKI, supra note 18, at 26.
198
Richardson, supra note 182, at 46.
199
Id. at 46 n.352.
200
HAW. CONST., art. VI, §§ 3-4 (WEST, WESTLAW THROUGH NOV. 2014
AMENDMENTS).
201
Id.
Rosemary Fazio, Merit Judicial Selection in Hawaii: A Practical Guide, 14
HAW. B.J. 4 (2010), Lexis. While the make-up of the Commission has remained at nine
members, the distribution of the number of appointees has changed throughout the years.
Id.
202
203
amendments).
HAW. CONST., art. VI, §§ 3-4 (West, Westlaw through Nov. 2014
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appointments can be a licensed attorney, and no more than four attorneys
can be on the commission. 204 At least one member shall be a resident of a
county other than the City and County of Honolulu. 205
The JSC’s process is straightforward. The JSC advertises
judgeship vacancies via emails from the Hawaiʻi State Bar Association,
postings on the Judiciary website, in the local newspaper, and in the
Hawaiʻi Bar Journal. 206 Applicants fill out a form via the Judiciary
website, and submit five references who have “the best insight into the
applicant’s personal and professional qualifications.”207 The JSC then
conducts background checks of each applicant, consulting with the Office
of Disciplinary Counsel, the Commission on Judicial Conduct, and the
county police departments. 208 Summaries of the candidate’s background
are written, and interviews with key source people are conducted. 209 The
identities of the source people are confidential but they include “court
personnel, representatives of certain community groups, and various
members of the bar.”210 The applicants are then interviewed by the
commission members, voted upon by secret ballot, and then an unranked
list of nominees is submitted to the appointing authority, either the
Governor or the Chief Justice. 211 Once the appointing authority selects a
candidate, the Senate must confirm the nominee within thirty days at a
legislative hearing, either during regular session or during a special
session if the regular session has adjourned. 212 The JSC is subject to strict
confidentiality and does not disclose any information regarding the
compilation of the lists to the appointing authorities. 213 The names on the
list of nominees, however, may be released by the Chief Justice or the
Governor for public record. 214 The JSC process strives to select quality
candidates in a deliberate and balanced way, and many feel that the
process has served the state well in selecting quality judges. 215
204
Id.
205
Id. The other counties are Hawaiʻi County, Kawalao County, Kauai County,
and Maui County. Id.
206
Fazio, supra note 202; Okinaga, supra note 3.
207
Fazio, supra note 202; Okinaga, supra note 3.
208
Fazio, supra note 202; Okinaga, supra note 3.
209
Fazio, supra note 202.
210
Id.
211
Fazio, supra note 202; Okinaga, supra note 3.
212
Fazio, supra note 202; Okinaga, supra note 3.
213
Fazio, supra note 202; Okinaga, supra note 3.
214
Fazio, supra note 202.
Fazio, supra note 202 (citing an American Judicature Society-Hawaiʻi
special committee study of the hybrid system and noting that the committee expressed its
215
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B. Potential Effects of Judicial Elections in Hawaiʻi
In his article “Judicial Independence: The Hawaiʻi Experience,”
Hawaiʻi Supreme Court Chief Justice (“CJ”) William S. Richardson wrote
about the importance of institutional independence and independence of
state judges.216 He emphasized that institutional independence is possible
only if “the executive and legislative branches of government recognize
the judiciary as a co-equal . . . .” and that the independence of individual
judges “protects the freedom of individual judges in the decisionmaking
[sic] process. Judges must be able to apply the law secure in the
knowledge that their offices will not be jeopardized for making a
particular decision.”217 To CJ Richardson, an independent judiciary, one
free from external pressures and influences, is critical to maintain the
impartiality needed for decision-making.218
CJ Richardson highlighted the fact that the legislative branch’s
overreach can affect the judiciary. The purpose of having the separate
branches of government is to ensure checks and balances and to prevent
one branch from hindering the political capacity of another. 219 The
judicial elections legislation is an example of the legislative branch of
government compromising the judiciary’s institutional independence. If
judicial elections were enacted in Hawaiʻi, severe consequences would
likely arise from this overreach of the Legislature.
1.
Judicial Election Bills Used as Legislative Attempts to Regulate the
Hawaiʻi Judiciary
Hawaiʻi’s judicial elections legislation is an example of the
importance and necessity of stable checks and balances in government. 220
While the Senate Committee on Judicial Affairs claimed that the
legislation was to facilitate discussion of the hybrid system’s
effectiveness, key Hawaiʻi leaders have characterized the legislation as the
direct result of the decision in Nelson v. Hawaiian Homes Commission
(“Nelson”).221 In Nelson, the Plaintiffs, all Native Hawaiians, filed suit
belief in the merit selection process and that the system “fundamentally worked as it
should.”); Okinaga, supra note 3 (“[Hawaiʻi’s] merit selection system has served this
state well, and in turn this state has nurtured its development so that it continues to serve
us well.”).
216
Richardson, supra note 182, at 4.
Id.
Although CJ Richardson discusses judicial autonomy in the
administration of the courts, his words are still relevant to judicial selection. Id.
217
218
Id.
219
Richardson, supra note 182, at 5.
S.B. 2239, 28th Leg., (Haw. 2016); S.B. 2238 S.D. 1, 28th Leg., (Haw.
2016); H.B. 2138, 28th Leg., (Haw. 2016); H.B. 2139, 28th Leg., (Haw. 2016).
220
221
Nelson v. Hawaiian Homes Comm’n, 127 Hawaiʻi 185, 189 (2012);
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against the Legislature and the Department of Hawaiian Homelands
(“DHHL”), claiming that the state entities did not sufficiently fund DHHL
to provide home, farm, ranch, and other lots and loans necessary to
improve conditions of Native Hawaiians, including the administration and
facilitation of those required services. 222 The Hawaiʻi Supreme Court
ruled that the State owed mandatory funding to DHHL to fulfill the State’s
constitutional obligation to provide for Native Hawaiians.223 Following
the Supreme Court’s decision, in November 2015 First Circuit Court
Judge Jeanette Castagnetti ordered the Legislature to provide $28 million
in funding to DHHL.224
Interview with Aviam Soifer, Dean, William S. Richardson Sch. of Law at the Univ. of
Haw. at Mānoa, in Honolulu, Haw. (June 7, 2016) [hereinafter Soifer Interview];
Interview with John D. Waiheʻe III, former Governor of the State of Haw., in Honolulu,
Haw. (June 24, 2016) [hereinafter Waiheʻe Interview].
HAW. CONST., art. XII, § 1; Nelson, 127 Hawaiʻi at 188. The Hawaiian
Homes Commission Act was enacted in 1921 to designate “over two hundred thousand
acres of public lands as ‘available lands’ and put under the jurisdiction of the Hawaiian
Homes Commission, to be leased to persons of at least 50 percent Native Hawaiian blood
at a nominal fee for ninety-nine years.” MacKenzie, supra note 183, at 30. While the
general belief behind homesteading was to “rehabilitate” Native Hawaiians to provide
them with agricultural land for farming, the land provided was arid lava rock and unable
to produce crops. Id. at 30-31. The Homestead Lands were later distributed as house lots
and some pasture land. Id. at 31. Very few Native Hawaiians have actually been
awarded homestead acreage; however, as of 2013, “9,850 Hawaiian homestead leases
[were] issued, while 26,926 Native Hawaiians” remained on the homestead land waiting
list. Id. DHHL is a state agency that is responsible for administering and managing the
Hawaiian Homes program. Id. For years, DHHL received no administrative funding
from the State of Hawaiʻi, which forced the department to lease homestead lands to nonHawaiians to increase its funding. Id. at 200.
222
HAW. CONST., art. XII, § 1 (West, Westlaw through Nov. 2014 amendments)
(“The legislature shall make sufficient sums available . . . ”); Nelson, 127 Hawaiʻi at 188
(“[I]t is clear that DHHL is underfunded and has not been able to fulfill all of its
constitutional purposes.”). The Supreme Court did not determine “what constitutes
‘sufficient sums’ for administrative and operating expenses” under the State Constitution.
Id. at 206.
223
Nelson, 127 Hawaiʻi at 205 (positing that the Circuit Court must determine
the meaning behind “sufficient sums” as stated in the Hawaiʻi Constitution); Nelson v.
Hawaiian Homes Comm’n, No. 07-1-1663-08 (Cir. Ct. Haw. filed Nov. 27, 2015)
(findings of fact, conclusions of law, and order on remand from Nelson v. Hawaiian
Homes Comm’n, 127 Hawaiʻi 185 (2012)) (“Although what is ‘sufficient’ will change
over the years, the sufficient sums that the legislature is constitutionally obligated to
appropriate in general funds for DHHL’s administrative and operating budget (not
including significant repairs) is more than $28 million for fiscal year 2015-16.”). The
Legislature typically reserves $9.6 million in general funds for DHHL in the state’s
operating budget. Id. (“After the Supreme Court’s decision in this case, the legislature
increased its general fund appropriations from zero to $9.6 million for DHHL’s
administrative and operating budget expenses . . . For fiscal year 2015-16, DHHL
determined that it needs $28,478,966 for its administrative and operating budget, not
including for repairs.”) (citations omitted). The state Attorney General has since filed an
appeal, arguing that the court overstepped its bounds. Press Release, Department of
224
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Legislators are open about their negative reactions to the court’s
ruling in Nelson, arguing that a judge determining a dollar amount that the
State owes to DHHL is “an encroachment on the [Legislature’s]
constitutional power to appropriate state funds.”225 Honolulu Civil Beat
reported that the Senate and the House of Representatives argued that the
Judiciary exceeded its authority in determining the $28 million amount
and “could not order [the Legislature] to make an appropriation.”226
Although they were vocal about their feelings on Nelson, the legislators
were mum about whether the judicial elections bills were a direct response
to this perceived overstep by the Judiciary. 227 The timeline of the
Legislature’s actions following Judge Castagnetti’s decision, however,
appears to confirm that the legislation was a direct response to this
decision.228
Hawaiian Home Lands, State of Hawaiʻi, Department of Hawaiian Home Lands
Disappointed by AG’s Decision to Appeal Court’s Ruling to Sufficiently Fund State
Agency Operations (Jan. 12, 2016) (“Hawaiʻi’s state Attorney General’s office filed a
notice of appeal . . . over a recent ruling by First Circuit Court Judge Jeanette Castagnetti
ordering the [L]egislature to provide sufficient funding to DHHL for its administrative
and operating expenses, in line with the constitutional mandate to do so. In the current
fiscal year the order identified this amount as being more than $28 million.”) (on file with
author). See also FAQ: Nelson v. HHC Case Ruling, DEPARTMENT OF HAWAIIAN HOME
LANDS, http://dhhl.hawaii.gov/icro/ka-nu-hou/ka-nuhou-2012/kauwela/faq-nelson-case/
(last visited June 30, 2016) (providing an overview of the Nelson decision).
225
Fact Sheet: Nelson v Hawaiian Homes Commission (HHC) Case Ruling,
REP. BETH FUKUMOTO CHANG, http://www.repbethfukumotochang.com/#!Fact-SheetNelson-v-Hawaiian-Homes-Commission-HHC-CaseRuling/c18w9/56a934d70cf22a61ccd45647. Senator Kalani English, Senate Majority
Leader, also expressed his opposition to Judge Castagnetti’s decision. Chad Blair,
Hawaii Speaker: Lottery Bill A ‘Distinct Possibility’, HONOLULU CIVIL BEAT, Jan. 15,
2016, http://www.civilbeat.org/2016/01/hawaii-speaker-lottery-bill-a-distinct-possibility/
(“The majority leader also stood with the Ige administration in arguing that the judicial
branch is overstepping its boundaries in demanding that the executive and legislative
branches give more money to the Department of Hawaiian Home Lands.”).
Chad Blair, Judge: State Must Fund Hawaiian Home Lands, HONOLULU
CIVIL BEAT, (Mar. 2, 2016), http://www.civilbeat.org/2016/03/judge-state-must-fundhawaiian-home-lands/.
226
Keith-Agaran Interview, supra note 11. See Ian Lind, Lawmakers Return to
The Bad Old Days of Backroom Deals, HONOLULU CIVIL BEAT, (Mar. 9, 2016),
http://www.civilbeat.org/2016/03/ian-lind-lawmakers-return-to-the-bad-old-days-ofbackroom-deals/ (“A face-off between the Legislature and the Judiciary that would
reduce judicial independence and exert more political control over judicial retention
decision was apparently triggered by legislative anger over a recent court ruling in a longrunning lawsuit over funding for the Department of Hawaiian Home Lands.”); Press
Release, Department of Hawaiian Home Lands, State of Hawaiʻi, Department of
Hawaiian Home Lands Disappointed by AG’s Decision to Appeal Court’s Ruling to
Sufficiently Fund State Agency Operations (Jan. 12, 2016) (on file with author); Soifer
Interview, supra note 221; Waiheʻe Interview, supra note 221.
227
228
See
SB2238
SD
1,
HAW.
ST.
LEG.,
2016
Hayden
145
The Hawaiʻi State Legislature’s response to the Nelson
decision is eerily similar to that in Washington’s McCleary case.229 Both
cases involved: 1) a constitutional obligation for the state to provide
funding for a state agency, and 2) the court’s decision affirming that the
state owed funding to that state agency. 230 The outcome of the McCleary
case provides a frightening example of what could result in Hawaiʻi if
judicial elections are implemented.231 If a court made an unpopular, but
right, decision that upset the electorate, or even a legislator, then the
election could cause a qualified judge to lose her seat based on that
decision.232 The overarching impact of judicial elections legislation, or
any legislation that is “controlling” the Judiciary by adjusting its
established make-up or construction, is detrimental to the separation of
powers between the Judiciary and the Legislature. 233
Without specific mention of the Nelson case, the legal
community highlighted the importance of the separation of powers in
maintaining an independent and balanced judiciary. 234 Former Hawaiʻi
http://capitol.hawaii.gov/measure_indiv.aspx?billtype=SB&billnumber=2238&year=201
6
(last
visited
Aug.
8,
2016);
SB2239,
HAW.
ST.
LEG.,
http://capitol.hawaii.gov/measure_indiv.aspx?billtype=SB&billnumber=2239
(last
visited
Aug.
8,
2016);
SB2420
SD
1,
HAW.
ST.
LEG.,
http://capitol.hawaii.gov/measure_indiv.aspx?billtype=SB&billnumber=2420 (last visited
Aug. 8, 2016); Nelson v. Hawaiian Homes Comm’n, No. 07-1-1663-08 (Cir. Ct. Haw.
filed Nov. 27, 2015) (findings of fact, conclusions of law, and order on remand from
Nelson v. Hawaiian Homes Comm’n, 127 Hawaiʻi 185 (2012)). Judge Castagnetti’s
decision was made on November 27, 2015 and the legislation was introduced on January
22,
2016.
SB2238
SD
1,
HAW.
ST.
LEG.,
LEGISLATURE,
http://capitol.hawaii.gov/measure_indiv.aspx?billtype=SB&billnumber=2238&year=201
6
(last
visited
Aug.
8,
2016);
SB2239,
HAW.
ST.
LEG.,
http://capitol.hawaii.gov/measure_indiv.aspx?billtype=SB&billnumber=2239
(last
visited
Aug.
8,
2016);
SB2420
SD
1,
HAW.
ST.
LEG.,
http://capitol.hawaii.gov/measure_indiv.aspx?billtype=SB&billnumber=2420 (last visited
Aug. 8, 2016); Nelson v. Hawaiian Homes Comm’n, No. 07-1-1663-08 (Cir. Ct. Haw.
filed Nov. 27, 2015) (findings of fact, conclusions of law, and order on remand from
Nelson v. Hawaiian Homes Comm’n, 127 Hawaiʻi 185 (2012)).
229
Santos, supra note 151.
See Nelson v. Hawaiian Homes Comm’n, 127 Hawaiʻi 185 (2012); Nelson v.
Hawaiian Homes Comm’n, No. 07-1-1663-08 (Cir. Ct. Haw. filed Nov. 27, 2015)
(findings of fact, conclusions of law, and order on remand from Nelson v. Hawaiian
Homes Comm’n, 127 Hawaiʻi 185 (2012)); McCleary v. State, 173 Wash.2d 477, 546-47
(2012).
230
231
See Santos, supra note 151.
232
See id.
233
Richardson, supra note 182, at 4.
See Hearing S.B. 2238, supra note 5 (statement of American Judicature
Society) (positing that the threat of imposition of Senate hearings on judicial retentions
would discourage a judge’s impartiality). See also Hearing S.B. 2238, supra note 5
(statement of Calvin E. Young on behalf of the Former Presidents of the Haw. St. Bar
234
146
Asian-Pacific Law & Policy Journal
Vol. 18:1
Supreme Court Justice Steven Levinson characterized this legislative
overreach as the “tyranny of the majority[;]” he also highlighted the fact
that a court’s role is to protect the minority rights of individuals. 235 Justice
Levinson explained that making a “judge . . . beholden to the state Senate,
part of whose mandate is to be responsive to the popular will, is inherently
undermining and corrosive of civil liberties.”236 The Hawaiʻi Chapter of
Common Cause testified that the “judicial system is meant to act as the
Third Branch of Government and in that capacity serves an important role
in the ‘checks and balances’ of government. Elections are not appropriate
for the branch of government charged with protecting citizens’ rights,
regardless of public sentiment.”237 The testifiers’ reactions strongly
support the belief that a Judiciary under scrutiny and review by another
branch of government, and fearful of retaliation based on decisions made
in cases, is not an efficient Judiciary. 238
Events in the wake of Nelson are a further indication that judicial
elections would cause a shift in the ideology of Hawaiʻi’s judiciary.239 For
example, the Legislature’s retaliation via introduction of the judicial
elections legislation has already had a chilling effect. 240 The $28 million
funding decision in Nelson prompted the Legislature to respond in
court.241 In March 2016, following a Motion for Reconsideration filed by
the Attorney General, Judge Castagnetti amended her initial decision to
remove the $28 million dollar amount, revising the language as:
Although what is sufficient will change over the years, the
amount of general funds appropriated to DHHL for its
Ass’n) (“Judicial elections threaten the balance of power between our three branches of
government. The Executive and Legislative branches are designed by their very nature as
elected branches to receive public input and respond in most instances in a way that
reflects voter sentiment . . . the Judiciary is not a vehicle for public input, and justices and
judges should not take public opinion into account when making decisions.”); Hearing
S.B. 2238, supra note 5 statement of Eden Elizabeth Hifo, First Cir. Ct. J. for the St. of
Haw. (Ret.)) (“An elected judiciary would upset the balance of power, diminishing the
Governor's power of appointment (and those of the [Chief Justice] as well)”).
Hearing S.B. 2238, supra note 5 (statement of Steven H. Levinson, Haw.
Sup. Ct. J. (Ret.)).
235
236
Id.
Hearing S.B. 2238, supra note 5 (statement of Carmille Lim, Executive
Director, Common Cause Hawaiʻi).
237
238
See id.
239
See Bam, supra note 33, at 561; Lind, supra note 227.
240
See Lind, supra note 227.
See id. (“Legislative leaders reportedly reacted angrily and strongly to
Castagnetti’s decision, which they perceived as an intrusion into an area of their
exclusive legislative jurisdiction.”).
241
2016
Hayden
147
administrative and operating budget for fiscal year 2015 to
- 16 (9,632,000) is not sufficient. The State is required to
comply with the Hawai’i Constitution and must fund
DHHL’s administrative and operating expenses by making
sufficient general funds available to DHHL for its
administrative and operating budget for fiscal year 2015 to
-16.242
Importantly, this amendment was issued in the midst of the
legislative session, while the proposed legislation was still pending. 243
Judge Castagnetti’s amendment was a reaction to the overreach of the
Legislature via the threat of imposing judicial elections, forcing the
judge’s hand, and ultimately leaving her to revise an initial decision to
remove the figure at issue with the legislators.244 If Hawaiʻi’s Judiciary is
already feeling the effects of legislative retaliation based on the mere
threat of judicial elections, elections themselves may levy even further
censorship.
Comparable to the reaction to the Nelson decision, in Washington,
although the McCleary decision did not lead to judicial censorship of the
Washington Supreme Court, it instead prompted legislators to introduce
bills to change the elections to partisan races or legislation to require state
Supreme Court justices to recuse themselves if the justices received large
Blair, supra note 226 (citing Transcript of Record at 19, Nelson v. Hawaiian
Homes Comm’n, No. 07-1-1663-08 (Cir. Ct. Haw. 2015) (on remand from Nelson v.
Hawaiian Homes Comm’n, 127 Hawaiʻi 185 (2012)). As mentioned previously, the
initial language of the decision was: “Although what is ‘sufficient’ will change over the
years, the sufficient sums that the legislature is constitutionally obligated to appropriate
in general funds for DHHL's administrative and operating budget (not including
significant repairs) is more than $28 million for fiscal year 2015-16.” Nelson v.
Hawaiian Homes Comm’n, No. 07-1-1663-08 (Cir. Ct. Haw. filed Nov. 27, 2015)
(findings of fact, conclusions of law, and order on remand from Nelson v. Hawaiian
Homes Comm’n, 127 Hawaiʻi 185 (2012))
242
243
Courtney Teague, Senate Kills Last Bill That Would’ve Reformed Judiciary
Renewal
Process,
HONOLULU
CIVIL
BEAT,
Mar.
10,
2016,
http://www.civilbeat.org/2016/03/senate-kills-last-bill-that-wouldve-reformed-judiciaryrenewal-process/. The bills did not cross over to the House of Representatives by March
10, 2016. See id.
244
E.g., Lind, supra note 227 (“Initial news reports made it sound as if the
legislative power play had worked and, facing the threat that judges could be forced to
face elections, she backed down.”); Soifer Interview, supra note 221. Some remain
skeptical as to whether Judge Castagnetti’s amendment was prompted by the legislation.
Lind, supra note 227 (“Two things need to be made clear. First, a close reading of
documents in the case show Castagnetti didn’t back down. And, second, even the
mistaken impression that the adjustments she made in the original ruling were in response
to political pressure, rather than legal judgment, could reasonably be expected to
undermine confidence in the courts.”).
148
Asian-Pacific Law & Policy Journal
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campaign contributions from parties appearing in court. 245 The proposed
Washington legislation is yet another example of legislators using judicial
elections to change the ideology of the court in response to an unpopular
decision.246 If the Washington Legislature would retaliate against judges
with legislation to change the structure and ideology of the court, then the
same would happen in Hawaiʻi with judicial elections. 247 If an elected
judge in Hawaiʻi were to issue a decision similar to Nelson, individual
legislators could actively work to unseat that judge or enact legislation to
change the structure of the court, as was the case in Washington.248
Further, both judicial elections and judicial elections legislation
provide the Hawaiʻi Legislature with opportunities to block the Judiciary’s
actions, if the actions are perceived as promoting “judicial activism.”249
Jim Brunner and Nina Shapiro, State Supreme Court: Activist Justices, or
Just Different?, SEATTLE TIMES, Sept. 12, 2015, http://www.seattletimes.com/seattlenews/politics/state-supreme-court-activist-justices-or-just-different/;
Jim
Brunner,
Lawmakers Jab Supreme Court: Bill Would Make Races Partisan, SEATTLE TIMES:
POLITICS
NORTHWEST
BLOG
(Dec.
19,
2014,
1:35
PM),
http://blogs.seattletimes.com/politicsnorthwest/2014/12/19/lawmakers-jab-supremecourt-bill-would-make-races-partisan/ (“House Bill 1051, which would turn races for the
state’s high court into partisan contests . . . is a rebuke by lawmakers irritated at what
they view as the court’s overreach in its McCleary ruling and related contempt order,
which demand lawmakers boost K-12 funding by billions of dollars.”); Charter-School
Ruling Prompts Initiative Targeting Supreme Court, SEATTLE TIMES, Sept. 15, 2015,
http://www.seattletimes.com/seattle-news/lawmaker-to-file-initiative-related-to-supremecourt-ruling-2/ (“Rep. Matt Manweller, of Ellensburg, said he’ll file the measure . . .
Under the proposed measure, a justice would be required to step down from hearing a
case if his or her campaign received a donation of $1,000 or more within the past six
years from any person or entity that is part of the case.”).
245
Several justices in the McCleary case received campaign donations from the
teachers’ union, however Chief Justice Madsen insists that the justices always use
impartiality when ruling on cases. Charter-School Ruling Prompts Initiative Targeting
Supreme Court, SEATTLE TIMES, Sept. 15, 2015, http://www.seattletimes.com/seattlenews/lawmaker-to-file-initiative-related-to-supreme-court-ruling-2/.
Note that Rep.
Manweller is the same legislator orchestrating the unseating of the supreme court justices
in the 2016 election. See Santos, supra note 151.
See Bam, supra note 33, at 561; Brunner and Shapiro, supra note 245;
Brunner, supra note 245; SEATTLE TIMES, supra note 245.
246
247
See Brunner and Shapiro, supra note 245; Lind, supra note 227.
248
See Santos, supra note 151; Lind, supra note 227.
See Brunner and Shapiro, supra note 245 (“A court is always called activist
when it issues a ruling that someone doesn’t like” (citing Hugh Spitzer, University of
Washington professor of constitutional law)). Black’s Law Dictionary defines “judicial
activism” as, “A philosophy of judicial decision-making whereby judges allow their
personal views about public policy, among other factors, to guide their decisions, usu.
with the suggestion that adherents of this philosophy tend to find constitutional violations
and are willing to ignore governing texts and precedents.” Judicial Activism, BLACK’S
LAW DICTIONARY (10th ed. 2014).
249
2016
Hayden
149
This focus on perceived judicial activism, and in turn retaliating against
the Judiciary, would detrimentally affect decisions that impact the
constitutional rights of minority groups. 250 The retaliation to the Nelson
decision is an example of how hindering judicial independence can injure
these rights.251 If the rights of a minority group are unconstitutionally
harmed by another branch of government, then the role of the Judiciary is
to correct the wrong and provide a fair ruling to ensure that the minority is
afforded constitutional protection; in other words, to ensure that that the
law means what it says.252 The reach of the Nelson decision impacted
thousands of Native Hawaiians waiting for homestead lands and the
outcome of the case would benefit those and their future descendants.253
Yet, instead of considering the constitutional rights of the beneficiaries of
the decision, the Legislature is using the judicial elections legislation to
indirectly criticize and retaliate against the Judiciary for its perceived
judicial activism and alleged “overstep” of the separation of powers. 254
Hawaiʻi’s Judiciary should function with confidence and be free to
interpret the law as it is written without fear of retribution –that includes
making decisions that are counter to popular opinion.255 If Hawaiʻi were
to implement judicial elections, then the fear of unpopular decisions, or
retaliation from these decisions, may impact the types of judges who
remain on the bench. 256
250
See Andersen, supra note 158, at 606; Bam, supra note 33, at 564.
251
See Nelson v. Hawaiian Homes Comm’n, 130 Hawaiʻi 162, 168 (2013) (“In
general, this court has stated, “It is undisputed that the rights of native Hawaiians are a
matter of great public concern in Hawaii” (citing Pele Defense Fund v. Paty, 73 Haw. 578
(1992))). See also Soifer Interview, supra note 221; Waiheʻe Interview, supra note 221.
252
See Bam, supra note 33, at 564.
Nelson v. Hawaiian Homes Comm’n, 127 Hawaiʻi 185, 205 (2012) (“The
State’s track record in supporting [Department of Hawaiian Homelands]’s success is
poor, as evidenced by the tens of thousands of qualified applicants on the waiting lists
and the decades-long wait for homestead lots.”); Nelson, 130 Hawaiʻi at 168 (“[T]he
number of people standing to benefit from the Nelson decision is substantial . . .
impacting at least the tens of thousands of known beneficiaries on the waiting list, and
ultimately benefitting the State as a whole . . . .”).
253
254
See Blair, supra, note 242. See also Press Release, Department of Hawaiian
Home Lands, State of Hawaiʻi, Department of Hawaiian Home Lands Disappointed by
AG’s Decision to Appeal Court’s Ruling to Sufficiently Fund State Agency Operations
(Jan. 12, 2016) (quoting Jobie Masagatani, Hawaiian Homes Commission Chair and
DHHL Director, responding to the Attorney General’s decision to appeal Judge
Castagnetti’s decision in Nelson, “‘It feels like an unnecessary delay that hurts DHHL
and its ability to effectively meet its mission to place native Hawaiians on the land.’”).
255
Richardson, supra note 182, at 5.
256
See Hearing S.B. 2238, supra note 5 (statement of Mandy Finlay, Advocacy
Coordinator, American Civil Liberties Union of Hawaiʻi).
150
2.
Asian-Pacific Law & Policy Journal
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Negative Impacts on Diversity and Judicial Retention in the Hawaiʻi
Judiciary
The Legislature acknowledged that an issue with judicial
elections is the potential to erode the ethnic diversity within Hawaiʻi’s
Judiciary, particularly those judges of Filipino, Hawaiian, or Asian decent
other than Japanese or Chinese. 257 Studies characterized 67% of judges
serving Hawaiʻi’s state courts as ethnic minorities, the highest percentage
of minority judges in the nation. 258 Although Hawaiʻi is recognized as
having a diverse state court system, it may not be considered a necessarily
“diverse” judiciary, since it is simply the result of Hawaiʻi being one of the
more ethnically diverse states in the country. 259 The 2015 Census reports
that the minority population consists of 77.1% of the state population, with
Asians accounting for 55.9% of the population, more than Hawaiians and
Other Pacific Islanders, Whites, Black or African Americans, or Mixed
Race.260 The population of Hawaiʻi, while diverse when compared to the
remaining states, instead has a majority of ethnic Asians.261 Scholars
contend that the Japanese and Chinese have risen to political and
economic power in Hawaiʻi since 1945, and that Native Hawaiians and
Filipino Americans occupy “subordinate positions.”262
The 2016
Legislature is a majority 36% Japanese, 17% White legislators, and 27%
Mixed Ethnicity (14% part-Hawaiian), with Filipinos, Koreans, Chinese,
and Pacific Islander consisting of less than 10% of all legislators. 263
257
Keith-Agaran Interview, supra note 11.
See Anastopoulo & Crooks, supra note 99, at 190; Reddick et. al.; supra
note 50; National Database on Judicial Diversity in State Courts: Hawaii, AMERICAN
BAR ASSOCIATION, http://apps.americanbar.org/abanet/jd/display/state.cfm?stateid=11
(last visited July 1, 2016) (the most current A.B.A. data is from 2010).
258
259
See Anastopoulo & Crooks, supra note 99, at 190.
Hawaiʻi Population Characteristics 2015, STATE OF HAWAI ʻI DEPARTMENT
BUSINESS,
ECONOMIC
DEVELOPMENT
&
TOURISM,
http://files.hawaii.gov/dbedt/census/popestimate/2015_county_char_hi_file/Pop_char_hi_
2015_final.pdf (last visited Dec. 15, 2016). The remaining racial compositions are:
Native Hawaiians and Other Pacific Islanders 26.0%; White 43.7%; Black or African
American 4.0%; Mixed Race 23.0%. Id.
260
OF
261
See id.
262
E.g., Haunani-Kay Trask, Settlers of Color and “Immigrant” Hegemony:
“Locals” in Hawaiʻi, in ASIAN SETTLER COLONIALISM: FROM LOCAL GOVERNANCE TO
THE HABITS OF EVERYDAY LIFE IN Hawaiʻi 45, 47 (2008). See Candace Fujikane, Asian
Settler Colonialism in the U.S. Colony of Hawaiʻi, in ASIAN SETTLER COLONIALISM:
FROM LOCAL GOVERNANCE TO THE HABITS OF EVERYDAY LIFE IN Hawaiʻi 1, 23, 25
(2008).
All
Legislators,
HAWAIʻI
STATE
LEGISLATURE,
http://capitol.hawaii.gov/members/legislators.aspx?chamber=all. Data was collected by
reviewing the ethnicities of the 2016 State Legislators via the Hawaiʻi State Capitol
263
2016
Hayden
151
Based on this data of elected legislators, if judges were to be elected in
Hawaiʻi, there could be similar ethnic majorities and minorities among the
elected judges. Judicial elections may possibly keep judges of other
ethnicities from ascending to the bench. 264
Some scholars do not credit Hawaiʻi’s merit selection process with
providing more judicial diversity, as the state population is already diverse
to begin with.265
Further, some argue that although nominating
commissions are designed to recruit and upkeep diverse judicial
candidates, they are predominately composed of white men. 266 Hawaiʻi is
different, however, as the JSC members are of various ethnic
backgrounds.267 While the JSC may not provide more judicial diversity to
the judges who serve in Hawaiʻi, the JSC does not create a “barrier for
diversity” on the bench.268 A correlation between Hawaiʻi’s diverse
judiciary and the merit selection system has been recognized. 269
Judicial elections could also reduce the number of women judges
within Hawaiʻi Judiciary. As of 2016, there are currently 80 judges and
justices on the bench in the state; 36% of the judges are female, while 64%
of the judges are male. 270 Hawaiʻi is recognized as one of the states with
website. Id. This is a general observation of ethnicities and may not reflect the exact
ethnicities of the legislators. Id.
264
Keith-Agaran Interview, supra note 11.
265
See Anastopoulo & Crooks, supra note 99, at 190.
266
BANNON, supra note 22, at 15.
Judicial
Selection
Commission,
HAW.
ST.
JUDICIARY
http://www.courts.state.hi.us/courts/judicial_selection_commission (last visited July 1,
2016).
267
268
See BANNON, supra note 22, at 15.
269
See Milone, supra note 83.
See Hawaiʻi Supreme Court Justices, HAW. ST. JUDICIARY,
http://www.courts.state.hi.us/courts/supreme/justices/justices (last visited July 1, 2016);
Intermediate
Court
of
Appeals
Judges,
HAW.
ST.
JUDICIARY,
http://www.courts.state.hi.us/courts/appeals/judges (last visited July 1, 2016); First
Circuit
(Oahu)
Judges
Telephone
Listing,
HAW.
ST.
J UDICIARY,
http://www.courts.state.hi.us/general_information/contact/judges_phone_listing_1c (last
visited July 1, 2016); Second Circuit (Maui) Judges Telephone Listing, HAW. ST.
JUDICIARY,
http://www.courts.state.hi.us/general_information/contact/judges_phone_listing_2c (last
visited July 1, 2016); Third Circuit (Hawaiʻi Island) Judges Telephone Listing, HAW. ST.
JUDICIARY,
http://www.courts.state.hi.us/general_information/contact/judges_phone_listing_3c (last
visited July 1, 2016); Fifth Circuit (Kauaʻi) Judges Telephone Listing, HAW. ST.
JUDICIARY,
http://www.courts.state.hi.us/general_information/contact/judges_phone_listing_5c (last
visited July 1, 2016). There are 51 male judges and justices and 29 female judges and
justices as of 2016. The numbers and percentages for each gender were calculated by the
author, using the contact information provided by the Judiciary. See Hawaiʻi Supreme
270
152
Asian-Pacific Law & Policy Journal
Vol. 18:1
the highest percentage of women judges under the current merit selection
system, but this number could be reduced if judicial elections were
used.271 When considering the gender breakdown of the elected State
Legislature, it is male-dominated, with 71% male legislators and 29%
female legislators. 272 If the make-up of the Legislature is a reflection of
what the gender breakdown of elected judges could resemble, then there
could potentially be a reduction in the number of women judges in
Hawaiʻi.273
Although judicial elections would most likely lead to a reduction in
diversity within the Judiciary, Hawaiʻi’s hybrid system currently promotes
and increases diversity on the bench. 274 When used effectively, merit
selection systems often use a commission that is reflective of a “state’s
racial, gender, and geographic diversity” or the commission considers the
“racial, gender, and geographic diversity of the community” when
Court
Justices,
HAW.
ST.
JUDICIARY,
http://www.courts.state.hi.us/courts/supreme/justices/justices (last visited July 1, 2016);
Intermediate
Court
of
Appeals
Judges,
HAW.
ST.
JUDICIARY,
http://www.courts.state.hi.us/courts/appeals/judges (last visited July 1, 2016); First
Circuit
(Oahu)
Judges
Telephone
Listing,
HAW.
ST.
J UDICIARY,
http://www.courts.state.hi.us/general_information/contact/judges_phone_listing_1c (last
visited July 1, 2016); Second Circuit (Maui) Judges Telephone Listing, HAW. ST.
JUDICIARY,
http://www.courts.state.hi.us/general_information/contact/judges_phone_listing_2c (last
visited July 1, 2016); Third Circuit (Hawaiʻi Island) Judges Telephone Listing, HAW. ST.
JUDICIARY,
http://www.courts.state.hi.us/general_information/contact/judges_phone_listing_3c (last
visited July 1, 2016); Fifth Circuit (Kauaʻi) Judges Telephone Listing, HAW. ST.
JUDICIARY,
http://www.courts.state.hi.us/general_information/contact/judges_phone_listing_5c (last
visited July 1, 2016). See also 2016 US State Court Women Judges, NAT’L ASS’N OF
WOMEN JUDGES, https://www.nawj.org/statistics/2016-us-state-court-women-judges (last
visited Aug. 15, 2016).
Malia Reddick, Michael J. Nelson, & Rachel Paine Caufield, Racial and
Gender Diversity on State Courts: An AJS Study, 48 J UDGES J. 2, (2009),
271
http://www.judicialselection.us/uploads/documents/Racial_and_Gender_Diversit
y_on_Stat_8F60B84D96CC2.pdf.
272
HAW. ST. LEG., supra note 263. As of 2016, there are 54 male legislators
compared to 22 female legislators. Id.
Hearing S.B. 2238, supra note 5 (statement of Haw. Women Lawyers) (“The
judiciary already has an existing gender imbalance on the bench, and passing this
measure will only serve to exacerbate this problem.”).
273
See Hearing S.B. 2238, supra note 5 (statement of the Haw. State Judiciary).
See also Hearing S.B. 2238, supra note 5 (statement of Justice at Stake) (“Diversity on
the bench supports equal access to justice, enhances and enriches judicial decisionmaking
[sic], and builds confidence in our court systems. Effective use of merit selection and
nominating committees can lead to increased diversity.”).
274
2016
Hayden
153
selecting candidates for appointment. 275 Hawaiʻi’s JSC considers each
candidate in an “impartial, objective manner” and the commissions are
“sworn not to discriminate on the basis of race, religion, sex, national
origin, marital status, sexual orientation or political affiliation.”276 This
impartiality, and efforts to minimize discrimination in selecting
candidates, would not be present in a judicial election. 277 In fact, judicial
elections in Hawaiʻi would create what the State Judiciary refers to as an
“artificial obstacle” to achieving judicial diversity, which would limit the
perspectives present when judges rule on cases, thus hindering the public’s
confidence in the Judiciary. 278 Even though Hawaiʻi is considered an
ethnically diverse state with a high number of female and minority judges,
judicial elections would create a barrier to growth in this area, and would
ultimately lead to an uninformed judiciary. 279 The result of an uninformed
judiciary is a judiciary that lacks public confidence, which would lead to
additional issues if judges were to campaign for their seats. 280
3.
Impacts of Campaigning and Fundraising on Hawaiʻi’s Judiciary and
Legal Community
Judicial elections in Hawaiʻi would create issues involving
campaigning and fundraising among judges. The same campaigning and
fundraising issues involving compromised impartiality and fear of
opponents that occur in Washington would likely occur in Hawaiʻi. 281 The
legal community recognized that even Hawaiʻi would succumb to the
dangers of compromised judicial impartiality due to soliciting
donations.282 Justice Levinson contends that:
275
Hearing S.B. 2238, supra note 5 (statement of Justice at Stake).
Hearing S.B. 2238, supra note 5 (Jackie Young, PhD, Vice Chair Jud.
Selection Comm’n).
276
277
See A.B.A., supra note 20, at 10.
Hearing S.B. 2238, supra note 5 (statement of the Judiciary of the St. of
Haw.). See also Hearing S.B. 2238, supra note 5 (statement of Justice at Stake).
278
See Hearing S.B. 2238, supra note 5 (statement of Judiciary of the St. of
Haw.); BANNON, supra note 22, at 14
279
280
See Hearing S.B. 2238, supra note 5 (statement of Judiciary of the St. of
Haw.).
281
See Ruhl, supra note 163; Hearing S.B. 2238, supra note 5 (statement of the
of Judiciary of the St. of Haw.); Horowitz Interview, supra note 150.
Hearing S.B. 2238, supra note 5 (statement of the of Judiciary of the St. of
Haw.); Hearing S.B. 2238, supra note 5 (statement of the Kauaʻi Bar Association);
Hearing S.B. 2238, supra note 5 (statement of the American Judicature Society);
Hearing S.B. 2238, supra note 5 (statement of the League of Women Voters); Hearing
S.B. 2238, supra note 5 (statement of Aviam Soifer, Dean, William S. Richardson Sch. of
Law at the Univ. of Hawaiʻi at Mānoa); Hearing S.B. 2238, supra note 5 (statement of
Calvin E. Young on behalf of the Former Presidents of the Haw. St. Bar Ass’n); Hearing
S.B. 2238, supra note 5 (statement of Shackley F. Raffetto, C.J., Second Cir. Ct., St. of
282
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[T]he substantial dependence of candidates for judicial office on
the financial assistance of campaign contributors – many of whom donate
precisely because they, or their clients, will be appearing before the judge
if elected – inevitably, consciously or unconsciously, predisposes the judge
to rule in favor of the economic interests of their constituency, thereby
corrupting the justice system. 283
Unlike other states that have succumbed to controversy over
campaign financing in judicial elections, Hawaiʻi has been considered
lucky, as its merit selection system has prevented the temptation from
fundraising and the corruption referenced by Justice Levinson. 284
Campaigning in Hawaiʻi would also require judges to become
public figures who feel pressure to be vetted by different political or
community groups.285 Hawaiʻi judges would be required to participate in
activities such as sign-waving, a popular campaign activity in which most,
if not all, Hawaiʻi political candidates engage.286 The State Judiciary
argued that campaigning for seats would undermine the public’s
confidence in the Judiciary, as the public’s perception will be what is
projected by the judicial candidates during campaign season. 287 The
public’s confidence in the Judiciary would reflect in their votes for a
judicial candidate, thus resulting in judges who “take public sentiment into
account when they make decisions and issue rulings.”288 In turn, judges
Haw. (Ret.)); Hearing S.B. 2238, supra note 5 (statement of Steven H. Levinson, Haw.
Sup. Ct. J. (Ret.)).
Hearing S.B. 2238, supra note 5 (statement of Steven H. Levinson, Haw.
Sup. Ct. J. (Ret.)).
283
Hearing S.B. 2238, supra note 5 (statement of Aviam Soifer, Dean, William
S. Richardson Sch. of Law at the Univ. of Hawaiʻi at Mānoa, writing:
284
Recent controversies that erupted over the appointment and retention of
judges in states as diverse as Alabama, Iowa, Texas, Virginia, and
Wisconsin suggest how problematic it can be when those with the
ability to spend strive to influence how judges will decide. (These
contributions now have been held to be protected by the First
Amendment to the Federal Constitution.) In Hawaiʻi, we are lucky to
have avoided such bitter imbroglios.
Letter from Mark E. Recktenwald, C.J. of the Hawaiʻi Supreme Court (July
1, 2016) (on file with author) [hereinafter Recktenwald Letter].
285
Stu Woo, In Hawaiʻi, the Most Powerful Waves Can Be Found at the Side of
the Road, WALL STREET JOURNAL, (Apr. 23, 2010).
286
287
Hearing S.B. 2238, supra note 5 (statement of the of Judiciary of the St. of
Haw.) (“Judicial elections . . . may undermine the public’s perception of the judiciary’s
fairness, impartiality, and independence and erode its reputation for making decision that
reflect these fundamental qualities.”).
288
Hearing S.B. 2238, supra note 5 (statement of Calvin E. Young on behalf of
the Former Presidents of the Haw. St. Bar Ass’n).
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would feel forced “to rule in a manner that might be politically beneficial
or popular, but not legally correct.”289 Judges also cannot make
“traditional campaign promises” that most politicians make during their
election campaigns; the threat of a judge ruling based on promises to the
public or to a special interest group is the opposite of how cases should be
decided.290 Important legal decisions in Hawaiʻi were made by judges
who were unafraid to stand up to the majority and take positions on issues
such as same sex marriage or even land issues in Nelson.291 If judges were
concerned about deciding controversial issues in order to solicit campaign
donations, civil and minority rights would be set back or left undecided. 292
Campaigning may also cause a loss of judicial talent among
Hawaiʻi judges, as many will not want to put in the time and expense to
run a successful campaign. 293 Many qualified judges who would normally
be appointed via the JSC would most likely not run for office if required to
fundraise and campaign for a seat. 294 Retired Hawaiʻi Second Circuit
Court Chief Judge Shackley Raffetto would not have applied for his
position as a judge if he had to campaign. 295 As Judge Raffetto puts it,
most qualified lawyers would not step forward if required to campaign in
an election:
You might ask why, since the members of our legislative
branch do just that in order to serve our communities?
What’s the big deal? The reason is that most lawyers would
not wish to participate in the challenging and unpredictable
elective process in which professional politicians are able
289
Id.
See Hearing S.B. 2238, supra note 5 (statement of American Judicature
Society) (“[J]udicial candidates can’t make traditional campaign promises – like
promising to decide certain cases a certain way. It would undermine our belief in the
judicial system if we had judges making rulings based on campaign promises, not facts
and the law.”).
290
Hearing S.B. 2238, supra note 5 (statement of the Off. of the Pub. Defender,
St. of Haw.) (“Our courts have rendered numerous decisions dealing with such
controversial issues as same sex marriage, the environment and criminal rights. The
judges who have ruled on such decisions were able to do so mindful only of the law
without fear of retribution or backlash from interest groups.”). See also Waiheʻe
Interview, supra note 221.
291
See Hearing S.B. 2238, supra note 5 (statement of the Off. of the Pub.
Defender, St. of Haw.).
292
Hearing S.B. 2239, supra note 5 (statement of Craig Wagnild, Partner, Bays
Lung Rose & Holma).
293
294
Hearing S.B. 2238, supra note 5 (statement of Judiciary of the St. of Haw.).
Hearing S.B. 2238, supra note 5 (statement of Shackley F. Raffetto, C.J.
Second Cir. Ct. (Ret.) (“If I would have had to “stand for election” in order to qualify to
serve my community as a judicial officer, I would not have applied.”).
295
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to excel because they believe that the skills necessary in
order to prevail in the elective process have little, if
anything, to do with the qualities that are desirable to serve
as a Judge or Justice. And, they would not wish to incur
substantial debt or become beholden to others who provide
the money to win an election. 296
Justice Levinson provided a similar statement regarding an
election’s result of attracting the less qualified of candidates, suggesting
that the result would “mediocritize[e] the judicial branch of
government.”297
To ensure that voters make informed votes not rooted in
ideological biases, candidate information provided to voters needs to be
plentiful, but whether the candidate information would be successful on
informing voters is questionable.298 Voter information packets, similar to
those in Washington, could be provided, but issues over which state office
would prepare the information or where funding would come from to
disseminate the information would likely arise.299 Websites, such as
Washington’s Voting for Judges website, could inform the public on the
election and on the candidates, but an independent and volunteer
organization would likely be required to staff the website. 300 One issue
that would still be present, regardless of the amount of information
provided, is the lack of understanding the role of a judge. 301 As the public
generally does not understand the role of a judge, further
misunderstanding of judicial procedure can provide an opportunity for the
public to be swayed. 302 The Kauaʻi Bar Association pointed out:
[J]udges from time to time must suppress evidence in order
to protect a defendant’s rights under the Hawaii
Constitution. Such decisions could result in acquittal of a
296
Id.
Hearing S.B. 2238, supra note 5 (statement of Steven H. Levinson, Haw.
Sup. Ct. J. (Ret.)).
297
298
Bam, supra note 33, at 569.
299
See Bam, supra note 33, at 569; History of Reform Efforts: Washington,
NAT. CENTER FOR ST. COURTS,
http://www.judicialselection.us/judicial_selection/reform_efforts/failed_reform_
efforts.cfm?state=WA (last visited July 5, 2016). There was discussion among elected
officials about creating such packets, but the printing and postage for the packets is
costly. Keith-Agaran Interview, supra note 11.
300
See VOTING FOR JUDGES, supra note 144.
301
Bam, supra note 33, at 565.
302
See id. at 565-67.
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defendant and a resulting nasty attack ad which would not
delve into the intricacies of constitutional law. This might
result is [sic] judges being less vigorous in protecting the
constitutional rights of Hawaiian citizens.303
While attorneys, judges, and those familiar with the profession
may understand the procedural reasons and rules required in certain cases,
the public may, generally, not understand why a judge would need to
suppress evidence to protect a defendant’s rights, as suggested by the
Kauaʻi Bar Association. 304 The legal community has even questioned
whether the Legislature itself is confident about the general public being
informed enough to select its judges, highlighting a “safety net” provision
that the S.B. 2339 allows the Senate to overturn the election results if
necessary.305 If there is not enough information provided about the
candidates, then, judges may be elected based on cues such a sign-waving,
surnames, or gender.306 Ultimately, even a plethora of information is still
not enough to inform voters without the influence of cues such as race or
gender.307
V. REFORM HAWAIʻI’S MERIT SELECTION PROCESS AS AN ALTERNATIVE
TO JUDICIAL ELECTIONS
If nonpartisan judicial elections were to occur in Hawaiʻi,
some believe that this would create a sense of judicial autonomy and a
more independent judiciary. 308 Others argue that because a judge is voted
into her seat by the public, she is not at the mercy of a legislature or of a
303
Hearing S.B. 2238, supra note 5 (statement of the Kauaʻi Bar Ass’n).
304
See id.
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 (determines
that an elected judge requires senate confirmation, as opposed to retention election, in
order to be retained); Hearing S.B. 2239, supra note 5 (statement of Thomas Farrell) (“If
I read SB 2239 correctly, its sponsors aren’t too sure that the general public should be
entrusted with the entire responsibility of selecting judges, because this bill would allow
the Senate to overturn the results of a judicial election by refusing to confirm the
electee.”).
305
Woo, supra note 286 (“John Matsuzaki, a Honolulu graphic designer, says
earnest sign­wavers . . . used to get his vote. When he was younger, he went to the polls
and saw a ballot of names he didn't know, so he voted for sign­wavers he recognized.”).
See also Bam, supra note 33, at 569.
306
307
See also Bam, supra note 33, at 569.
308
See Richardson, supra note 182, at 4.
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nominating commission. 309 Therefore, elected judges are able to make
decisions without, or at least limited, concern over retribution from the
Legislature.310 This is beneficial in situations similar to the Nelson case or
in the McCleary case in Washington; the Hawaiʻi courts could make that
unpopular decision without fear of legislative backlash. If legislative
backlash occurred over a court’s decision, because a judge’s fate would be
at the hands of the voters, the Legislature would need to go through other
long-winded measures to affect the Judiciary, such as via proposing a
constitutional amendment.311
Although these considerations could be looked at, ultimately
judicial elections would likely lead to the same negative issues that affect
other states using judicial elections. 312 As detailed in Part IV.B., the
negative impacts that would come with judicial elections in Hawaiʻi are
numerous.313 Elections would insulate Hawaiʻi judges from legislative
reach, but the judges’ positions would still be left up to public vote.314 The
elections, specifically campaigning, would be a gateway to potential
corruption and prejudiced decisions in order to garner votes.315 The
quality of judges would be limited as well, as the pool of applicants who
would typically be appointed or put their names in for appointment would
not likely run for election. 316 Judicial elections, while providing a
misconception of judicial independence, would actually cripple the
independence of Hawaiʻi’s Judiciary.317
Judicial elections are not the best tool to select Hawaiʻi’s judges; in
fact, hybrid system is effective and working. Moreover, Hawaiʻi’s unique
selection system is recognized by scholars as noteworthy, with some states
considering adopting Hawaiʻi’s model for judicial selection. 318 If,
309
Waiheʻe Interview, supra note 221.
310
Waiheʻe Interview, supra note 221.
See HAW. CONST., art. XVII, § 3 (West, Westlaw through Nov. 2014
amendments). Similar to S.B. 2238, S.B. 2239, and S.B. 2420, changing the make-up,
structure, or reach of the Judiciary would require constitutional amendment. See 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).
311
312
See supra Part II, Section B.
313
See supra Part IV, Section B.
314
See Bam, supra note 33, at 569.
315
Waiheʻe Interview, supra note 227.
316
Hearing S.B. 2238, supra note 5 (statement of Steven H. Levinson, Haw.
Sup. Ct. J. (Ret.)).
317
Richardson, supra note 182, at 4.
BANNON, supra note 22, at 17; See also BANNON, supra note 22, at n.105
(citing Bill Raferty, Proposed Change to Illinois Judicial Retention Looks Similar to
318
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however, the hybrid system is in need of review as Senator Keith-Agaran
has claimed, then perhaps an examination of the hybrid system’s process
is necessary to determine whether it is working efficiently and
effectively.319
Some argue that although Hawaiʻi’s hybrid system receives the
support of the legal community, especially in opposition towards judicial
elections, is it not free from criticism.320 The JSC process has undergone
some examination when the American Judicature Society reviewed the
JSC and its process, but criticism still remains. 321 If, however, the Merit
Selection Process is in need of change, then certain reform efforts could be
implemented to “respect and foster independence of the Judiciary.”322
Opponents of the JSC and the merit selection process argue that
the selection process is not transparent and does not provide information
about why certain judges are not retained. 323 The lack of an appeals
process for judges not retained by the JSC has also been criticized.324
Although not perfect, the processes set up by the JSC are instrumental in
maintaining the most efficient system for Hawaiʻi. 325 The JSC argues that
Hawaiʻi’s System; Would Eliminate Many/Most Retention Elections, GAVEL TO GAVEL,
(Feb. 14, 2013), http://gaveltogavel.us/2013/02/14/proposed-change-to-illinois-judicialretention-looks-similar-to-hawaiis-system-would-eliminate-manymost-retentionelections/).
319
Keith-Agaran Interview, supra note 11.
Hearing S.B. 2238, supra note 5 (statement of the Judiciary of the St. of
Haw.) “The convention adopted the merit-based process which—with some subsequent
amendments—remains in place to this day. This system reflects the sentiment that a
judicial selection commission provides the essential foundation for a qualified and
independent judiciary.”). But see Hearing S.B. 2238, supra note 5 (statement of the Off.
of the Pub. Defender) (“While our current merit-based system of judicial selection is not
perfect and has resulted in the past with the appointment of some sub-par jurists . . . this
has been the exception rather than the rule and that the Hawaii judiciary is a strong one
with a number of very good judges and justices.”).
320
JUDICIAL SELECTION, RETENTION AND ACCOUNTABILITY STANDING
COMMITTEE OF THE AMERICAN J UDICATURE SOCIETY – HAWAII CHAPTER, THE ROLE OF
THE HAWAII STATE BAR ASSOCIATION IN THE J UDICIAL SELECTION AND RETENTION
PROCESS AND PROPOSED CHANGES TO J UDICIAL SELECTION COMMISSION RULES 14
(American Judicature Society, 2010).
321
322
Recktenwald Letter, supra note 285. Senator Keith-Agaran suggested that
the American Judicature Society of Hawaiʻi will conduct a study of the hybrid system.
Keith-Agaran Interview, supra note 11.
323
Keith-Agaran Interview, supra note 11.
324
Okinaga, supra note 3.
325
Recktenwald Letter, supra note 322 (“The current merit selection system
fosters the Judiciary’s independence, impartiality, and fairness, and the public perception
of judicial decisions that reflect these fundamental qualities”); Hearing S.B. 2238, supra
note 5 (statement of Dr. Susan Jaworowski) (“We currently have a fair and impartial
system for the nomination of judges.”); Hearing S.B. 2238, supra note 5 (statement of
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the confidentiality of the process provides for a more thorough vetting
process. 326 The confidentiality of the process also provides for security
for the applicants. 327 If the process is confidential, then it protects those
not selected for a position from fallout from their law firm or colleagues
for applying to be a judge in the first instance.328 The JSC is open to
public comment on the retention of judges in the form of confidential
written comments or evaluation forms. 329 The JSC also interviews
“resource people” to receive feedback on the candidates. 330 Although
there are some transparency issues, the confidential nature of the JSC
process was crafted to protect the applicants and candidates and ensure
harmony within the legal community. Even if reform efforts could be
implemented, the legal community supports Hawaiʻi’s hybrid system for
selecting judges and does not support changing the system to a different,
unfavorable alternative, such as judicial elections. 331
Michael A. Town, J. (Ret.)) (“[W]e in Hawaiʻi have one of the best systems of selection
and retention. An independent and accountable judiciary is essential to the rule of law
and maintaining public trust and confidence in our government and judiciary. We have
that.”).
Recktenwald Letter, supra note 322 (citing Proposing an Amendment to
Article VI of the Constitution of the State of Hawaii Relating to The Selection and
Retention of Justices and Judges, Hearing on S.B. 2239 Before Senate Committee on
Judicial Affairs, 28th Leg. 15-18 (Haw. 2016) (statement of Jackie Young, Ph.D., Vice
Chair, Jud. Selection Comm’n)).
326
327
Waiheʻe Interview, supra note 227.
328
Waiheʻe Interview, supra note 227.
329
Recktenwald Letter, supra note 322.
Hearing S.B. 2238, supra note 5 (statement of Jackie Young, Ph.D., Vice
Chair, Jud. Selection Comm’n). The resource people include representatives from the
Hawaiʻi Supreme Court; the Intermediate Court of Appeals; the District Court in the
same county as the vacancy; the Criminal and Civil divisions of the Circuit Court, in the
same county as the vacancy; the State Public Defender; the county Prosecutor;
Corporation Counsel or the County Attorney; the Hawaiʻi State Bar Association; the
Young Lawyers Division of the Hawaiʻi State Bar Association; Hawaiʻi Women Lawyers;
Native Hawaiian Lawyers Association; Hawaiʻi Association of Criminal Defense
Attorneys; the Commission on Judicial Conduct; Legal Aid Society of Hawaiʻi; and
more. Id.
330
Hearing S.B. 2238, supra note 5 (statement of the Judiciary of the St. of
Haw.) (“Hawaiʻi has never had judicial elections. Our current merit-based system, which
has been in place since 1978, is serving the public well.”); Hearing S.B. 2238, supra note
5 (statement of Jackie Young, Ph.D., Vice Chair, Jud. Selection Comm’n) (“[T]he JSC
believes that our current judicial selection works well and is, in fact, one of the bet that
can be found anywhere.”); Hearing S.B. 2238, supra note 5 (statement of Momi
Cazimero) (referring to the JSC process, “This comprehensive process in the
investigation and analysis of judges could never be applied in an election.”); Hearing S.B.
2238, supra note 5 (statement of Riki May Amano, Third Cir. Ct. J. (Ret.)) (“[C]hanging
Hawaiʻi’s selection of judges from merit to election is inconsistent with best practices.
With its history of noble and fair sovereign governance, keeping merit selection of judges
331
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VI. CONCLUSION
Changing Hawaiʻi’s judicial selection method from hybrid
selection to elections would be detrimental to Hawaiʻi’s Judiciary and
legal community. Judicial elections, while embraced in some states, such
as Washington, bring with them issues of compromised judicial
impartiality, loss of judicial retention and diversity, and corruption from
campaigning and fundraising. 332 Hawaiʻi’s legal community has spoken
out against judicial elections and has stood by the current hybrid selection
system and its procedures as set out by the JSC.333
While states such as Washington have used judicial
elections for over a hundred years, the controversies concerning judicial
elections still persist.334 Washington has experienced issues associated
with fundraising and campaigning, such as admitted or perceptions of
compromised judicial impartiality regarding case decisions. 335 Although
Washington has made efforts to reform its election system, such as
increasing election information and access for voters, the elections are still
used to change the ideology of the court or reprimand judges for their
decisions, as evidenced by the McCleary case.336
If Hawaiʻi changed its current hybrid system to judicial
elections, the same issues present in the Washington system would plague
Hawaiʻi.337 Cases such as Nelson, which are victorious for minority
rights, would likely be decided differently or would be used as a
benchmark for special interest groups to retaliate against the Judiciary. 338
and justices is essential to maintaining an impartial, exemplary, judiciary.”); Hearing S.B.
2238, supra note 5 (statement of The Hawaiʻi Filipino Lawyers Association) (“We
therefore have much greater faith in the existing judicial selection process, which has
been designed to carefully vet judicial candidates based upon: evaluations from members
of the bar; confidential reports from practicing attorneys familiar with the candidates’
fitness and aptitude for a [sic] judicial posts; as well as public sentiment and comment.”);
Hearing S.B. 2238, supra note 5 (statement of Louise K. Y. Ing) (“Our state already has a
rigorous and balanced judicial selection process administered
by the Judicial Selection Commission and has an established avenue for
obtaining an array of information about judicial candidates in a confidential setting
through the Hawaiʻi State Bar Association’s qualification process.”).
332
See supra Part II, Section B.
333
See supra notes 324, 330 and accompanying text.
334
See Ruhl, supra note 163, at 27; BANNON, supra note 22, at 15; Santos, supra
note 151.
335
See Ruhl, supra note 163, at 27; BANNON, supra note 22, at 15; Santos, supra
note 151.
336
Santos, supra note 151; Brunner, supra note 245; SEATTLE TIMES, supra note
337
See supra Part IV, Section B.
338
See supra notes 228-55 and accompanying text.
245.
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Instead of focusing on the imbalance of separation of powers by
penalizing another branch of government, the focus should be on
strengthening the Judiciary to ensure that Hawaiʻi’s laws are upheld by
capable, qualified, and principled judges.