Rodrigues should step down
from judicial panelHis union activities are clearly political
By Gene Ward
and conflict with process of selecting judgesThe biggest challenge in Hawaii has been how to increasingly keep politics out of the courtroom. Until 1978, justices and judges were appointed by the governor and chief justice. That system brought charges of political patronage and a judiciary that was less than excellent in its qualifications and judgment. The 1978 Constitutional Convention amended the Constitution and established the Judicial Selection Commission, but the question is has the commission lived up to its expectations.
Anthony Takitani, vice chairman of the 1978 Constitutional Convention's Judiciary Committee, explained the intent of establishing a commission: "I believe that anyone asked to serve on the Judicial Selection Commission should be willing, perhaps even anxious, to step out of and stay out of any political organization to which he may belong and should be willing to refrain from giving monetary or other support to candidates for elective office."
Despite these good intentions and the subsequent actions of a 1993 Citizens Conference on Judicial Selection that succeeded in getting a handful of reform proposals implemented, the people of Hawaii still believe that the process of selecting judges remains secretive and politicized.
The recent appointment of highly visible union leader Gary Rodrigues to the commission has highlighted the truth of the public's perception. Rodrigues is both a lobbyist and member of a political action committee that actively funds candidates for elected office, and thus fails the acid test regarding not taking an active part in political management or in political campaigns. Additionally, recent inquiries that I've made into the Rodrigues appointment with the Ethics Commission, the attorney general's office and the office of the chief justice, either failed to get a response or were considered inapplicable due to lack of clarity of the law.
The intent of the law appears to very clearly point out Rodrigues' lack of qualifications. Article VI, Section 4 of the Hawaii state Constitution says:
"The commission shall be selected and shall operate in a wholly nonpartisan manner...No member shall run for or hold any other elected office under the United States, the state or its political campaigns. No member shall take an active part in political management or in political campaigns."
If no member is to take an active part in political management or in political campaigns, don't we have enough common sense, or public courage, for this to mean not being a member of a political action committee like the UPW Pac? It would also appear that Rodrigues fails as an appointee to operate in a wholly nonpartisan manner since he has led the lawsuits that resulted in Supreme Court decisions to invalidate the contract for a privately run landfill on the Big Island and to count as no the blank ballots for a new Constitutional Convention.
Nonetheless, the broad language of the state Constitution has created ambiguities and loopholes that allow appointees like Rodrigues to hold seats on the Judicial Selection Commission in spite of the obvious violation of the spirit, if not the letter, of the law. This is a mockery of the law and an insult to the people of Hawaii who believe that no man, or woman, is above the law.
There are two options to solve this problem immediately.
The first option that would help return the confidence of the people of Hawaii to their government and particularly to their leaders is for Rodrigues to do one of two things: 1) Step down from being an officer of the United Public Workers Political Action Committee that funds candidates for office; or 2) Resign as a member of the Judicial Selection Commission which chooses judges and keeps the existing members of the judiciary on the bench.
If Rodrigues chooses neither of these options, the 1998 Legislature should change the language in Article VI, Section 4 of the state Constitution. It should be amended to close the loopholes and tighten the criteria for members of the commission so the "Gary Rodrigues syndrome" will not be repeated in the future.
Specifically, amendments should:
1. Define operating in a "nonpartisan manner" and list activities considered "partisan"; and
2. Define "an active part in political management or in political campaigns" and list activities that fall in this category.
These changes could be achieved through a new constitutional convention or, barring that, through a bill proposed in the state Legislature, but only if Rodrigues will not step down from his political action committee post.
The Gary Rodrigues appointment has demonstrated to the people of Hawaii that while the judicial selection process has come a long way, it is still in need of fixing, and although legal, is a disgrace to justice. You be the judge.
Gene Ward, R-Aina Haina to Hawaii Kai, is serving
his fourth term in the Hawaii state Legislature and has been an outspoken critic
of the judicial selection process in its present form. The opinions in View Point
columns are the authors' and are not necessarily shared by the Star-Bulletin.