Let the issue be debated in Constitutional Convention
CONSTITUTIONAL AMENDMENT: BALLOT QUESTION 3
On Election Day, voters will be asked to vote "yes" or "no" on Constitutional Amendment 3, which reads: "Shall the mandatory retirement age of seventy for all state court justices and judges be repealed?"
I URGE VOTERS to vote "no" on ballot Question 3, the proposed constitutional amendment lifting the mandatory retirement age of 70 for judges.
When it was first drafted in 1950, the Constitutional Convention delegates, made up of ordinary citizens, debated whether a mandatory retirement age was necessary. The consensus was that a mandatory retirement age was needed because the untold danger of an incapacitated judge remaining on the bench without any process to remove him or her outweighed any concern about setting a specific age limit.
Since 1950, the delegates to the last two Constitutional Conventions, in 1968 and 1978, specifically and intentionally left the judicial mandatory retirement provision intact.
There are some in the community who support the amendment, lawyers among them, and argue that the mandatory retirement section is discriminatory. They seem to ignore the fact that courts in states as progressive as Vermont, New York and California and in states as conservative as Utah, Idaho and Missouri have all agreed that mandatory retirement at age 70 is nondiscriminatory, constitutional and has a rational basis in the law.
The proposed amendment is the wrong vehicle to amend our state Constitution. The proposal reflects a lack of understanding and respect for what a constitution is. A constitution is the framework that establishes our state government and limits what each branch of government may do. As with our federal Constitution, our state Constitution is a product of a Constitutional Convention, where the people, through their duly elected delegates, debated and decided just what kind of government we would have. A Constitutional Convention is the regular review of how our government is structured in order to determine whether it is responding to our needs. Our state Constitution has a requirement that a Constitutional Convention occur every 10 years. The last convention was held in 1978.
The proper vehicle for the proposed amendment is a Constitutional Convention. A Constitutional Convention would hear from all stakeholders and constituent groups on this issue. Delegates to past conventions included politicians, lawyers, doctors and other professionals and, importantly, included lay people who weren't tied to any particular political ideology. This mix of citizens was able to analyze and evaluate proposals to our Constitution and determine what impact proposals would have and what other corresponding adjustments would be necessary. But that hasn't occurred with this amendment.
WHAT THE supporters of the amendment won't tell you is that under the current system, a judge is never removed unless the judicial selection commission decides, based on substantial evidence and proof, not to reappoint him or her. A process to assess, challenge and remove judges based on ability and competency before reappointment does not exist. Supporters of the amendment are trying to sell the voters on an incomplete and dangerous process.
Other supporters argue that Sen. Daniel Akaka and Sen. Daniel Inouye are examples of seniors living vibrant and active lives well past the age of 70. The comparison is fundamentally flawed. Akaka and other elected officials must prove their ability and competency each election cycle. In the case of judges, they are essentially automatically reappointed, without having to prove their ability or competency. No agency, commission or organization has the authority to assess, monitor or require independent medical testing of judges who wish to stay past the age of 70.
The concerns of the framers of our state Constitution and several other state appellate courts across the country about having to establish such procedures, including a contested hearing to test or prove competency, are completely unaddressed by the proponents of the amendment. What factors have changed either in the structural framework of our government or in our society that would cause us to ignore the warnings and concerns of the Constitution's framers and appeals court judges across the nation and across the political spectrum?
THE STATE Constitution is the structural framework of our government and should not be changed for petty and political reasons. Just because the ruling majority party is displeased with the prospect of Gov. Linda Lingle's re-election and her opportunity to appoint other judges does not give the Democratic Party license to reshape our Constitution.
I ask and challenge the ruling elite to prove why a change to the structural framework of our state Constitution is necessary. I ask and challenge the political establishment to support a Constitutional Convention, where an amendment like this can be discussed in the context of establishing structural and procedural safeguards to monitor and assess the ability and competency of judges who wish to stay past the age of 70.
If proponents are not willing to engage in a broader, structural discussion of our framework of government at a Constitutional Convention then the amendment should be viewed for what it truly is, a cheap, petty, political ploy to enshrine their stranglehold on our government and society. The appropriate time and place for this discussion is at a Constitutional Convention, not in this abbreviated and surreal environment of local partisan politics.
For these reasons, I urge voters to vote "no" against the proposed amendment to Article VI, Section 3, paragraph 3 of the Hawaii state Constitution.
Ted H.S. Hong, a Hilo attorney, served as the state's chief labor negotiator until 2004.