Saturday, July 24, 1999

Bar association’s plan
to publicly rate Hawaii judges
could compromise
system’s fairness

Massie trial illustrates need for unfettered judiciary

By L. Richard Fried and Kenneth S. Robbins
Special to the Star-Bulletin

WE have an excellent judiciary in the islands. While we acknowledge that improvements can always be made, the proposal now before the board of directors of the Hawaii State Bar Association -- that would allow practicing attorneys to evaluate local judges and then make those evaluations available to the public -- should not be approved.

We already have a system in place for evaluating judges. Six years ago, a permanent judicial performance program was commenced under what has been referred to as Rule 19. A part of that program includes the mandate that lawyers must evaluate, in writing, the trial process immediately following lawsuits that they have tried.

In addition to being asked to comment on other aspects of the trial, including some novel innovations (such as allowing jurors to ask questions throughout a trial), attorneys are also asked to comment on the performance of the trial judge. Areas to be scrutinized include the judge's preparation for the proceedings; a grasp of factual and legal issues; consideration of attorneys, the parties and the jury; and the overall fairness of the judge.

Those forms are compiled and forwarded to the chief justice for evaluation and action.

On the basis of our contact with the courts, we understand that Chief Justice Ronald T.Y. Moon has utilized the lawyer evaluations to work to reinforce the strengths of each judge, and to assist in eliminating weaknesses noted on the lawyer evaluation forms.

For example, the chief justice has suggested that video cameras be utilized in some courtrooms to assist judges in evaluating their body language, which may inadvertently signal to the jury how the judge feels about a case.

We believe that such use of the current lawyer evaluation system under Rule 19 is appropriate. There is no reason to make public the lawyers' evaluations of judges.

In fact, this may be harmful to the fairness and independence of judicial proceedings. In states in which evaluations of judges have been made public, the following have occurred:

1) Because judges may wish to remain popular with respect to public ratings, they may be more inclined to rule on issues of law that favor the majority view within the populace, but which may not be what justice requires in a particular case.

2) In states that publicize evaluations of judges, these jurists must go through a process known as retention elections. The electorate votes on whether judges should be retained. Clearly, publicizing evaluations of judges in those states provides the electorate with information upon which a voter may cast a more knowledgeable vote.

But Hawaii does not elect its judges, nor should it. If publicizing judge evaluations may influence unduly judicial proceedings, the election of judges would distort judicial proceedings even more.

It is essential that judges remain free from political, public and financial pressures of the powerful and wealthy. In recent months, we have seen examples of judges making rulings that were contrary to what many people perceive to be part of the power structure in Hawaii.

There are other circumstances or lawsuits in which the popular view does not constitute justice. Judges must remain indifferent to what may or may not be popular and base their rulings on what the law and justice require.

Our judges have recently been granted a 4 percent pay raise, their first salary hike in nine years. This is still a far cry from adjusting their compensation to reflect cost-of-living increases over this period of time, which results in effectively decreasing their compensation.

As a result, we have lost a number of experienced and competent judges because the private practice of law, or working as private arbitrators or mediators, is much more lucrative than serving as a judge.

To now publicize the evaluations of judges -- which in many instances may contain "sour grape" comments by attorneys who do not win their cases -- would put additional undue pressure on them.

Rather than creating a new pro-cess and an additional expense to implement that process, we urge the HSBA board to consider working with the judiciary to improve the process already in place.

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L. Richard Fried and Kenneth S. Robbins are
Honolulu attorneys whose firms customarily represent opposing
sides in civil lawsuits, plaintiffs and defendants, respectively.