Raising Cane
By Rob Perez
Secrecy stirs distrust
in isle judicial reviewHawaii judges are among the most powerful public officials in the islands. They're paid by taxpayers to uphold state law and be final arbiters of often complicated, messy disputes in court.
Yet Hawaii taxpayers have no way of knowing whether individual judges perform their jobs up to snuff on a regular basis. Beyond following a case or two, the public basically is clueless about the overall quality of an individual judge's work on the bench.
Unlike in many other states, residents here are kept in the dark because the evaluations of judges are secret, available only to a select few. That small group includes the Hawaii chief justice, who oversees all state jurists, the nine people who decide whether to retain judges for additional terms, and members of an evaluation review panel that includes several business executives, law professors and retired judges.
In addition to being confidential, the evaluations are run by the Judiciary; that means the court essentially evaluates itself, based on feedback from lawyers responding to court questionnaires.
The end result?
You get a secretive, in-house system that does little to inspire public confidence in the courts, especially when the courts have tended toward excessive secrecy in other areas.
Retired District Judge James Dannenberg, who has been through two confidential evaluations, including one recently for his current duties as a per-diem judge, doesn't think results should be kept secret.
"I'm the guy who believes the light of day always improves things," Dannenberg said.
The issue of how state judges are evaluated is expected to get a lot of attention this year. That's because the lawyer who was elected president of the Hawaii State Bar Association for 2003 has been a key proponent of having the bar perform judicial evaluations and making the results public.
Douglas Crosier says he is hopeful the association board adopts an evaluation system before his term expires at the end of the year.
That will be a tall order.
Some of the most powerful players in the legal profession here oppose the idea, and the legal community is divided on whether the bar should be evaluating judges at all. Whether evaluations should be made public is an even more contentious issue.
"There's so many potential potholes," said Lawrence Okinaga, a local attorney and past president of the American Judicature Society, a national group dedicated to supporting an independent judiciary. "Do the flaws outweigh the benefits? That's the question."
The state Judiciary, led by Chief Justice Ronald Moon, has strongly opposed the notion of the bar conducting evaluations and making results public.
"An independent judiciary means that its judges must make decisions based solely on the facts of a case and the applicable law, not on popular opinion polls or surveys, or the views of special interest groups," read a statement from the Judiciary in response to Star-Bulletin questions. "The importance of preserving an independent judiciary cannot be overstated. Making the results of evaluations public would make judging a popularity contest."
Moon was so opposed to public evaluations that he appeared before the bar's board of directors -- at the invitation of the bar -- twice in 1999 to lobby against such a proposal. Moon was accompanied by the administrative judge for Oahu, another powerful jurist.
Not surprisingly, the proposal went nowhere.
This is how Crosier, who headed the 1999 committee that recommended the proposal, described the meetings with Moon, according to a February 2000 article Crosier wrote for the Hawaii Bar Journal.
"His presence and demeanor, along with the administrative judge of the First Circuit Court, made it all but impossible for the board to openly and honestly discuss the pros and cons of this issue," Crosier wrote. "It was obvious that board members were intimidated by the chief justice's presence and impassioned opposition."
Because of the stormy history between the two men on this issue, the pair met recently to discuss their differences. In a private meeting, they talked about the possibility of reaching a compromise to achieve their shared goal of improving the Judiciary, Crosier said.
"It went very well," he said.
The Judiciary statement said it was open to discussing and working with the bar on the issue of bar-sponsored judicial evaluations. It said Hawaii's system of evaluating judges works well and involves people from outside the Judiciary, referring to the evaluation panel that helps Moon review results with the jurists. It also noted that none of the 12 other states with evaluation programs run by the judiciary make their individual results public.
The chief justice, the statement said, is "open to any suggestions that will enhance or improve the evaluation process without jeopardizing judicial independence."
Whether public evaluations will hurt judicial independence is a subject of much disagreement. Many judges in other states where evaluations are public have raised concerns about their independence, the Judiciary says.
Unlike in Hawaii, however, judges in those states must face voters to retain their seats. The evaluations are supposed to help voters make informed choices. But the publicized ratings also give rise to the danger of judges being swayed by public opinion.
In Hawaii, the nine-member Judicial Selection Commission, not voters, decides whether judges should be retained. That would help offset the concern that public evaluations will prompt some judges to pander to voters.
Adding weight to the push for public evaluations is the fact that the selection commission's deliberations are confidential. That means the public has no idea on what basis a judge is reappointed. When the commission recently decided to retain Moon to another 10-year term, for instance, it received both positive and negative comments about his job performance -- and the public wasn't privy to any of that.
Giving the push even more credibility, two attorneys now holding key positions with the Lingle administration have supported making judicial evaluations public.
Four years ago, Randy Roth, a law professor who now is Gov. Linda Lingle's senior policy advisor, and Mark Bennett, then a private attorney but now Lingle's attorney general, joined Crosier in writing an opinion piece for the Star-Bulletin supporting the bar's evaluation proposal. Roth and Bennett are quick to note that those views, while unchanged, are their personal opinions.
Roth, who also was bar president in 1999, that year took aim at the main argument against having the bar poll its members to do evaluations:
"Opponents argue that it would harm judicial independence, but this assumes the worst about our judges," Roth wrote in a Hawaii Law Journal article. "It also ignores the fact that each judge's rating would be based on a large number of evaluations. The incentive would be to impress every lawyer, not just a select few."
Bennett said he didn't think it would be appropriate for the attorney general's office to take a position.
Some of the other concerns raised about public evaluations include whether the evaluations can be done objectively and fairly and whether they will achieve the desired effect of improving the quality of judges.
Ideally, a state government flush with cash would establish an independent commission whose sole purpose would be to evaluate judges. Six states now have such a system, and legal experts say that is the way to go.
But with Hawaii scrapping for every tax dollar, that isn't likely here any time soon. So the idea of the bar doing evaluations to compliment what the Judiciary already does seems like a step in the right direction and can help the public appreciate the jobs their judges are doing.
The danger of maintaining only a secret evaluation system is obvious.
As Roth wrote in 1999: "Keeping people in the dark and telling them to trust us works only so long in a democracy."
Star-Bulletin columnist Rob Perez writes on issues
and events affecting Hawaii. Fax 529-4750, or write to
Honolulu Star-Bulletin, 500 Ala Moana Blvd., No. 7-210,
Honolulu 96813. He can also be reached
by e-mail at: rperez@starbulletin.com.
