Rejected judges
remain in dark

The judicial retention process
in Hawaii favors confidentiality
over accountability


Judging the judges

Review is extensive
Who decides

Almost all state judges removed since 2001 have been women.

The state system for evaluating the fitness of Hawaii judges is so secretive that judges facing retention have been nudged off the bench without explanation to the public.

The constitutionally mandated confidentiality is applied so completely that the public isn't told when a judge is deemed unfit to serve another term -- unless the panel that evaluates jurists, the Judicial Selection Commission, takes the rare step of issuing a public order denying retention.

Even the judges are kept in the dark about why their jobs are ending. When they are rejected, as six have been since 2001, they aren't told why.

The evaluation process is comprehensive enough, however, that jurists -- who are interviewed at least once by the commission before a retention vote is taken -- should have a good idea why they are unable to keep their jobs, according to proponents of the system, which is considered a model by many mainland judges and lawyers. But some Hawaii jurists question whether the secrecy-laden system provides adequate due process and accountability.

In the absence of any publicly stated reasons for a judge's failure to be retained, remaining jurists are left to speculate, creating an uncertain environment that some say can affect judicial independence. Some judges may temper decisions to avoid controversy or delay controversial decisions until after their retention votes, according to some judges and lawyers.

James Dannenberg, a retired district judge, said he knows colleagues who delayed issuing controversial decisions for months until after their retentions were approved. In one case, the delay was more than a year, Dannenberg said. He declined to provide names of the colleagues involved.

"I'm telling you the judges I speak to are very nervous about this (system)," said Dannenberg, who still does per-diem work on the bench. "It takes a very good judge to decide, 'I'm not going to be swayed by this.'"

The secretive system also leaves the public unable to gauge how fairly the selection commission, on behalf of the public, does its evaluations, especially in the more controversial retention cases. Because commission proceedings by law are confidential, people basically have to trust that the nine-member panel operates in an even-handed manner behind closed doors, doing work that is vital to the integrity of the judicial system.

"There is, in effect, no way to either validate or criticize the way the JSC handled matters because there is no way to know how those matters were, in fact, handled," said a Hawaii committee of the American Judicature Society in a report last year.

But proponents of the system say confidentiality, besides being required by constitutional and statutory provisions, is essential to soliciting candid comments about judges.

If the process wasn't completely confidential, many lawyers would refuse to provide critical testimony out of fear the targeted judge or others on the bench might learn who gave the testimony and retaliate in the courtroom, the proponents say. That fear, they said, is widespread in Hawaii's legal community.

"There can be no compromise," said Rosemary Fazio, one of four attorneys on the commission. "If confidentiality is not absolute, the system couldn't function."

"It's a little bit disturbing. If I was in that much jeopardy, at the close of the interview I should have known that." --Sandra Simms, First Hawaii jurist in more than a decade to be formally denied retention

Just how secretive the system is was underscored earlier this month when Circuit Judge Sandra Simms became the first Hawaii jurist in more than a decade to be formally denied retention. The commission's public order, which cannot be appealed, gave no reasons for the denial. And Simms said she was given no explanation.

That's akin to being laid off or fired without being told why.

"It's a little bit disturbing," said Simms, who last week completed a 10-year term. During that term, Simms was the target of occasional public criticism for controversial decisions in high-profile criminal cases.

Even though the commission during its interviews can question judges about concerns over job performance, Simms said she left her roughly one-hour interview session in early April with no sense one way or the other about her prospects for retention.

"If I was in that much jeopardy, at the close of the interview I should have known that," Simms said.

Commissioners declined to discuss Simms' case because of the confidentiality requirements, which puts them in an awkward position. "We are unable to defend our decisions," said attorney Sid Ayabe, the panel's chairman.

David Fairbanks, a lawyer who served on the commission from 1995 to 2001, the last year as chairman, said he believes the retention process is comprehensive enough that a judge should know what concerns the commission has. "The issues are certainly raised, and judges are given an opportunity to address them," he said.

But University of Hawaii official Amy Agbayani, who served on the commission from January 2001 to April 2003, the last year as chairwoman, recalled the 2001 case of Judge Diana Warrington, who Agbayani said was surprised by the commission's decision not to retain her. Warrington had no clue her retention was in trouble, Agbayani said. Warrington declined comment.

Dannenberg, the retired jurist, said judges have told him they were put on the spot to address newly raised concerns and considered the process unfair. "They felt blind-sided."

The AJS committee report noted that judges give up the right to due process in exchange for confidentiality. The committee, consisting of judges, lawyers and lay people, recommended that judges be confronted as directly as possible with any negative material that could affect their retention and be allowed to have a follow-up interview session if requested.

"While there may be an argument that judges should be able to handle anything tossed their way, the committee believes that the purpose of the JSC is to create the fullest possible picture of the judge's service and that is not necessarily gathered by surprise," it said.

Citing the confidentiality restrictions, Ayabe and other commissioners said they couldn't say whether the commission holds second interviews with judges to discuss specific concerns. Simms said she only had one session.

But attorney and commissioner Arthur Park said the panel raises concerns in such a way that a source's confidentiality isn't breached, and the judges can then respond to the concerns. Park and other commissioners said they believe the process is fair.

"We're very conscious of careers being on the line," Park said. "There's no way we take this lightly."

Since September 1990, when District Judge Marilyn P. Lee's bid for a second six-year term was rejected, Simms has been the only judge to be formally denied retention. But over the past three years, five other judges who submitted retention applications each failed to garner the five required votes -- a majority of the commission -- to keep their jobs.

Instead of forcing those judges off the bench, though, the commission let them withdraw their retention applications before the formal rejection orders were filed. Once the applications were withdrawn, the judges retired.

While sparing judges the embarrassment of a formal rejection, the practice presents a misleading picture to the public: Namely, that virtually all Hawaii jurists are fit to be on the bench and only leave upon retirement or for other benign reasons.

In two of those five retirement cases, judges Riki May Amano and Sandra Schutte publicly disclosed that they were withdrawing their retention applications after they were told the commission rejected their requests for another term.

In the three other cases, involving judges Warrington, Gail Nakatani and David Fong, the public was told only that they retired. Four of the five judges declined comment or didn't respond to requests for comment. Fong could not be reached.

Simms also was offered the option to withdraw her application but declined it.

Asked why the commission uses a practice that provides a misleading picture to the public, Ayabe, the chairman, said, "I think that's a very valid point you raise."

Stressing that he was speaking personally and not for the commission, Ayabe said the practice of offering judges the withdrawal option balances the public's right to know with compassion for jurists not being retained. In the end, he said, the public benefits by having a judge deemed unfit by the commission off the bench.

"The system in my opinion is good," Ayabe said. "If someone can come up with a better one, I'm all ears."

One indication that the system works well, according to lawyers and others familiar with it, is that many people throughout Hawaii's legal community believe the retention process is fairer and less political than what was in place years ago, when the panel was known for political dealings.

Even the AJS, a group dedicated to an independent judiciary, noted in last year's report that the current system was excellent, and recommended simply to make it better.

And Hawaii's merit-based process garners praise from many legal professionals on the mainland.

Simms, despite her rejection, is among those who favor keeping the merit system, though she said some areas need to be improved.


Comprehensive review
awaits judges seeking
to stay on Hawaii bench

All comments about the jurist are secret

The application is 23 pages long.

If a sitting judge in the state court system wants to be retained for another term, the process for gaining approval is a comprehensive one.


Here are the main criteria the Judicial Selection Commission uses to consider whether to approve a judge's application for another term:

>> Integrity and moral courage
>> Legal ability and experience
>> Intelligence and wisdom
>> Compassion and fairness
>> Diligence and decisiveness
>> Judicial temperament
>> Other qualities the commission deems appropriate

The Judicial Selection Commission, the nine-member panel that determines whether judges can keep their jobs, asks the jurists everything from what charitable organizations they are active with to what were the most challenging legal issues they dealt with on the bench. Code of conduct issues get lots of attention.

Judges interested in being retained must apply at least six months before their terms expire. Circuit judges serve 10-year terms, district judges, six years.

Once the application is in, the commission starts a lengthy, time-consuming process to evaluate the applicant's fitness for remaining on the bench. The seven main criteria range from legal ability and experience to judicial temperament.

The commission solicits comments from lawyers, court personnel, parole officers, police officers and others who may have frequent dealings with the judge. Comments from the public also are solicited. All the comments, by law, are confidential, so the judge isn't allowed access to the testimony.

The commission also reviews confidential evaluations conducted through a Judiciary-organized survey of lawyers and one just started by the Hawaii State Bar Association.

Toward the end of the review, the panel invites the judge in for at least one interview, during which the jurist is supposed to address any major concerns that surfaced in the information-gathering stages.

A majority of five commissioners is needed to approve a retention petition.

Besides handling retentions, the panel's other main job is to come up with qualified candidates who can be considered by the governor or the chief justice, depending on the position to be filled, for appointment to the bench. The nominee must be selected from the list forwarded by the commission and then confirmed by the Senate.


Key players

Who's who on the Judicial Selection Commission:

Sidney Ayabe, Chairman

Occupation: Lawyer, partner in Ayabe, Chong, Nishimoto, Sia & Nakamura in Honolulu
Term ends: 2007
Appointed by: Hawaii State Bar Association election

Melvin Chiba, Vice Chairman

Occupation: President/CEO, Kauai Community Federal Credit Union
Term ends: 2008
Appointed by: Senate president

Rosemary Fazio, Secretary

Occupation: Lawyer, partner in Ashford & Wriston's Honolulu office
Term ends: 2009
Appointed by: Hawaii State Bar Association election

John Edmunds

Occupation: Lawyer, partner in Edmunds Verga & Thorn in Honolulu
Term ends: 2005
Appointed by: Senate president

Thomas Fujikawa

Occupation: Retired chief executive, Local Union 1186 of International Brotherhood of Electrical Workers in Honolulu
Term ends: 2009
Appointed by: House speaker

Dr. Philip Hellreich

Occupation: Clinical dermatologist, Kailua Dermatology Associates
Term ends: 2009
Appointed by: Governor

Arthur Park

Occupation: Lawyer, partner in Park Park Yu & Remillard in Honolulu
Term ends: 2005
Appointed by: Governor

Lois Suzawa

Occupation: Assistant vice president, Island Insurance Co. in Honolulu
Term ends: 2007
Appointed by: Chief justice

Lionel Tokioka

Occupation: Board chairman, CB Bancshares in Honolulu
Term ends: 2005
Appointed by: House speaker
All terms end April 1 in year listed


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