[ OUR OPINION ]
Make judicial commission
accountable to publicHAWAII'S judiciary often acts in mysterious ways, largely because much of its activity is secret. The decision of whether to retain a judge for an additional term is entirely cloaked, opening the system to charges of discrimination. The system should allow a modicum of explanation for rejection of extra judicial terms to provide public accountability.
THE ISSUE
Five of the six judges who have been denied additional terms during the past three years are women.
Five of the six judges who have been denied extra terms by the Judicial Selection Commission since 2001 are women, and the most recent reject -- former Circuit Judge Sandra Simms -- is black. Her rejection prompted a letter to this newspaper by Daphne Barbee-Wooten, president of the Afro American Lawyers Association of Hawaii, suggesting both sex and race discrimination were the reason for Simms' rejection. Faye Kennedy, first vice president of the NAACP, called the rejection "shameful."
The nine-member commission conducts a lengthy evaluation of a judge after being notified at least six months before the term expires that the judge wants another -- 10 years for circuit judges, six for district judges. Near the end of the review, the judge is invited for at least one interview. Simms says she left her single interview with the impression that she was not "in that much jeopardy" and was not given an explanation.
That's hard to believe. In high-profile cases, Simms displayed leniency in sentencing that was roundly criticized as taking judicial discretion to new extremes. It would be surprising if that conduct were not the reason for the rejection of her serving another term on the bench.
Simms is the only judge recently who was formally rejected. The other five were advised that they would be rejected and given an opportunity to save face by withdrawing their applications for another term. Two of those -- Riki May Amano and Sandra Schutte -- publicly disclosed that they had received such notices. The public was told only that the other three identified by Barbee-Wooten as having been rejected -- Diana Washington, Gail Nakatani and David Fong -- had retired from the bench.
Fong had been accused of financial impropriety for a judge, but the public has no indication why the others were rejected. Amy Agbayani, a commission member from 2001 to 2003, told the Star-Bulletin's Rob Perez that Warrington had no clue that her retention was even in danger until being told outright that she would be jettisoned.
A Hawaii committee of the American Judicature Society, an organization of judges, lawyers and other citizens, pointed out last year that there is no way to evaluate the way the Judicial Selection Commission handles the reappointment of judges "because there is no way to know how those matters were, in fact, handled." The committee added that judges give up the right to due process in exchange for confidentiality. The arrangement compromises the public's right to know how the government is functioning, a right that should be restored.
