Governor courts prosecutors

A third of appointed state judges owe their jobs to Lingle, and her rivals want to keep her from replacing Chief Justice Ronald Moon

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One of the most enduring and powerful legacies for Hawaii governors is their appointments of state judges.

And it is no different for Linda Lingle, Hawaii's first Republican governor in 40 years.

When she took office in 2002, all judges on the Hawaii Supreme Court, the Intermediate Court of Appeals and the Circuit Court had been appointed by her Democratic predecessors.

Now, with more than 2 1/2 years left in her second and final four-year term, Lingle has already appointed 15 judges, more than a third of the 44 judgeships subject to gubernatorial appointments. She appointed one of five members of the high court, four of the six appeals court judges and 10 circuit judges around the state.

Because they serve 10-year terms, those judges will be on the bench for years after she leaves office in 2010.

Lingle says she picked judges who have prosecutorial backgrounds as a way to balance what she described as a judicial system that did not put enough emphasis on the rights of victims.

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With more than 2 1/2 years left on in her final term, Gov. Linda Lingle already has named 15 of the 44 state judges subject to gubernatorial appointment.

In naming more than a third of the sitting judges, Lingle appointed Jim Duffy to the five-member Hawaii Supreme Court, four of the six judges on the Intermediate Court of Appeals and 10 of the 33 circuit judges throughout the state.

But the governor's most significant appointment would be her replacement of Chief Justice Ronald Moon, who must retire when he turns 70 on Sept. 4, 2010, three months before Lingle's tenure ends.

She would be naming a new chief justice to a 10-year term to head Hawaii's third branch of government, with about 1,700 employees and an annual budget of about $139 million.

The Republican governor has made no secret of her penchant for picking lawyers who are either prosecutors or who have prosecutorial backgrounds. Her motivation, she says, is to balance a justice system that did not have enough of those types of judges.

Her critics say she has gone overboard and created an imbalance the other way, especially on the appeals court.

It is too early, legal observers say, to detect any strong trends by her appointments.

RETIREMENT AGE AT ISSUE

It is the replacement of the chief justice that has generated an ongoing battle at the state Legislature. A Democratic-backed proposal would allow voters this fall to decide whether to lift the state Constitution's requirement that judges retire at 70. If adopted, the measure would allow Moon to remain as chief justice.

"The importance of it (the chief justice appointment) is highlighted by how hard the Democrats are trying to stop me from making it," Lingle says. "They realize the importance of that position."

Lingle, Hawaii's first Republican governor in 40 years, took office in 2002 when all sitting judges on the circuit, appeals and high courts had been named by her Democratic predecessors. (The chief justice appoints the state's district judges, the lowest tier of the judicial system.)

Lingle's 10 circuit judges include former city Deputy Prosecutors Randal Lee and Glenn Kim and former Maui Prosecutor Richard Bissen. But when she tried to elevate Lee to the appeals court last year, some senators complained that she was naming too many prosecutors.

"We felt that was a concern," said Sen. Brian Taniguchi, chairman of the Senate Judiciary Committee, which can reject a governor's judicial appointments. "You wanted someone from the civil bar to be there because you already had a good number of prosecutors."

Lingle, who must make her selections from lists of names submitted by the Judicial Selection Commission, had earlier picked Alexis Fujise, Craig Nakamura and Mark Recktenwald. The three were the only candidates who had substantial prosecutorial experience on each commission list for the three vacancies.

Fujise was a city deputy prosecutor. Nakamura and Recktenwald, chief judge of the Intermediate Appeals Court, prosecuted cases in federal court as assistant U.S. attorneys. Recktenwald was Lingle's head of the Department of Commerce and Consumer Affairs when he was appointed.

After Lee was rejected by the Senate, the governor named Honolulu civil lawyer Katherine Leonard from the commission's list. The Senate approved the appointment.

FOCUS ON VICTIMS' RIGHTS

In a recent interview with the Star-Bulletin, Lingle said the voters elected her partly because they wanted "someone who put the rights of victims ahead of the rights of criminals."

She added, "They wanted a more balanced court. For us that meant more people with that prosecutorial background."

To underscore her point, Lingle said the commission did not provide as much of a variety in the candidates before she appointed two members to the panel.

She said Lee, a career prosecutor who handled major white-collar cases, had applied for various state judgeships 16 times but never made the commission's lists submitted to the governor. Lee made the list for the first time in 2005, when Lingle appointed him as a circuit judge, she said.

"It didn't surprise me that he had never been selected before, because he was a prosecutor," Lingle said. "They didn't select prosecutors as a rule."

But some point out that prosecutors were named to the bench before she took office.

Former Gov. Ben Cayetano, who served eight years before Lingle took office, said he appointed four judges who had prosecutorial backgrounds, including Steve Alm, the former U.S. attorney and former city deputy prosecutor.

The former governor said he has no problems with the few Lingle appointments that he knows, but said her remarks about picking judges who put rights of victims ahead of rights of criminals assumes anyone charged with a crime is guilty.

"That may be politically correct, but it is irresponsible coming from a governor," Cayetano said.

To legal observers the impact of rulings by Lingle's appointments are difficult to assess at this point. The state Judiciary does not track decisions by circuit judges, and observers say it is too early to see any trends among the appellate judges.

City Prosecutor Peter Carlisle, who calls Lingle's appointments "appropriate and well thought out," said career prosecutors did not have much of a chance of getting on the bench in the past.

He said he has not noticed any trends, but has the impression from feedback by his deputies that "the field has been leveled to some extent."

State Public Defender Jack Tonaki said circuit judges generally seem to approach issues from "more of a prosecutorial perspective," but added that that is true of many trial judges when they start out, regardless of their background.

"When they first get there, they tend to side with what they see is safe, and oftentimes that's (deciding) with the prosecutor," he said.

Tonaki said that as a defense attorney, his concern is with the "imbalance of judges" with prosecutorial backgrounds on the Intermediate Court of Appeals.

Because of a 2006 state law, all appeals from the lower courts now go to the appeals court.

The parties can ask for a transfer to the Hawaii Supreme Court for limited reasons such as a question of the constitutionality of a state law, a novel legal issue or a sentence of life without parole, the state's harshest penalty.

Previously, all appeals went to the Hawaii Supreme Court, which assigned cases to the appeals court.

The latest figures show that the appeals court rulings, which are binding on the lower court judges, were the final say in an overwhelming number of appeals it handled.

During the first year of the new law, the appeals court issued 360 opinions, according to Recktenwald. The losing side asked the high court to review the decisions in 151 cases. Of those the high court accepted only 31. It overruled the appeals court in 21 cases, partly affirmed and partly overturned four decisions and affirmed six decisions.

The result is that the appeals court made the final decision in more than 90 percent of its cases.

Deborah Kim, head of the public defender's appeals division, said she is concerned that judges with prosecutorial backgrounds might roll back the Hawaii courts' tradition of expanding the rights of criminal defendants and others under the state Constitution.

An example is a Hawaii Supreme Court decision that prohibits "walk-and-talk" practices, by which police ask people to voluntarily submit to searches, then charge them if drugs or other incriminating evidence are found. Federal courts have ruled that the practice does not violate the U.S. Constitution.

MORE 'COLLEGIALITY' NOW

Besides her appointments, another way Lingle has influenced the state Judiciary is calling the Hawaii Supreme Court "dysfunctional" in an April 2003 speech. She cited a backlog of cases, the lack of oral arguments and a "lack of collegiality" among the justices.

Some lawyers applaud the speech.

"It had a real positive effect to the extent that the people who had the ability to change things did take a look at how things had been for many years, and for better or worse, I think that accounts for the major shift in the court system" in providing the appeals court with more authority, Kim said.

Both the high court and the appeals court currently hold oral arguments. And Recktenwald said he is confident they will be able to make significant progress in cutting down the appeals cases backlog.

As for the lack of collegiality among the justices, Lingle said her appointment of Duffy to the Supreme Court improved the situation.

She said Duffy was an outstanding lawyer and that she also appreciated his style. Even if there is a disagreement, "he won't do it in a disagreeable way, and I thought that was important."

Although the court still issues splintered decisions at times, the tone of the opinions is not as combative as it was in the past.

Lingle said she has not heard much criticism about the court and would not characterize it as dysfunctional today.

"I think most people would agree that there has been change," she said.