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Posted on Jan 22, 1997 in Speeches


by the


Chief Justice

Supreme Court of Hawai`i

Wednesday, January 22, 1997
10:00 a.m.
Senate Chambers; State Capitol

Governor Cayetano, Mr. President, Mr. Speaker, Lieutenant Governor Hirono, distinguished members of the Nineteenth Legislature, former Chief Justice Richardson, my fellow judges, other public servants, and special guests:

It is a great honor and privilege to be the first chief justice invited to deliver the State of the Judiciary address to a joint session of the Hawai`i State Legislature. I thank the leadership and members of the Nineteenth Legislature for this opportunity and hope that this is the birth of a longlasting tradition. I truly believe that this historic event is as important in its symbolism as it is in its substance and that it marks the beginning of a new dialogue and cooperative spirit among our three branches of government as we pursue our shared goal of providing for the common good of the people of Hawai`i.

The state of the judiciary is sound, but it is fragile because it has no political constituency and is dependent upon the executive’s and legislature’s willingness to maintain the judiciary as a strong, independent third branch of government. Thus, I take this opportunity to comment on the importance of preserving an independent judiciary, to apprise you of the current state of affairs within our third branch of government, and to share with you some of our plans for the future. I promise not to bombard you with statistics, and, because I realize that you have much work to do, I will be brief, which I’m sure everyone understands is a relative term — especially when a person in the legal profession uses it.

Standing before you today reminds me of speaking at a business conference several years ago. After my presentation, one of the organizers asked me whether it bothered me to see some of the attendees looking at their watches while I spoke. I said, “No, not until they started shaking them!”

Since most of us here today are associated with one of the three separate, independent, and equal branches of government — please feel free to shake your watches at any time.

As you know, tri-partite government in Hawai`i is a relatively recent development as compared to the federal system and many of the other states. Under the rule of absolute monarchy, all executive, legislative, and judicial powers — as we understand them today — were vested in the Monarch, along with his advisory council of alii. However, soon after the arrival of Western missionaries to the Islands in the 1820’s, the concept of tri-partite government began to replace the existing monarchy as evidenced by the Constitution of 1852, which laid the foundation for our present structure.

Since statehood and the adoption of our State Constitution in 1959, legislative actions have reaffirmed the concepts of the separation of powers and judicial independence. For example: (1) in 1974, legislation afforded the Judiciary full authority to develop its own budget, free from executive control, and to receive and disburse its own monies; (2) in 1977, the legislature conferred upon the Judiciary the ability to fully develop and administer its own system of personnel administration; and (3) in 1979, judicial independence was further solidified by legislation that created the Commission on Judicial Conduct and that bestowed upon the Supreme Court full authority over judicial discipline.

Although the phrase “separate, independent, and equal branches of government” may suggest to some that there are no limits as to what each branch can do, such perception is, of course, inaccurate. The system of checks and balances, built into our system of government, has, at its core, the purpose and intent of protecting our citizens against one branch becoming too powerful and of guarding against the potential for excesses and abuses of power. Therefore, as each branch asserts its constitutional independence, discord and tension may arise as a natural consequence.

For example, the courts are sometimes characterized as legislating from the bench, that is, making or remaking the law. When deciding cases, judges often apply common law, statutory law, or constitutional law to new facts and circumstances. In so doing, we do not intend to usurp the legislative function. However, under our system of checks and balances, if we stray into legislative perogative, the legislature has the ability to cure the trespass. As you know, in our legal system, statutes trump common law, and constitutions trump statutes. We are ever mindful that the legislature — the peoples’ representatives — hold the highest trumps. That is, the peoples’ representatives have the authority, within constitutional limits, to write or rewrite statutes and to propose amendments to our state constitution.

Thus, although none of the branches are absolutely independent due to the system of checks and balances, each branch must maintain its independence in order to carry out its constitutional duties.

Judicial independence, as it relates to judges, means that our decisions must be based solely on the legal merits of a case — not on popular opinion polls or surveys, or views of special interest groups. In the words of United States Supreme Court Chief Justice Rehnquist, judicial independence is “one of the crown jewels of our system of government today … and is essential to [the Judiciary’s] proper functioning and must be retained,” which brings me to a subject that has, in recent years, been discussed at the legislature and which I understand may once again surface during this session, that is, the subject of the election of judges.

Throughout my thirty-one years in the legal profession, I have observed that, whenever a court’s ruling is not in accord with the views of some of our citizens, they will cry out for reforms, such as the election of judges. As you know, the federal system, long ago, shunned the elective system in order to protect and maintain judicial independence. And, presently, several elective-judge states are either considering, or are in the process of adopting, a non-elective process similar to that which currently exists in our state. I submit that, if we are interested in strengthening our government process, any move toward electing judges would be a step backwards.

In our system of representative government, the premise that members of the legislative branch and the heads of the executive branch of government should be elected by the people they each represent, that is, their constituents makes good sense. They are, under our system of government, guided by popular opinion and are expected to carry out the will of the people. On the other hand, judges are prohibited from having constituents or from engaging in politics because our decisions must be based solely on the legal merits of a case. And therein lies the crucial distinction between judges and representatives of the legislative and executive branches.

If judges were elected, they would necessarily be compelled to raise campaign funds. Consider: Where will these contributions come from? Judges in elective states obtain hundreds of thousands of dollars in campaign contributions mainly from lawyers, who appear before them, and special interest groups, whose cases may be decided by them, raising serious conflicts of interest and appearances of impropriety.

I am not saying that disagreeing with a court’s ruling is wrong or that we are above criticism. What causes great concern is the type of uninformed, emotionally-based criticisms that we’ve recently read in letters to the editor or heard about on radio talk shows that have resulted in such recommendations as prorating judges’ salaries based on the length of the sentences they issue. As judges, we welcome and respect informed or “principled” criticism, which is part of our American legal tradition. In the words of William Henry Hastie, one of the most distinguished legal figures of this century and the first Black judge appointed under Article III of the federal constitution:

Principled criticism serves as an invaluable corrective of otherwise unrealized error. But such criticism is quite different from outcry against the courts from those who seek to make them partisan: whether pro-management or pro-labor, pro-prosecution or pro-defense, pro-government or pro-private citizen, pro-injured party or pro-insurer. Any attempt to make the courts partisan, or to cause the public to want partisan decisions, is, at best, a misconception of the judicial role and, at worst, an effort to prostitute the courts and subvert their assigned function: the rational adjudication of controversies in accordance with the law.

Speaking of public “misconception of the judicial role,” I submit that underlying much of the criticism about judges and the courts is a misconception or misunderstanding — by the public, the media, and even sometimes by legislators — of our justice system. Such misunderstanding can undermine the effectiveness of the Judiciary and can erode the community’s trust and confidence in the courts.

One popular misconception is that the Judiciary is responsible for releasing into the community arrested persons who have a history of multiple arrests. The fact is that the courts play no role in the arresting or charging process. The police, or prosecutors, may decide — and rightly so — to release an accused, pending further investigation or because of a lack of evidence.

Public misconception of the judicial process is probably most apparent in the area of sentencing. The judge, of course, is the most visible figure when sentence is pronounced. A judge imposes a prison term or grants probation (that is, no prison term) in accordance with the applicable sentencing statutes. Once a term of imprisonment is imposed, however, the determination of how long a defendant actually stays in prison passes to others in the executive branch. The very serious problem of prison overcrowding has compelled the Department of Public Safety and the Paroling Authority — not the courts — to release defendants into the community before their sentence has been fully served. The fact that the Department and the Paroling Authority have no alternative is a mockery of legislative intent and of our judgments. As such, the Judiciary fully supports the Governor and those legislators who are calling for more prison space.

Another public misconception is that, unless judges are in their courtrooms handling trials, they are not working. Admittedly, a judge’s work is most visible when he or she is sitting on the bench. The fact is, however, that a large part of a judge’s work is done outside the courtroom. Judges spend countless hours reviewing motions, legal memoranda, and other documents in preparation for trials, hearings, conferences, and so forth. Judges are also involved with various Judiciary, community, and charitable boards, commissions, and committees, actively working for the improvement of our judicial process and to fulfill our obligation and responsibility to inform and educate the public about the operation of their judicial system.

I have taken the time to speak on these matters of uninformed criticisms and misconceptions of the Judiciary because I firmly believe that these and other misconceptions must be corrected if we are to keep and deserve the public’s trust and confidence and to preserve judicial independence. The late Supreme Court Justice Thurgood Marshall once said, “We must never forget that the only real source of power that we as judges can tap is the respect of the people.” Without public confidence in an independent Judiciary, court orders and judgments would be rendered meaningless, legislative intent would be undermined, chaos would reign, and our system of government would surely deteriorate.

In our continuing efforts to inform and educate, we are currently organizing a media/judiciary workshop to promote dialogue and cooperation in the exchange of information to facilitate the concerns of both sides pertaining to the reporting of judicial news and the obtaining of judicial information. Also, for the past two years, the Judiciary has invited members of the Legislature to learn more about the judicial process through our Day-in-Court Program. Some of you have participated in the Program and have remarked how valuable the experience was. The invitation remains open to all of you to spend a day with us at your convenience.

Let me now take a few minutes and present to you an assessment of Hawai`i’s Judiciary. I must say that after the past year, with its budgetary cuts and RIFs, I wondered when December 31, 1996 rolled around whether the Judiciary was entering 1997 or evacuating 1996.

I share with you four major observations about Hawai`i’s Judiciary. First, in spite of the economic straits and having to do more with less, Hawai`i’s Judiciary is one of the best judicial systems in the nation.

The excellence of Hawai`i’s Judiciary is the result of the commitment and dedication of all of its employees to deliver the highest quality judicial service to the citizens of Hawai`i. Hawai`i has much to be proud of its Judiciary. Among our recent professional accomplishments are: (1) a Special Merit Citation from the American Judicature Society for our Domestic Violence Backlog Reduction efforts; (2) an award from the National Institute for Dispute Resolution presented to our Center for Alternative Dispute Resolution for its significant contributions to innovation in public dispute resolution; and (3) the City’s “Project of the Year Award,” honoring the District Court of the First Circuit for its Officer On-Call Program.

It is often said that the quality of justice is determined by the quality of judges. Since the inception of the Judicial Performance Program, judicial evaluations statewide indicate that our trial judges have been uniformly rated by attorneys who appear before them as possessing good judicial management skills, comportment, and legal ability, thus providing objective proof that Hawai`i’s judicial selection process works. The Program is being expanded to include per them judges, and, thereafter, will include all appellate court justices and judges.

In addition to serving as an invaluable tool for individual self-improvement and planning for continuing judicial education, these evaluations are also available to the Judicial Selection Commission to assist in its review of applicants for appointment or retention. We judges welcome such accountability.

Our justices and judges have been working tirelessly to address the many critical issues brought before them. In September 1996, the appellate courts instituted temporary, emergency procedures to deal with the large inventory of pending and aging appeals, which numbered 1,327 at the end of fiscal year 1996. Recognizing that the liberty, financial, and emotional interests of your constituents required a more timely disposition, we appellate judges were compelled to resort to issuing summary disposition orders in some cases, memorandum opinions in others, and full, published opinions in only the rarest cases. I wish to emphasize that, notwithstanding these emergency measures, all of the justices and judges have and continue to carefully review and fully consider each case.

Since September, the number of cases disposed of by way of disposition orders and opinions has more than tripled. And, although we are pleased with these results, we appellate judges strongly believe that litigants are entitled to full, explanatory opinions. We therefore find ourselves with conflicting goals — that is, timely dispositions via summary disposition orders and shorter memorandum opinions versus issuing full, explanatory opinions that take much more time to write.

Consequently, it is becoming increasingly obvious that neither goal will be adequately met under the current situation. In order to maintain a responsive and effective system of appellate review, the Judiciary is seeking authorization for additional positions on our Intermediate Court of Appeals this legislative session.

My second observation is that, although resources are scarce, the Hawai`i Judiciary continues in its effort to provide the people of Hawai`i with accessible forums for the fair and prompt resolution of disputes, without undue hardship, cost, or delay. The Judiciary continues to research and develop alternative dispute resolution or ADR mechanisms, such as arbitration or mediation. Currently, we have in place eleven ADR programs at all court levels — district, family, circuit, and appellate — that enable parties to utilize various ADR mecha
nisms to resolve their cases outside the courtroom. One of our most recent developments in this area is the mediation program at the appellate level. Although some practitioners initially expressed reservations about the possible success of mediation at such a late stage in a case, forty-one percent of the 102 appeals that have been processed through the Program were completely settled. In another seven percent of the cases, the parties either narrowed the issues on appeal or reached partial settlements. Such positive results are due in large part to the skill of our mediators — that is, retired justices, judges, and semi-retired, seasoned members of the Bar, serving entirely on a pro bono or free of charge basis.

Our continuing efforts to expand alternative dispute resolution are not limited to the appellate courts. New trial court rules require attorneys to meet face-to-face — early in the process — to discuss whether ADR is appropriate, and the judge now may order the parties to participate in a specific ADR process.

We are mindful that ADR is a complement to our adjudicatory system of justice, not a substitute for it. The importance of ADR programs, however, cannot be underestimated as they play an important role in helping to ensure that judicial resources are preserved for those cases most likely to benefit from the traditional trial or adversarial process.

In our efforts to provide access to the courts by all of our citizens and to address public concerns about our judicial system, the Judiciary wholeheartedly supported, through its co-sponsorship with the Hawai`i State Bar Association this past Fall, the Citizens’Conference on the Civil Justice System. Through this Conference, the Judiciary and the Bar created an opportunity for Hawai`i’s citizens to suggest tangible ways to improve our civil justice system. Over a three-month period, more than 300 members of our community responded to the call for solutions and action. Their hard work culminated in a one-day Citizens’Conference where, through consensus, a number of recommendations were made. The Judiciary is committed to making those recommendations that relate to it a reality.

Of particular significance is the Citizens’ Conference recommendation regarding a statewide court interpreter program. As a result of Hawai`i’s rich ethnic diversity, twenty two and a half percent of your constituents do not speak English at home. This figure — the fourth highest in the nation — has significant implications. If the Judiciary is to be truly “accessible” to all, we must be able to service the non-English speaking public. We have trained our judges on the effective use of court interpreters, and we have begun to recruit and register interpreter candidates. Our biennium budget request includes a full-time position to coordinate our efforts in this critical area, and we respectfully seek your support.

In another effort to make Hawai`i’s courts more accessible, the Supreme Court adopted what is now commonly referred to as “The No-Bounce Rule.” The rule essentially provides that the courts must accept all documents presented for filing, regardless of form. Although this means more work for the clerks and judges, the nobounce policy has been well-received by the Bar, individuals who represent themselves, and other court users and represents our on-going commitment to promote substance over form.

In the current difficult fiscal environment, the public and private sectors alike are turning to technology to help do more with less. The Judiciary is no exception. Accessiblity to court information was recently enhanced through the development of the Judiciary Homepage, where you can now find information about caseloads, description of programs, and the latest Judiciary news and where we hope you will eventually be able to find court rules, forms, and information on more substantive matters.

The Video Conferencing Pilot Project, initially used to conduct arraignment and plea hearings for in-custody defendants at OCCC, was recently expanded, allowing public defenders and adult probation workers to conduct client and intake interviews from their offices with defendants at OCCC. In 1996, the project was awarded additional monies from the Byrne Foundation to evaluate expanding the use of video conferencing even further. Your investment in this project has saved our citizens money and time.

And, just a few weeks ago, the Judiciary formed a public/private partnership for the creation of a document and information access and retrieval system for the First Circuit Court, at no cost to the taxpayers. When completed, attorneys will be able to access and print a case document at their computers, twenty-four hours a day, seven days a week, and the public will have free access to the imaged documents via computers placed in public locations.

In addition, we recent ly turned our attention to utilizing electronic document filings and digital signatures in response to Act 203 of the 1996 Legislature.

The Judiciary’s Capital Improvements Projects are the most tangible signs of our dedication to making justice accessible. The proposed Family Court Center in Kapolei is a bricks-and-mortar example of our efforts to provide as many avenues as we can through which your constituents may protect their rights. I therefore remain staunch in my support of a Family Court Center in Kapolei.

My third major observation is that Hawai`i’s Judiciary remains flexible in our approaches, consciously seeking out more culturally appropriate dispute resolution alternatives. We recognize that, as the cultural makeup of our society becomes more diverse and the types of conflicts become more varied, our Western form of dispute resolution may not always be the most appropriate. The Judiciary has therefore joined the Department of Human Services — for example — to develop the ‘Ohana Conferencing Project in Waianae, where professionals work with the extended family to design a service plan to protect a child. Similar programs in New Zealand and Canada have decreased the number of children under court supervision and increased the number of in-family placements for such children. Our family court judges also continue to refer appropriate cases to ho’oponopono where a “haku,” known and trusted by the parties, assists them in working through their problems.

In addition to these culturally appropriate alternatives, and in light of society’s changing needs, we continue to look beyond our traditional role as adjudicators of disputes. We must do our part to provide assistance of differing types at all stages of an issue. This belief currently is manifested in tangible ways in Hawai`i’s Judiciary. For example, the results of and reactions to the Teen Court and Hawai`i Drug Court programs are encouraging. Many youths have appeared before their peers on the “sentencing jury” of Teen Court and have come away from the experience with a better appreciation of the judicial process and a greater sense of accountability to their community and classmates. Drug Court has been a critical success in reducing recidivism among drug offenders; however, expanded funding for this resource is necessary and is part of our current biennium budget request.

Our current legislative package also includes a proposal for a $25.00 surcharge on all matrimonial and paternity actions in the family court. The monies collected are to be used for the education of separating parents. One such program, which is currently staffed entirely by volunteers and known as “The Kids First Program,” educates separating parents about how to avoid custody litigation, how to help their children cope with the stress of the parents’ separation, and how to structure post-separation relationships to avoid conflicts.

It should not be prohibitively expensive to move our vision of Hawai`i’s justice system forward, and we look to you for support in fulfilling our commitment to the people of Hawai`i. We have submitted a mode
st budget request, well below the two-year spending ceiling. Although we are the third branch of government, the fact that our budget comprises only 2.7% of the state’s total budget, may cause some to believe that the Judiciary is more a twig than a branch.

My fourth and final observation is that the continuing loss of experienced and seasoned judges will adversely affect the Judiciary, and, ultimately, the public. Hawai`i’s Judiciary is committed to administering justice indepedently, according to law, equally to all people, and with a high level of judicial excellence.

Judicial excellence, however, can be maintained only if we can continue to attract and retain the best and brightest practitioners in our community. Since 1992, eight experienced, seasoned judges have left the bench; and another, Big Island Judge William Chillingworth, recently notified me that he, too, will be leaving shortly for the private sector. Almost all of these judges have left for higher paying positions. It is significant to note that the average age of these judges — upon leaving — is 48.4 years old, far below the mandatory retirement age of 70.

I believe it is obvious that any further increase in the attrition rate of our judges will have an adverse effect on our justice system and thus on the public. The need to retain experienced judges is apparent. Lawyers who are appointed to judicial office soon realize that lawyering and judging are entirely different. Although knowledge of the law is certainly basic to both, the skills, techniques, and advocacy style of a successful lawyer do not necessarily make a good judge. Just as lawyers gain proficiency through their practice of law, handling numerous cases over many years, judges learn the art of judging through the many cases that they handle on a daily basis.

When we lose judges after much time, effort, and monies have been spent to raise their level of expertise and productivity — not because they are ready to retire, but because of a lack of a salary increase — judicial excellence, as a whole, declines and service to the public is adversely affected.

Although the honor of public service substitutes, in part, for the monetary rewards of private practice, it will become increasingly more difficult to attract and retain quality jurists without a fair increase in judicial salaries.

The Judicial Salary Commission’s recent report explains that our justices and judges have been without a pay raise for seven years — the longest of any judiciary in the nation, and that, when you factor in our high cost of living, our rank nationally falls to 47th. The Commission also notes that, during the past seven years, Hawai`i’s professionally-categorized State government employees, such as public school teachers, unit-13 professional and scientific employees, and University of Hawai`i administrative professional and technical employees have received salary increases averaging almost three percent annually. And, it appears that they will receive another raise this year. The Commission’s report also points out that federal judges have received salary increases totalling approximately 38% over the last four years, and, presently, the lowest paid federal magistrate earns almost $30,000 more than the chief justice of Hawai`i’s Supreme Court.

Please understand that we certainly do not begrudge our fellow government employees their increase in compensation; they all are deserving as each performs meaningful and important public services in a state that has one of the highest costs of living. The same, I believe, should be said of our justices and judges, all of whom indeed recognize and are sensitive to the fact that the state’s financial resources have been limited as reflected by our judges’ agreeing not to request increases the past two years; however, fairness alone dictates that a judicial pay raise this year is appropriate. We therefore request your support and favorable consideration of this critical issue.

Governor Cayetano, Lieutenant Governor Hirono, Mr. President, Mr. Speaker, members of the Nineteenth Legislature:

As you consider and provide for the essential needs of the people, I request that you keep in mind the judicial service guaranteed to all in our Constitution — that is, the right of every person to an independent forum for the civilized resolution of wrongs and injuries. Our cooperation must precede and extend beyond the appropriation process. To paraphrase former United States Supreme Court Chief Justice Charles Evans Hughes, in his speech to Congress on its 150th Anniversary: We are all partners in the great enterprise of making democracy work.

Again, to the leadership and the members of the Nineteenth Legislature: I thank you for the opportunity to deliver this State of the Judiciary Address. This is an honor for me personally and for all those who labor in the service of justice for Hawai`i’s people. On behalf of the justices, judges, and employees of Hawai`i’s Judiciary, we look forward to working with you in this session. Mahalo.