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Posted on Jan 23, 2001 in Speeches


by the


Chief Justice

Supreme Court of Hawai`i

Tuesday, January 23, 2001

Senate Chambers, State Capitol

Governor Cayetano, Speaker Say, President Bunda, other distinguished Legislators, Lieutenant Governor Hirono and Mr. Oshima, members of the federal and state Judiciaries, Korea’s Counsel General Lee and other special guests, family, and friends:

It is my privilege to be here today to tell you about the work of the Hawai`i State Judiciary. We can all be proud of the efforts of our Judiciary employees and volunteers. I am pleased to have this opportunity to publicly thank each and every one of our Judiciary employees for their continuing commitment, dedication, and outstanding work on behalf of our third branch of government. And, to our more than 2,000 volunteers, we say “thank you” for unselfishly giving of your time and talents in helping to alleviate some of the load on our overburdened staff. All of our volunteers provide an invaluable service to the Judiciary, and I appreciate this opportunity to publicly recognize a very special one.

Eighty-year-old Mike Maeda has contributed nearly 4,000 hours since he began volunteering with the courts and, currently, works three full days a week. Mr. Maeda is often called upon to help Judiciary offices, such as the Bar Examiners Office and the Family Court’s legal research department and court management services branch. Judiciary employees who have been the grateful recipients of Mr. Maeda’s services wholeheartedly agree that he is reliable, efficient, and accurate in his work. Not only is he willing to do any task assigned to him, he does so with a positive attitude, working diligently until the job is done. Needless to say, Mr. Maeda is an invaluable asset to the Judiciary and exemplifies the Aloha Spirit that makes our state so special. Ladies and gentlemen, would you please join me in recognizing Mr. Mike Maeda.

As I present this my fifth State of the Judiciary Address to this distinguished body, I believe it is time for a change. Therefore, my address today will contain very few statistics. I will not refer to any of the Judiciary’s budget requests, or to our legislative package. I do, however, want to spend a few minutes on a subject I have discussed in previous State of the Judiciary addresses because many of you are new legislators and because the number of legislators with legal backgrounds continues to decline. That subject, which remains a topic of paramount concern, is the role of the third branch of government and, in particular, the concept of judicial independence.

Achieving a free and independent Judiciary was part of our national struggle for independence. As James Madison stated during the Constitutional Convention in 1787, “If it be essential to the preservation of liberty that the Legislative, Executive, and Judiciary powers be separate, it is essential to a maintenance of the separation that they should be independent of each other.” In a constitutional democracy like ours, the Judiciary determines whether the actions undertaken by the legislative and executive branches of government conform to principles of law enunciated in our state and federal constitutions. Courts take abstract ideals — like equal protection and due process — and infuse them with life by resolving specific controversies that engage the deepest human passions and aspirations. In that process, the third branch of government is charged with the responsibility of defining the limits of governmental power and authority and protecting basic individual rights, such as freedom of expression, freedom of religion, the right to be heard before being deprived of liberty or property, and the right to an attorney.

By fulfilling this role, courts defend minorities that might be overwhelmed by the numerical strength of the majority, or the economic power of the wealthiest sectors of society. We attempt to safeguard the frail and defenseless against those instances where misguided public passion tramples upon the rights of the less fortunate, or where the schemes of the unjust jeopardize the welfare of society as a whole. By adhering to a system of reasoned precedent, courts also provide order, stability, and predictability to the capricious and chaotic events of life. Stated somewhat differently, the Judiciary protects the individual from the excesses of society and protects society from the excesses of the individual. By regulating the equilibrium between these forces, courts preserve individual initiative and opportunity, foster the realization of human potential, and maintain social harmony and prosperity.

Courts are, in this sense, the institution most accountable for the preservation and maintenance of our democratic heritage. The executive and legislative branches of government strive to be directly and immediately responsive to the popular electoral will. The judicial branch, on the other hand, is the guardian of the architecture of democracy itself. While courts generally give deference to rational enactments of the legislature, it is still the courts’ duty to invalidate a statute that violates constitutional prohibitions. This distinctive function in no way makes the judicial branch superior to the executive or legislative branches. Rather, it simply means that we have been assigned to perform a different role, with a different perspective. Courts must respect the unique responsibilities entrusted to the executive and legislative branches. We strive to do so in every decision we make and pledge to continue doing so. Likewise, if democracy is to work, the legislative and executive branches must respect the unique responsibilities entrusted to the judiciary. We ask that you continue to appreciate our need to sustain judicial independence, so that we may best fulfill the obligations of the judiciary’s special mandate. With your understanding and assistance, I am certain that not only can we enhance the function of the Judiciary, but we can strive to renew the promise of democracy for our respective branches of government in order to serve our own generation and the generations to come.

Because a strong, separate, and independent Judiciary requires adequate compensation for its judges, I want you to know how grateful I am — how grateful we all are — for the salary adjustment you made last year. Although it has made a tremendous positive difference, just one month ago, my friend and colleague, Kevin Chang — one of our outstanding jurists — left the state bench to work as a federal magistrate judge, earning approximately $26,500 more annually than he did as a state judge. Judge Chang served with distinction, and, surely, the federal bench’s gain is the state bench’s loss. It is a loss we must work to minimize in the future. I, therefore, hope you will agree with me that the challenge now is to ensure that it is not another ten years before the next increase.

But, let me be clear; we agree with the Judicial Salary Commission’s recommendation that judicial pay raises not be requested in the upcoming fiscal biennium. However, we also agree with the Commission’s conclusion that “the current process . . . is fundamentally flawed, and, therefore, should be changed as soon as possible.” As some of you may know, the Judicial Salary Commission is securing a commitment from the Cades Foundation to commission an independent study to identify a more timely and objective mechanism for determining judicial salary adjustments. We sincerely hope you will support such reforms in the future.

As I reflect on the state of the Hawai`i Judiciary, I find myself struggling with the notion that “perception is reality.” Although I don’t believe that perception is always reality, it is accepted by many as such. There are two particular perceptions I often hear voiced about the Judiciary that I believe are actually misperceptions. The first is that judiciaries, including Hawai`i’s, are insular institutions that operate in secret, and the second is that the judiciary has not changed the ways it resolves disputes in over a hundred years.

I believe we have made great strides to combat the perception of secrecy and to, as they say, “let the sun shine in.” Our Judicial Evaluation Program and Court Navigation Project certainly qualify as tangible examples of more openness and greater access.

It is worthy to note that Hawai`i is one of only 13 states with a judicial evaluation program. All currently eligible full-time trial judges have received evaluation results that provide valuable feedback to help them improve their performance, both in and out of the courtroom. In addition, evaluation results are provided to the Judicial Selection Commission and serves as a source of information for retention. But we did not stop there. To address concerns that the evaluation process was completely “in-house,” this Fall we enlisted the assistance of former judges, retired practitioners, and community leaders to meet with individual judges to review the judge’s evaluation results and provide suggestions for improvement. To our knowledge, we are the only judiciary in the country without retention-elections to have people from outside the Judiciary involved in the evaluation process in this manner. Also, starting this month, we implemented a pilot project to evaluate appellate judges and justices, becoming only the third state in the country with an appointment system to do so.

Our Court Navigation Project also exemplifies our efforts to let the sun shine in on the courts. This past year, we began one of the most comprehensive court-based assistance programs in the nation. The capital improvement funds you appropriated two years ago, combined with a quarter of a million dollars in federal grants, was used to launch the Ho`okele Court Navigation Project on August 8, 2000. The growing number of litigants who represent themselves can now receive one-on-one assistance from customer service centers located in the entryways of the Honolulu District and Circuit courthouses.

The demand for Ho`okele services has far exceeded our expectations. Since opening five months ago, the project’s three stations have helped over 20,000 court users on O`ahu, directing them to appropriate courts, offices or agencies as well as helping them to complete court forms and/or explain court procedures. Almost 100 of these court users have taken the time to fill out customer satisfaction survey forms; some even took the time to write directly to me. These surveys and letters represent a cross-section of our community — such as, persons adopting children, individuals seeking a divorce, and small business owners trying to collect on a debt. They represent court users from all corners of the island — from Hawaii Kai to Makaha, from Kailua to Ewa Beach.

I am proud to tell you that every single one of these letters and surveys has been overwhelmingly positive, and we have been pleasantly surprised, not just by the volume, but also by the intensity of the public’s reaction. We read again and again, “Outstanding customer service”; “I would not have been able to do it otherwise”; and “It made all the difference in the world.” In one letter, a court user with a complex problem stated that the concerned and caring Ho`okele staff provided the best customer service experience she had ever had! Comments like these reinforce and re-energize our commitment to make the courts more accessible, to demystify the legal process, and to remove the perception that there is a veil of secrecy covering the courts.

The second misperception pertains to the way the judiciary resolves disputes. I’ve heard the argument presented something like this: The horse and buggy have been replaced by cars and planes; the phonograph has been replaced by compact disc players; the surgical knife has been replaced by the laser; yet, courts still resolve disputes the same way it did a century ago. I respectfully disagree and refer to the criminal justice context to illustrate why.

People involved in the criminal justice system, both nationally and locally, have been advocating a more balanced approach to crime control that would redefine the system in very fundamental ways. Although the prosecution and punishment of offenders have an important place in crime control, there are limits to this traditional approach. I believe that an effective balance must be attained between traditional law enforcement and a problem-solving, restorative approach that rebuilds individual lives and communities. Rather than focusing solely on how much punishment is inflicted, restorative justice focuses on repairing and preventing the resulting harm by involving those affected, including victims, communities, and offenders. Judges and court officials must make a concerted effort to develop additional methods to integrate restorative justice into the Judiciary.

To that end, I recently issued a Resolution reaffirming the Judiciary’s commitment to restorative justice and the delivery of services in a balanced manner in accordance with governing law. The Resolution also reiterates the concept of Pono Kaulike, which is our own way of saying equal rights and justice for all. Restorative justice- type programs exist in the Hawai`i Judiciary, largely due to the legislature’s support and commitment. A well- known example is the Hawai`i Drug Court program. The drug court model is both cost-effective and life-affirming. On O`ahu alone, the drug court program saves taxpayers between approximately $600,000 and $800,000 per year, which savings reflects, in part, the difference between what it costs to treat and rehabilitate offenders in the drug court program and what it would cost to incarcerate them. The program provides additional social and economic savings in the form of lower rates of recidivism (or re-incarceration). The life-affirming qualities of the program are evident in the number of drug court graduates who have successfully confronted their addiction- related issues, found jobs, returned to school, reunited their families, regained custody of their children, and re- entered their communities as productive, law-abiding citizens.

Real-life stories of successful drug court graduates abound. One such story may be found in the life of Ms. Reyna Abordo. At the age of 24 and after years of addiction to “ice,” Reyna was arrested for fraudulent use of a credit card, promoting a dangerous drug, theft in the first degree, and forgery. As a result of her convictions, Reyna’s three children, then ages 4, 5, and 6, were removed from her care and taken into protective custody. Although initially resistant and apprehensive, Reyna entered the drug court program in 1996. During the two years in drug court, Reyna reported for drug treatment and counseling, resulting in significant changes in her behavioral attitudes.

Today, Reyna has been drug-free for four and a half years, has been reunited with her three children, and is employed as a manager for Times Supermarket. She enjoys canoe paddling and doing volunteer work at her church, working with women addicted to drugs. She is currently focused on her college education, which she began during her participation in drug court. After completing her undergraduate work, she plans to pursue a Master’s degree in social work.

As a result of her hard work and commitment, and with the assistance of the drug court program, Reyna has overcome her addiction. She is a loving mother and provider for her children as well as a productive and respected member of her community. I would like to recognize Ms. Reyna Abordo, who is here today on behalf of the 165 drug court graduates who have successfully completed the program and who remain drug free. Reyna, we are extremely proud of you — will you please stand.

The Judiciary continues to commit significant resources to expanding and enhancing the drug court model throughout the state. The Maui Drug Court program was launched this past summer. A juvenile drug court on O`ahu will begin in March, and Drug Court programs for the Big Island and Kaua`i are in the planning stages.

Clearly, drug courts represent one significant example of how the Judiciary, with support from the legislature, can offer restorative justice programs that address Hawai`i’s changing needs and accommodate a wider range of rehabilitative services.

The judiciary’s efforts in the area of jury reform represent another example of our commitment to being in the forefront of providing more effective ways to resolve disputes. In my address to you last year, I promised that I would update you on the results of our jury innovations pilot project. As many of you will recall, the project involved several innovations including allowing jurors to take notes and to suggest questions to be asked of witnesses, and informing jurors about the law applicable to the case before, rather than after, the attorneys’ closing arguments. The goal of the pilot project was to gather experience and empirical data about the effect of these and other trial innovations on members of the jury, the attorneys, and the participating judges.

I am pleased to report that the results are striking. Jurors reported being more engaged in the trial, more attentive to courtroom activities, and better able to recall points made by the attorneys. According to judges and attorneys, trials did not take significantly longer when jurors asked questions or took notes, and their workload did not increase. When asked if any of the innovations impacted negatively on the trial or the rights of a party, the overwhelming response was “No.” Although other jurisdictions have studied or tested one or more of the jury innovations addressed by the Hawai`i pilot project, no other court has conducted as lengthy a pilot, or one involving as many innovations.

As a result of our evaluation of the project, the Hawai`i Supreme Court, this past year, adopted amendments to several court rules relating to jury trial procedures that now allow all trial judges to utilize various jury innovations. Our commitment to improving juror satisfaction, comprehension, and recollection has drawn the positive notice of courts around the nation.

It has been said, and I agree, that the Judiciary has a monopoly on how justice is dispensed and that this monopoly places us in a fiduciary relationship with the public. Nothing short of being on the front line of needed reform will satisfy that obligation. Our drug court programs, Ho`okele Court Navigation Project, and jury reforms are tangible manifestations of our deep commitment to continually re-examine the way we do business.

Although the state of the Judiciary remains strong, I am concerned about the public’s seeming disenchantment with government — and that includes the Judiciary. Disenchantment with the judiciary can be seen in our experience with jury service questionnaires, which help us determine if a citizen is qualified for jury service. Over the past several years, fewer and fewer citizens are returning juror qualification forms. This is of great concern to me, as it should be to anyone committed to a system of government “of, by, and for the people.” Unfortunately, our experience with jury qualification questionnaires appears to reflect a larger sense of public disenchantment. Somehow, we must do a better job of engaging the public in the business of the courts because, if the public is to have trust and confidence in the courts, it must be engaged in the judicial process. Indeed, jury service provides every citizen an opportunity to become actively engaged. The rewards of such service can be profound.

It is not uncommon for jurors to share with our judges that their experience as a juror was moving, educational, enlightening, and, even on occasion, life changing. Allow me to share an excerpt from a letter written by a juror to one of our judges. She states, “I wanted to write you a personal note to thank you for making my recent experience as a juror a very positive one. . . . Although I really didn’t want to be chosen, after it was all over, I’m glad I had the opportunity to serve. . . . I’m telling all my friends and family how enlightened and educated I was by the entire process.” Based on my own personal experience as a trial judge and through feedback from other judges, I can tell you that many jurors — even the most reluctant ones — have expressed similar sentiments.

Ladies and gentlemen, and, in particular, members of the legislative and executive branches: I pledge to you that the Judiciary will continue to reach out by providing useful information to the public, sponsoring forums for meaningful learning opportunities about the courts, and leading discussions about court procedures and the laws under which we operate.

It is important for the public to recognize and appreciate that reaching out is a two-way street, and we hope it will extend its hand in return. I encourage the public to examine our judicial system and let us know which programs and policies are working and which we might need to reform. I look forward to hearing from them and from you.

On behalf of the 1,700 employees of the Hawai`i State Judiciary, I thank you for your support, your encouragement, and your passion for excellence. Working together, we can ensure that we continue to promote the effective, efficient, and fair administration of justice.