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Posted on Jan 22, 2003 in Speeches


by the


Chief Justice

Supreme Court of Hawai`i

Wednesday, January 22, 2003

Senate Chambers, State Capitol

Governor Lingle, President Bunda, Speaker Say, Lieutenant Governor Aiona, distinguished members of the twenty-second Legislature, fellow judges and Judiciary employees, distinguished members of the federal bench, other special guests, family, and friends:

It is indeed my privilege and pleasure to be here today to address a joint session of the Hawai`i State Legislature. Before I proceed, I would like to extend a special aloha to our new Governor, Linda Lingle, and our new Lieutenant Governor — and former colleague — Duke Aiona: Governor Lingle and Lieutenant Governor Aiona we, in the Judiciary, look forward to working collaboratively with you and your administration. Thank you for being here today.

We also look forward to continuing to work together with the many returning legislators, as well as the seven newly-elected senators and thirteen newly-elected representatives of the twenty-second Legislature. I sincerely appreciate your kind invitation to speak about the state of the Judiciary.

Ladies and gentlemen — the state of the Judiciary remains sound due in large part to the efforts of our hard-working Judiciary employees and volunteers. I, therefore, take this opportunity to publicly thank each and every one of our judges and other Judiciary employees for their continuing commitment, dedication, and outstanding work in helping to promote the effective, efficient, and fair administration of justice. To the many volunteers who give unselfishly of their time and talents to help our overburdened staff, we say “mahalo” for your service. Would you please help me acknowledge these hard-working Judiciary employees and volunteers, many of whom are here today, by giving them a round of applause?

Although the state of the Judiciary is sound, I remain concerned about the public’s perception of our justice system. Judging from the results of numerous public opinion polls and surveys, the perception of much of the public seems to be that the justice system is broken. I want to assure you that it is not; however, I recognize that reality is what the public thinks is real. And, often times, the public thinks that the justice system could be “fixed” if judges would just do what the people want. Such thinking, however, speaks volumes about the need to continue to educate the public about the critical role the Judiciary plays in our democratic form of government.

During the Constitutional Convention in 1787, James Madison expressed the view that, “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 be independent of each other.” Indeed, our nation’s struggle for independence was based on the vision of our founding fathers to establish the principle of “separate, independent, and equal branches of government.” However, because of the system of checks and balances, each branch is not totally independent of each other. Nevertheless, the judiciary must remain independent in the area of deciding cases.

In the decision-making arena, an independent judiciary means that its judges must make decisions based solely on the facts of a case and the applicable law, not on popular opinion polls or surveys, or the views of special interest groups. An independent judiciary enables judges to protect and enforce the rights of the people, without regard to the race, creed, or the social and economic status of the individuals or entities involved, and without fear of reprisal. Our system of government will surely be placed in serious jeopardy if judges are perceived as formulating their decisions in response to political pressure or the perceived majority opinion of the moment.

The importance of preserving an independent judiciary cannot be overstated. One need only examine the efforts of any foreign country seeking to establish a democracy. In many instances, the judiciaries in these countries are controlled by the executive branch and the outcome of cases is controlled not by the facts of the case and the applicable law, but by the powers that be. I visited China in November 1999 and have interacted closely with lawyers and judges from China and other parts of the world who come to study the court systems in Hawai`i and on the mainland. Significantly, the aspect of our democracy that they admire and desire the most is the concept of an honest, independent judge.

Today, due to the advancements in technology and communication, the judiciary and its operations are far more visible and subject to much greater public scrutiny than in the past. Controversial issues garner attention much faster and provoke comment more quickly than when the founding fathers envisioned our tripartite government. In a world saturated with media coverage, inaccurate information about judges and judicial decisions often serve as the catalyst for unwarranted and unfair attacks on judges. Please don’t misunderstand me — I do not mean to infer that judges are above criticism or that it is wrong to disagree with a court’s ruling. To the contrary, we welcome and respect informed criticism, which is part of our great American legal tradition. What causes great concern is the type of uninformed, emotionally- or politically-based criticisms that we read in letters to the editor, editorials, columns and news stories or hear about on radio and television talk shows.

To enhance the public’s perception of our justice system, it is critical that, first, we in the Judiciary, make decisions in accordance with the facts of the case and the applicable law and, second, that the Judiciary, the Executive, and Legislature work together to address popular misconceptions of the courts. 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 will surely deteriorate.

With all due respect, I wish to take a moment to clarify a reference made by Governor Lingle in her state of the State address yesterday regarding a Supreme Court decision because the Governor’s comment underscores just what I have been talking about. Governor Lingle, referring to an employer’s fear of taking personnel action against an employee who has done something wrong because it may lead to a workers’ compensation claim, stated:

Recently, a worker was fired for stealing. The Hawaii Supreme Court ruled that he could receive compensation for the stress he felt from getting fired for stealing. This is exactly the kind of nonsense that has caused so many businesses to steer clear of Hawaii.

Unfortunately, whoever provided the governor with the information regarding the Supreme Court’s ruling was totally wrong. And, to the extent that the reference undermined the legislature, which crafted our workers’ compensation statutes, or the Supreme Court, which interprets those laws, I know — based on my telephone call to Governor Lingle last evening — that was never her intent. I informed her — and she acknowledged — that the Supreme Court has never ruled that an employee fired for stealing can receive workers’ compensation for the stress related to being fired for stealing. I also informed her that the 1998 Legislature specifically declared — through its amendment to the workers’ compensation statute — that a claim for mental stress resulting solely from disciplinary action taken in good faith by an employer shall not be allowed and that the Supreme Court has consistently held such claims to be non-compensatory.

Governor Lingle understands that I mean no ill-will towards her by taking this time to clarify the erroneous reference made in her address yesterday. She graciously acknowledged the error and indicated that she felt badly if her reference impugned the Judiciary in any way. I sincerely thank her for her candor and professionalism. This recent incident — even though unintended — illustrates the importance of the public receiving accurate information in order to avoid formulating misconceptions about our justice system.

Addressing popular misconceptions of the courts begins with focusing on helping our citizens develop a more informed awareness and understanding of the concept of an independent judiciary, which I believe is the key to engendering a more favorable public perception of our justice system. However, the public’s perception of the Judiciary is not always gleaned from court rulings and judicial decisions. Sometimes, public perception is based very simply on who they meet when they come into contact with the courts. We have one such person with us today.

When you see him or hear his name, you may not associate him with the Judiciary — for his original claim to fame is that of being a star member of the famed Chaminade basketball team that, on December 23, 1982, achieved one of the greatest upsets in college basketball history by defeating the University of Virginia, then the number one collegiate basketball team in the nation. Leading the underdog-Silverswords to victory was six-foot-six TONY RANDOLPH, who had the awesome task of guarding Virginia’s seven-foot-four All-American Ralph Sampson.

Twenty-years later, Tony is still a champion of the underdog. Today, however, Tony’s “guarding” duties center around Hawai`i’s youth. As a juvenile detention worker at Hale Ho’omalu for nine years and a Family Court juvenile counselor at Home Maluhia for five years, Tony is a powerful role model with a gift for building rapport with troubled youth. Drawing from his own life experiences growing up in Washington, D.C. and Staunton, Virginia, Tony is able to effectively communicate with his kids because they know he’s “for real.”

Tony lost both his parents within a year of each other at the age of eleven and is the first to admit that he struggled with his hardships during his youth. Of the children he counsels, Tony says, “I tend to see a lot of myself in them, in their challenges and their adversity.” He helps them identify their strengths and to focus on the positives. He encourages them to obtain a good education and instills in them the importance of good manners, productive work, honest relationships, and civic involvement. And, when they succeed, Tony says, “That’s the fulfillment and joy in doing the counseling.” In addition to his counseling job at the family court, Tony volunteers as a basketball coach at Palolo Elementary’s A-Plus Program, where the kids adore him.

Ladies and gentlemen — I am pleased to introduce to you an individual who makes a positive contribution towards the public’s perception of the courts on a daily basis — MR. TONY RANDOLPH.

The public’s perception of the Judiciary is also affected by whether the public believes the courts are helping our citizenry in concrete ways. As you know, substance abuse, mental illness, and other social problems are closely bound to the problems of crime and community safety. Recognizing that offenders who experience these problems will ultimately return to our communities, we began exploring ways to effectively address those problems by combining court supervision with the application of treatment and other resources as alternatives to incarceration — practices that are sometimes referred to as intermediate sanctions.

Over the past five years, the Judiciary has achieved great success and learned important lessons regarding the effective use of intermediate sanctions through its drug court initiative. Based on the success of Oahu’s Adult Drug Court Program and with your assistance, we have now implemented adult drug court programs on Maui and the Big Island. Efforts are underway to begin a program on Kaua`i. Hawai`i’s drug court program has successfully treated hundreds of non-violent offenders addicted to drugs. These programs have restored individuals to full, productive lives and, at the same time, saved the State the considerable expense that would have been incurred had these individuals been incarcerated, including the added expense of likely re-incarceration without drug court intervention. We are proud of the Hawai`i drug court program’s recidivism rate, which is markedly below the reported national average of thirty per cent.

Hawai`i is also one of the few states that has a family drug court program. Our Family Drug Court Program began accepting clients in May of last year, working closely with families whose parents are at risk of losing their children due to their substance abuse problems. Operationally, the program provides a coherent, integrated response to help parents break the cycle of addiction and child abuse through close monitoring by the court and child protective services case managers. We are grateful for the legislature’s assistance in helping us establish our Family Drug Court Program.

The success of our adult drug court programs has paved the way for the creation of a drug court program for juvenile offenders. This past September, the Hawai`i Juvenile Drug Court Program held its first commencement ceremony for eight juvenile offenders. And, although I wish I could say that every single one of them has remained drug free, I recognize — as I’m sure you can too — that the real world of a former drug user is filled with significant challenges on a daily basis. At times, in spite of everyone’s best efforts, drug court graduates succumb to the temptation — albeit with less frequency than those who did not have the benefit of a treatment program. Drug court clients and their families are prepared for this possibility, but recognize that a momentary set back does not negate or minimize the great strides they have made. In fact, a momentary set back often becomes a significant step forward because it instills a deeper commitment and greater motivation to remain drug free.

One such graduate was admitted to the juvenile drug court program one year prior to the commencement ceremony. Before entering the program, she had a history of offenses ranging from being a runaway to using drugs. She began smoking marijuana up to four times a day, but her drug use soon escalated to ecstasy and then to crystal methamphetamine.

She was first arrested at the age of twelve, and, since the age of fifteen, had received probationary, mental health, and outpatient substance abuse services before coming to drug court. But, she continued to test positive on drug screenings. Prior to entering the program, her grade point average had dipped as low as 1.0, and she had difficulty attending school on a regular basis.

After admission into the drug court program and for nearly one year, she and her family received in-house multi-systemic therapy, intensive probationary services, direct and frequent contact with the juvenile drug court judge, graduated incentives, and — when needed — sanctions. While in the program, she had no arrests and passed every drug screening test. By the time of her drug court graduation, she was attending school on a regular basis, had been promoted to the next grade, and had received mainly A’s in her classes. Major positive changes have occurred in her family as well.

After graduating from drug court, she had a momentary set back; however, she is more determined than ever to remain drug free. She continues to be a productive high school student and is now closer than ever to her mother. Our drug court staff continues to provide the support and encouragement necessary to optimize her efforts to remain a productive citizen free from drug use.

I am proud to introduce to you juvenile drug court graduate MS. KAY RALEY and her mother, PATRICIA RALEY. Please join me in acknowledging their tremendous courage and accomplishments.

The effectiveness of treatment interventions coupled with court supervision, such as we have experienced with our various drug court programs, has served as the catalyst for the Judiciary’s exploration of other intermediate sanction strategies. Because of the growing number of cases involving defendants suffering from a mental illness or disability, we want to establish a mental health court in Hawai`i. Therefore, the Judiciary recently submitted a grant proposal application to the Bureau of Justice Assistance, seeking funds to initiate a demonstration project to establish a mental health court within the existing framework of the district, family, and circuit court and will not require special legislation. We are awaiting word from Washington, D.C. regarding our request and remain optimistic that a favorable response will allow us to expand the use of intermediate sanctions.

Also, after two years of planning and input from the criminal justice system and community stakeholders, I appointed the Interagency Council on Intermediate Sanctions in January of last year. The Council represents the statewide criminal justice system, the Department of Health, and other entities, all of which are committed to reducing the adult offender recidivism rate by thirty per cent. A five-year plan that involves treatment providers, community agencies, families, and all elements of the corrections system has improved how we assess offenders and what information we use to change offender behavior. We are grateful for the commitment and continuing assistance of the National Institute of Corrections of the United States Department of Justice, which provides important technical assistance, training, and other resources to state and local criminal justice systems.

It is our hope that the legislature and the public are pleased with the processes we have implemented in our efforts to establish “problem-solving” courts while still maintaining the traditional trial courts for appropriate cases. However, if the Judiciary is to truly serve the people, it must also be technologically sound. At the core of our strategic technological vision is an integrated case management system, which we refer to as the Judiciary Information Management System, or JIMS. The objective of our JIMS project is to implement a modern, integrated computer-based case management system that will facilitate communications, eliminate duplication, and provide information-sharing on a statewide basis. JIMS will replace all of the current disparate case management systems, as well as all of the various trust fund fiscal systems which should be, but are not, tied to the current case management system. Our court technology committee has been working diligently over the past year on this very important project. Ultimately, the benefits reaped through the new system will translate into improved public safety, increased efficiency in court operations, and better service to the public. We respectfully ask for the legislature’s support in financing this absolutely critical initiative.

Notwithstanding all of the projects and initiatives I’ve mentioned thus far, we recognize that, if our citizenry is to develop a full appreciation and understanding of the workings of the court, we need to be more open and communicative about the work of the court. To that end, the Judiciary has initiated reforms intended to let the sun shine in. For example, we established court concierge stations at our busiest district and family courts to answer questions from court users. The Judiciary also continues with its education and outreach efforts to inform the public about the critical role of the Judiciary in our democratic society. We are proud of the work of the King Kamehameha the Fifth Judiciary History Center. As state coordinator for programs of the National Center for Civic Education, such as Project Citizen and We the People, the Judiciary’s History Center, over the past two years, has provided specialized civics education training to 46 teachers from 32 schools, including 14 schools on the neighbor islands. I’ve received numerous letters of appreciation from teachers who have completed the training, echoing the sentiments of Mr. Dean Kajihiro, a teacher at Waianae High School, who wrote:

[The We the People curriculum] addresses the essential pillars upon which our country stands, and the students need to learn it. They need to know about the founding principles of our government beyond just how it functions. They need to know it and believe in it if our nation is to carry on as a democracy.

. . . [The curriculum] is outstanding compared to the other textbooks I’ve seen, and it fulfilled a critical component of what I thought was needed by future U.S. citizens. . . . [O]ne [student] is [now] thinking of becoming a lawyer or a law maker in the future; another had a total change of heart from “that evil government” to “Wow, the people really have the power in our government!” and “We have a lot of freedom, don’t we?” Such comments are music to my ears.

It is estimated that these teachers have already taught the concepts and principles learned through this training to over 5,000 students. We hope that these students will reflect the kinds of results seen in studies conducted by the Center for Civic Education. Results indicate that We the People students were more knowledgeable across virtually every measured aspect of civic education than were other national samples of high school seniors, college freshmen, and adults. They were less cynical about politics and public officials and participate in politics at a higher rate than did their peers.

We are also proud of the Judiciary’s creation of a prototype lesson plan that was presented to Department of Education Superintendent Patricia Hamamoto during Law Week activities this past year. The lesson plan is designed to help teachers educate students about separation of powers and the importance of a fair, impartial, and independent judiciary. In addition, we presented to the Hawai`i State Bar Association a speaker’s kit that will assist lawyers in informing the public about the critical role the Judiciary plays in our justice system. We are grateful that the Bar has agreed to join the judges in their ongoing educational efforts.

Both the lesson plan and the speaker’s kit incorporate the use of a video, entitled Broken Scales: Justice Under Influence, which was produced by the Hawai`i Chapter of the American Board of Trial Advocates and presented to the Judiciary to utilize in its ongoing outreach efforts. Through a role-playing scenario, the video depicts a man’s journey through a nightmare world where one of the cornerstones of democracy — judicial independence — has crumbled. He awakens to a new understanding of and greater appreciation for an independent judiciary. We are pleased that the video and lesson plans have now been distributed to all public and private intermediate and senior high schools throughout the state for use by civics and social studies teachers.

Our efforts, however, mean nothing if people do not have trust in the Judiciary. And, we understand that trust is based, in part, on an open Judiciary, which means it must have some degree of transparency. I, therefore, also want to announce today that, this year, we will co-sponsor — with the Hawai`i State Bar Association — a bench/bar/media conference on transparency. The Conference will identify the main areas where more openness is needed and how we can best achieve this result within the limits of existing law and applicable ethical rules.

This morning, I started my address by discussing the importance of the Judiciary remaining independent. I want to end by acknowledging our inter-connectivity. Although each branch of government is separate and independent, we are also connected in that we share a mutual quest for excellence in government. In that regard, when the State faces a challenge, the Judiciary must do its part in helping to meet that challenge — which today is our current economic situation. I pledge to you that we will be taking a hard look at the Judiciary’s current budget situation with a serious eye towards restricting monies from our current budget as well as withdrawing some of our biennium budget requests. Clearly, separate and independent does not mean uncooperative and — together — I believe we will meet the challenge.

Ladies and gentlemen — We are all partners in this great enterprise of representative government and are all journeying on the same path. Our roles and responsibilities are different, but our goals are similar. In one particular case, our goal is identical — and, that is, to serve the people of this great state to the best of our ability. We, in the Judiciary, remain committed to applying the rule of law through impartial and independent decision-making.

On behalf of all of the dedicated employees of the Judiciary, we pledge our continued support and look forward to working collaboratively with each of you. Thank you.