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Posted on Jan 27, 2004 in Speeches

Remarks by the


to the


Tuesday, January 27, 2004
Noon — Plaza Club


I thank the Executive Committee of the Honolulu Community-Media Council and its program committee chair, Mr. Dennis Donahue, for inviting me here today to speak about an area of mutual interest — that is, “transparency” — and to address the results of the recent “Openness in the Courts” Conference held this past November. As Mr. Donahue indicated in his invitation letter to me, “Transparency is an issue of particular interest for the concerned community leaders in the Media Council.” I was, therefore, pleased to learn from Mr. Donahue that, “There may well be ways in which the Council may be able to support or assist the Judiciary’s goals of broader public interest and participation in issues of particular concern to the courts.” I agree and look forward to your anticipated assistance.

As you know, the Hawai`i State Judiciary — along with the Hawai`i State Bar Association — sponsored a unique gathering of members from the media, bench, bar, and representatives of the general public who met on November 7, 2003 to discuss issues related to openness in our justice system. In my State of the Judiciary address, delivered to a joint session of the legislature last January, I described several Judiciary reforms intended to “let the sun shine in.” However, despite the many ongoing projects and initiatives implemented by the Judiciary to inform the public about the judicial system and the work of the courts, there still appears to be a great number of our citizens who lack understanding about their justice system and believe that judges and the courts operate in secrecy. Indeed, public trust and confidence in the way we do business is based, in part, on an open Judiciary, which means the judicial system must have some degree of transparency to the extend permitted by law.

Last year, I enlisted the assistance of then-administrative director Michael Broderick to determine where in the Judiciary — our stakeholders believed more transparency was needed and how we could best achieve the desired result within the limits of existing law and the applicable ethical rules. Early on, Michael Broderick — now Judge Broderick — enlisted the services of the Hawai`i State Bar Association to assist in this effort.

In March 2003, the Judiciary — thanks to a $20,000 grant from the State Justice Institute — commissioned Ward Research, Inc. to conduct research on issues of openness, specifically among the stakeholder groups that would be invited to the conference, that is: judges, attorneys, members of the media, and the public-at-large. The primary objective of the research project was to provide qualitative data regarding perceptions of openness in the courts, including what works, what needs improvement, and how it might better serve key stakeholder groups and the general public. (For those who may be interested, Ward Research’s report is posted on the Judiciary’s internet website.)

Utilizing the information provided by Ward Research, the eight-member planning committee — comprised of members from the media, bench, bar, and general public –selected three main “openness” issues for discussion at the November conference. They were:

(1) the extent to which judges should or should not comment about pending cases;
(2) openness of and access to case records; and
(3) openness in trial proceedings.

Having reviewed the final report of the conference and consulted with the Judiciary planning staff for the conference, it is apparent that there are several action steps available to the Judiciary as follow-up to each recommendation. For purposes of my remarks today, I emphasize that decision-making on actual Judiciary actions that will be taken have not yet been made as discussions and planning are ongoing at this time. However, allow me to take a few minutes to share with you some of the options being discussed.

With regard to the making of public statements regarding cases within the parameters of Canon 3B(9) of the Revised Code of Judicial Conduct, — which prohibits judges from making any public comment while a proceeding is pending or impending that might reasonably be expected to affect the outcome of the proceeding or its fairness, — the conferees were confident that, within the constraints of the Code, judges could and should provide more information to the public about judicial proceedings and court procedures. Similarly, the conferees were adamant that the public and the media should be educated about the basis of judicial reluctance to speak regarding pending or impending matters. Our judges at the conference seemed open to the ideas suggested by one of the guest speakers — the Honorable Robert Alsdorf of the King County Superior Court, — who indicated that, perhaps, our judges could be more open to providing information to the public about judicial proceedings and court procedures by explaining the law, not justifying the bases for their rulings or decisions.

Thus, in addressing this recommendation, one of the options is to have our Judicial Education and Resource Development Committee evaluate programs available for judges to receive continuing professional legal education on the constraints of the judicial canons and the range of public comment allowable on judicial matters or actions, as long as the fairness of any proceeding is not undermined. Additionally, the Judiciary’s Public Affairs Office would continue to make clarifying statements to the public and media about judicial concerns regarding rights to privacy and fair trials, while noting the public interest in certain high profile cases.

Another option is to invite civic groups to co-sponsor with the Judiciary on-going public debates about “fair trial versus free speech” issues. We would also encourage the media, through its professional organizations (including the Honolulu Community-Media Council), to offer educational opportunities to its members to help them better understand appropriate commentary on court cases while continuing their essential work of informing the public and improving civic education.

When the subject of confidentiality of court records arises, discussions generally focus on family court records and proceedings seemingly because the confidentiality of many family court matters are legislatively mandated, unlike the openness of other case types. In some instances, however, discussions may include civil matters, such as cases that involve sensitive personal or trade information or settlements involving a lot of money, but, in those circumstances, confidentiality or a sealed record are usually agreed to or insisted upon by the parties.

Not surprisingly, discussions about access to court records at the Transparency Conference were, in large part, focused on family court cases. It became apparent, however, that rules and procedures regarding openness of family court records differ from case type to case type. For example: Hawai`i law mandates that court records and hearings in cases involving adoptions, child abuse & neglect, elder abuse, paternity, and certain types of juvenile delinquents be closed. Divorce proceedings, domestic abuse protective orders, and adult guardianships are not. However, guardianship cases involving children are confidential.

Currently, at our family courts, a determination whether a particular case is confidential is first made prior to releasing records or opening hearings. If a case is not confidential, the family court makes every effort to accommodate the media if a request for extended coverage is submitted and approved. If a case is one that falls within the statutory mandate, a judge is duty-bound to follow the law and, if exceptions are provided for in the statute, to decide whether any exceptions stated therein apply to the particular facts and circumstances of the specific case. Generally speaking, a judge’s decision to open an otherwise confidential matter is based on whether such exposure would or would not be in the best interest of the child or family. Even if all of the attorneys and the adult parties agree or waive confidentiality, the judge must still consider whether opening the records or proceedings is in the best interest of the child or family. If not, the judge — as the final arbiter — has the discretion to keep the records or proceedings closed.

Recognizing our statutory scheme and the various rules and procedures adopted to implement the statutory mandate, Conferees recommended that clearer standards and more discussion were needed regarding which records were confidential and which were open and why. In addressing this recommendation, the Judiciary anticipates seeking further comment and clarification on this issue from constituents of the family courts by establishing an ad hoc committee, comprised of family court judges, family law practitioners, and other professionals with family court clients. Such a committee would be charged with the task of clarifying confidentiality issues with the intent of improving communications between interested constituencies and promoting greater understanding of family court proceedings.

Additionally, the Judiciary’s Public Affairs Office would continue to inform the public and the media regarding the differing standards pertaining to confidentiality of family court records and related rules regarding open and sealed court records. Enlisting the cooperation of the Hawai`i State Bar Association and the Richardson School of Law to help develop informational materials in lay language for the public and media regarding family court rules and procedures is another option under discussion.

As the Conference’s final report indicates, “Conference attendees were cognizant that education in how to access and understand the judicial process is essential to making it more ‘transparent’ and making the public more confident of the process’s inherent fairness.” In that regard, the conferees recommended that new members of the bench, current legal practitioners, and members of the public need to educate and be educated on how to access and understand the judicial process. Similarly, the conferees believed that the media could train journalists who cover court cases on court protocols and procedures to avoid common misperceptions among the public, such as placing responsibility on the Judiciary for releasing arrested-individuals into the community who have a history of multiple arrests. Although the media continues to promote this common misconception by placing emphasis on an individual’s past multiple-arrest history, 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. In other words, a person may have, theoretically, one hundred arrests but never see the inside of a courtroom because he or she was never formally indicted or charged, which is generally due to lack of evidence. Once charged, however, the fact that the individual has a record of multiple arrests will not — in and of itself — guarantee a conviction of the charged offense. The prosecution must still prove — beyond a reasonable doubt — all of the statutorily required elements for conviction of the offense charged.

Public misconception of the judicial process is probably most apparent in the area of sentencing. Admittedly, the judge is the most visible figure when sentence is imposed; however, the media can wield substantial influence upon public perception — both negatively and positively.

On the one hand, the media does a disservice to our justice system when it fails to provide a complete and accurate picture of the circumstances considered by the judge during sentencing. For example: The public was enraged when it learned, through the media, that a father — who pled no contest to a charge of manslaughter in connection with the death of his 4-month old son — was sentenced to ten years’ probation. In reporting on the sentencing, the media omitted several important facts that the judge considered, such as: (1) the prosecutor requested the judge’s approval of the ten years’ probation as part of a plea agreement; (2) the judge considered the circumstances surrounding the baby’s fall from a bed, the father’s unsuccessful CPR-attempts, and an expert’s testimony that the infant may have suffered from a disorder that causes excessive bleeding and that the father’s CPR-attempt, coupled with the disorder, probably contributed to his death; and (3) the father had no prior criminal history of abuse, was not a danger to the community, and would live the rest of his life with the burden that his CPR attempts contributed to killing his son. I submit that, had the public been more fully informed, it might not have been so quick to chastize the sentencing judge.

The public also suffers when the Judiciary’s efforts to be open are not supported by the media. For example: Last month, the Judiciary issued a press release that announced the names of nominees for district and district family court vacancies and invited the public to send me their comments regarding those individuals before I make my selections. One local newspaper failed to publish our press release, yet ran an editorial one week later, praising the governor for adding “sunshine” to the judicial selection process by making public the names of those nominated to fill vacancies on the Intermediate Court of Appeals and the Circuit Court. Public input regarding judicial nominees is a valuable aspect of the selection process, which is why I have been calling for public comment about judicial nominees since 1998.

The media, however, can and does — as I indicated earlier — positively influence public perception. For example: A well-known columnist wrote about his recent call for jury service. His article acknowledged the common sentiment of “dread” upon finding a jury summons in the mail. His reaction to receiving his jury summons was no exception. He wrote, however, that: “The judge said it was my right and privilege to serve my country in this time of need. It’s part of the democratic process. It’s my obligation. He was right.” At the end of his article, he imparted this sage advice: “Next time your number comes up, don’t balk. Be proud to be able to have the voice and the opportunity to make a difference.”

It has been our experience that, although many of our citizens begrudgingly report for jury service, a number of them come away feeling proud to have been part of the democratic process and somewhat surprised by their own change in attitude regarding jury duty. However, their positive experiences are not a matter of public knowledge. I have no doubt that this reporter’s public testimonial and endorsement of jury service made a positive impact.

Discussions on how to address the issue of openness of court proceedings have included having the Judiciary’s Public Affairs Office collaborate with the Judicial Education and Resource Development Program, as well as others within the Judiciary and the community, to develop informational materials to help our citizens and the media learn how to access and understand our justice system.

In recent years, the Judiciary has — via the Internet — increased accessibility of information about court proceedings and provided access to certain court documents in electronic form. Increasing access to other non-confidential court records in electronic form should continue to be supported — both internally and through legislative appropriations. Resources to sustain our ongoing efforts to implement a statewide, comprehensive information management system is critical to our ability to provide increased access. In this regard, support of these efforts before the legislature from the Bar, the media, and other community stakeholders would be extremely helpful and much appreciated.

Ladies and gentlemen — As I indicated earlier, decision-making on the actions that the Judiciary will take with regard to the conference recommendations have yet to be made as discussions and planning are ongoing at this time. However, as we explore workable solutions to enhancing openness in the courts, I reiterate the words of United States Supreme Court Justice Byron White, which I shared with the conferees last November. In Cox Broadcasting Corp. v. Cohn, Justice White stated:1

“(I)n a society in which each individual has but limited time and resources with which to observe at first hand the operations of his government, he relies necessarily upon the press to bring him in convenient form the facts of those operations. Great responsibility is accordingly placed upon the news media to report fully and accurately the proceedings of government, and official records and documents open to the public are the basic data of governmental operations. Without the information provided by the press, most of us — and many of our representatives — would be unable to vote intelligently or to register opinions on the administration of government generally. With respect to judicial proceedings in particular, the function of the press serves to guarantee the fairness of trials and to bring to bear the beneficial effects of public scrutiny upon the administration of justice.”

Clearly, Justice White places great responsibility for disseminating information regarding government operations, including the work of the courts, on the media. I submit, however, that the bench, the bar, and the media — are collectively responsible for providing our citizenry with fair and accurate information about the courts and judicial proceedings, whether it be through a judicial ruling or opinion, speech, panel discussion, interview, news story, editorial, or commentary. I, therefore, look forward to working collaboratively with you and other members of the media and the bar and sincerely appreciate your willingness to support and assist the Judiciary’s goals of broader public interest and participation.

Thank you for having me address you today and for listening.

1 Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975).