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Posted on Jan 26, 2005 in Speeches


by the

Chief Justice
Supreme Court of Hawai’i

Wednesday, January 26, 2005
Senate Chambers, State Capitol

President Bunda, Speaker Say, Lieutenant Governor and Mrs. Aiona, distinguished members of the twenty-third Legislature, fellow judges and Judiciary employees, distinguished members of the federal bench, members of local and federal law enforcement, former Washington State Chief Justice and Mrs. Richard Guy, members of the Royal Order of King Kamehameha the Fifth, other special guests, family, and friends:

It is again my privilege and honor to be here today to address a joint session of the Hawai’i State Legislature, and I extend my sincere appreciation for your kind invitation to speak about the state of the Judiciary. To the new legislators, I extend a special aloha and thank you for joining us in service to the people of Hawai’i. We, in the judiciary, look forward to working with you, as well as with the returning legislators of the twenty-third state legislature. There is no doubt that we — that is, all three branches of government — share in the quest for fairness, justice, and good government as we work both collaboratively and separately to serve the people of Hawai’i.

The concept of separate, independent, and equal branches of government does not mean that there are no limits as to what each branch can do. The built-in system of checks and balances protects our citizens from one branch becoming too powerful and guards against the potential for excesses and abuses of power. However, as each branch asserts its constitutional independence, natural tensions can arise. We must, therefore, work together to maintain the delicate balance between our respective branches as we independently carry out our constitutional duties. With regard to the judiciary, its independence — as it relates to the decision-making process — is vital to the functioning of the courts and must be zealously protected.

Independent judicial decision-making means that judges must base their decisions solely on the legal merits of a case — not on their own personal preferences or even the majority will. The majority’s will is appropriate — even necessary — for legislators and other elected officials to consider when deciding public policy issues. However, it cannot and should not be considered by judges when deciding personal disputes. Judicial decisions are the result of a structured, analytical process based on traditional principles, such as stare decisis, a basic principle of judicial decision-making. Stare decisis — or “to stand by that which is decided” — is the principle that prior decisions, unless found to be wrong, are to be followed by the courts. The principle is based on the premise that certainty, predictability, and stability in the law are the major objectives of the legal system. In other words, by following the courts’ prior decisions — whether based on common law, statutory law, or constitutional law, — our citizenry can regulate their conduct with reasonable assurance that they are conforming to the requirements of the law. Thus, when deciding disputes, justices and judges must set aside their personal feelings and the popular views of the majority if the evidence and the applicable law dictate an outcome that is contrary to the judge’s personal preference or the majority’s desired result.

Take, for example, cases heard in our family courts. I am very much aware — as some of you are — of recent public criticisms regarding judicial decision-making in the family court arena. These cases not only involve emotional parties, but emotionally-charged issues, such as child custody, visitation rights, and child abuse or neglect. In such cases, family court judges are required by law to consider the best interests of the child in making their decisions. When judges are called upon to render decisions in these highly emotional cases, many might believe that it would be easy, or even understandable, for a judge to surrender to his or her own personal feelings of sympathy and compassion. After all, many of our judges are — like many of you — parents; some are also grandparents; many have brothers and sisters; some are aunts, uncles, and cousins. But, our family court judges are ever mindful — as are all of our judges — that their duty is to set aside their own personal feelings and exercise their best independent judgment by ruling in accordance with the evidence and the law applicable in each case. Judicial decision-making is not an easy task. It requires courage, as well as a commitment and dedication to the administration of justice.

A judge’s duties, however, are not limited to the courtroom setting or the decision-making process. Judges are hard at work diligently managing their caseload and acting as mentors to their law clerks and young attorneys who appear before them. They are serving on boards, commissions, and committees that focus on issues regarding the administration of justice. They are also cultivating positive community relations and educating our citizenry about their justice system through their participation in seminars and conferences, speaking to various legal, civic, and student organizations, hosting student groups in their courtrooms, and the list goes on. Would all of you, therefore, kindly join me in thanking all of our justices and judges, including our per diem judges, as I ask those who could be here today to please stand and be recognized.

I have no doubt that our judges would agree that we could not meet our constitutional duties without the help, assistance, and hard work of all of our Judiciary employees and volunteers. Therefore, on behalf of myself and all of the justices and judges, I extend our deepest gratitude to each and every one of our Judiciary employees and volunteers for their continuing commitment, dedication, and outstanding efforts in helping to promote the effective, efficient, and fair administration of justice.

Unfortunately, despite all of our best efforts, there are individuals in our community for which the failure in the administration of justice could reach constitutional proportions. The individuals I am referring to are the indigent criminal defendants, who are — by and large — competently represented by the Office of the Public Defender. As you know, the right to competent representation by counsel in a criminal prosecution is a fundamental constitutional right under both our state and federal constitutions. When the Public Defender’s Office is unable to provide representation due to a conflict, the court must appoint private counsel, who are paid at hourly rates authorized by statute.

We are, however, finding it increasingly difficult to secure private attorneys who can afford to represent indigent defendants at the current statutory rate. It is clearly insufficient to cover even the most basic overhead expenses, let alone provide appointed-counsel fair compensation for their time. In this regard, Hawai’i is not alone. Kansas, Louisiana, Montana, New Hampshire, New York, and Oklahoma, for example, are also grappling with this issue. Most recently, the Massachusetts Supreme Court — in an opinion issued in July of last year — concluded that a shortage of defense lawyers caused by inadequate compensation violates the constitutional rights of indigent defendants. The court held that no individual can be detained for more than seven days without a lawyer and that cases must be dismissed (without prejudice) if defendants have not had a lawyer for forty-five days. The high courts in Pennsylvania, Illinois, Indiana, Iowa, New Jersey, and Wisconsin have gone as far as construing the judiciary’s inherent power to include mandating the appropriation of public funds to pay reasonable attorney’s fees for court-appointed counsel.

Just last week, the Big Island’s Hawai’i Tribune Herald reported that many lawyers are declining court-appointed cases because of the current fee schedule. In fact, it was reported that, in Hilo, only five attorneys are willing to accept indigent criminal defense cases, which is a reflection of what is occurring statewide. Although Hawaii’s criminal defense bar has been attempting to increase appointed-counsel legal fees since the 2000 legislative session, Hawaii’s statutory rates remain unchanged since 1987. The Judiciary has supported and continues to strongly support efforts to increase the statutory rate. I realize that criminal defense attorneys and those accused of crimes do not have much of a popular constituency, but we need to remember: first, that attorneys perform a vital and necessary role in the administration of justice; second, that persons accused of crimes face the awesome power of the State; and, third, any system of justice worthy of the name must assure that an individual’s liberty is not taken away without putting the prosecution’s evidence to the time-honored tests of examination, cross-examination, and proof beyond a reasonable doubt. I, therefore, implore you to examine and address this issue during this legislative session before it reaches the kind of constitutional crisis that has occurred and is occurring in other jurisdictions.

Notwithstanding our increasing difficulties in securing counsel to represent indigent defendants, the state of the Judiciary remains sound. With the support of the legislative and executive branches, the Judiciary has been able to explore and implement some innovative projects and programs, some of which have been recognized, nationally, as “visionary.” Judicial innovation projects have included the successful establishment of what are generally referred to as “problem-solving courts,” such as our various drug court programs. And, because of your support and assistance, I am pleased to report that we have now implemented adult drug court programs statewide.

Our newest program on Kaua’i recently celebrated the graduation of its first clients in November of last year. We know that drug courts work. For example, since it began in 1996, Oahu’s Adult Drug Court Program has an overall recidivism rate of five percent. This is indeed significant when compared to the national drug court recidivism average of sixteen point four percent. The recidivism rate for adult drug courts on Maui and the Big Island are also below the national average. Based on the success of the juvenile and family drug courts on O’ahu, these programs will soon be implemented on the neighbor islands.

This past year, our O’ahu Family Drug Court Team received the Mediation Center of the Pacific’s “Natural Collaborative Leaders” Award. The Mediation Center identified eleven criteria of a natural collaborative leader. One, in particular, epitomizes the family drug court team and the family drug court program — and, that is: a natural collaborative leader “conveys hope that problems can be solved.”

Indeed, hope is the wonderful gift that the family drug court program — and all of our drug court programs — bestow upon the clients and families that come to drug court. If all of our drug court graduates had not been diverted into treatment, there is a strong likelihood that their drug addiction would have kept them on a path leading to more serious crimes. Eventually, many would have ended up in our already overcrowded prison system at considerable cost to the State. Therefore, on behalf of all of our past and current drug court clients, their families, and Hawaii’s taxpayers, I thank you for making these programs possible.

There is no doubt that your support of all of our current programs is critical to our ability to continue to serve the public. However, the continued vitality of our state requires that we address not only the concerns of the day, but that we also plan for the future. In that regard, the Hawai’i State Judiciary is at the doorstep of realizing the vision of former Chief Justice Herman Lum. In the late 1980s, he envisioned a “one-stop shop” where our citizens would be able to obtain any type of service with regard to family court matters. It is our hope that Chief Justice Lum’s vision of a Family Court Center will come to fruition this session. The Judiciary’s primary legislative initiative for this fiscal biennium is the Kapolei Court Complex, which will involve, among other things, relocating all of our O’ahu family court functions to Kapolei.

As you may know, the Estate of James Campbell is providing 13.6 acres of free land to the Judiciary upon which we hope — with your approval — to build a new court complex. Located within the Kapolei civic center area, the complex will include two major physical structures: a multi-level court building that will house twenty courtrooms and court support functions, as well as a Juvenile Detention Facility that will accommodate and provide needed services for up to 72 juvenile detainees.

The need for adequate space to meet the demands of our citizens for family court services cannot be overstated. Our family courtrooms are too small to adequately conduct hearings and do not provide adequate separation of parties in those often emotional settings. In addition, parties and witnesses must wait in an overcrowded area. Frequently, those who should be physically separated — for example, victims and criminal defendants, or emotionally-charged parties in divorce or custody proceedings — find themselves in very close quarters. Support service areas are crowded with far too little space for records storage. Crowded offices are also hampering efficient operations.

Hawaii’s current juvenile detention facility — Hale Ho’omalu — located on Alder Street in Honolulu is a World War II vintage facility that has deteriorated and is operationally inadequate. The arrangement of housing units and the specific configuration of individual rooms makes supervision difficult. In sum, the spaces that are available are often insufficient and do not provide enough room for programs, offices, training, and medical services.

In addition to relocating family court functions to Kapolei, the Judiciary plans to move the district court functions currently housed at the Wai’anae Court to the new Kapolei Court Complex. Our plan is to also provide a full complement of circuit court functions and services, such as criminal and civil jury trials. The new complex will undoubtedly increase the convenience for not only the residents of Kapolei, but also for those who live in the ‘Ewa, Leeward, Wai’anae, North Shore, and Central O’ahu districts. According to a November 2004 management study prepared for Campbell Estate by the OmniTrak Group, nearly half of the family court users surveyed live in Kapolei and the surrounding districts I just mentioned. Survey responses also indicated that approximately seventy percent of this group proceed to family court from their homes. We, therefore, believe that the new complex will have a positive domino effect as the relocation of family court to Kapolei should help relieve the overcrowded H-1 commute to downtown Honolulu and ease the overcrowded conditions at the First Circuit courthouse. In addition, consolidation of all of Oahu’s family court services in one location will save approximately half-a-million dollars in annual rent that is currently being paid to house family court functions at other locations. Kapolei and neighboring residents will have easier access to court services, such as obtaining traffic abstracts, paying traffic fines, resolving divorce matters, including custody and child support issues, filing for restraining orders, and dealing with juvenile matters. At the same time, court users at other courthouse locations may find shorter lines to access some of the same court services also being offered in Kapolei. However, if the Kapolei project is to move forward, the Judiciary must have a signed construction contract by December 31, 2006. If not, we will forfeit the option on the 13.6 acres of Campbell Estate land, and the State will have lost a once-in-a-lifetime opportunity to acquire this substantial portion of land at no cost to the taxpayers.

The future of the Kapolei project is at a critical crossroad, and this legislative session is the last opportunity to fund this much-needed project. The Judiciary is, therefore, requesting a total of 95 million dollars for the design, construction, and purchase of necessary equipment for the Kapolei Court Complex.

Because community participation and input has been critical to the development of Kapolei, Administrative Director Rick Keller and other key court administrators presented our construction plans to the Kapolei Neighborhood Board. I am pleased to report that, at its meeting on October 27, 2004, the Board unanimously approved a resolution to support the Judiciary’s plans to construct the new Kapolei Court Complex. The Judiciary indeed appreciates the support from those whom we hope will soon be our new neighbors.

I thank the leadership of the Senate and House for their expressions of support. We sincerely hope that each of you — the individual members of the Senate and House — will join them in helping us improve our services to all of your constituents. I also extend my appreciation to the governor for indicating her support of this critical project.

I am, however, keenly aware that there are those who doubt the wisdom of selecting the Kapolei district for a new courthouse. The most common concern seems to be over the travel time from downtown Honolulu to Kapolei, which reminds me of a historical exhibit in the Supreme Court Building. The exhibit contains pictures of a new government building constructed in 1874 and named Ali’iolani Hale. It tells the story of King Kamehameha the Fifth’s decision to forego plans to build a new palace because substantial monies were being paid to rent private office space in the city. He, therefore, believed that a new government building was “of greater necessity.” The new government building would house the legislature, the judiciary, and other government offices. Commentaries from newspapers of the day about the location of the newly planned government building sound quite familiar. One newspaper wrote:


. . . the site so improperly selected entails on the present and future generations a long and fatiguing journey over the dustiest roads in the city [that would be] a permanent and inevitable public nuisance. Had [the people] been consulted as to its site, we doubt if a solitary vote would have been cast in favor of that so improperly and injudiciously selected.

Of course, you realize they were speaking about traveling on foot or by horse and buggy from the current China Town area to Ali’iolani Hale, the current home of the Hawai’i Supreme Court. I submit that, with the advancements in video conferencing and other technology that will be available in the new court complex, the complaints of it being too far from downtown Honolulu will dissipate as they did in the 1800s regarding the site of the then-new government building. Moreover, we believe the long-term benefits to be realized from the new Kapolei Court Complex significantly outweigh any of the perceived disadvantages.

I recognize that the construction of a new court complex with twenty courtrooms may appear extravagant. However, we take a lesson from our experience with Ka’ahumanu Hale, the First Circuit courthouse on Punchbowl Street. It was, when first occupied in 1983, criticized as extravagant with its twenty-seven courtrooms. But, within ten years, Ka’ahumanu Hale was too small, and we had to find additional courtroom space elsewhere. Currently, some judges are sharing courtrooms and four circuit court judges are located in the district court building on Alakea Street. The accommodation of circuit judges in the district court building has created a negative domino effect by taking needed space away from our district court operations. The courtrooms and support service areas planned for the Kapolei complex will provide greater flexibility and allow the Judiciary to move forward with its planned-redistribution of services in order to adequately attend to the needs of the people on O’ahu in the years to come.

Obviously, many details for the Kapolei complex have yet to be resolved. However, one thing is certain: Campbell Estate’s offer of prime real estate within the burgeoning civic center area of Kapolei and the compelling need for more family court resources represent a tremendous convergence of supplying needed services to meet escalating demands. A key component of this synergy is the continuing roll-out of the Judiciary’s Information Management System, or JIMS. The JIMS Project, which owes much to the support of previous legislatures, is at the core of our strategic technological vision and is transforming the way that the courts do business.

For the newest members of the legislature who may not know, JIMS is a multi-year, multi-million dollar effort to produce a modern computer-based case management system that will facilitate communications, eliminate duplication, and provide sharing of court and case information statewide. The electronic filing and document imaging aspects of JIMS will provide document review capabilities from virtually any web-connected computer, which will be of particular importance to the Kapolei Court Complex. Of course, to the extent that confidential records are involved, such records would still be available only with the proper security authorizations. Document imaging will also enable the Judiciary to avoid the expense of storing paper documents. Ultimately, the benefits reaped through JIMS will translate into improved public safety and increased efficiency in court operations, as well as enhance our ability to provide better customer service to the public. The benefits of JIMS, coupled with all of the advantages of moving to Kapolei, definitely constitute a positive step toward improving the administration of justice for our citizenry.

Ladies and gentlemen — I began my remarks this morning by discussing the concept of separate, independent, and equal branches of government. We are, however, all partners in the quest for excellence in government. Although our roles and responsibilities are different, we are all here to serve the people of this great state. I take enormous pride in all of the employees and volunteers in the Hawai’i State Judiciary, who work diligently day after day, protecting the fundamental rights of our citizenry and ensuring the fair administration of justice.

On behalf of the entire Judiciary, we pledge our continuing commitment to applying the rule of law through impartial and independent decision-making and look forward to working collaboratively with all of you.

Thank you again for the honor and privilege of addressing you today.


This copy is provided as a courtesy. It may not be published, copied, or otherwise reproduced without the written permission of Chief Justice Ronald T.Y. Moon.