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Young Lawyers’ Division of the Hawai`i State Bar Association

Posted on Oct 20, 2005 in Speeches

Remarks by the


to the

Young Lawyers’ Division of the
i State Bar Association

HSBA Convention — YLD Luncheon
Thursday, October 20, 2005
Sheraton Waikiki Hotel, Moloka`i Room


It is always a privilege and pleasure to address members of the Bar at the HSBA’s Young Lawyers Division annual meeting. I extend my sincere appreciation to YLD President Roxann Bulman, HSBA President Richard Turbin, and the members of the Bar not only for your kind invitation, but, more importantly, for your public service throughout the year. Notably, among your many projects, are your efforts to help victims of the Hurricane Katrina catastrophe. We all know that many thousands of Gulf Coast residents suffered devastating losses in the hurricane and flooding, and I commend your aloha spirit in helping them recover. A special mahalo to one of your colleagues – Andy Winer – who took the lead in helping to find work and study alternatives, as well as housing, for a number of attorneys and law students from the Gulf Coast area. I also extend a special mahalo to Dean Soifer for his leadership in extending tuition waivers for displaced law students from Tulane Law School to attend the Richardson School of Law. I commend the Dean and the law school for being one of the first law schools in the nation to do so.

The Hawai`i State Judiciary is also playing a role by helping these Gulf Coast law students obtain internships at our circuit courts. In addition, the Hawai`i Supreme Court, on September 22nd, waived our licensing requirements and authorized displaced attorneys from Louisiana, Mississippi and Alabama, who are in good standing in their states, to associate and practice with a duly licensed attorney in Hawai`i through March 31, 2006.

Indeed, Hurricane Katrina impacted far more than individual lives. It dealt an unprecedented blow to the courts in the affected states and stirred up significantly complicated, far-reaching and timely questions regarding the loss of vital records, documents, evidence, witnesses and much more. The Katrina disaster underscores the importance of applying 21st Century technology to our court systems, which includes supplementing or converting fragile paper records into electronic form.

In that regard, I am proud to announce that the Hawai`i state courts will embark on a new technological era beginning next week as preparations are made to transition into the new statewide Traffic Module of the Judiciary Information Management System, or JIMS, on November 7.

This long-planned project has entailed a tremendous amount of work for our staff over the past few years. The transition from the old TRAVIS system to JIMS will, unfortunately, require us to close the traffic courts from October 27 until November 3. During that time, all traffic arraignments, as well as traffic and DUI trials will be suspended – except for persons held in custody. In addition, our mainframe computer will be shutdown from late Friday afternoon on October 28th until early Monday morning. I, therefore, thank you and your clients in advance for your patience and understanding during this hectic and historic time for the Judiciary.

When the JIMS Traffic Module “goes live” on November 7, the public will be able to access case information as far back as 1994 via the Judiciary’s Web site. I assure you, however, that personal information – such as Social Security numbers, birth dates, telephone numbers and home addresses – will not be available online. The new system will enable people to check for outstanding traffic cases and determine if they must appear in court. Beginning December 12, the public will also be able to pay for traffic tickets online or via a telephone interactive voice response system.

In addition to increasing public access to court records, JIMS will provide greater operational efficiency by reducing the amount of manual data input, standardizing data entry and retrieval procedures across the state and eliminating the necessity – in most cases – of generating and storing paper records, as all case records will be stored digitally. When JIMS is fully phased-in over the next few years, it will provide substantially improved access and services for attorneys and the general public at all court levels through a single database, including the ability to file documents and make payments online.

Along with the JIMS project, there are many other exciting developments within the state courts as we continue to meet the changing needs of the public.

In August, we opened a magnificent Judiciary complex on Kaua`i that serves as a model for courts of the future. Among the impressive features are technologically enhanced courtrooms that will assist attorneys in presenting their cases to judges and juries, which will become increasingly important as we continue to make strides in forensics and other areas of science in the coming years.

On the Big Island, we broke ground in March on the long-awaited Hilo Judiciary Complex, which will also be a state-of-the-art facility. The new complex will enable us to consolidate Hilo courts and other Judiciary operations in one building when it opens in the Fall of 2007.

Here on O`ahu, we have commenced designing the new Kapolei Court Complex and Juvenile Detention Facility as a result of the 2005 Legislature’s approval of a $95 million appropriation, for which we are truly grateful. We plan to complete construction by 2010, thus bringing much-needed court services to the rapidly growing population on the Leeward coast.

Because of my time constraints, I invite you to visit the Judiciary’s Web site to learn about many of our other exciting projects. As a side note, I am pleased to report that our Web site was recently honored by the Justice Served organization as one of the Top-10 court-related Web sites in the world.

While the Hawai`i State Judiciary – like many judiciaries throughout the country – continues to make great strides in the area of technology and other areas, we continue to struggle with the progress of educating the public about the separation of powers between the branches of government, including the importance of maintaining a Judiciary that is fair, impartial and independent. The public’s lack of understanding of government, in general, and the judiciary, in particular, continues to be confirmed in survey after survey, and the most recent Harris Poll, conducted earlier this year on behalf of the American Bar Association, is no exception. The survey found, among other things, that a majority of the respondents did not know the meaning of “separation of powers” and that only about half of those surveyed could correctly name the three branches of government. In fact, almost one-fourth of the respondents believed the three branches were “Republican, Democratic and Independent.” Such responses would be amusing if what they signify wasn’t so serious. I ask you to pause and think about this for a moment: What does such widespread lack of knowledge foretell of the future of our democracy? When Americans don’t understand or appreciate the basics of how our government works, we are in danger of seeing those treasured pillars of democracy erode – including the concept of judicial independence.

I, therefore, take this opportunity to thank and commend the members of the Bar who, through their Board of Directors, have adopted a resolution on judicial independence, resolving to “accelerate its efforts to provide public education on the system of justice and respond to unjustified criticisms and inaccuracies regarding the system of justice.” In addition, your HSBA Board has appointed a Task Force on Judicial Independence that will work to provide programs and activities that emphasize the role of judicial independence in a democratic society.

I encourage the task force to take an aggressive and vigorous approach. Finding solutions on how to educate the public on the workings of government, such as the separation of powers and the importance of judicial independence, is not and cannot become merely an intellectual exercise. We are – presently – in a crisis situation. One need only watch a television newscast or pickup a newspaper or magazine to see the truth of that statement.

In August, conservative religious leaders at the televised “Justice Sunday II” rally in Nashville denounced our country’s federal judicial system as “unelected, unaccountable and arrogant.” One of the speakers at that troubling event was House Majority Leader Tom DeLay, who took aim at the U.S. Supreme Court for striking down certain federal laws on constitutional grounds. Rather than regard such actions as impartial decision-making – that is, judicial independence – he, sadly, regarded them as “judicial supremacy” and “judicial autocracy.”

The most recent strident attacks on judicial independence came this year as the Terry Schiavo tragedy unfolded. As you may know, Florida Circuit Judge George W. Greer was demonized for ruling that Ms. Schiavo’s feeding tube should be removed. He believed that, under the law, this unfortunate woman who had suffered massive and irreversible brain damage – as later confirmed by an autopsy – should no longer be kept alive by artificial means. Although Judge Greer’s rulings were, indeed, consistent with legal precedent, they inflamed many people across the country, including President Bush, Congressional leaders and Florida’s governor, who all attempted to reverse that decision. Many media commentators, religious leaders and members of the general public vilified his actions.

Judge Greer was called a “murderer” and subjected to death threats to the point that he was compelled to wear a bulletproof vest and received security protection. In addition, his pastor in Clearwater, Florida, asked him to leave the church that he had belonged to for many years.

But despite this incredibly intense pressure – from the highest levels of the Executive and Legislative branches of government – Judge Greer held firm and did what he believed was right under the law throughout this long and incredibly divisive ordeal. In carrying out his sworn duty to defend the constitution and laws of the state of Florida, he was steadfast in upholding judicial independence.

With all the heated rhetoric surrounding the Schiavo tragedy, I appreciate the clear-headed statement issued by American Bar Association President Robert Grey, Jr. In defending Judge Greer and all of the other judges who became involved in that case, Mr. Grey eloquently pointed out that they are

“not killers as some have called them, nor are they activists bent on pushing an ideological agenda. They are simply dedicated public servants, called on to serve as impartial arbiters in a very difficult case. Instead of maligning them for applying existing law to the case at hand, even though it may not reflect the current will of Congress, we should praise them for dispensing even-handed justice and upholding the independence of the judiciary even under the most difficult circumstances. These judges deserve our respect, not our scorn.”

Although Florida is thousands of miles away from Hawai`i, our island state is certainly not immune from judicial attacks. I often read letters to the editor or hear comments from elected officials that unfairly label our jurists as being “activist” or “liberal” judges. Now, please don’t get me wrong – I am not saying that judges or the judiciary are above criticism. To the contrary, constructive criticism – based on the facts – is not only appropriate, but welcomed. The judicial attacks I’m referring to are those that are based on no information, misinformation or pure emotion. And because of the restrictions placed upon judges by the judicial code, these baseless accusations sometimes go unchallenged. We in the Judiciary are, therefore, truly grateful for the efforts made by the Bar to respond to some of those accusations. Most recently, one your members responded to a newspaper columnist’s characterization of one of our circuit judge’s imposition of a 10-year prison sentence for an unlicensed contractor as “ludicrously punitive.” In her letter to the editor, deputy attorney general Joanne Ha`o set the record straight, describing the defendant’s extensive criminal record and other relevant factors – which included his failure to show up at his first sentencing hearing – that she believed “[the judge] rightly considered . . . in deciding [his] sentence.” She concluded: “[The defendant] had every opportunity for a lenient sentence, but his conduct clearly demonstrated his lack of remorse and unwillingness to be held accountable for his actions. The sentence he received was fair and well deserved.” Evidently, after learning of the facts as set forth in Ha`o’s letter, the columnist, in a follow-up commentary, acknowledged that the defendant’s sentence was, in fact, “justified.”

Unfortunately, whenever the public or certain members of the executive or legislative branches disagree with a judge’s decision, they often cry out for reforms, such as the election of judges. As you know, judicial elections would have a chilling effect on judicial independence because questioning whether an unpopular decision may result in the loss of popular votes has no place in the decision-making process. Sadly, judges in elective jurisdictions who have adhered to the high standards of principled decision making and exercised their judicial independence have paid the price at the polls. The problem, however, is escalating. Allow me to explain.

In describing why judges bear the brunt of anger over controversial rulings, Supreme Court Justice Stephen Breyer – speaking at the ABA Annual Meeting held in Chicago this summer – said that his wife, a psychologist, summed it up as “the concept of displacement” – that is, “You may be angry at X, but you take it out on Y.” This concept of displacement, however, has escalated – at least in Pennsylvania – to the point where judges are becoming the target, even though their decisions are not what is at issue. On October 10, 2005, a Harrisburg newspaper reported that

citizen groups angry about state legislators’ big pay raise want to vote incumbent lawmakers out of office on Nov. 8. There’s only one problem – there aren’t any legislators up for re-election next month. So the pay-raise protesters are doing what they consider to be the next best thing. They’re urging Pennsylvanians to take out their frustrations on two state Supreme Court justices who are up for a 10-year retention election on Nov. 8[.]

Many will be watching as the events unfold in Pennsylvania over the next several months.

Ladies and gentlemen – when we lost Supreme Court Chief Justice William H. Rehnquist this summer, America lost a champion of judicial independence. The late Chief Justice was often quoted as saying, “an independent judiciary . . . is one of the crown jewels of our system of government today[; it] is essential to [the judiciary’s] proper functioning and must be retained.”

I, therefore, call upon each of you to continue to be ever vigilant in its preservation. Thank you.