Judicial Selection
Price of Paradise · Hawaii Public Radio · aired 1998-07-19
Guests: Samuel P. King (Senior U.S. District Court Judge); Momi Cazimero (owner, Graphic House; former member, Hawaii Judicial Selection Commission (1983-1989)); Jim Koshiba (practicing attorney; former chair, Hawaii Judicial Selection Commission (1980-1986))
Duration: 1:08:42

[00:00:02] Randall Roth: Aloha. This is Randy Roth, host of the Price of Paradise show. We're broadcast live Sunday mornings on KHPR and KKUA, and then rebroadcast Sunday evenings beginning at 8:00 on KIFO. Everyone who works to bring this program to you is a volunteer who believes in the importance of lively and informed public dialogue. We believe the brightness of any community's future is directly related to the level of activities in its marketplace of ideas. Our sponsor is the Hawaii Community Foundation, an organization that encourages grassroot efforts to improve the quality of life in Hawaii and that administers charitable funds with efficiency and compassion.
[00:00:44] Randall Roth: In order for any community to thrive, there has to be a relatively high level of confidence and trust in its system of justice, and that's possible only if the public perception is the judges are being selected for good reasons. Today, my guests will help us understand how judges currently are selected in Hawaii and share their thoughts about the degree to which the process has earned the people's confidence and trust. With me in the studio is Jim Koshiba, Momi Cazimero, and Sam King. And then later, we'll hear from retired Hawaii Supreme Court Justice Frank Paget and from Dr. Ellen Colburn.
[00:01:22] Randall Roth: Jim Koshiba, you're a practicing attorney. You served from 1980 until 1986 on Hawaii's first Judicial Selection Commission, and in fact, you were its first chairman. Good morning.
[00:01:34] Jim Koshiba: Good morning. Good morning, Randy. Good morning, everybody else.
[00:01:38] Randall Roth: Jim, I'm wondering if you could take just a brief period of time to kind of set the stage. 20 years ago, we had one system of selecting judges and there was a change. Could you tell us a little bit about that?
[00:01:52] Jim Koshiba: Sure. 20 years ago, the governor appointed circuit court judges and Supreme Court justices and the chief justice appointed district court judges. And 20 years ago, there were lots of complaints. The complaints, uh, basically were that uh, the public, I think, felt that the appointing authorities, the governor and the chief justice, were essentially taking care of politicians and others and the public felt left out. They felt powerless in the appointment of judges. And the result was then talk, discussion, media attention, and then ultimately, resulting in the Constitutional Convention.
[00:02:34] Randall Roth: So there was this sense that there wasn't public input, that the appointing authorities were taking care of people who were politically connected. And so, the constitutional convention came up with something different. What was this different approach?
[00:02:49] Jim Koshiba: The different approach was something that was supposed to be based upon merit selection, and the judicial selection commission was part of that merit selection.
[00:02:59] Randall Roth: Okay. Now, when you say merit, what what does that mean?
[00:03:03] Jim Koshiba: Essentially what it means is that judges would be selected based upon, um, stated clear criteria based upon merit and having nothing to do with any kind of political consideration.
[00:03:16] Randall Roth: And what are those criteria or or some of those criteria?
[00:03:20] Jim Koshiba: Well, the original rules and the rules of the Judicial Selection Commission still outline various criteria to be considered, temperament, uh, scholarship, experience, uh, various, uh, similar types of of, uh, characteristics qualifications.
[00:03:39] Randall Roth: Okay, so the Judicial Selection Commission, uh, nine individuals who get there in various ways, and we can talk about that in just a moment, they deliberate, they come up with a a list of people, and then, depending upon which opening it is, either the governor or the chief justice makes the appointment but from the list prepared by the Commission?
[00:03:58] Jim Koshiba: Correct.
[00:03:59] Randall Roth: And how do those commission members get where they are? Who picks them?
[00:04:03] Jim Koshiba: Well, two are selected by the appointed by the governor, uh, one by the chief justice, two each by the president of the Senate and the house of representative, Speaker of the House of Representatives, and two are elected by the licensed lawyers.
[00:04:20] Randall Roth: Okay. And I know from your article in this morning's newspaper page B3 of the Honolulu Advertiser that you've got some uh, some ideas as to how the system might be improved. We'll talk about that in just a little bit, but let's move over to uh, Sam King, who's federal district court judge here in Hawaii. And Sam, I know you were a member of the Bar Association Committee 20 years ago that recommended the establishment of a Judicial Selection Commission, but you're critical of what emerged. Could you tell us a little bit about that?
[00:04:50] Samuel P. King: Well, uh the proposition we sent over may have been naive and idealistic, but it had it it it it uh it originally proposed that all the appointments would be made by the governor, uh, and that there were out of a list of not less than three, no more than five. That was changed, uh, in the committee to not less than four and no more than six, and applied only to the Supreme Court, the intermediate court, and the circuit with the consent of the Senate. So, that that changed. The original proposition we have was that the nine members would be two by the governor, one by the members of the Senate, one by the members of the House, one by the all of the justices, and four elected by the Bar. When that came out of the convention, it was two by the governor, two by the president of the Senate, two by the speaker of the House, and two elected by the Bar. So, you see politics went right back into it.
[00:05:49] Randall Roth: Now, I know you've got some other things to point out, but from what you've said thus far, I think there are a lot of listeners who are probably saying those are those are details, that's kind of fine tuning type differences. Basically, you supported a Judicial Selection Commission, and that's what we've got. Why so critical?
[00:06:06] Samuel P. King: Well, I opposed it when it came out of the committee. When it came out of the convention because it was so, you know, the the politics was taken out of it by what we proposed and was put back in again by the convention.
[00:06:17] Randall Roth: What makes you think that it's too political? In other words, over the last 20 years, what, if anything, has happened that has caused you to believe that that it wasn't set up the way it should have been set up?
[00:06:28] Samuel P. King: Well, to begin with, they uh, they gave the right to appoint the membership to two to the President of the Senate instead of one by all the members of the Senate, two to the Speaker of the House instead of one by all the members of the House, so that the minority had no chance to say anything as to who should go on the Commission. I see. And, um, then they took out the uh, the uh, uh, two from the bar and it it was given to the President of the Senate and the Speaker of the House and it was going to be four by the bar. Now I don't know if Judge Justice Paget thinks we shouldn't have any lawyers on it at all. The original proposition we had was that the appointments by the Governor, the Senate, and the House would not be any lawyers, and the justice there'd be four be elected by the bar and no lawyers. And that was changed, so they can point lawyers, too.
[00:07:21] Randall Roth: Now, your article again on page B3 of the Honolulu Advertiser this morning suggests that looking back over, you know, the last few decades, that there are a couple of concerns that you have. One is that it seemed as though, at least for a while, judges were being appointed based in large part on their willingness to push a political agenda, and in more recent years, you said something to the effect that that there's just question as to what criteria are being used, why it is that people are being put on the list and appointed to a judicial position.
[00:07:56] Samuel P. King: Well, when you see three judges coming out of the same law firm and uh things like that you wonder uh, especially when they came out of a member of the committee's law firm, Commission's law firm, you know, you wonder what's going on. And secrecy secrecy is bad in politics. I don't see anything wrong with politics as long as it's out in the open. Let's argue about it.
[00:08:19] Randall Roth: So you're saying judicial selection is going to be political in any event. Godless, right. But the current system puts it behind a closed door. Nobody, once they come outside that room, can say what happened or why or how or anything like that. You're saying put it back on top of the table?
[00:08:35] Samuel P. King: Right. And there were allegations that there was back scratching, that if you don't vote for our boy, I won't vote for your boy. Uh, that was in the papers uh a couple of months ago when we arguing about uh who got nominated for this that or the other thing. And those things may not have even happened. But nobody knows.
[00:08:53] Randall Roth: Bottom line is you feel that the judiciary hasn't earned for whatever reason, hasn't earned the confidence of the people of Hawaii, and that it probably has a lot to do with the level of secrecy at the Judicial Selection Commission level?
[00:09:08] Samuel P. King: Yes.
[00:09:09] Randall Roth: Okay. Momi Cazimero is the owner of Graphic House and from 1983 to 1989 served as a member of Hawaii's Judicial Selection Commission. For four of those years, she was the commission's vice chair. Momi, good morning.
[00:09:22] Momi Cazimero: Good morning, Randy.
[00:09:24] Randall Roth: I know from talking to you previously that you had a satisfying experience as a member of the commission, and from your article in this morning's advertiser, you believe that the current system is a is a good one. Could you tell us a little bit more about your experience as a member of the commission and your thoughts about how it's structured?
[00:09:44] Momi Cazimero: All right. I'd like to pick up where uh Judge King mentioned something about the concept that they had in mind when they formed this commission was rather idealistic, and I want to say that in the time that I was on the commission, we were, in fact, idealistic. And uh we began with shaping a mission and that was to ensure the quality of the bench. And I feel what our members did was wrap themselves around that commit that mission in order to present the the best results in the merit selection process. One other things I want to mention here too, is that the uh merit selection process is an important one because it was select it was set up to eliminate the politics in the system. It also, we were close enough to the time of the formation of the commission, that we were aware that that was not an easy decision to come to. And so we saw ourselves as being crucial because we believed in the merit selection process to protect that because otherwise, it could easily have reverted. And so we felt we were proving, we were needing to prove the merit of the merit selection process.
[00:10:59] Randall Roth: And I get the impression that one of the ways you feel that you can have a merit selection process is to have confidentiality. And in other words, what Sam King might critically describe as secrecy, you say no, it's confidentiality that makes a lot of sense. It's necessary in order to have the kind of deliberations that a merit system requires. Could you comment on that?
[00:11:22] Momi Cazimero: Yes. I think it's the nature within the process, the nature of the kind of material that we seek in order to select the most qualified candidates. We go into the police records, into the credit records, tax. We examine the professional conduct records. We receive information from individuals who are either critical or uh supportive. These are the kinds of information similar to what you would conduct in a personnel circumstance, that I think we have to protect because otherwise, it could easily have reverted. And so we felt we were proving, we were needing to prove the merit of the merit selection process.
[00:12:12] Randall Roth: So you're afraid if it wasn't confidential, that people might not come in and talk critically about a candidate, or uh they might come in and say irresponsible things that uh that the public might misinterpret or something like that.
[00:12:26] Momi Cazimero: Absolutely.
[00:12:27] Randall Roth: Okay. Well, that's Momi Cazimero who served as a member of the Judicial Selection Commission from 1983 to 1989. With us by phone is Dr. Ellen Colburn, who picked up where Momi left off. I guess Momi, you uh finished up your six year term in '89, and Ellen started her six year term in '89. Uh, Ellen, good morning.
[00:12:47] Ellen Colburn: Good morning.
[00:12:48] Randall Roth: Uh Momi had a basically satisfying experience as a member of her Judicial Selection Commission over that six year period of time. What about you? Was it a satisfying experience?
[00:12:59] Ellen Colburn: Well, it was satisfying in terms of participation and I recognized what an awesome obligation and responsibility I had. But at the same time, it was, of course, educational and enlightening in many ways.
[00:13:14] Randall Roth: Did you feel like the system was working? Did you feel like, uh, that that good lists were come were being developed and that everything was working the way it was supposed to?
[00:13:26] Ellen Colburn: I would not say everything and every list by any means. However, I do want to say that in most cases I was satisfied with the process, and I was satisfied with the lists that resulted. However, um as a result of my experience I think that it's important to look at the profile of a commissioner and and select commissioners based on some particular characteristics. May I mention those?
[00:13:57] Randall Roth: Please do.
[00:13:58] Ellen Colburn: Yes, I I would categorize them in two areas. The first I would call in a very comprehensive sense. I think each commissioner should be intelligent, educated, informed, experienced in decision making, generally savvy, and confident without being arrogant, and have a sense of propriety and uh ethical behavior. So that's one whole area that I uh characterize under the term. The second and equally important, if not possibly more important characteristic, I would say is that the commissioner be capable of being truly independent as a thinker. And even though I recognize that each person has a personal political orientation and personal biases, uh these individuals should not have declared and well-known affiliations or dedications to a particular politician or political agenda or even a personal and professional agenda. And this, I think, is particularly important for the non-lawyers on the commission who are interacting with attorneys who are, in fact, trained to argue and persuade. Therefore, the independence of a commissioner who's not a lawyer, I think is crucial in the decision making process.
[00:15:20] Randall Roth: Ellen, just to to remind listeners of a relatively recent controversy, uh Gary Rodrigues, who heads up the United Public Workers Union, was appointed not long ago to the Judicial Selection Commission. And, uh, I know there have been others, but representative Gene Ward wrote a an opinion piece a few months ago suggesting that that that was inappropriate, that Gary Rodrigues' union activities are are clearly political, and therefore, conflict with the process of selecting judges. Uh, and I know he quoted from the constitution that says members of the commission are are not to take an active part in in political campaigns. Is that the the sort of situation that you're talking about, or not? And, and again, this is something that that reasonable people have different positions on, but is that the sort of issue that you're referring to, uh, when you talk about the type of person who should be on the commission?
[00:16:15] Ellen Colburn: It is, and yet I recognize that, um, this is a a much more complex issue where there are where there needs to be diversity represented on the commission. So I'm aware of of that issue. And yet, um, if there is going to be a clear agenda, which I think there would be in this case, it would raise some questions in my mind.
[00:16:36] Randall Roth: Okay. Ellen, can you stay on the line for a bit?
[00:16:39] Ellen Colburn: Yes, I will.
[00:16:39] Randall Roth: Okay, we'll come back to you later in the hour. Um, we've got a a few comments to to make about what what Ellen has just said, but first I want to get our our fifth voice heard. Uh, Frank Paget uh is a retired Hawaii Supreme Court Justice. Uh, Frank, can you hear me okay?
[00:16:57] Frank Paget: Yes, I can, Randy.
[00:16:59] Randall Roth: Um, Frank, I know from conversations you and I have had, uh, there have been some specific instances in the past where you feel that the public's confidence in judicial selection generally and the Judicial Selection Commission has been eroded somewhat because of circumstances that that just leave one wondering. Could you elaborate on that a little bit?
[00:17:21] Frank Paget: Well, this is not to denigrate the persons who were appointed or to say that they weren't qualified. I think it goes back to Sam's point that all of this is done the the lists are made up uh without in secret in effect, behind closed doors. And there have been instances like the following, uh A circuit judge was appointed who was uh reputedly the uh girlfriend of one of the commissioners. Uh, that Sam said three just judges were appointed who came out of the, out of one law firm, where one of the members of the firm was a commissioner. A, uh, commissioner who was on there when the five Supreme Court Justices, present Supreme Court Justices were appointed, uh, became was appointed by them as a trustee of the Bishop estate. Uh, another commissioner who was on there during that period his firm be according to the billing records, became the leading uh council for the Bishop estate. All of these things uh, you know, because of the the veil of secrecy, all of these things caused the public to wonder and causes members of the bar to wonder. The other thing is we all uh hope to see an improvement in quality in the judiciary with the change in the system, and we should have seen that. But as of now,
[00:19:00] Frank: I don't see it. I don't think the judiciary is either any better or any worse than it was under the old system. So if the objective was to improve the quality of the judiciary, it hasn't worked, and the public can sense that.
[00:19:16] Randall Roth: Frank, I know also from our conversation that you have some thoughts about the role of lawyers on the commission, and the possibility that there's even a conflict of sorts. Could you elaborate on that a bit?
[00:19:29] Frank: Okay, there are two aspects to this. One, there's always going to be questions when a lawyer is appointed to the bar, who's a member or a close associate or a relative, member of a firm, close associate or a relative, of a commissioner. On the other hand, you don't want to disqualify those people from being able to be appointed. They may be very well qualified and maybe they should be appointed. So that the fact that the lawyer is on the commission casts a cloud over the nominees and over the appointment.
[00:20:05] Frank: Secondly, there's at least one instance I've heard of where a member of the commission made it very clear to the judges before whom he appeared that he was aware that they would be up for reappointment, and the commission has the power of life or death over whether or not they're reappointed.
[00:20:25] Frank: Given those things, it seems to me that a solution would be to have no lawyers on the commission. To have the commission go to the Bar Association and say, "These lawyers have been recommended, what can you tell us about their professional qualifications?" because that's really all that the only superior thing that lawyers have over laymen as far as these appointments go, and that is that they're more acquainted with the professional qualifications of the people being appointed. But if you did that, and you had all laymen, I think you would, A, make everybody eligible and, B, get rid of some of these questions, particularly the ones I mentioned.
[00:21:10] Randall Roth: Okay. Frank, if you can stay on the line, we'd we'd like to come back to you later in the hour.
[00:21:14] Frank: Sure.
[00:21:16] Randall Roth: In case you joined us late, you're listening to the Price of Paradise Radio Show. My name is Randy Roth, and we're talking about judicial selection in Hawaii. If you would like to ask a question or make a comment, our number is 955-8821. Or if you're calling from a neighbor island, it's 1-800-955-8821. If you tuned in late and you would like to hear the show in its entirety tonight at 8:00 on KIFO, that's 1380 AM, you can hear the entire hour repeated.
[00:21:49] Randall Roth: Well, earlier we were hearing from each of our our five guests one at a time and I noticed that as certain things would be said, other guests would flinch a little bit and I think I'll real quickly go around the table and just see if there's some thoughts to be shared. Jim Koshiba.
[00:22:06] Jim Koshiba: Wow, I got gosh, I heard a lot of things this morning. Great things too. First about Ellen's comments. I think maybe we need a selection commission to select commissioners. Second, on the confidentiality, I've I listened to both Judge King and Momi, and I got to say I've gone the whole range from keeping it absolutely confidential, to opening it all up, and I guess now in my older years, I'm in favor of opening it up some more. And Justice Padgett, that's a really interesting idea, not having any lawyers involved in the selection in the selection commission. Really great idea.
[00:22:45] Randall Roth: Something in your article this morning that intrigued me was the idea of ranking the people on the list, because the the assertion has been made, I think a number of times in the past, that that a person who was just marginally qualified, the last name to go on the list, oftentimes is the one who would be appointed. Now, maybe that's not true, but I've heard people who have at least believe that and if the commission were to rank the people on the list and it was made public, then if that happened over and over and over, then that might not be a good thing so far as the appointing authority is concerned.
[00:23:21] Jim Koshiba: Well, no question that the appointing authority, either the governor or the Chief Justice, would object strenuously because they believe, under the Constitution, they have the right to appoint, and if you go to a ranking system, the commission would, in fact, be appointing. But the fact is, on the outside circuits, on the neighbor islands for example, it is often difficult to get the number of qualified candidates that the that the Constitution requires. It's just difficult to do so.
[00:23:46] Randall Roth: Not because people on neighbor islands are inferior, but because you've got a much smaller pool.
[00:23:51] Jim Koshiba: Correct. They demand too many names.
[00:23:54] Randall Roth: Okay. So Sam King, you would say among other things, shrink the list so that you've got less discretion by the appointing authority.
[00:24:01] Jim Koshiba: Yeah, not not less than four and not more than six. Well, you can't even get four if you're going to have a new judge on Kauai. So the sub commission has to go around and say, "Hey, put your name in so that we can have four." I don't want to go to Kauai. Well, we'll guarantee you, you won't be appointed. But we got to need four names.
[00:24:21] Randall Roth: Momi Casamero, any thoughts on what you've been hearing from others?
[00:24:25] Momi Cazimero: Yes, I think one of the things where we one of the words we haven't brought up here is perception. I think perception is an important word. When I was first appointed to the Judicial Selection Commission, there was heavy criticism on two points having to do with two commission appointments. One was um appointed by the uh the appointment was Jim Takushi, and it was because he was on the Governor's uh staff, Cabinet? Cabinet, thank you.
[00:25:02] Momi Cazimero: And I was related, am related to then Lieutenant Governor John Waihee. And so it was the first time I had been appointed to a body where there was such heavy criticism having to do with any kind of relationship. And because this issue was raised in a subsequent term, what I did was take issue with the fact that someone who was on the governor's, who was a Attorney General to the governor, was still going to remain on the board. And for that same reason, I did not accept a request that I serve as chair on the commission, because from a perception standpoint, people would assume that because of my relationship to the governor that I would, in fact, be in constant consultation with him. And I didn't refuse the chair because I I didn't want it, or didn't feel like I was going to be responsible in the position. I refused it based on perception.
[00:26:10] Randall Roth: And this was was Warren Price when he'd been appointed Attorney General, he had initially indicated that he was going to continue serving on the Judicial Selections commission, notwithstanding being a member of the Cabinet, in effect, at the Attorney General, and that's the sort of thing that you felt was inappropriate.
[00:26:27] Momi Cazimero: Right, because I I tend to look at things and try to prioritize where the first obligation is, and to me, as an Attorney General, your first obligation is, in fact, to the governor.
[00:26:38] Randall Roth: Sam King, any thoughts on what you've been listening to?
[00:26:41] Jim Koshiba: Well, yes, I I had a couple of them. First of all, I think the early commissions were absolutely marvelous. Um to just overtime became a little less marvelous. So, you're not talking about the structure, the the structure has basically, there were some changes in 93, but basically it stayed the same, but you feel the way it worked. The individuals involved in the way it worked changed over time, elaborate a little bit.
[00:27:05] Jim Koshiba: Because it was given that opportunity, by the way they changed it. It wasn't what the bar had put in. And secondly, I don't agree that you ought to uh rate people as to best and I think the worst Supreme Court we could probably pick for the United States are the nine leading constitutional lawyers of the nine leading law schools in the United States, they'd be terrible.
[00:27:27] Randall Roth: You don't want nine professors? Absolutely not. And as a matter of fact, I think that's one of the problems with the present Supreme Court, they're too many ex profs on there. Now, in this morning's article, you said a little bit about what you think um makes a good judge or or talked a little bit about the necessary legal scholarship. Summarize those thoughts and then I want to hear from Jim Koshiba.
[00:27:48] Jim Koshiba: Well, I just say that you know, you don't have to know an awful lot of law, because once you get to be a judge, in four years, you'll have had a college education in it. In fact, you pick it up real fast. You just have to have somebody with a little common sense, basic uh graduation and and some experience, and who knows the people, and who's had some experience. I thought it was very important that people who were in politics would uh get burned up in politics. They meet people that they wouldn't meet otherwise. They see what happens to the poor people and the unfortunate people, because that's what you get in court, you get all the people that have problems.
[00:28:25] Randall Roth: And it's interesting, that's a very different model than what I think a lot of people would assume is the model. Oh and you that's what I say, I come back to it. If you if you appointed all the best profs, let them sit around in the law schools and criticize, that's better. But the judges themselves ought to have more humanity. Could I just add one more thing about pay? You bet. I'm strongly in favor of raising their pay.
[00:29:10] Randall Roth: Well you know it's it's interesting, I've been doing a an informal unscientific survey of people's perceptions of the judiciary, and and initially I've just been getting the thoughts of of lawyers, and as one might predict uh opinions vary tremendously, but not on that issue. Uh almost every single response that I've gotten has either been total agreement or largely in agreement with the statement that that there should be a pay increase. Jim Koshiba.
[00:29:39] Jim Koshiba: Well, I agree 100% with Judge King, you know about the kinds of persons that you want selected as judges, but the fact is there aren't too many Sam Kings out. I mean Judge King is the epitome of the judge. He's been a judge ever since I've known him. Um he carry he he he embodies all of the kind of characteristics, strengths, and scholarship uh and academic background.
[00:30:06] Randall Roth: Now be careful, his his earphones won't fit. Well, I'm retired, so I won't see him in it. Let's uh let's take some calls. Let's go first to Libby from Kailua. Good morning, Libby.
[00:30:17] Caller: Uh good morning, Randy. Thank you for uh creating this nice show today and I appreciate the panelists coming out on a Sunday morning to bring it out into the community. Um I think the judicial selection commission is a great idea in order to create the first um to look at the qualifications of uh the potential judges. But I think it would also be a good idea to then to create a lottery to choose the judges from that list, instead of making it a vote of those commissioners, just put it in the the bingo hopper and pull out the slips of paper and those are the people who get to be the judges.
[00:30:55] Caller: Wonder if anybody has a comment on that. And I'll, I guess I'll hang up, thank you. Okay.
[00:34:28] Randall Roth: by that uh the commission selects a number of names and then the commission appoints. If that's the case, then that's not what the Constitution uh provides uh, but um it's kind of an interesting idea. Uh Libby's not on the line anymore, but you raise Jim the notion that the Constitution is somehow involved in this and Sam, in your article this morning, you were saying that if a decision was made, hey, let's change this, it has to be through constitutional amendment. Yes, we have to do it by constitutional amendment because it's set in there in concrete.
[00:34:58] Randall Roth: Okay. Yes, and we've had, if I may in, we've had citizens conference conferences. We've had two of them, and that provides the opportunity for input from the the public. Uh. Okay. Well, let's go to Alan in Lanikai. Good morning, Alan.
[00:35:13] Caller: Yes, good morning. Always like to listen to your program in the morning, Randy. Good show. Couple of comments and uh then I maybe I'll just uh hang up and listen to the reaction. Two concerns. One is and I think uh both uh Judge King and Judge Padgett touched on this. Politic uh politicist. I can't pronounce it. The court's been uh politicized. Uh and I think the problem lies in the fact that for two generations, we've had one party rule. So that's one one point. And the second one is, I'd like their thoughts on the so-called what I perceive as the Missouri plan, which is uh where the judges are appointed as they are today, but if they wish to go to a second term, then they must uh in effect, uh go on the ballot.
[00:36:05] Randall Roth: Okay. Let's let's get some thoughts that. And and just as background, uh a lot of our listeners perhaps don't realize that um this this clearly the the trend in the United States is toward the type of system that we have here in Hawaii, so-called merit selection with uh input from the public through some sort of Judicial Selection Commission. The latest statistics that I've seen uh are that 34 states use some variation of this type of system, 11 states rely solely on uh elections to pick their judges. And then uh in five states, we've got something like what we had in Hawaii before our Judicial Selection Commission and that is where we simply have appointment by a the governor or Chief Justice or some other uh appointing figure. Uh let's have a reaction to um Alan's call, Momi Casamero.
[00:36:56] Momi Cazimero: Government is run by consensus. But I think when we get into something that has to do with the judiciary, which is a third branch and what we tend to see is a more structured part of our government, that at that point, I really totally defend the selection process over election, because elections can be driven by single issues.
[00:37:21] Jim Koshiba: As as as uh demonstrated in California when they dumped uh how many members of the Supreme Court of California over the death issue? Four? Four, yes. Four members including the Chief Justice and uh it was disaster to the Supreme Court of California that driven by a single issue.
[00:37:43] Randall Roth: Okay. Um let's uh hear again from our two guests by phone and and while I'm going to them, anyone who'd like to ask a question or make a comment, please call us at 955-8821 or from a neighbor island 1-800-955-8821. 8821. Let's go to Frank Paget, our retired Hawaii Supreme Court Justice. Frank, can you hear me?
[00:38:08] Frank Paget: Yes, I can.
[00:38:09] Randall Roth: You've been listening to a lot of comments since we last heard from you. What do you think?
[00:38:13] Frank Paget: Well, I want to say one thing. I think that the fact that perception is important. I mean, because of the fact of the way the system operates, we don't know why people were put on the list. But because of the public appearances, the perception is that politics is very deeply involved. That may not be true, but that's the perception because of the way the system works at the present time. Another thing I'd like to add that I didn't add before, over the years, a number of well-qualified lawyers who were in very good positions in their firms have told me that they had submitted their names. They somehow couldn't get five votes and couldn't get on the list. And the only reason I can think of in some of those particular cases was that they were not politically connected. And that, you know, I don't think that we should discourage well-qualified people from applying, but the perception is out there among many members of the bar that if you're not well politically connected, you forget it. You don't need to put your name in. That may not be true, but the perception exists.
[00:39:32] Randall Roth: Okay. Anything else, Frank?
[00:39:35] Frank Paget: The idea, I think Sam is right that California incident is unfortunate. But on the other hand, the idea of running on shall judge so and so be retained in office is not a bad one. It's been adopted by a bunch of states. It's the basic Missouri plan, but it does, as has been pointed out, open that particular judge up to an attack on a single issue, and that has happened in a lot of states.
[00:40:08] Randall Roth: Okay. By the way, the Missouri plan doesn't apply to all the courts, does it? It only applies to their highest court and their highest trial court.
[00:40:19] Frank Paget: Frank, do you know? I don't offhand, but I think that's right.
[00:40:23] Randall Roth: Yeah. Okay. Frank, thank you very much, and and we'll try to come back to you later in the hour if we possibly can.
[00:40:29] Frank Paget: Okay.
[00:40:30] Randall Roth: We go to Dr. Ellen Colburn, who was a member of Hawaii's Judicial Selection Commission from 1989 to 1995. Ellen, you've been listening to a lot of comments since we heard from you. What do you think?
[00:40:42] Ellen Colburn: Well, two comments. One related to Justice Paget's comment just now having to do with good candidates who are not selected and the perception being political. While that may be the case and certainly, I know that is the case with regard to perception, one thing the commission has done is tried to encourage candidates who are not appointed on a particular go-round to continue to apply. And in in many cases, these individuals have eventually been selected as judges. And the second issue has to do with the perception issue. And I go back to the naming of commissioners. Uh, at least during the time when I was the commissioner, I saw basically no publicity around the appointment of commissioners. And in the interest of lifting that cloak of secrecy, especially the perception of it, as well as the reality, I think there should be open information given to the public with regard to commissioner appointments.
[00:41:49] Randall Roth: Okay. Could I could I comment on that uh Randy? Uh the original I just want to tell listeners that they're listening to the Sam King show. No, I'm I'm I'm kidding this is Judge Sam King now. I want to point out that the original proposition that the Bar sent over was that the members of the commission would not be chosen by the President of the Senate, he got one, the Senate got one, the House got one, and all the Justices of the Supreme Court got one, so that there would be discussion among a lot more people than just the top person naming them. So it would force discussion in in a number of Yes. And you would get the kind of of of public input that uh that Ellen just And presumably more awareness in terms of who ultimately was selected. Precisely. Okay. Uh Ellen, thank you very much. Again, we'll try to come back to you later in the hour if we possibly can.
[00:42:21] Randall Roth: You're listening to the Price of Paradise Radio Show. My name is Randy Roth. We're talking about judicial selection in Hawaii. With me in the studio is Judge Sam King, Attorney Jim Koshiba and former member of the Hawaii Judicial Selection Commission Momi Kasamero. We've got some open lines which you'd like to hear from you at 955-8821, that's on Oahu or 1800-955-8821 from a neighbor island. Momi Kasamero.
[00:43:11] Momi Cazimero: You know, this is really interesting when we look at the word perception because it's kind of a double-edged sword. We're saying here on the one hand that it shouldn't be politicized because of the connections that are made. I think politics really what we mean to suggest when we say it's political is that it's out of sync. But politics itself is not wrong and when you think about it, uh from the perception standpoint, if we selected an individual that we didn't know from a public perception standpoint, we wouldn't think the person was qualified. So, you're looking at people who have a profile, a high profile and that usually will suggest that there is a relationship between that person and any number of individuals who are politically connected. I think what we really are talking about is that there's a breakdown when we, again, going back to the fact that something is out of sync or or doesn't meet the general approval of the public. What needs to be done in sounding too simplistic is not changing any rules but changing the people. People who break the rules. We want to set up such basic broad rules that encompass everyone when they're really a minority of people who cause us to lose our confidence.
[00:44:34] Samuel P. King: You know that's a favorite saying is that good people can make a bad system work and bad people can make a good system fail.
[00:44:44] Randall Roth: And I notice all the guests in the studio are nodding that they think that that has some applicability here. Let's go to another caller. Melissa from Manoa. Good morning, Melissa.
[00:44:54] Caller: Yes, hi. Well, in that vein, um if you give people too much power, it's really hard for them to remain good people. And uh that has to do with the Speaker of the House and the Head of the Senate, too. And so if you're giving them the that one person the power to uh tremendous power to elect um or select candidates, um I think that's too much and it it twists the whole process of, you know, power brokering in the in the houses, and I don't think that that's a healthy um element of this process.
[00:45:34] Randall Roth: Melissa, stay on the line. I'll come back to you. Real quick reaction, I I what I'm hearing from Melissa is is a variation of of Power Corrupts. Jim Koshiba.
[00:45:42] Jim Koshiba: Well, I think I think that's a truism. The the fact is though this discussion um convinces me all the more that the more we open up the system, the more maybe we'll have the chance of affecting that perception whether it's among lawyers or among the public that the system actually is a good one.
[00:46:03] Samuel P. King: Yes, I I agree that as I pointed out the original idea was that it would be selected by the entire Senate not just the President and the entire House not just the speaker and all the Justices not just the Chief Justice.
[00:46:16] Momi Cazimero: Well, there's a saying, Power Corrupts and absolute power corrupts absolutely.
[00:46:23] Randall Roth: Melissa, I think you've got some agreement here. Was there anything else that you'd like to add?
[00:46:27] Caller: Um, only that uh truisms can be true. And just because you're paranoid doesn't mean they're not after you, right? Okay.
[00:46:36] Randall Roth: Thank you very much, Melissa. Um we're we're let's see. Let's go to another caller. This one is Wilma from Kapialani. Good morning, Wilma.
[00:46:48] Caller: Wilma, are you there? Hello?
[00:46:51] Randall Roth: Yes. Is this Wilma?
[00:46:52] Caller: Yes.
[00:46:52] Randall Roth: You're on the air.
[00:46:53] Caller: Hi, I just had a comment about the California election process. I happened to be there when the Bird court was uh voted out of office. The first my first comment is that the Missouri plan does uh apply to all appointed judges. So it's not just the high court, Superior Court, which would be comparable to our circuit court. Uh judges are also up for retention via election. The second thing is that the Bird court was voted out, I think because they were out of sync with the population of California. In fact, I think that Jerry Brown had committed the error that Sam King just moments ago had a comment about, that he that he had really appointed just kind of eggheads or or people who were not practical and who did not have the political sense of the state. I don't think that the Supreme Court has suffered for it. I think the California Supreme Court now is actually stronger.
[00:47:51] Randall Roth: Okay. Wilma, thank you very much for your call. Um, one of our callers just asked if if we could discuss a specific question and and that is, what are the minimum qualifications to become a judge? If one of our listeners wanted to be a judge, can anyone apply or do you have to be a lawyer? Do you have to have practiced for a certain period of time? Um, Jim Koshiba, do you know off the top of your head what the minimum criteria are?
[00:48:16] Jim Koshiba: Yes, you have to be a licensed lawyer in the state of Hawaii that is licensed by the Supreme Court of the state of Hawaii. For a district court or district family court judgeship, you have to have at least five years of experience. For a circuit court or higher court, you need at least 10 years of experience uh as a lawyer, but those are the basic minimum qualifications uh for a judgeship.
[00:48:38] Randall Roth: Jim, I know you've been a a leader in the Bar Association for many years. Um, a lot of people in our community and and across the country don't think real highly of lawyers. Uh, lawyers have a major role in the selection of judges and as you've just indicated, one has to be a lawyer to be appointed a judge. As a lawyer, as a leader in the Bar Association, any thoughts on on our involvement because I'm a lawyer too. Any thoughts on on how we plug into this process and and how maybe it should be different?
[00:49:11] Jim Koshiba: Well, first of all, as far as the perception about lawyers is concerned, my comment is that I think generally lawyers aren't held in high esteem. But if you talk to individuals about their son or their daughter or their cousin or their uncle or aunt who are lawyers, they have very high regard for the individuals. It's the legal profession as a whole and that's a whole different subject. But as far as uh, as far as how that might be changed, I think Frank Paget's idea is a good one, but to consider it, not having lawyers on the commission, maybe uh, just go to the Bar Association and say, look, you folks are in the courtrooms all the time and you know your fellow lawyers, tell us what you think about these people, but we'll have non-lawyers actually putting together the list. Because my experience on the commission was that in fact, lawyers did have an an and I don't know if undue, but they had a significant influence on the non lawyer members of the commission who did not know the lawyers at all. Okay, they'd often ask.
[00:50:16] Momi Cazimero: Well, I tell you what I did. Obviously, there were uh being a lay person, I there were a number of issues that were not quite comfortable for me to assess. I never ever went to a fellow member on the commission. I went to Herb Cornell. Because I felt that he understood the process, supported it. And uh I felt comfortable that he would understand the confidentiality of of my counsel with him. I never ever chose to go in to an attorney, especially within the same commission nor did I go to anyone else.
[00:50:55] Samuel P. King: I think it's absolutely essential for a strong and independent judiciary that there be a strong and independent bar. Without a strong legal profession, the judges are just uh flapping in the breeze because the lawyers are the ones that do it. And some of the bad rap that the lawyers get is because they're representing bad clients. It's the clients who are really the the bad eggs and the it spills over onto the lawyers. There's some recent examples which I don't have to mention, but but the legal profession gets a bum rap because they have bum clients. Okay. We're listening to the Price of Paradise Radio Show and we're down to the last 12 or 13 minutes, so I'm going to first go to Frank Paget and Ellen Colburn who've been with us by phone, get any concluding thoughts that they want to share with us, and then we'll hear from our guests in the studio. Um, Frank Paget uh, retired Hawaii Supreme Court Justice, any closing thoughts, anything to either add or emphasize that's already been stated?
[00:51:57] Frank Paget: Uh, not really. I there there's one thing I would like to put in when it comes to the method of selecting judges. Many of my friends on the Supreme Court and on the circuit court went to the judges school in uh right outside of Reno that trial level judges go to, and they told me that up there, when they went to class, they divided into two groups. One, those who were from states where they elected judges and two, those who were from states where they didn't elect judges. And the ones who were from states where they did elect judges spent all of their time talking about how they were going to get beer re-elected. So when you start to put elective politics into this thing, uh you really get into a can of worms. I know I was at a judges school in New York with a fellow who had just been appointed to the Supreme Court of Kentucky and was going to have to run the following fall in a contested uh political race for the post and uh we ask him, he said, how much is it going to cost you and he said about a half a million dollars. Now you can't, obviously have that sort of a situation uh and get and have the people satisfied that they're getting justice, because, you know, if somebody makes a big contribution, the natural thought is, they'll be taken care of before that judge. So that with all the faults of our present system or of a straight appointive system, either one is better than an election elective system.
[00:53:37] Randall Roth: Okay. Frank, I really appreciate you joining us this morning.
[00:53:40] Frank Paget: Okay, thank you, Randy.
[00:53:43] Randall Roth: You bet. Ellen Colburn was a member of Hawaii's Judicial Selection Commission from 1989 to 1995. Ellen, any closing thoughts from you?
[00:53:50] Ellen Colburn: Yes, the last couple of comments from uh judge um King and Jim uh underscore my original comments about the importance. In order to have the strong judiciary, the strong bar, you need strong and independent commissioners as I mentioned. And in response to Jim's comment, I think if you do have a strong commissioner, she can more than hold her own in a room full full of lawyers. Um, so underscore that point and also just a comment that I hope you'll have more shows like this that will inform the public about what these things really are.
[00:54:28] Randall Roth: Okay. Ellen, there's one other question I wanted to ask you. How important is the position of chair of the Judicial Selection Commission? Is it just another commissioner who has the title, or is it a significantly different role that that person plays?
[00:54:42] Ellen Colburn: I think that they play a significant role.
[00:54:46] Randall Roth: For better or worse?
[00:54:48] Ellen Colburn: Depends on the chair.
[00:54:51] Randall Roth: Ellen, thank you very much for uh participating this morning.
[00:54:55] Ellen Colburn: Thanks for asking me.
[00:54:57] Randall Roth: Okay. Well, we're down to enough time to where each of you have uh a couple of minutes to again add what we haven't said or or emphasize what you think goes to the core of our conversation about judicial selection in Hawaii. Momi Kasamero, who was a member of the Commission from 83 to 89, and is the owner of Graphic House here in Hawaii, your thoughts.
[00:55:20] Momi Cazimero: We've talked a lot about things that really have focused on the negative aspect of this whole process of selection and of appointing and so forth all having to do with the judiciary. I think what I would really like to stress is the fact that what we're looking for are good judges. And an important contribution to this definitely is the salary, not because that money is the almighty important thing, but because we are looking at the kinds of candidates who are practicing successful respected members in the judiciary, in the uh legal uh system. And if we hope to attract people of that caliber, then we're certainly going to have to compensate them at least more closely to what they're earning in private practice. That's one of the things that we have to look at and I think the more we focus on the kinds of uh individuals we want and encourage uh, and I'd like to see the process that encourages that kind of individual coming forward and applying for a judgeship. So, uh, I I think definitely one of the places to start is with the salary compensation. And and by and large you would say the system is working fine and if it's not broken, don't fix it.
[00:56:39] Momi Cazimero: Yes, and I and I think that uh, we really need to focus on the fact that whatever faults we've discussed have to do more with individuals than it ever does to have to do with the rules.
[00:56:51] Randall Roth: Okay. Uh Jim Koshiba, practicing attorney, uh active member of the Bar Association, the first chair of the first Judicial Selection Commission.
[00:57:00] Speaker 1: your thoughts.
[00:57:01] Randall Roth: Well, I heard I heard, excuse me Randy, I heard a a lot of great uh things this morning as I said. First, uh Frank Paget's idea of not having lawyers on the commission itself is a really interesting idea. MoMe Kusuma always has a whole Ponopono approach, a wonderful, um holistic kind of uh approach and attitude, and her comment obviously about salaries is very important, critical.
[00:57:29] Randall Roth: Um, careful selection of commissioners, obviously critical. I liked uh Dr. Colburn's uh comments. I think we ought to open up that selection process, that is the selection of commissioners. Let people know who are being considered, give people an opportunity to comment, criticize about it in Sam King's original idea and um open up the process, less less secrecy, more confidentiality, like Judge King suggested, I think, great idea.
[00:58:02] Speaker 1: And MoMe commented that the discrepancy between what we pay judges and what lawyers tend to earn is very very great. I know as a member of the Bar Association, you're concerned that that judges haven't had any raise for I think it's eight years now. Any thoughts on the kind of message that that sends and and the way human beings react to that sort of message?
[00:58:26] Randall Roth: Well, I think that's a terrible message that we're sending to the people who who would apply or be candidates for judgeships, and the fact is, Randy, one one another truism Dr. Colburn is that it seems to me anyway that all of our social and economic problems are now going to the courts for resolution. We don't have an effective alternative solution process.
[00:58:50] Randall Roth: The result is, any kind of dispute is ending up in the court and we're expecting the judges to resolve our social, economic, legal, all kinds of issues. We Americans go to court. I mean we're we're so happy. Uh, and the consequence is we're asking these people to be the arbiters, to be the judges of all of us in our lives, and we don't pay them.
[00:59:14] Speaker 1: And that's in the long run, at least, going to result in people that that aren't the ideal picks to solve our problems.
[00:59:23] Randall Roth: Exactly. Okay.
[00:59:25] Samuel P. King: Sam King, you got more than a few minutes.
[00:59:29] Randall Roth: I just have a couple of comments. One is, I'd like to have a tape of this program so I could listen to it over again, especially the part about Jim Koshiba describing you as the perfect judge, right? There some great things have been said and and MoMe made some statements that I'd love to to hear again, and so did uh Dr. Colburn. And the other comment I have is that uh a truism in the newspaper business that the best antiseptic for public ailments is publicity. I'm all for it.
[01:00:01] Speaker 1: Okay, put it all out on on the table. Well, normally I rush to get this finished uh within the hour and we've actually got uh three and a half minutes or so, so if anybody's got a a word of of wisdom or or anything else and and I guess we've said everything that needs to be said.
[01:00:19] Samuel P. King: Well, I really add a little bit about that money bit. When I was offered the um, I started off on the as a as a part-time district judge, that was the lowest court in the way and I was offered a job as a circuit judge by uh Judge by Governor Quinn. It paid $25,000, and uh that that was a pretty agonizing decision. Luckily they raised it.
[01:00:45] Speaker 1: I'm going to take advantage of the fact that we've got an extra minute to tell people a little bit more about our sponsor, the Hawaii Community Foundation, than what perhaps you you normally hear. Uh it is one of the oldest and largest uh community foundations in the country. It's been operating here in Hawaii for over 80 years. In the last 10 years alone, it's distributed nearly $80 million in support of local charitable causes in areas such as education, health, human services, culture and the arts, and community development.
[01:01:18] Speaker 1: We've been on the air for about five years and for every minute of that time, they've been our sponsor and and we appreciate that very, very much. One of their specific programs and I would encourage you to call the people at the Hawaii Community Foundation to find out more about their specific programs, but one of them has to do with the power of neighborhoods. It provides grants to help neighbors work together on projects such as community policing, graffiti paint outs, clearing away debris and trash, or holding community festivals that bring people together.
[01:02:01] Speaker 1: Since this program was established, this specific program was established in 1991, the foundation has given more than $1 million in grants to hundreds of neighborhoods across the state. Uh this is just one of the many reasons why those of us who work on this show really are proud to have the Hawaii Community Foundation as its sponsor, and I'd like to congratulate Jane Smith on her wonderful tenure heading up that organization and which and wish Kelvin Takeda, who is her replacement, all the best in terms of of running that great organization.
[01:02:22] Speaker 1: Our producer is Susie Roth. Usually our production chief is Jeff Alardi, but he's got the day off and so we've got Phil Hutchinson as our technical wizard. Uh we're on every Sunday morning on this station that you're listening to, which is either KHPR 88.1 FM or KKUA 90.7 FM. And then you can hear the replay Sunday evenings on KIFO 1380 AM. You've been listening to the Price of Paradise Radio Show. I'm Randy Roth. Aloha.
[01:02:32] Randall Roth: We're on every Sunday morning on this station that you're listening to, which is either KHPR 88.1 FM or KKUA 90.7 FM. And then you can hear the replay Sunday evenings on KIFO 1380 AM. You've been listening to the Price of Paradise Radio Show. I'm Randy Roth. Aloha.