Judicial Independence
Price of Paradise · Hawaii Public Radio · aired 1998-08-16
Guests: Ronald Moon (Chief Justice, Hawaii Supreme Court); Michael Town (Circuit Court Judge)
Duration: 1:05:07

[0:00:03] 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 activity 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.
[0:00:41] Randall Roth: Our topic this morning is the judiciary, not the bishop estate. In talking with my guests about the judiciary, I'm going to be addressing first judge Michael Town and Mike happens to be an old friend of mine, and he's agreed that it's okay if I call him Mike, and then you'll be hearing from Chief Justice Ronald Moon and I'll be referring to the Chief Justice as CJ, which is how many lawyers in town, and I assume others, CJ, refer to you. Is that okay?
[0:00:09] Chief Justice Ronald Moon: Yes. Yes. All right.
[0:01:11] Randall Roth: Well, we're talking about the judiciary, and I guess, um, Mike Town, why don't we start with you. What in the world is this thing that we call the judiciary? How does it fit within our system of government?
[0:01:23] Judge Michael Town: Well Randy, when I became a judge in 1979, I continually had to remind myself that the judiciary is the third branch of government, that the executive branch carries out the law, tries to implement the law that the legislature makes, and that it's our role as judges to hear these cases, to interpret the law and enforce the law. And also that the Supreme Court makes law, particularly when it makes law in the sense that they apply the law of the constitution, which can override the legislative branch from time to time.
[0:01:59] Randall Roth: Now, the executive branch, I guess here in Hawaii, that's, uh, first and foremost the governor. He's elected. The legislative branch, that's the legislature. They're elected. How do we get judges?
[0:02:11] Judge Michael Town: We get judges through the Judicial Selection Commission, which is a merit selection commission in my view. Uh, six names are submitted to either the Chief Justice for the district or district family judges and six names for the circuit court are submitted to the governor, and then the currently the senate has a chance to, um, advise and consent on that, to approve.
[0:02:33] Randall Roth: Now, presumably these elected people, the governor, the legislature, they're supposed to have their ear to the ground so far as public sentiment is concerned. If they don't, they probably aren't going to get re-elected. Uh, as a judge, a member of the judiciary, what's your role in listening to the people?
[0:02:52] Judge Michael Town: Uh, my boss is not the legislature, my boss is not the, uh, executive branch or the governor, it's the law. My obligation is to uphold the constitution and laws of the United States and Hawaii. So, basically, we're out there on our own. We have the last say, we're subject to very strict rules of procedure and also, uh, ethics.
[0:03:14] Randall Roth: And I know there have been some very controversial situations, and we're going to get to at least some of them a little bit later, for example, the newspapers recently here in Hawaii, something involving, uh, judge Simms. And and and I'm going to ask you about that in just a bit. But first, CJ, in your article in this morning's advertiser, the focus section page B3, it seems as though the primary theme, what you hit hard and and detail in in a variety of ways, is something called judicial independence. And I'm wondering if you could tell us real quickly just what do you mean by judicial independence and why is it so important that it would be the center post of of your article this morning?
[0:03:54] Chief Justice Ronald Moon: Well, judicial independence, Randy, is, uh, the ability of judges to be free to make their decisions without fear of reprisals. In other words, a judge's decision must be based solely on the legal merits of the case, that is, what is the evidence? What's the evidence presented to the judge and not be influenced by outside, uh, private interest groups or what a, uh, survey or opinion poll may be. The judge receives the evidence and applies the applicable law without being afraid of what will happen if I rule this way or that way in terms of my retention chances when I want to reup for a new term, or, uh, what the legislature may do to, uh, us in terms of budgetary, uh, concerns, uh, for instance, uh, judicial compensation.
[0:04:55] Randall Roth: And we might talk about that, uh, a little bit later. Fine. How, how do we balance the desire for judicial independence? And I, I think as people listen to you, they can see that there's a need for judicial independence. How do we balance that with a desire to, to keep everybody, including judges, accountable?
[0:05:14] Chief Justice Ronald Moon: You know, the, uh, article this morning refers to a case that we call it the privatization case. It's the Conno case. Now, I'm not going to delve into the merits of the case, uh, as we understand that there are many privatization cases or issues that may appear before the court. But, uh, when a case such as the privatization case comes up and a particular person or public interest group feels that it's the wrong decision, we are subject to criticism. Judges are not above criticism. But the criticism should be based upon fact. It must be grounded on fact. Uh, for a legislator, and in the article I refer to a legislator and a business person who commented that, uh, we, the Supreme Court are in the pockets of the union director, and that's the reason why we ruled for privatization. And the businessman commented that we were controlled by this particular director, and that's the reason why the economy crunched. Now, with that type of comment, the perception by the public is, obviously, we're pro-union, and that is not something that is responsible, I think, to try to convince the public that the Supreme Court is pro-anything.
[0:06:46] Randall Roth: Let let me play devil's advocate for a minute. It seems to me that one's values have to come into play, that that they're going to, for sure. And reading your article this morning, one almost gets the impression that you're saying, any five individuals that are really paying attention to the law and making their decision based upon the evidence in front of them are going to decide a case the same way, but I think a lot of listeners out there would say, well gee, if you had five justices appointed by, let's say, a Ronald Reagan, five justices appointed by a Bill Clinton, they're they're likely to come to to different conclusions on various issues, or or to boil it down to an individual, if we had Clarence Thomas deciding a case as opposed to Thurgood Marshall deciding the case, it it would probably be different. And again, as devil's advocate, when, um, a critic might be quoted in the newspaper saying you're pro-union, isn't that kind of a rough way of suggesting that the values of this particular court are such as to result in decisions that that on a, on a political scale might be described as as pro-union as opposed to the other side of of that spectrum?
[0:07:58] Chief Justice Ronald Moon: Certainly, but the words that you choose to criticize such as the justices are in the pocket of this union director, connotes wrongdoing. I think that's obvious. Now, when the criticism is based upon an analysis of the opinion, then certainly, uh, it's uh, something that we should accept as constructive criticism. Now, when you indicate that, uh, five different people should perhaps at times come up with different results, certainly that's true and that's happened in our court many times. Now, in regards to being pro-union or otherwise, if you look at the record, the statistics of union cases, you will see that pro-union decisions are equal or somewhat equal to anti-union decisions.
[0:09:04] Randall Roth: Let me let me play devil's advocate one more time and then we'll we'll move off of this. Um, the specific executive director of of the union that was involved in that suit is is Gary Rodrigues. And I'm wondering, wouldn't, wouldn't you say that there's at least the appearance of of a possible problem when, uh, a person who is involved in that case and very involved in political activities is on the judicial selection commission that determines whether you and and other justices are retained. And I'm not talking about whether anyone has done anything wrong. Right now I'm I'm just asking about the perception, and, and maybe when the person who was quoted was talking about, um, being in the pocket of the union, maybe what they're really, in a very rough way, suggesting is that there's an appearance that isn't quite what it should be here.
[0:10:09] Chief Justice Ronald Moon: Well, certainly, any, uh, person could view, um, on this situation as you described it. But, uh, you know, Hawaii is such a small place and there are connections everywhere. People know a lot of other people. I mean, because of the smallness, and and if the situation of a person sitting on the selection commission is perceived as being, uh, unwieldy, untenable, uh, improper, uh, that's the person's individual's view, but it's an indica it should be uh, viewed as uh, merely a perception. Certainly.
[0:10:52] Randall Roth: And I think if if I've heard you correctly, bottom line is there's a right way to criticize and a wrong way to criticize, and you see at least the way these concerns were expressed was inappropriate, inappropriate in a way that would tend to corrode judicial independence.
[0:11:08] Chief Justice Ronald Moon: No question. It's an undermining of the, uh, judicial process and the judicial system when, uh, people, uh, whether they are politically motivated, the media, uh, makes comments which are not grounded in, uh, fact, uh, are inaccurate to misinform the public, I think certainly, uh, discredits, uh, um, the judiciary in ways that are, uh, not appropriate.
[0:11:39] Randall Roth: Judge Mike Town, I didn't forget about you. I'll bet you've got some thoughts on what you've been listening to.
[0:11:43] Judge Michael Town: Yeah, I think what's important to, uh, for the public to remember, this is a deliberative process, and the judges in a sense, other than on appeal, we have the last say. And for me as a trial judge, I have to, it's a process of discernment and we have to sort of just figure it out on our own. Take a recess, uh, deliberate, read the law, and, um, the reason and common sense come into it, Randy, but public reaction, uh, just isn't there in terms of our training. We're somewhat like a civilian religion, if you will. We've got these very strict rules that we apply and, uh, every once in a while, circuit judges are asked to sit on the Supreme Court by special assignment, the the roof opens up and we get to move up there. And having sat in those, uh, consult in those deliberations in the back there in the conference room, they are strictly on the law and procedure and the facts. I have never heard any of that discussed and as a trial judge, in talking over cases with my fellow trial judges, my brothers and sisters, uh, it's all the law and the facts and some reason and common sense. We, we're, we're, we're human beings so we want to figure out how it plays out realistically.
[0:12:49] Randall Roth: Okay, well let's, let's get to something controversial and, and I know we're going to have to approach it indirectly rather than, than directly. I mentioned earlier a recent conversation involving judge Simms. Uh, I know that neither of you can comment on that specific case. The the the rules, judicial ethics simply prohibit it. Um, but maybe you could talk generally about the kind of criticism and and media coverage that that particular controversy has engendered. And, and Mike, if you could just generally describe the situation and then maybe we can ask CJ to to comment on on that, again in a real general sort of way.
[0:13:26] Judge Michael Town: On a very general way, is, uh, one of the hardest things that, uh, judges sit in the criminal division have to do is pronounce a sentence that's fair, that takes into account community safety, accountability, and then, uh, rehabilitation, if you will, or self-sufficiency. That person will eventually, some person who's in prison will eventually get out. And, uh, there's a lot of data on that when they get out are they going to get out better or worse. Clearly, when they're in the prison, they're isolated from the community, there's not going to hopefully there will be no further crime. Um, but they do get out and so it's an individual call that's based upon all of the facts, taking into account the family, the community, the victims', uh, feelings, all of these things. But basically, it's a balance of community safety versus what we call treatment or self-sufficiency, and it's it's a tough call. We sweat bullets over it. It's a deliberative call and we don't we make no none of those calls lightly.
[0:14:24] Randall Roth: And, and if and if I understand generally what happened, um, a young man was about to go to jail and, um, in in a in a, um, and and I don't want to get into too much detail because I know you can't address it, but the judge made a decision to let him stay out of jail for a while to bond with a newborn child, feeling as though that that somehow was um, the right thing to do. And the mother of the victim of the crime that that is the reason why this young man is is going to be going to to jail real soon was, uh, was outraged at at the way this was done. And again, this is just a real general sort of description. CJ, I know you can't talk about that specific case, can you talk generally about that type of media coverage, that type of, um, emotional response in this case from the mother of a victim, where the court cannot engage, cannot step forward and, and in effect present its side of that?
[0:15:28] Chief Justice Ronald Moon: Randy, I appreciate your sensitiveness to the fact that yes, indeed, judges cannot speak to, uh, uh, issues that are pending or impending, that is in the mill that may come before them. I think that people have to realize that, uh, a judge that is faced with the exercise of discretion. Uh, every judge has a different background, different values, different experiences, and as the facts come before the judge, and and I think that people should realize, it's like a jury trial. There are a lot of criticism to the results. People that criticize have not sat in the jury trial. They don't know what the facts were. They don't know what the evidence uh, the the evidence that was presented and similarly in this type of situation, criticism of outrage when you don't know what the judge was really faced with, what the judge's considerations were, uh, I think is unfair.
[0:16:32] Randall Roth: Okay. Well, I've got a couple more questions I'm going to ask before we take any calls, but if you'd like to get in line to ask a question or make a comment, our number is 955-8821. From a neighbor island, it's 1-800-955-8821. You're listening to the Price of Paradise Radio Show. My name is Randy Roth, and I'm here with Judge Mike Town and Chief Justice Ronald Moon. We're talking specifically about the judiciary. Again, if you'd like to get in line to ask a question or make a comment, our numbers are 955-8821 or from a neighbor island 1-800-955-8821.
[0:17:12] Randall Roth: Mike, we were talking a minute ago about just how subjective this can be. How do we find out? And when I say we, I'm thinking of myself as a lawyers being part of, um, of the system of justice. How do we determine if there's somebody who really isn't up to being a judge, somebody whose, whose judgment really isn't cutting it? Is there some way of evaluating, uh, the work of individual judges?
[0:17:39] Judge Michael Town: Well, there's a whole continuum of ways. One way is the, uh, administrative or supervising judges are responsible ethically under the rules of judicial conduct for the prompt and proper performance of the line judges. Another way is the Chief Justice, uh, can provide feedback and does directly when he, when he determines that. And at a collegial level, just as the chiefs of staff of a hospital will do that to the doctors, Kind of like my wife does to me, right? And and, and my wife to me. Uh, and it's not always appreciated, but I think well heard from somebody that's a colleague. We also have the judicial improvement project here where the at the end of the trials, the attorneys fill out a form and it goes to the Supreme Court and they get a chance. Also, we have a court observer project.
[0:18:31] Randall Roth: Okay. CJ.
[0:18:32] Chief Justice Ronald Moon: Yeah, and I'd just like to add that we also have a performance evaluation, uh, where attorneys who have actually appeared before the particular judge will fill out a survey, uh, uh, evaluating them on their legal knowledge, their comportment and so forth. And so this helps.
[0:18:51] Randall Roth: One more question before we go to callers. Judicial pay raises. It's been, I think, almost 8 years since there's been a pay raise of any magnitude at all. It's the same pay as I think 1990. Number one, CJ, I know you um have been critical of the legislature's failure to authorize pay increases or the governor's veto of action by the legislature. Um your general thoughts about no pay increases, not just for you, but for all the troops that that you are in charge of and um what it portends for the future.
[0:19:34] Ronald Moon: You know, as we speak of uh judicial independence, Randy, this actually is um specifically relevant, the lack of compensation for judges and increase on a regular basis. I mean, for eight years, the judges have gone without any increase while judges throughout the United States have had two, three, four raises. Government employees have had regular raises.
[0:20:06] Ronald Moon: Now, the Senate last year uh request uh sent out uh a concurrent resolution and they worked, this resolution was on the basis of two assumptions and if I may just elaborate. They said, first, because of the absence of an objective statutorily established mechanism that ensures fair and adequate compensation, Hawaii's judges are continuously drawn into the potentially compromising task of lobbying the legislature for salary increases and improvement in benefits. And, second, such lobbying is inconsistent with the traditional role of the courts as an independent and separate branch of government.
[0:20:50] Randall Roth: So for example, if if and we don't know why any one member of the legislature might act the way he or she has acted and we don't know specifically, I suppose exactly why the one pay raise um was was vetoed. But there are some people who feel that that this is a signal to the judiciary that you need to approach something differently than you have. Is that a signal that you think is maybe out there?
[0:21:18] Ronald Moon: I I think that's very accurate, Randy. And uh it does, I think, create uh this situation with judges. Judges are distracted. Anyone would be distracted if you were with an employer for eight years and you were not recognized in any way, especially by an increase uh of your compensation.
[0:21:40] Randall Roth: Let me get this straight. You're saying judges are human too?
[0:21:43] Ronald Moon: Oh my goodness, you heard it here on Price of Paradise.
[0:21:47] Randall Roth: Well, thank you very much, Randy. I appreciate that. Okay. Well, let's take some calls and see what our listeners have to say. First, we go to David on Maui. Good morning, David.
[0:21:55] David: Good morning and aloha. Um thank you and um I have two straightforward questions that uh one has a second part but first one is, have you heard of the fully informed jury movement and um also
[0:22:10] Randall Roth: Uh David, let's get a reaction to that and then I'll come back to you. Okay. CJ?
[0:22:14] Ronald Moon: Yes. Uh well, I think that uh Judge Town uh can answer this uh a lot better because he is involved uh on a committee which uh committee is looking at jury innovations. Mike, maybe you can uh
[0:22:29] Mike: Sure. Thank you, CJ. Um yeah, thank you for the question, David. Fully informed jury movement is when jurors basically refuse to obey the law and they can vote their consciences regardless of um what the law says and uh that's at least in Hawaii unacceptable under our current law because we want the jurors to be judges of the facts, just as I'm a judge of the law in a jury trial. And they have to follow, listen to the facts, discern them, uh deliberate with their fellow jurors and then apply the law.
[0:23:01] Randall Roth: In other words, they're not the law. They're just an instrument for applying the law.
[0:23:05] Mike: Yeah, it's not what what we might call gastronomic jurisprudence. What they had for breakfast. Uh it's it's really what the law is, and jurors are very good about doing that in Hawaii. But what about these innovative uh proposals? I think some of the uh fully informed jury movement might be initially driven or in part, uh not just by philosophy, but do we want our jurors to learn more about the case earlier in the case, to feel much more comfortable being true judges of the uh facts and so under the Chief Justice's leadership, we have a jury innovation project where five um judges in Hawaii, including the neighbor island judges, civil and criminal are starting to apply innovations uh that are proven elsewhere to see how they play out in our local judicial culture, if you will, and every state, every community has its own culture, such as providing many opening statements to the entire jury panel, such as in instructing the jury as we go through the case, such as allowing jurors to take notes and to propose questions that the judge might ask, such as uh instructing the jury before the attorneys uh present their final argument. I just finished a trial where that happened and the attorneys uh ended up pointing to many of the instructions and the jurors have them and and they were all on the same page.
[0:24:21] Randall Roth: So compared to telling the jury they can do anything they want to do, this isn't much, but compared to the way we do it right now, this is a pretty bold step in terms of what you're talking about doing. The other point is um uh the United States of America is one of about five countries that allows uh these kinds of jury trials. They're unknown elsewhere where uh usually it's just judges that do it all and we're very, I think, egalitarian democratic and the fully informed jury movement, while I understand it, where they're coming from um would provide for a certain amount of free fire sort of anarchy, if you will. David, your second question.
[0:24:56] David: Uh well, yeah, thank you. This ties in with the second question. Well, my main concern is the political agenda being uh considered law. It's actually policy and um the rule of law being the Constitution is very clear, and uh Thomas Jefferson states that there's actually a fourth uh division of government and that is the civilian branch, which is the jury and the trial by jury, and we actually have the right through the jury to um put a check on the unconstitutional laws and they are called laws but they're actually political policies and those are the ones that are actually on trial at the same time the defendant is on trial.
[0:25:41] Randall Roth: Okay. And also, the main concern I have is with the victimless crimes. And what I'm David, David, I have a quick question. David, I've got a bunch of people lined up. You've made your point very well.
[0:25:53] David: My main question is if we are a nation of laws and we follow a rule of laws, then what is the bottom line of that constitutes a crime if it's not a victim and we have too many laws that um are politically motivated that don't have victims involved. There's no crime if there's no victim. That's all I'm saying and it's a very simple thing. But you guys can't allow this to be said because it goes against your own political agenda.
[0:26:19] Randall Roth: David, you just said it. But once is enough, okay?
[0:26:22] David: No, you you won't allow this to be said because it goes against your own pocketbook and I understand your surviv- motive motivation, but that's not the way of a Democratic Republic.
[0:26:33] Randall Roth: David, thank you for your call. Aloha. Aloha. We go to Erika from Kailua. Good morning, Erika.
[0:26:39] Erika: Randy. Uh good morning, Randy. Good morning Chief Justice Moon and Judge Town. Um first of all, let me put in a shameless plug for a non-profit organization and fundraiser I'm involved in. Judges, I hope to see you at the HSBA fundraiser November 21st.
[0:26:58] Randall Roth: They're they're reaching for their wallets right now, wondering what the cost is.
[0:27:02] Erika: That's right. I I understand there's a little pay raise difficulty.
[0:27:05] Randall Roth: As long as they can pay in $1990, Erika, you're right. They'll be there.
[0:27:09] Erika: We'll see what the ticket committee can do about that. Um I I regarding the topic you're discussing this morning, I'm in a unique position, I think to appreciate both sides because I'm a mother of four and so I deeply empathize with the mother of the victim in the case. And yet also as a mother of four, I empathize with the father who would need who as, you know, a mother of a newborn child, I would want that father to bond with the child. So it's a tough call and I I it's it's difficult to put myself in Judge Tim's shoes, but is there a precedent where something like this has occurred before? In other words, was she exercising not only discretion on her part, but is there a precedent that she used also?
[0:27:57] Randall Roth: Erika, we're going to have to take that as a rhetorical question because neither Mike nor CJ can can address that. Judicial ethics simply prohibit it because this is something that, for example, could come in front of the CJ at some point in time. Um so they simply cannot.
[0:28:12] Erika: That's a precedent issue.
[0:28:13] Randall Roth: Uh that's right. No, rats. Well, I thought I'd try it. Nice nice try, Erica. All righty, thank you. November 21st.
[0:28:22] Randall Roth: Mike Town. Well, Erika, I think uh what the CJ talked about judicial discretion is there. We have to look at each individual case and each situation with its multitude of facts and certainly without referring to that case at all, uh from time to time over my 19 years, uh I have delayed the imposition of a sentence to allow someone to get their get their house in order. Uh each case depends very is very individual and without looking at the transcript, without being there at the hearing um it would be very hard for for us, for me at least, to second-guess anyone.
[0:28:54] Ronald Moon: Yeah, and let me just say that, you know, the reference to our the Supreme Court not being able to comment on this particular case, I mean that indicates what the uh remedy is for those that are not pleased, a party that is not pleased with uh Judge Tim's ruling. And that is specifically an appeal to the Supreme Court for full review. Okay.
[0:29:18] Randall Roth: We go to Peter from Kailua. Good morning, Peter.
[0:29:20] Peter: Yeah, uh Randy uh Randy, thank you very much and uh good morning to the Chief Justice Moon and uh uh Judge Town. I have two questions, so I'm a lawyer. So uh uh this is of interest to me. Number one, why does it uh seem to take so long for the Supreme Court to come up with decisions in cases pending before them? Number two,
[0:29:43] Randall Roth: Oh, Peter, I my real is since I can only keep one thought in my head at a time, we're going to answer that and then come back to you. And and CJ, there are critics of the court that have said it just takes so long to get a decision, and then once in a while they'll add um these 100 page opinions or 100 page dissents or long memo decisions that don't have precedential value uh take up time. In a variety of ways, some people out there have said can't they move more quickly?
[0:30:17] Ronald Moon: Randy, let me uh give you a little bit of history about the uh Supreme Court's uh uh case situation, case management situation.
[0:34:38] Ronald Moon: of 99 uh 96, the Supreme Court implemented a emergency procedures uh program and that was to affect not only the Supreme Court, but the intermediate appellate court judges. And that was to expedite the uh uh flow of cases uh to get them out as soon as possible and for two years we have done this and we have implemented what we call summary uh dispositions, and that is a one-liners or short paragraph or short order indicating whether the uh opinion, normally or the case uh was a affirm. Normally it's for affirmances uh or uh whether uh it was uh vacated or reversed. And and this has created a situation where uh the inventory of some 1700 cases to date after 22 months, it's been cut in half, more than half.
[0:35:40] Randall Roth: So even though it's taking a long time, you feel as though you're moving in the right direction. You're you're eating into that backlog.
[0:35:45] Ronald Moon: Well, and let me just say that at that time where the uh average or median case was disposed of or resolved in uh about 500 days. Now it's down to about uh 245 days. And so we are working on it. Uh every judge judge and justice is uh very conscious of uh what the uh public wants and needs and certainly we need to do this continually, and until we get resources from the legislature, more judges perhaps at the ICA or intermediate court level, uh we will have to continue to implement this particular tool, which some criticize us for and that is the summary disposition method. In very important cases, we still publish our opinions. Okay. Peter, you had another question.
[0:36:34] Peter: Well, it was part uh uh uh it was partially answered. Uh the other question was um the long opinions that have come out from the court. It seems to me many of them are so long that the average practitioner such as myself really just can't wade through these things and learn anything of any real importance. A lot of them uh the the decisions uh relate to procedural questions and that sort of thing. I like to go back to the old Stainback decisions uh when Judge Stainback was on the court. Uh I was a law clerk at that time and uh I really appreciated his short and pithy opinion.
[0:37:13] Randall Roth: Okay. Peter, I appreciate your call this morning. You're listening to the Price of Paradise Radio Show. My name's Randy Roth and I'm here with Judge Mike Town and Chief Justice Ron Moon. We're talking about the judiciary. We've got some people on the line and we're going to get to them. But if uh you'd like to get behind them in line, we do have uh some openings. So the number is 955 8821 or from a neighbor island, 1800 955 8821. Again, we're talking about the the judiciary. Our next caller is Lou from Ainahaina. Good morning, Lou.
[0:37:46] Lou: Good morning. I have two questions. One has to do with the a relatively recent Supreme Court decision regarding workers' compensation, where a worker was fired and uh claimed stress and was given a workers' comp award. Now,
[0:38:00] Speaker 1: uh I'm uh struck by one of the uh comments made by uh Judge Moon in today's newspaper, where he talked about the courts being the place where a person may gain or lose property, which I've got a lot of respect for uh as a as a principle that is. And here we have an a worker who was uh fired and uh because of stress is getting an economic benefit. But I'm I'm questioning basically whether the court also considers the economic cost to the taxpayers or the the other businesses in the state, and trying to reach a balanced conclusion here.
[0:38:33] Speaker 2: CJ, I know you can't talk specifically about that case. What about Lou's more general question. Do you take into account things like the impact that your decision is going to have on the cost of living in Hawaii or those sorts of things?
[0:38:47] Speaker 3: Certainly, we consider it in this uh in this way. Whatever the legislature has determined to be the policy and if they refer to a particular economic issue or the way they view it and uh uh encompass it within their um particular law which they issue, then we should also take uh into consideration economics, but to the extent that any particular time in the year or uh in at a period where the economics are bad or uh good, we cannot do that because it's not uh a a uh principle of law that we should consider. Okay?
[0:39:31] Speaker 2: Let's uh Lou, does that answer your question?
[0:39:33] Speaker 1: Uh well, not completely, because I'm not talking about making a judgment based on temporary economic conditions. I'm talking about a permanent situation. When you make an uh an unemployment or rather workers comp award, that money has to come from the the state, whether it's good times or bad times. And the question is, uh shouldn't that have a a a role in the decision-making process in addition to the significance to the individual him or herself?
[0:39:59] Speaker 2: CJ?
[0:40:00] Speaker 3: Yes, let let me just say that in that particular case, if you read that case, I think that you understand that we interpreted the law that the legislature gave us to include this particular type of case and that we said and refer to other jurisdictions, and we said specifically that if the legislature were to look at this and didn't like the result, then they should follow these jurisdictions such as Texas which uh enacted a law which excluded uh these disciplinary type of cases which cause stress.
[0:40:38] Speaker 2: You know, some people, CJ, think one of the reasons you haven't gotten a raise for 8 years, is that occasionally you do throw the ball back at the legislature, you tell them that ultimately they're in control of how that law that you're applying reads.
[0:40:52] Speaker 3: Randy, uh I said it you didn't. Right, right, Randy. But you know, I think that that is a perception that can be reached that uh and I've heard legislators say, you know, we're very unhappy with your particular decision because it gives, it puts the ball in our court. And and when judges hear that, certainly the uh consequences could be perceived as being a slap on the wrist by not giving you and it's more than a slap on a wrist, when you're not receiving adequate compensation.
[0:41:25] Speaker 2: Mike Town.
[0:41:26] Speaker 4: Briefly, I think, Lou, uh you raise a real good point. Because we're the third branch, we're the last say. Uh we have to do what the law and the facts provide. Let me give you an example. If the state is sued for let's say a defective highway design by a injured party, in no way do do do does the court any trial judge factor in it's going to cost the taxpayers more. We have to decide if the state was negligent or not. We're the third independent branch, and it could be a corporation, could be an individual that was negligent, it could be the state. And that really is irrelevant.
[0:41:57] Speaker 2: Uh Lou, thanks for your call. I do have one other one.
[0:42:00] Speaker 1: Okay. Um, it may sound like I am viewing one side of the issues only here, because it has to do with Gary Rodrigues being on the judicial selection panel. And uh I my I guess my question has to do with whether or not it implies that the judicial selection panel is going to be uh a kind of a process of balancing interest groups in society, which means a kind of partisan interest relationship versus uh its ideal being nonpartisan.
[0:42:26] Speaker 2: Well, let me let me take that as a comment. Earlier it it came up and CJ mentioned that Hawaii is a small state and you sometimes end up with uh the same people showing up in different places. CJ, if you want to add to what you said earlier, great. Otherwise we'll just take Lou's uh comment as a comment.
[0:42:43] Speaker 3: Well let let me just say this, that, you know, it's like a judge sitting on a case. That's how I view these commission members. If they feel that they would be biased or prejudiced in any way, then they should recuse themselves as the judges do. And and I believe that these people on the selection commission are honorable people and they will do that.
[0:43:04] Speaker 2: What if, and again, to play devil's advocate, what if they know they're going to be objective, but they also know that there is an appearance of an impropriety.
[0:43:16] Speaker 3: Right. And and I should have elaborated on that when I uh answered you previously. If the appearance of impropriety is such that people will lose confidence and trust in the process, then that probably is a very good reason, Randy, for that person to step down in a particular appointment or selection situation.
[0:43:37] Speaker 4: My town. And just as a point of information, um I've been through two retention processes. I was appointed in 79, retained in 85 and I retained again in 91. They were very professional, very thorough. Uh anybody who had comments pro or con was invited to not only write in, but come in and speak to them and I learned a great deal. It was uh I thought it was a very healthy process. I think I was hopefully a better judge as a result of them.
[0:44:03] Speaker 2: A kid like you's been on the bench 20 years?
[0:44:05] Speaker 4: Not quite 20. Don't, almost. Okay.
[0:44:08] Speaker 2: Lou, I've got to move on. I really appreciate your call this morning. We go to Mel from Manoah. Good morning, Mel.
[0:44:14] Speaker 5: Oh, hello. Um, your callers have touched on this point, I guess addressed it in fact. Um, my feeling is that people are dissatisfied with the judiciary because they really don't believe it is independent. They are political appointees, their Judicial Selection Commission is politically appointed. And there's doesn't seem to be an effective way to uh provide feedback once they're on the bench. What possibly restrains the judges from reinterpreting English words?
[0:44:53] Speaker 5: We we've heard that just said that the judges complain to the legislature, you have to write this law. But the legislature can say, I mean, the judges are always free when they're given a law to simply redefine a word to make it come out the way they want, like marriage, or fee simple title, or or or
[0:45:13] Speaker 2: Now Mel now hold on, I want to come back to you. Um, CJ, I know, again, you and I have talked about this. You can't address the same-sex marriage case, you can't address the the Pash case, for example.
[0:45:26] Speaker 2: But we have cases like that where Hawaii just seems to have have gone its direction as compared to the other 49 states. It and maybe it's because the situation in Hawaii is just unique. But what I'm hearing from Mel is that whether it's a specific case that seems to sort us out from the rest, or a Gary Rodrigues on the Judicial Selection Commission or something else, Mel at least, and I don't think he's alone, is questioning whether there is that independence that that you are so eloquently saying there has to be.
[0:46:03] Speaker 3: You know, I think your question uh probably answers his question, Mel's question, uh because if you're saying that we're going uh away from the natural stream, uh the trends, then what we're doing, if that is true, is truly being independent, if that's the case. Uh and that's debatable. Um, to be accountable, as Mel uh is indicating, who are we accountable to? Well, you know, we have the process when we are seeking retention. We go before the Judicial Selection Commission and they advertise that this is coming up and they need input and want input. And people from all over, lawyers, non-lawyers, anyone can come in and give input.
[0:46:54] Speaker 3: And they will look at your record and and talk about the various evaluations that have been concluded, uh and we'll determine if that person should be retained.
[0:47:03] Speaker 3: Now, a lot of times and and this brings up this elective uh process in other jurisdictions. Every year, practically, we hear someone out there or some legislature will call for an elective process of judges here. Well, you know, if you look at that system as being uh one that will hold judges accountable, I mean, it's you hear horror stories, Randy, in the mainland, where a person looking for an office such as in Texas, I talked to a justice in Texas. He spent $2 million to run for his position on the high court.
[0:47:40] Speaker 2: He might develop a little baggage in in raising that kind of money.
[0:47:43] Speaker 3: Exactly. Because where do they get the campaign funds? They get it from the attorneys who appear before them. And that certainly is not uh the way to uh uh hold uh judges accountable.
[0:47:56] Speaker 2: Okay. Mel, we'll give you the last word on this one, then I have to move on.
[0:47:58] Speaker 5: It's a question of how the judges get feedback. How about um, recall? Even even uh scheduling recall every 6 years or 8 years to make them relatively immune. But isn't there any possible feedback mechanism when these people become independent of common sense?
[0:48:23] Speaker 2: Mike Town.
[0:48:24] Speaker 4: Well, thank thank you, Mel. Um the retention process has served as a recall recall process. Judges have not been retained. It is not a slam dunk, and it shouldn't be a slam dunk.
[0:48:36] Speaker 2: And and I guess I should just mention, it it doesn't make headlines when a judge isn't renewed.
[0:48:44] Speaker 4: That's not recall.
[0:48:45] Speaker 2: You're right. You're right. CJ.
[0:48:48] Speaker 3: Yeah let me just inject this, that we have a system where uh a committee, which is called the Judicial Selection uh Judicial Conduct Commission. I'm sorry. It's the Judicial Conduct Commission. If you feel that a judge has uh been involved in some kind of misconduct, or has ruled just because of some bias or some prejudice, favoritism for a party or uh some allegation of that sort, then you may uh complain, put a grievance in with the Judicial Conduct Commission and they have the authority and they have the ability to recommend uh dismissal.
[0:49:30] Speaker 2: Mel, I told you earlier I'd give you the last word and then I lied. I I got argumentative. Why don't you say uh say one more thing and then we're going to move on.
[0:49:38] Speaker 5: Um, well, I just like to say thanks for these people. Um, thanks for listening.
[0:49:43] Speaker 2: Okay. Thank you, Mel. We go to Michael from the Big Island. Good morning, Michael.
[0:49:47] Speaker 6: Good morning. Um, I have uh a sort of a two-part question that's all tied together. Um the first one is the public's frustration with um constant continuances in cases. And the other part is, uh do judges have um discretionary powers to um move cases along in their courts?
[0:50:13] Speaker 2: Okay, I earlier we were talking a little bit about the backlog and and CJ pointed out that the backlog is is much less than it was uh just a few years ago. But uh let me see if if Mike or CJ if you have anything to respond to to Michael with?
[0:50:30] Speaker 3: Sure. Uh thank you, Michael. Uh certainly in Honolulu in family court and criminal court, there is zero backlog. It it from an arraignment to trial in the criminal court is five weeks. Sometimes too fast. Family court, the juvenile cases is 30 days, but it it is, Michael, a case-by-case decision, in no way do we want to be unfair to the litigants. On the other hand, um I think most of the judges, all of the judges do do not enjoy giving continuance, we do it reluctantly uh and we try to, to once the case is filed, we're responsible for the calendar, and we want to move them through and that we're very clear as trial judges uh that that's what the Supreme Court wants us to do.
[0:51:12] Speaker 6: In other words, what you're saying is the continuances that are in the in the line of fairness?
[0:51:19] Speaker 3: Right, if somebody, yes, if somebody's not ready and they can't go to trial, the judge has to balance it out, but they're not a matter of right, Michael. It's it's a case-by-case situation. And I've I we've all said no to continuances from time to time.
[0:51:33] Speaker 2: Michael, let me get CJ's comments on on your comment and then we have to move on.
[0:51:38] Speaker 3: Yeah. Uh Mike, uh the uh keyword is good cause. If there is good cause, then the judge should continue the case. Now, as far as discretion to move along the case, from my point of view, uh there is no discretion. There is a mandate, move the cases along. We've got too many cases. The judiciary handles approximately half a million cases a year. We have to move the cases along.
[0:52:04] Speaker 3: Uh but we have a problem with lack of resources. Right now, I would like to bring up the subject matter that we are involved in a restructuring process. In other words, we are having our uh people on the line in uh mid super visory positions, supervisory administration look at us our situation. We've sent out to our 1,600 employees comments about how to do things better, to be more efficient, to move cases along. Right now, I understand that we have over 1,200 responses to those surveys, which is great. We'll be looking at this, and we will be trying to do better.
[0:52:45] Speaker 2: Kind of like businesses downsizing, or right-sizing, or whatever it might be.
[0:52:49] Speaker 3: Well, we well, this process does not anticipate that we will downsize or riff employees, but we are looking to eliminate duplication, looking for more uh cost savings and uh more efficiency.
[0:53:03] Speaker 4: Lean but not mean.
[0:53:06] Speaker 2: Okay. Thank you. Uh Michael, I I have to move on. Thank you for your call this morning.
[0:53:09] Speaker 4: You're welcome.
[0:53:11] Speaker 2: We go to Eugene from Maui. Good morning, Eugene.
[0:53:13] Speaker 7: Uh hi, yeah, thank you. Um, why is it that the uh courts do not address the uh ninth amendment uh at all? It seems like not the Supreme Court or any court addresses the ninth amendment and I was just curious if you could give me some comments on that.
[0:53:29] Speaker 2: Let me get a quick one from uh Mike Town, whom among other things, has taught a lot of courses out at the law school over the years. Tell us uh in less than a minute, Mike, what's the ninth amendment and what's this question all about?
[0:53:40] Speaker 4: Eugene, you're talking about right to privacy?
[0:53:43] Speaker 7: No, not the uh right to um un enumerated rights uh that cannot be enumerated, such as like perhaps the right to inhale.
[0:53:52] Speaker 4: Right. Well, the attorneys have to raise it uh Eugene, and if they're not if it's not raised, the court doesn't necessarily raise it. Our state constitution does have a separate provision on privacy. These are called the penumbra rights that exist in the shadow of the other, but the attorneys have to raise it. And if it's raised, the court will uh hear it out and make a decision on what is the correct situation under the law and the facts.
[0:54:15] Speaker 7: I've called to say that the Supreme Court just refuses to address the ninth amendment. Maybe I was misinformed. I have one other question. Can you tell me why is it that when you go to court, it's called an admiralty maritime court, and why is it that they have a gold fringe around the bottom of the of the flag?
[0:54:34] Speaker 2: I think we're drawing a blank here, Eugene. Let we'll take that as a as a question that we can't answer.
[0:54:41] Speaker 7: Well, then it sounds like you guys are a de facto because if it's not um a civilian court, uh a justice court, then you're not following the Constitution, I believe and that's why the trial by jury My my first name by the way is David.
[0:54:56] Speaker 2: Oh, you called earlier.
[0:54:58] Speaker 7: Yes, I'm trying I'm trying to be coherent. In reference to Mel's question, uh I believe the last check is the civilian branch, which would be the fully informed jury, the the right of the jury to determine the merits of the law.
[0:55:14] Speaker 2: Okay, Eugene. Thanks for for both your calls. Um real quick reaction, Mike, and then I've got a couple other things I want to ask you and the CJ.
[0:55:21] Speaker 4: I was just going to say, Admiral Admiralty and Maritime Court is a federal uh part. We're the state court and uh so that's a specific federal situation.
[0:55:30] Speaker 2: Mike Town, you've been a judge for nearly 20 years, and I know that you personally have been involved in a number of projects that are under the auspices of the judiciary, but go beyond simply deciding disputes in front of the judge. There's some people who feel that the judiciary shouldn't be engaged in these other activities, and then there are other people who feel quite differently. Real quickly, give us just an example or two of the kind of program that I'm alluding to, and your thoughts about the appropriateness of them.
[0:56:05] Speaker 4: Well, very briefly, with the Chief Justice's total support, we have gotten into uh alternate dispute resolution. That is, I think it was Shakespeare that said to to uh to paraphrase that the judge that decides best, decides least. And so uh maybe the courtroom sometimes is the least used room in the courthouse. So we have a statewide alternate dispute resolution uh uh office, and we try to guide people there. Uh they try to guide people to mediate, to arbitrate at every level from the appellate down to the trial level.
[0:56:41] Speaker 2: And let me just make sure so that the non-lawyers out there understand, you've got a certain degree of of leverage. It's not just suggesting that they try to settle this out of court. You use what you feel is an appropriate amount of that leverage to get these parties to work this out on their own outside the courtroom.
[0:56:57] Speaker 4: Correct, and that the the attorneys know that, and in their rules
[0:57:00] Randall Roth: conduct their their urge to do that and it's good practice because the shelf life of a of a mediated uh decision is far greater than one that's possibly judicially imposed.
[0:57:11] Ronald Moon: And mediated means where the parties have to agree to the solution as opposed to having someone like an arbitrator or a judge say, you win, you lose.
[0:57:20] Randall Roth: Yes, I think we're the envy of of many states because it's part of our our culture in Hawaii too that we're we are so two degrees of separation. We're so related by marriage and and blood and by work that it it's we we got to continue to live together in a small island. I want to come back to you because I'm specifically concerned about programs in the family court where you were for many, many years. But CJ, you've personally been very much behind this alternative dispute resolution program and so since Mike has brought it up, why don't you comment on it?
[0:57:50] Ronald Moon: Yeah, I just wanted to say that uh at the present time at every stage at the family court, district court, uh even at the Supreme Court level, the circuit courts, we have ADR or mediation uh programs that are ongoing and I I wanted to point out this that it is for the benefit of the people. Arbitration, mediation often helps to minimize the expenses and the anxiety and the grief of going through the traditional way of resolving uh disputes and that is the traditional way of trial. It's very expensive expensive to go that way and if you can settle the matter as you indicated by mutual agreement, Randy, uh that is so much better.
[0:58:37] Randall Roth: Okay. Mike Town, getting back to family court, tell us about one or two programs, again, real briefly uh that go beyond simply deciding the dispute.
[0:58:48] Mike Town: Well, I think with kids and and families that come to court, uh we need to provide therapeutic justice to them. Justice that can help them and the adversary system works when it needs to to, but often times people can solve their problems. We have a Kids First program where all families with children between six and 18 come down to court and they're the kids and the adults are explained this whole divorce process, the dynamics of divorce. It's been very successful.
[0:59:14] Mike Town: And again, mediation is urged. Uh I think uh frustration and anxiety is reduced. The other is the Ohana Conferencing project, where in a child abuse situation, the community and the extended family can come in and learn about the problem and that does involve some uh relaxing of confidentiality and try to support little Johnny or little Jane who may have suffered an abuse and figure out a way if possible to keep that child within that extended family, within that extended community without unnecessarily extracting the child. Child safety being paramount.
[0:59:50] Randall Roth: So these are basically social service programs, but I guess the theory is kind of one stop shopping since they're ultimately going to be affected by the decision you make that that maybe as part of one stop shopping we've got some other ways of dealing with this in addition to simply making a decision.
[1:00:07] Mike Town: The family court being a courthouse of many doors, it's the judicial equivalent of a community hospital where you get a variety of of services.
[1:00:15] Randall Roth: CJ, we're down to just the last few minutes and I want to give you an opportunity to raise anything that you want to raise or to comment on what we've been talking about.
[1:00:22] Ronald Moon: Well, first of all, let me just say that, you know, Mike has been very instrumental in bringing the family court to where it is and you know to many people or many jurisdictions on the mainland, they look to Hawaii's unified family court as being a model. And when uh uh Mike talked about a one stop shop for uh services we are working on that with the Kapolei uh center, uh the family court center which will also house it will be the juvenile detention home. And this is something that we look forward to. All of the services in one building as opposed to what we have now.
[1:01:02] Ronald Moon: Uh may I just say this that when we talk about judicial independence, this is a national problem. And I'm not saying that criticism I would like to emphasize this that criticism is wrong. We welcome criticism, constructive principal criticism based upon fact. But when people come out and and uh throughout labels and and misinform and misrepresent, it really hurts the judicial system, the process and it causes uh such a perception that people then lack trust and confidence in our courts which really hurts them. It is healthy to criticize based upon principal criticism.
[1:01:48] Randall Roth: I'm going to come back to you for 30 seconds of final wisdom, but Mike Town, anything you want to add to what we've been talking about already?
[1:01:56] Mike Town: Well, I think uh one thing that the public needs to know is that judges must be by law, by Supreme Court rule, patient, dignified and courteous, the staff must be patient, dignified and courteous and when they're in court, the judges have to enforce the attorneys to be patient patient, dignified and courteous. So when the public goes to court, they should expect to be treated that way by everyone they meet in the courthouse from the uh from the judge to whoever else they might meet, the the calendar clerk.
[1:02:26] Randall Roth: Okay. CJ, we're just down to literally seconds, about 30 seconds of anything you would like to add.
[1:02:31] Ronald Moon: Well, let me just say uh to your listeners that the judges and the uh judiciary employees are working very hard to perform services uh in a very uh efficient manner. Uh we are working on many different projects to uh have the judiciary uh utilized by our people in a very user friendly me uh uh uh methods. And and um any uh discussions that we've had which uh uh indicates that uh people are uh dissatisfied or there are uh areas of dissatisfaction, we need to hear from you. Uh it it's uh something that we look forward to receiving uh so that we can work towards a more efficient um judiciary. Thank you.
[1:03:23] Randall Roth: CJ, I want to really thank you for coming on this morning. As a lot of our listeners know, I'm part of a group that has been publicly critical of of the five justices and I know that that you don't feel that that was appropriate criticism and I, you know, the two of us have agreed to disagree on that one and I very much appreciate that you'd come on the show and that you would be so direct in talking about these issues. Uh I think it really helps uh to discuss this.
[1:03:50] Ronald Moon: And Randy, I appreciate your invitation and your graciousness as a host.
[1:03:54] Randall Roth: Thank you very much. Um our producer is Suzy Roth, but she's uh on the mainland, so Sherry Ganway is taking her place today. Usually our production chief is Jeff Alardi, but Philip Hutchinson is the man this morning. You've been listening to Pop Radio. I'm Randy Roth, Aloha.