Hawaii Bar Journal
July 2010 #1.
Merit Judicial Selection in Hawaii: A Practical Guide
Hawaii State Bar JournalJuly 2010Merit Judicial Selection in Hawaii: A Practical Guide by Rosemary FazioThe recent increase in the number of judicial vacancies has created heightened interest in the judicial selection process in Hawaii. As a result, Hawaii State Bar Association ("HSBA') members may be confronted with questions about the pro cess from clients, family, or friends. Whether or not one aspires to become ajudge, one should, as a member of the bar, understand how merit judicial selection and retention works in Hawaii and be able to explain it to the public.
The article starts with a brief history of merit judicial selection in order to set the context. The major focus of the article, though, will be practically oriented, concentrating on the local merit judicial selection procedures.
Judges in Hawaii state courts are chosen and retained through a process originally created as a result of the 1978 state constitutional convention. Because no system of judicial selection is perfect, one can point to potential weaknesses in the present system. This article takes as a given, however, that merit selection is superior to elective or political appointive systems in its ability to protect the Judiciary from the demands and pressures of special interest groups and partisan politics.(fn1)
Merit selection applies in Hawaii on both the state and federal judicial levels. Both systems operate in a similar fashion. Major differences, however, do exist. This article covers both systems.
I. The Development of Merit Selection in the United States
The American Judicature Society ('AJS") was founded in 1913 with the goal of promoting the effective administration of justice in the United States. As one means to achieve that end, the AJS sought to sever the link between judicial selection and partisan politics.
From its inception, the AJS promoted merit judicial selection. The AJS achieved its first success in 1940, when Missouri became the first state to enact a system of merit judicial selection. Since then, two-thirds of the states have adopted some form of merit selection.
The AJS's website contains a complete listing of the states which have adopted merit selection, and a description of each state's system. A key component of any merit plan is a nominating commission composed of both lawyers and non-lawyers. Hawaii's unique system of merit judicial selection and retention was created as a result of the 1978 state constitutional convention.
Merit Selection and Retention for Hawaii State Court Judges: Overview of die Process
When Hawaii became a state in 1959, the Governor appointed and retained judges, with the advice and consent of the Senate.(fn2) The term for Supreme Court justices was seven years; the term for Circuit Court judges was six years; and there was mandatory retirement at the age of seventy years. The Hawaii Constitution at that time provided for the removal of judges from office "upon the concurrence of two-thirds of the membership of each house of the legislature, sitting in joint session, for such causes and in such manner as may be provided by law."(fn3)
Judicial terms of office for Supreme Court justices and Circuit Court judges were extended to ten years as a result of the 1968 Constitution. The legislature at that time lost its ability to remove justices and judges. Instead, provision was made for the Governor to appoint a three-person board to recommend whether a justice or judge should remain in office.(fn4)
The system of gubernatorial appointment of judges changed in 1979. As a result of the 1978 constitutional convention, Hawaii adopted a merit judicial selection system. That system was memorialized in Haw. Const, art. VI, §§ 3 and 4.
Since the creation of the State's merit selection process in 1978, the process has been modified somewhat. For example, initially the Judicial Selection Commission was comprised of nine members, three of which were appointed by the Governor, one each of which was appointed by the President of the Senate and the Speaker of the House, two of which were appointed by the Chief Justice of the Hawaii Supreme Court, and two of which were appointed by the Hawaii State Bar Association.(fn5) That selection process was amended by 1995 Haw. Const, art. VI, § 4. While the number of Commissioners remained at nine, the number of the Governor's appointees was reduced to two, the number of the Chief Justice's appointees was reduced to one, while the number of appointees for the President of the Senate and the Speaker of the House was increased to two each. The Hawaii State Bar Association continued to have two appointees.
From the Commission's inception, the number of licensed attorneys on the Commission was limited to four. An additional limitation on the composition of the Commission was added in 1995, when a constitutional amendment required at least one Commissioner to be a resident of a county other than Honolulu.(fn6)
Also, initially the Judicial Selection Commission had to present the Governor with a list of six candidates. The numerical requirement was later changed, such that, presently, lists to fill vacancies for appellate and circuit courts are to contain no less than four and no more than six names. The lists presented by the Judicial Selection Commission to the Chief Justice to fill vacancies in the District Court must still be comprised of six candidates.(fn7)
When the Commission was created, it was empowered to promulgate rules "which shall have the force...