Tuesday, August 03, 2010


Media oversimplifying the job requirements for Hawaii’s next Chief Justice

by Larry Geller

Are legal qualifications the whole story in the flap over Governor Linda Lingle’s judicial nominations, which have come under fire this past week? There is, in fact, much more to consider than just the negative HSBA recommendations, as we will see below.

The controversy as reported in the media hinges largely around recommendations by the Hawaii State Bar Association that two nominees, Katherine Leonard for Chief Justice and Faauuga Tootoo for Circuit Court, are unqualified.

Some news reports have taken to putting the word in quotes, but the HSBA did not say they were ‘unqualified’ as though there was a problem with the word, they said the candidates were found to be unqualified, a problem with the candidates.

Republican luminaries such as Senator Sam Slom, Attorney General Mark Bennett and the Governor herself have blasted the secrecy with which the negative recommendation comes (the HSBA does not explain their reasoning) and held that Leonard’s legal experience should make her well qualified.

There is good reason for the HSBA process. One consideration is that any of its members may in the future appear before the judge. It would be a disservice to their clients if it were perceived that there was a problem because of an opinion the judge may resent.

This hasn’t stopped flamboyant attorney Eric Seitz from describing Leonard as "ill equipped and unqualified" in statements widely reported last week. Perhaps Seitz isn’t concerned about facing her one day on the bench. Perhaps he is, but now his statement is out there.

Examining the role of chief justice for the moment, it’s clear that the job entails more than hearing cases and writing opinions. It’s much tougher than that. The Legislature has passed laws over the years that give the chief justice many statutory responsibilities not related to pounding that heavy gavel. Without being exhaustive, here are a few. Fasten your seat belts.

•The chief justice submits a budget, six-year program and financial plan, and variance report for all the programs of the judiciary to the legislature for the judicial branch and reports to the legislature at each regular session on the business of the judiciary and the administration of justice throughout the State.

•The chief justice determines when and in what manner authorized capital improvement projects shall be initiated, and notifies the governor of specific amounts required for the projects.

• The chief justice is the "chief executive" for purposes of overseeing civil service law as applied to judicial branch.

• Many administrative and human resource functions are assigned to the chief justice, including:
o Determining the judiciary's hours of operation.
o Establishing a leave sharing program to allow employees to donate accumulated vacation leave credits to another employee in the judiciary who has a serious personal illness or injury or who has a family member who has a serious personal illness or injury.
o Establishing incentive and awards programs to recognize employees.
o Establishing a wage and salary reduction benefit program.
o Exercise one vote for purposes of negotiating a collective bargaining agreement for employees with bargaining unites in the judicial branch.

• Surprisingly, the chief justice or designee is a member of the State Highway Safety Council.

• The chief justice is a member and chairperson of the judicial council.

• The chief justice has responsibilities for a number of nominations or appointments:
o When elections commission member vacancies are not filled within the times specified by law, the vacancies shall be filled promptly  by the chief justice.
o The chief justice appoints one member to the commission on salaries.
o The chief justice appoints one member to the judicial selection commission.
o The chief justice appoints and removes one or more grand jury counsel for the four judicial circuits of the State.
o The chief justice, with approval of the supreme court, appoints an administrative director of the courts.
o The chief justice is a member of the panel that nominates members of the Hawaii paroling authority.
o The chief justice is one of the persons who approves the ex-offender who is selected to serve on the coordinating body, which oversees the development and implementation of offender substance abuse treatment programs. Hawaii Paroling
o The chief justice appoints one member of the judiciary to be a member of the state council for interstate adult offender supervision.
o The chief justice appoints one judge and one adult probation administrator to serve as members of the corrections population management commission.
o  The chief justice appoints the public guardian.
o The chief justice is authorized to temporarily assign a family court judge to preside in another circuit when the urgency of one or more cases requires the chief justice to do so.
o The chief justice designates judges of the first circuit to be judges of the family court of the first circuit.
o The chief justice appoints one member of the judiciary to the Hawaii state council for interstate juvenile supervision.
o The chief justice appoints the director of the Center for Alternative Dispute Resolution and also appoints the members of the board of advisors for the Center.
o the chairperson of a medical claim conciliation panel is appointed by the director of commerce and consumer affairs from a list of eligible persons approved by the chief justice.
o The chief justice designates a circuit court judge to issue orders under the state's electronic eavesdropping law.
o The chief justice may assign:
> A judge or judges of the intermediate appellate court or a circuit court to
serve temporarily on the supreme court;
> A judge of the circuit court to serve temporarily on the intermediate appellate
court; and
> A judge of the district court to serve temporarily on the circuit court.
> The chief justice may assign retired justices to serve temporarily on various state courts

There is quite an administrative load in keeping the judiciary running efficiently. Again, without being exhaustive, here are some of the administrative responsibilities of the chief justice:

• Direct the administration of the judiciary, with responsibility for the efficient operation of all of the courts and for the expeditious dispatch of all judicial business.

The chief justice:
• Assigns circuit judges from one circuit to another.
• In a circuit court with more than one judge, makes assignments of calendars among the circuit judges for such period as the chief justice may determine.
• Prescribes for all of the courts a uniform system of keeping and periodically reporting statistics of their business.
• Procures from all of the courts estimates for their appropriations in order to prepare a unified budget for the Legislature.

In addition to the above, the chief justice presides over the state senate if the governor, lieutenant governor, or appointed officer are impeached, according to the Hawaii State Constitution.

Clearly, there are qualifications in addition to judicial experience required of any chief justice.

The Senate is holding confirmation hearings that are expected to wrap up on Thursday. They’ll have to take into consideration all this and more.


without all of those responsibilities of the Chief Justice, Judge To'oto'o is still unqualified.

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