Ian Lind: Hawaii Lawmakers Needlessly Renew Assault On The Judiciary (Civil Beat)


Supreme Court Chief Justice Mark Recktenwald administered the oath of office in the Senate chamber on the opening day of the session. Some legislators have wasted no time renewing their attack on the judiciary’s independence.

By Ian Lind Source: Civil Beat

“… This year, the ongoing contested case hearing on the permit for the controversial Thirty Meter Telescope project may be contributing to unhappiness among legislators.

Saiki, one of the sponsors of HB 1, has publicly called on the Supreme Court to  appoint a special master to manage the extensive testimony and exhibits piling up in the proceedings.

In a Dec. 22, 2016 opinion piece published in the Honolulu Star-Advertiser, Saiki said a bill passed into law last year allows the appointment of such a master, which he believes could go a long way toward removing bottlenecks that are slowing down the hearing process.

“The Legislature approved HB 1581 because it believes that our courts have a responsibility to ensure that disputes directed to contested case hearings are decided on the merits in a timely manner,” Saiki wrote. “Without supervision, contested case hearing decisions will undoubtedly be challenged and re-challenged particularly on procedural grounds.”

The judiciary’s defenders say legislators are wrong to blame the court for the decisions.

Foley said if legislators are unhappy with the rulings on DHHL funding, their beef is really with the constitution, not the the courts.

“Their problem isn’t with the judges. They (legislators) apparently just didn’t agree with the 1978 constitutional amendment,” Foley said.

Similarly, while the Supreme Court has not responded to Saiki’s call for a master to be appointed to oversee the Mauna Kea contested case hearings, the court can’t be blamed for foot-dragging.

Andrea Freeman, professor of constitutional law at the University of Hawaii William S. Richardson School of Law, responded to Saiki’s call for a special TMT master by pointing out that “it is not possible under Hawaii’s statutory and constitutional law.”

Freeman wrote that when passing the bill authorizing the court to appoint a special master, legislators failed to provide for retroactive application. And since the Supreme Court had already remanded the case to the Board of Land and Natural Resources before the bill became law, it lacks legal jurisdiction to take action on Saiki’s request.

It’s important to note that the Legislature already has more input in the judicial selection process than any other group. Four of the Judicial Selection Commission’s nine members are appointed by legislative leaders (two by the Senate president, two by the House speaker). The chief justice, on the other hand, appoints only a single member. The governor and the state bar each appoint two members, rounding out the nine-member commission.

Commission members are prohibited from running for elected office, and from taking an active part in any political campaign. Commission members cannot be considered for a judicial appointment until three years after leaving the commission. These restrictions are all designed to preserve the commission’s independence.

While not perfect, the system is designed to be as free from overt political pressure as possible, both in the appointment and reappointment process, so that judges are protected from outside influence.

The claim that this year’s bills are motivated by a desire for more “transparency” rather than an attempt to influence judicial decisions through political intimidation can’t be taken seriously.

If transparency were really the focus, legislators could address that issue directly by proposing a constitutional amendment for increased public disclosure of the commission’s discussions and deliberations.

That’s what was done in 2014, when the Legislature passed a constitutional amendment requiring the public disclosure of the names of judicial nominees at the same time the list is sent to the governor or the chief justice. The amendment was approved by the Legislature and voters, and clearly established the public’s right to know the names on the list of potential nominees.

By the way, the bill proposing that constitutional amendment was introduced by Saiki, so he clearly understands that an interest in providing more public information during the appointment process could be accomplished without adding that new political review by the Senate.

It remains to be seen whether there will be a serious push to pass HB 1 and other anti-judiciary bills this year. Although the No. 1 designation seems symbolic of legislative interest, none of the bills designated HB 1 over the past eight years has become law.

And Foley had some concise advice for all involved.

“My plea is that everyone should just take a deep breath, step back, and let the judicial process play out,” he said.”

Source: Read more at Civil Beat


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