Judicial Independence in Peril: Impacts on Justice for Kānaka Maoli

By Melody Kapilialoha MacKenzie, Director

Aloha e nā hoa makamaka,

When I was a young law school graduate clerking for Chief Justice William S. Richardson, he tasked me with researching and helping to draft an article on a subject very dear to his heart – judicial independence.  It was the year after the 1978 Constitutional Convention, where there had been several major positive innovations in how Hawaiʻi’s judges were appointed and retained, including the establishment of a Judicial Selection Commission (JSC) representing a broad range of community interests to screen and recommend a pared down list of judicial applicants for consideration by either the Governor or Chief Justice.

In his article, C.J. Richardson made very clear the importance of an independent judiciary and independent judges, and discussed the two elements necessary to ensure judicial autonomy:

The first element requires the executive and legislative branches of government to recognize the judiciary as a co-equal, honor its decisions, provide it with adequate financial support, and defer to its judgment on internal operations and matters peculiarly within its knowledge. The second element protects the freedom of individual judges in the decisionmaking process. Judges must be able to apply the law secure in the knowledge that their offices will not be jeopardized for making a particular decision.

In the 2016 Legislative session, several reactionary legislative measures were introduced that would have drastically affected the second element of judicial autonomy.  These measures called for the election of judges, Senate approval to retain sitting judges, and a reduction in judges’ pensions.  After overwhelming testimony from all sectors of the community opposing these measures, all the proposals failed.  Nevertheless, the Legislature also rejected most of the Judiciary’s supplemental budget requests, thereby threatening the first prong of judicial autonomy.

What gave rise to this legislative hostility?  Legislators were reacting primarily to a circuit court judge’s decision giving concrete effect to a provision in the Hawaiʻi Constitution that requires the Legislature to provide “sufficient sums” to the Department of Hawaiian Home Lands (DHHL).  In a November 2015 decision in the Nelson v. Hawaiian Homes Commission case, Judge Jeannette Castagnetti had determined that, “[t]he legislature has failed to appropriate sufficient sums to the Department of Hawaiian Home Lands for its administrative and operating budget in violation of its constitutional duty to do so.  This failure includes every fiscal year since at least 1992.”  After an extensive hearing, Judge Castagnetti had determined that $28 million would constitute sufficient funding for DHHL’s operating budget for the fiscal 2015-16 year.  Legislators reacted strongly to the idea that a court might direct (or even advise) the Legislature on funding matters.  Ultimately, the Legislature ended up appropriating $17.1 million for DHHL funding for fiscal 2015-2016 year and $23.9 million for the following year.  Judge Castagnetti’s decision has been appealed by the State, with the Attorney General raising legal questions about separation of powers and factual issues around what expenses are appropriately included in DHHL’s budget pursuant to the state Constitution.

Although Nelson was the primary case that caused a backlash because it appeared to impinge on the Legislature’s discretion in funding, two other court decisions seemed to “fan the flames.” These two cases are also of great importance to the Native Hawaiian community.

• The first was a Hawaiʻi Supreme Court decision. In December 2015, the Court decided Mauna Kea Anaina Hou v. Board of Land & Natural Resources, determining that a Conservation District Use Application (CDUA) to construct the observatory for the Thirty-Meter Telescope on Mauna Kea’s summit had been granted prematurely.  In coming to its decision, the majority concluded that the Board of Land & Natural Resources had “put the cart before the horse” by approving the CDUA before the request for a contested case hearing was resolved and an actual hearing was held.  As many in our community know, testimony in the contested case on the CDUA recently concluded.

• Then in January 2016, Circuit Court Judge Rhonda Nishimura ruled that Alexander & Baldwin and its subsidiary, East Maui Irrigation Co., should not have been allowed to divert East Maui stream water under four short-term water permits. Nā Moku Aupuni O Ko‘olau Hui, Inc., a consortium of East Maui kalo farmers and others, after attempting to resolve the issues informally, had fought for over a decade, to have water restored to streams diverted by EMI that affect four East Maui watersheds. Although the court’s ruling invalidated the permits, the 2016 Legislature passed, and Gov. Ige signed into law Act 126, which allows holdover water permits in certain circumstances and would allow A&B and EMI to continue their permits for up to three years.

One of the several efforts to undermine judicial autonomy and independence surfaced in the 2017 session of the Legislature in the form of SB 673, which would have changed time frames and the process for retention of justices and judges.  Although the bill proposed several changes to the Constitution, the most onerous provision required that all justices and judges who wish to be retained undergo a Senate confirmation process. Currently, the Hawaiʻi Constitution structures the retention process so that it is the JSC who receives, evaluates, and determines whether a judge should be retained.

In the testimony submitted to the Legislature on SB 673, many Native Hawaiian organizations and individuals raised concerns about politicizing the retention process.  Esther Kiaʻāina, a Maoli attorney with extensive experience at the state and federal level, was concerned that the proposal had the “potential of politicizing the retention process, [and of leading to] intimidation, suppression of sound judicial decisions, and undermining public confidence in our judicial system.”  Another Maoli attorney, Yuklin Aluli, who has been involved in several landmark Native Hawaiian cases, was “deeply concerned about the impression that the legislative branch of government is somehow displeased with . . .  recent Hawaii Supreme Court rulings of great import to the Native Hawaiian community . . . As is abundantly clear from recent events in the United States, it is imperative that the judicial branch of government remain independent of the political branches.”

Momi Cazimero, a former member of the JSC, raised concerns about the conflicts a judge may face in having to explain to the Senate, and in public, why he or she made a particular decision.  She noted, “In contrast to the JSC’s confidential evaluation process, in a senate retention hearing each judge may be called upon to explain his or her decisions and to respond publicly to those persons or groups whose special interests may have been affected by . . . [those] decisions.” She pointed out that judges are prohibited from discussing cases or matters that are pending so would be at a distinct disadvantage in the confirmation process.

The people of Hawaiʻi deserve judicial independence in every case decided by the courts. They deserve a judicial system that is free from influence by special interests or partisan pressures. Judicial independence is of importance to all of Hawaiʻi’s people and it is critical to Kānaka Maoli.  The gains that Native Hawaiians have made, in exercising traditional and customary rights, in protecting water resources, in safeguarding iwi kūpuna, and in ensuring resources for our most vulnerable populations, have been upheld and validated by the courts.  This has only been possible because of judges who decide cases by applying the law to the facts, without outside pressure or influence.

An editorial in the Honolulu Star-Advertiser concluded:

The integrity of Hawaii’s Judiciary comes from decisions by judges and justices that are based on the law, not political pressure. This independence should be guarded, jealously.

Chief Justice Richardson did all that he could to guard the independence of the Judiciary. We should do no less.