COUNTERPOINT
A state constitutional crisis
Robert M. Rees
Moderator of 'Olelo Television's "Counterpoint" and Hawai'i Public Radio's "Talk of the Islands"
State Senate President Robert Bunda right now resembles the bandit in the Humphrey Bogart film "Treasure of Sierra Madre," who claims that he and his fellow outlaws are sheriffs. Asked for proof, he responds, "Badges? We don't need no stinkin' badges."
Echoing that sentiment, Bunda seems to be saying, "Constitution? We don't need no stinkin' constitution."
As a result, in a startling development of June 7, Attorney General Earl Anzai, on behalf of the Judicial Selection Commission, has petitioned the state Supreme Court for a writ of mandamus directing the president of the Senate to fulfill his constitutional obligations.
The Judicial Selection Commission is the nine-member appointed body that is central to the selection of nominees to our courts. The state Constitution — Article VI, Section 4 — requires that, "At all times, at least one member of the commission shall be a resident of a county other than the City and County of Honolulu."
When the term of Gary Rodrigues, a resident of Kaua'i, was about to expire on April 1, the need was for a commissioner who resides on an outer island. Bunda says he didn't know of this constitutional provision, so on March 14, he tried to appoint a resident of Honolulu, Wesley K. Imamura.
When asked why he made this particular selection, Bunda says of Imamura, "I think he's a great guy."
On March 25, Chief Justice Ronald Moon wrote to Bunda to point out that Imamura's appointment "would be in violation of the ... constitutional provision insofar as the commission would then be comprised of members all of whom reside in the City and County of Honolulu."
Bunda, however, wouldn't budge. He thinks it's "unfair" that he is required to be the one stuck with this constitutional provision. Further, he takes the view that his appointment is now a fait accompli, and that anyone who objects must seek a quo warranto action — what Gov. Cayetano used against the trustees of the Office of Hawaiian Affairs following the Rice v. Cayetano decision — that can be filed against a person who already is in possession of an office.
In response to this, the chairwoman of the commission, Amy Agbayani, wrote to Bunda on May 21 to warn, "[W]ithout your appointment being made, we would simply be unable to function as a legally constituted commission."
In fact, to keep the commission going, the AG's office is allowing Rodrigues to serve as a "de facto" member of the commission for "a reasonable time."
Bunda's stance suggests that he has very little appreciation of what a constitutional democracy is. It was Bunda, for example, who proposed that the state Legislature put Federal Judge David Ezra's "feet to the fire" with a state probe of federal courts.
Further, Bunda's argument involves no significant principles. Unlike the recent case of Russell Blair v. Jeremy Harris on "resign to run," the plain meaning of the words in Article VI, Section 4, is clear.
As a result of all this, deputy AGs John Dellera and Diane Erickson, on June 7, filed a petition for a writ of mandamus that would force Bunda to make an appointment.
Ironically, it is the petition itself, and not the inconsequential particular issue, that raises significant questions. One of those is how far the judicial branch can go in requiring that legislators fulfill their constitutional mandates.
There is also the specter that Bunda may simply ignore what the court determines. The U.S. Supreme Court has ruled that such a threat is an "inadmissible suggestion" not to be considered by a court of law, but Bunda may be feeling set upon enough to continue his obstinacy.
This would precipitate a real constitutional crisis on top of the phony one that Bunda has created, all because he neglected to follow the Constitution.
