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The Honolulu Advertiser
Posted on: Monday, November 24, 2003

The Hawai'i Supreme Court in session in June. From left, Associate Justices Simeon R. Acoba Jr., Steven H. Levinson, Chief Justice Ronald T.Y. Moon, Associate Justice Paula A. Nakayama and James S. Burns, chief judge of the Intermediate Court of Appeals, who served as a substitute justice before the swearing in of the court's newest justice, James E. Duffy Jr.

Eugene Tanner • The Honolulu Advertiser

Liberal or conservative? Court defies easy labels

 •  Justice moves slowly, painfully
 •  Relationship with Lingle thaws after a deep freeze

By Lynda Arakawa
Advertiser Capitol Bureau

The Hawai'i Supreme Court heads the state's third branch of government. It is an institution that few citizens ever come in contact with but one that wields enormous power over the lives of Hawai'i's 1.2 million residents, as well as its businesses, political institutions and culture.

The court has long been recognized as a key component in shaping Hawai'i, but it wasn't until the mid-1960s that Democrats began to install their justices after taking over the Legislature in the 1950s and the governorship in 1962.

Until the appointment of James Duffy this year, justices had been appointed by an unbroken string of Democratic governors from John Burns to George Ariyoshi to John Waihee to Ben Cayetano.

Hawai'i's first state chief justice was Wilfred C. Tsukiyama, a Republican appointed by Gov. William Quinn in 1959, the year Hawai'i became a state. He was followed in 1966 by William S. Richardson, a Democratic politician and former lieutenant governor, who was appointed by Burns. Richardson led a Supreme Court that was both hailed and condemned for its "activist" style that sought to create laws and policies deviating from the Republican-dominated pre-statehood Hawai'i.

As Burns began appointing other justices, the court became known for rulings alternately condemned as liberal or praised as populist. The court declared surface waters belonged to the public, expanded the public's access to beaches, recognized ancient Hawaiian practices on private property and broadened coverage under the workers' compensation law.

Richardson was succeeded in 1983 by Herman T.F. Lum, who was appointed by Ariyoshi. Scholars see Lum's tenure as more conservative and less controversial, generally affirming the policies established by the Richardson court.

Waihee appointed Ronald T.Y. Moon to the high court as an associate justice in 1990. Three years later, Waihee elevated him to his job as chief justice. By the end of that year, Waihee's appointments filled the court. His other appointments were Robert Klein, Steven Levinson, Paula Nakayama and Mario Ramil.

Waihee may be the last governor to hold the distinction of appointing all five sitting members of the court. Because justices serve 10-year terms and their reappointments depend on the Judicial Selection Commission, it is unlikely that any future governor, even over two terms, will be able to appoint all five.

During his two terms, Cayetano made only one appointment — Simeon Acoba — when Klein left for private practice in 2000. Ramil left the court last December, giving Lingle her chance to select Duffy.

Waihee said he believes his appointments of Moon and the others fulfilled his vision of having a court with a range of views that couldn't be ideologically defined, and "activist" in the sense that it would tackle issues rather than looking to make new laws. His appointments also created perhaps the most ethnically diverse state high court in the country, consisting of a Korean, a part-Hawaiian, a Filipino, a Japanese and a Caucasian.

In evaluating his appointments and Moon's tenure, Waihee said he believes the justices took issues head on, with the exception of the 2001 decision regarding payments to the Office of Hawaiian Affairs for the state's use of lands that once belonged to the Hawaiian monarchy, known as ceded lands.

The court nullified the state law setting up the formula for payments, saying it conflicted with federal law, which means state legislators must come up with another way of calculating the payments. Waihee, the state's first part-Hawaiian governor, said he wanted to see "something a little more definitive."

"They left a lot of things up in the air," he said.

Perhaps the Moon court's most controversial decision was its 3-2 landmark ruling that cleared the way for Hawai'i to become the first state to legalize same-sex marriages. The decision drew national and international attention, prompting Congress to pass the Defense of Marriage Act, which denies federal recognition of gay marriages and allows states to refuse to recognize gay marriages performed elsewhere.

The Hawai'i Supreme Court ruling was eventually nullified by a 1998 state constitutional amendment that allowed the Legislature to reserve marriage for a man and a woman.

In one sense, Waihee succeeded in appointing a court whose overall philosophy cannot be pinned down, according to lawyers and legal observers. The Moon court's judicial philosophy appears to generally be described in one of two ways. The first and more popular view is that the Moon court cannot be labeled as liberal or conservative, nor as an activist court that strives to make new law or as a strict constructionist court that focuses on applying existing law.

Others say the court is obviously liberal and indeed activist, mostly pointing to the court's same-sex marriage ruling or various criminal cases it has ruled on.

Paul Alston, a former Hawai'i State Bar Association president, said the Moon court is less activist than the Richardson court, but probably more activist than the Lum court. Alston sees the court as searching for a "consistent voice."

"I think in part because sometimes you see decisions that are conservative," he said. "Sometimes they are liberal. And maybe that means that there's no consistent political agenda, which is a good thing for the court. But I don't think they're subject to being pigeon-holed."

Honolulu Prosecutor Peter Carlisle said the court is clearly activist and that it tends to favor criminal defendants. Carlisle and Attorney General Mark Bennett, who was then in private practice, wrote a critical piece in 1998 on the Supreme Court that was published in the Hawai'i Bar Journal. The piece, written from a law enforcement perspective, criticized four decisions by the high court overturning murder and sex assault convictions and ordering retrials.

Carlisle and Bennett wrote that the court "seems to have forgotten about its decisions' impact on victims of crime and society at large."

But state Public Defender John Tonaki said while the court has not been afraid to rule under the Hawai'i Constitution — which offers more protections than the U.S. Constitution — it has not favored criminal rights over the state.

"I don't think that you can accurately assess the court that way by being unhappy about a few cases that were reversed," Tonaki said.

Moon, who as a lawyer defended insurance companies and businesses, said he does not consider the court to be an activist one that aims to create new laws, saying the job of an appellate court judge is "to carry out the intent of the Legislature.

"But again, reasonable minds differ," he said.

"People look at a particular decision, how you interpret the law, and they will say you legislated. But so many times we have situations where the statutes may not be clear. You don't know really what the intent of the Legislature was when they enacted it, and so when you make a decision in your interpretation of that statute, whatever the result is people can say, 'Well, you made law.' "