Group calls Big Island judicial nominee unfit

By Lynda Arakawa
Advertiser Capitol Bureau

State chief labor negotiator Ted Hong's nomination to the Big Island Circuit Court appears to have run into trouble. The Hawai'i State Bar Association has rated him unqualified for the job.

"I think the process that is currently going on is fundamentally unfair, especially to people who are subject to public scrutiny like me, in terms of what I do on the (University of Hawai'i Board of) Regents and what I do as chief negotiator," Ted Hong said. Advertiser library photo

But Hong, Lingle and others, including a key senator, are questioning how the bar association came to that conclusion and whether its process was fair.

Bar association president Dale Lee yesterday said the organization's board of directors evaluated Hong's nomination and voted on his rating in executive session. Seven members found him not qualified, four found him qualified, one found him highly qualified, and another member abstained.

Lee, who does not vote unless there is a deadlock, said the issue for the board was Hong's judicial temperament and that the vote was not a result of personal feelings about Hong.

Hong, a former Hawai'i County assistant corporation counsel, is also a Lingle interim appointee to the University of Hawai'i Board of Regents. He is one of several Lingle nominees to the state bench. Other nominations sailed through the Senate Judiciary and Hawaiian Affairs Committee and won easy approval by the full Senate.

But with the bar association's recommendations, as well as concerns expressed by some senators earlier about his judicial temperament, Hong's nomination likely will be the first appointment to the bench to generate fireworks when he appears before the Senate Judiciary and Hawaiian Affairs Committee tomorrow.

Committee Chairwoman Colleen Hanabusa said the unqualified rating doesn't necessarily mean that Hong will not be confirmed, and said that such decisions should not be made solely on the bar association's findings.

Hanabusa said she had received testimony from about 80 people so far and that they are "overwhelmingly" in support of Hong. But she said the testimony opposing Hong "should be taken very seriously because it takes a lot for people to come forward and testify in opposition to anyone."

Hong yesterday said he has concerns about the board's evaluation process, which includes soliciting comments from the more than 4,000 bar members and keeping their identities confidential.

"I think the process that is currently going on is fundamentally unfair, especially to people who are subject to public scrutiny like me, in terms of what I do on the (University of Hawai'i Board of) Regents and what I do as chief negotiator," he said.

"It's just ironic that in terms of lawyers, part of our whole judicial system, what every lawyer believes in personally and professionally is due process. And it certainly appears to me that this process doesn't allow for that. I can't read what the concerns are, I can't hear what the concerns are."

Hong said the best measure of his temperament would be comments from Big Island lawyers, and pointed to a Hawai'i County Bar Association poll in which most participating lawyers found him highly qualified.

The state bar association's procedures to solicit comments from the bar were set in place last year to encourage more participation, Lee said.

He said he's not certain that the process should be changed and said that some lawyers have expressed appreciation for the new procedures because "it is inclusive, where it may not have been as easily inclusive before."

"I think that judicial temperament was the issue that was raised, was the issue that was addressed, and is the issue at least insofar as this board's view is concerned," Lee said.

"The board has no personal opposition to Mr. Hong," he added.

Lee said the bar received comments from 56 attorneys, with 28 in favor and 28 opposed. Hong said that's just over 1 percent of the membership and cannot be an accurate reflection of all lawyers.

Lee acknowledged that argument, but said "it's a matter of looking at the information, giving it the worth that it is thought to be entitled to, and making a decision based upon good faith conscience, which I'm certain that the board did."

The Hawai'i State Bar Association has reviewed scores of judicial nominations over the years, including a few Lingle appointees who went through the new process. The only other judicial nominee anyone can recall who has received an unfavorable rating from the bar association was former Gov. John Waihee's nomination of Karen Blondin to the state Circuit Court in 1992. Blondin was confirmed and was retained for a second 10-year term on the bench in 2002.

Hanabusa, D-21st (Nanakuli, Makaha), said she's keeping an open mind about Hong's nomination and said she received complaints from lawyers about the process of both the Big Island bar association and the state bar association.

Hanabusa, a lawyer, said she also has questions about how the state bar association made its conclusion and its practice of keeping comments confidential.

"I think that calls into question due-process issues," she said.

She also said it's hard to tell at this point whether Hong will be confirmed.

Lingle said the association's rating is "way off base" and that its process is "flawed."

"I'm glad that the Senate process will be very open, people can come forward and state their own experience with Ted and give their own opinion, and I'm looking forward to him being able to serve as a judge," she said.

Bar association procedures for judicial and executive appointments involve mass e-mails to bar members soliciting comments on a nominee. The bar president or other board members who receive any comments are to remove identifying information and send them to a revolving three-member panel of board members, which will then present a summary to the full board before the board's interview with the candidate.

Nominees are informed about negative comments but cannot receive a copy of any comments.

The criteria the board considers when voting on a nominee's qualifications include integrity and diligence, legal knowledge and ability, professional experience, judicial temperament, financial responsibility, public service and health. Under board policy, if a candidate does not meet at least one of the criteria regarding professional competence, judicial temperament or integrity, the nominee is "not qualified."

Reach Lynda Arakawa at larakawa@honoluluadvertiser.com or at 525-8070.