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The Honolulu Advertiser
Posted on: Wednesday, August 2, 2006

VOLCANIC ASH
Isle lawyers facing controversial decision

By David Shapiro

The Hawaii Bar Association is struggling to defuse a potent political firecracker what to do about a controversial proposed constitutional amendment to end mandatory retirement for state judges at age 70.

The Legislature passed a bill this year to put the amendment before voters in the November election.

Local attorneys say representatives from the highest levels of the state Judiciary have made clear that they'd like the Bar Association to support the amendment, possibly with an advertising campaign.

Some lawyers are uncomfortable getting involved because of political ramifications that go beyond the issue of judicial retirement, but they're reluctant to speak out for fear of crossing the judges who decide their cases.

The Bar Association has appointed a committee to consider the matter that includes incoming president Jeffrey Portnoy, who acknowledges it's "a very controversial issue" because of questions of timing and motivation.

The amendment was opposed in the Legislature by Gov. Linda Lingle and the state Judicial Selection Commission, who said it seemed intended to benefit a handful of judges who want to remain on the bench beyond their upcoming retirement dates.

The Republican Lingle accused Democratic legislators of using the amendment to deny her the chance to make top judicial appointments if she's re-elected to a second term.

The appointments at stake are pivotal; Chief Judge James Burns of the Intermediate Court of Appeals turns 70 next April and Chief Justice Ronald Moon of the Hawai'i Supreme Court would have to retire in 2010.

The governor who appoints their replacements could shape Hawai'i's Judiciary for the next 20 years.

Democrats would benefit from keeping the incumbents in place past 2010 in hope that the appointments ultimately would be made by a Democratic successor to Lingle.

Lingle and the Judicial Selection Commission, which is headed by Democratic appointee Melvin Chiba, suggested that lawmakers remove any political taint by making the amendment applicable only to future judicial appointees and not retroactive, but Democrats refused.

Portnoy is saving his personal views for the Bar Association panel, but agreed that concerns about timing of the constitutional amendment are reasonable.

"Why now?" he said. "That's a legitimate question."

Portnoy said nobody from the Judiciary has pressured him, and Burns adamantly denied that he's attempted to sway the Bar Association.

"I have not had any discussions with the Hawaii Bar Association on this subject," Burns said. "I have not asked anybody to support or oppose this proposed constitutional amendment.

"Personally, I will vote for it because I am against all age discrimination. If it does not pass, I am long past the max on my retirement so the financial effect on me will be minimal."

Judiciary spokeswoman Marsha Kitagawa issued a statement that the Judiciary as an institution has taken no position, but that individual judges may speak freely and probably have.

"Judges are ... free to seek the support or opposition of their professional organizations, including the Hawaii State Bar Association, on a measure concerning the law, the legal system and the administration of justice," the statement said.

Attorney General Mark Bennett, who opposed the constitutional amendment in the Legislature, said 37 states have mandatory retirement for judges between 70 and 75 to maintain vitality in the courts.

"Everyone knew what the rules were when they were appointed," Bennett said of current judges. "It's just terrible public policy to amend the constitution for the benefit of a few judges who don't want to retire."

Bennett said he has no problem if judges offer opinions on the constitutional amendment when asked, but questioned the propriety of judges actively lobbying their self-interest among lawyers over whom they wield so much power.

David Shapiro, a veteran Hawai'i journalist, can be reached by e-mail at dave@volcanicash.net. Read his daily blog at blogs.honoluluadvertiser.com.