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The Honolulu Advertiser
Posted on: Sunday, October 29, 2006

Judges' jobs at stake in vote

By Ken Kobayashi
Advertiser Courts Writer

CHIEF JUDGE JAMES BURNS OF THE INTERMEDIATE COURT OF APPEALS

April 19, 2007 May 13, 2012

Big Island District Judge Matthew Pyun

March 21, 2007 May 13, 2009

Chief Justice Ronald Moon of the Hawai'i Supreme Court

Sept. 4, 2010 March 30, 2013

Honolulu Circuit Judge Michael Town

Oct. 24, 2010 April 29, 2013

Maui Circuit Judge Joel August

March 21, 2011 June 9, 2012

Maui Circuit Judge Shackley Raffetto

May 3, 2012 June 8, 2014

Associate Justice James Duffy of the Hawai'i Supreme Court

June 4, 2012 June 26, 2013

Without the amendment, Moon, Burns and Town would be forced to retire during the next governor's term, clearing the way for the next governor to make the appointment. Pyun would have to retire next year. The chief justice appoints district judges.

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A proposal that would immediately have a direct impact on a half-dozen state judges has generated the most debate among the five constitutional amendment questions that will be on the general election ballot Nov. 7.

The proposal would eliminate the constitutional provision that requires state judges to retire at age 70.

If the measure fails, only six of the 80 state justices and judges would be forced to retire before the end of their terms. Among them are Chief Justice Ronald Moon of the Hawai'i Supreme Court and Chief Judge James Burns of the Intermediate Court of Appeals.

If they are forced to retire, the next governor would appoint their replacements from lists submitted by the state Judicial Selection Commission.

Opponents argue that Democratic lawmakers placed the measure on the ballot to take away the appointment authority from Republican Gov. Linda Lingle, the front-runner in seeking her second four-year term in the general election.

Supporters contend that regardless of the motivation, the proposal is simply good public policy because it eliminates discrimination based on age for state judges. And while it may affect only six judges, other judges would be forced to retire in the future if they get reappointed and new judges appointed in their 60s would face the same limitation.

The other four proposals deal with the selection of members of the University of Hawai'i's Board of Regents, the prosecution of defendants accused of repeatedly molesting children, the formation of a state salary commission and the authorization of special revenue bonds for agricultural enterprises.

All five proposals were approved by lawmakers this year. To be adopted, each must garner more "yes" votes than "no" votes and blank votes combined.

The debate over mandatory retirement for judges has split the legal community as reflected by a 7-5 vote by the board of directors of the Hawai'i State Bar Association to oppose the proposal. State lawmakers were also divided mostly along party lines, with Democratic lawmakers voting to place the measure on the ballot.

Democrats control 20 of the 25 Senate seats and 41 of the 51 seats in the state House.

If the amendment doesn't get approved and Lingle gets elected, Burns would have to retire at age 70 next year and Moon toward the end of the governor's term in 2010.

'BAD PRECEDENT'

Among the opponents of this change are Lingle, former Democratic Gov. Ben Cayetano and the state Judicial Selection Commission.

One of the most vocal is Lingle's attorney general, Mark Bennett, who contends that the measure was rushed through the Legislature this year without adequate study to "save the jobs of a few judges" and prevent Lingle from naming their replacements.

"It's a very, very bad idea and bad precedent," he said.

Bennett also said if the mandatory retirement age is lifted, it should apply only to future judges since the judges all knew that the Constitution called for them to retire at age 70.

He said requiring sitting judges to retire at 70 brings new people and new ideas to the bench and gives judges a chance to move up to higher courts.

Bennett was among the three candidates Lingle submitted to the White House in 2004 for a vacancy on the U.S. District Court bench here, but Bennett said he has no plans to seek any vacancy on the state bench.

Cayetano said there are good arguments for and against the amendment. But he said many judges are in their early or mid-40s, which means they could serve as long as 25 years before hitting 70, a tenure that "in my opinion is plenty."

"The current system has worked well for a long time," Cayetano said. "I see no compelling need to change it."

Politically motivated?

Supporters of the proposal point out that state and federal elected officials and federal judges, including U.S. Supreme Court justices, do not face mandatory retirement. Supporters include AARP Hawai'i and at least a couple of the judges who will hit 70 before the end of their terms.

Moon declined to comment, but Burns said he would stay on the bench if the requirement is lifted.

"I don't like any kind of discrimination," said Burns, son of the late Jack Burns, the legendary leader of the Democratic Party that held the governorship for 40 years before Lingle took office.

Maui Circuit Judge Shackley Raffetto said age limitations for commercial airline pilots, police and firefighters are based on public safety and have some justifiable basis. "There is no justifiable basis for an age limitation with respect to judges," he said.

Democratic lawmakers downplay any motivation aside from eliminating what they say is age discrimination, pointing out that future governors, including Democrats, would not be able to replace judges forced to retire.

Sen. Colleen Hanabusa, D-21st (Nanakuli, Makaha) said she doesn't agree that the proposal is based on political considerations. She said state lawmakers considered the issue prior to this year's session.

"This is something the Legislature thought about for a period of time," she said. "It's not something that just came up."

Sen. Brian Taniguchi, D-10th (Manoa, McCully), said the issue of how Lingle would not be able to name replacements wasn't "that great a consideration" for him and the primary reason for his vote was age discrimination.

"You look at the long term," he said. "Ultimately, the principle is correct. There shouldn't be this kind of limitation."

But Sam Slom, R-8th (Kahala, Hawai'i Kai), called the proposal a "blatant attempt" to limit Lingle's authority to appoint judges and said the timing supports that it was done for political purposes.

"Why now?" he asked.

One other proposal Question 1 dealing with the selection of the University of Hawai'i Board of Regents was also approved for the ballot with Democratic lawmakers overruling the Republican minorities. The amendment would require the governor to select regents from candidates screened and picked by an advisory council. The composition and makeup of the council would be determined later by the state Legislature.

Regents chair Kitty Lagareta and UH President David McClain are concerned that the amendment could further politicize the selection of regents and lead to objections from experts who certify the university's accreditation.

But Frank Boas, a retired international attorney and member of the board of the University of Hawai'i Foundation, said the amendment represents a nonpartisan effort supported by the UH faculty and student organizations to create a merit-based system to select candidates to sit on the governing board of UH.

Question 2 dealing with the establishment of a state salary commission for state judges, legislators and the governor and department heads drew some opposition from Republican senators, but was unanimously approved by both Democrats and Republicans in the House .

Question 4 dealing with the prosecution of defendants charged with repeated sexual assaults of minors and Question 5 related to the authorization of special purpose revenue bonds for agricultural enterprises were both unanimously approved by the state Legislature.


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CONSTITUTIONAL AMENDMENT PROPOSALS

On Nov. 7, Hawai'i residents will get a chance to vote on five proposals to amend the state Constitution. To be approved, each question must receive more "yes" votes than the total of "no" and blank votes. The five questions and some arguments for and against:

1. Shall the governor be required to select board of regents candidates from a pool of qualified candidates screened and proposed by a candidate advisory council for the board of regents of the University of Hawai'i as provided by law?

Impact: Today, the governor nominates regents without any formal advisory process. The Senate then confirms or rejects the nominations. Under the amendment, the governor must make the appointment from a list of candidates screened and selected by an advisory council. The state Legislature would determine the composition of the council and qualifications of the members.

Supporters: A nonpartisan council would enhance the autonomy of the university; reduce political influences in the selection of a regent; avoid potential conflicts of interests by regents through the screening process.

Opponents: The current system works; no guarantees that the council would be less political than a governor; accrediting institutions have expressed concerns about the amendment.

2. Shall the Constitution be amended to provide for a salary commission to review and recommend salaries for justices, judges, state legislators, the governor, the lieutenant governor, the administrative director of the state, state department heads or executive officers of the executive departments, excluding the superintendent of education and the president of the University of Hawai'i?

Impact: Today, three commissions review the salaries. The three would be consolidated into one commission, which the state Legislature has already authorized in anticipation of the amendment being adopted. It would consist of seven members two appointed by the governor, two by the Senate president, two by the House speaker and one by the chief justice of the Hawai'i Supreme Court. The commission would convene in November 2006 and every six years. Its recommendations become effective unless rejected by the state Legislature.

Supporters: One commission makes sense; it will be able review the salaries from the three branches of government in relationship to each other; it would reduce the chances of salaries becoming a political issue.

Opponents: The three branches of government differ and the salaries should be considered by separate commissions; the appointment process is not shielded from political factors.

3. Shall the mandatory retirement age of seventy for all state court justices and judges be repealed?

Impact: Currently, six of 80 state justices and judges would have to retire at age 70 before the end of their terms. Other current judges might also be forced to retire if they are reappointed. If old enough, judges appointed in the future would also be forced to retire at age 70.

Supporters: Mandatory retirement is age discrimination, which should be eliminated as good public policy; U.S. Supreme Court judges and elected officials, including the U.S. president, aren't forced to retire at a certain age; the average life expectancy when mandatory retirement for judges was adopted in 1959 was 71 years as opposed to 78 years today; incompetent judges can be removed by the Commission on Judicial Conduct or not reappointed by the Judicial Selection Commission.

Opponents: The amendment should not be adopted just to save the jobs of a few sitting judges and to prevent the governor from appointing their replacements; the mandatory retirement allows new individuals to be appointed as judges and allows judges to move up to higher courts; other alternatives have not been adequately studied, such as raising the mandatory retirement age or lifting it only for judges appointed in the future.

4. Shall the Constitution of the state of Hawai'i be amended to provide that in continuous sexual assault crimes against minors younger than fourteen years of age, the Legislature may define: 1) What behavior constitutes a continuing course of conduct; and 2) What constitutes the jury unanimity that is required for a conviction?

Impact: The amendment would trump a Hawai'i Supreme Court 2003 ruling and allow the state Legislature to make it easier to prosecute defendants accused of sexually assaulting children under age 14 three or more times. The high court struck down a state law that permitted jurors to find that three or more sex assaults were committed without unanimously agreeing on each specific sex assault. The court ruled that the jury must unanimously agree on each assault in order to get a conviction.

(This amendment proposal is a rerun of 2004, when it was approved by about 282,000 of the 430,000 voters, but the Hawai'i Supreme Court last year struck it down, ruling that the state Legislature process placing the issue on the ballot was flawed.)

Supporters: The amendment would help prosecute defendants accused of repeatedly sexually assaulting children over a period of time because minors often are unable to recall specific dates, locations and other circumstances.

Opponents: The amendment undermines constitutional guarantees of a jury trial and the right of a defendant to have a unanimous verdict for a conviction.

5. Shall the state be authorized to issue special purpose revenue bonds and use the proceeds from the bonds to assist agricultural enterprises serving important agricultural lands?

Impact: The amendment would allow the state to expand its authority to issue the bonds, which is currently limited in the constitution for certain purposes, such as assisting industrial enterprises, utilities, early-childhood education and nonprofit private schools, colleges and universities.

Supporters: The bonds would be an incentive for the capital improvements, renovations and repairs for agricultural lands to support diversified agriculture and protect the agricultural industry.

Opponents: The bonds would favor corporations holding old plantation lands and would finance fixing former plantation ditch systems that divert water from public streams, according to Earthjustice, an environmental group.

Sources include League of Women Voters of Hawaii, Office of Elections, state Legislature.

Reach Ken Kobayashi at kkobayashi@honoluluadvertiser.com.

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