Attorneys representing Governor Abercrombie have asked a state court to dismiss a lawsuit brought by the Star-Advertiser seeking to force public disclosure of the list of judicial nominees.
The governor’s attorneys now argue that there were only a limited number of nominees for the various judicial openings during Linda Lingle’s two terms as governor. They further assert, although without evidence, that this reflected a similarly limited number of applicants. They then make a bigger leap and argue that the small number of applicants was the result of Lingle’s policy of making the list of nominees public and soliciting public comment on the finalists.
Links to documents filed in this case, including the latest motions, have been gathered by attorney Robert Thomas’ Inverse Condemnation blog.
The problem with the governor’s theory is that there is a huge elephant in the room he fails to mention, and which likely has been responsible for any drop in applications–the country’s lowest judicial salaries and the courts’ limited budget.
In 2007, the Commission on Salaries reported that Hawaii judges were the lowest paid in the country, ranking #51 among the 50 states and District of Columbia. Worse, even after their recommended salary increases, Hawaii’s judges still remained at the very bottom of the salary heap.
While the Commission had hoped to raise Hawai`i’s rank on the NCSC Salary Comparison Among States from lowest and last to a slightly higher position of 42nd or 43rd, it chose, instead, to recommend a more moderate and affordable salary adjustment, in light of salaries of employees of other State departments. Thus, despite the recommended increases, Hawai`i’s adjusted salary comparison among all states will remain lowest and last.
But even that minimal salary increase has been suspended, along with those of the legislature and appointed officials, and will not be reinstated for a couple of years.
Salaries of Hawaii judges remained frozen during the decade of the 1990s, part a legislative backlash against the judicial reforms that took down the political machine of Tom “Fat Boy” Okuda. Many legislators who were close to Okuda and on the receiving end of his extensive political favors felt he had unfairly a scapegoat, and set out to punish the courts by blocking salary increases.
Through that decade, there were many resignations as judges left for better paying jobs.
The salary commission’s report noted in 2007 that if judges’ salaries had kept pace with those of other public employees, they would have been about 30% higher than existing levels.
A February 1999 column by Mel Masuda in the Hawaii Bar Journal noted the pay issue.
Regarding the issue of judicial pay raises, as 1998 ended, several state judges had left the bench, citing pay as a major concern, while two left but did not cite pay.
The last two not citing pay were Intermediate Court of Appeals Judge Walter S. Kirimitsu, who is the new chief legal officer for the entire University of Hawaii system, and Kauai administrative district judge Gerald S. Matsunaga. Kirimitsu, a former student body president at U.H. Manoa, cited the opportunity to serve the public as the U.H. system’s first legal officer now that the system is an autonomous body of state government. Matsunaga, the former Kauai county prosecutor, issued a statement saying, “I am retiring for personal reasons unrelated to the level of my pay, and have no immediate plans for the future.”
The year 1992 saw the largest number of judges leaving the bench, which was 11. The total last year was seven.
In addition to the pay issue, working conditions for judges have deteriorated due to cuts in the overall Judiciary budget.
Legislative testimony on the courts budget describes ramshackle facilities, leaking roofs, dated equipment, reduced support services caused by vacant staff positions, reduced public services, and rising caseloads and backlogs.
No wonder that attorneys might think twice before jumping into public service, and having their interest made public is likely way down on the list of potential concerns.
It strikes me that the governor doesn’t realize how much this issue has eroded his support among his generally liberal base of support. His stubborn insistence on secrecy in these judicial appointments–which he describes as protecting the privacy of lawyers who might want to apply–has undoubtedly been a factor in his plummeting approval ratings among those who might otherwise support him.
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Apparently Abercrombie doesn’t get a simple fact of life for an administrator- it doesn’t matter if you happen to be “right” on the issue if the way you accomplish implementation is unacceptable to people. It comes with the kinds of decisions administrators make- proposing and interpreting laws and rules, hiring and firing, etc.
Legislators rarely if ever make final decisions, especially solo. They just propose tings so they rarely face that kind of individual scrutiny regarding how the process plays out.
There’s an AP article today on how Lincoln Chaffe is going through the same thing in Rhode Island.
The fact is that while everyone is talking about secrecy and sunshine in the judicial list case, the gov still apparently thinks that if he can convince people that he’s right about finding qualified attorneys he will make political hay. Same with the teachers’ contract- people might (or might not) have agreed on the 5% pay cut and 50% of medical but the perceived refusal to collectively bargain is what’s hurt him politically.
So much guesswork and no answers. But important questions.
How about a truce, find /hire a reasonably neutral prof at UH with trustworthy statistical survey skills and you and HSBA leaders as both involved (unpaid) in the survey design, and do a poll of bar members who might want to be judicial candidates?
E.g., members admitted more than ten and less than forty years ago.
Someone with public conscience should be willing to provide a modest research grant to make this happen. We might better understand what factors click and to what degree.
Ian,
FYI, the exhibits attached to the Gov’s latest court pleadings (opposition to the S-A’s motion for summary judgment and cross-motion for summary judgment) are posted here:
http://tinyurl.com/6c5gyup
The Governor (or whomever is running state government at the moment…seems there may be a shadow leadership) better hope he loses this suit to the Star Advertiser. Then he can eat crow and accept that he messed up. If he “wins,” it will be yet another in a long string of losses for the Administration…and it will continue to dog him as long as he’s Governor.
Wasn’t Duke Aiona among those who left the bench, citing the low salary as the reason?
This post, on the shockingly low salaries of judges in Hawaii, was the most effective of your posts on the subject of judicial selection.
I think that Abercrombie’s secrecy seems to be of ambiguous value. The glass is half empty and half full. It does seem to have some legitimacy, although it comes with a price. More and more on this issue, I see Abercrombie’s logic. But salaries need to be raised too.
The problem, though, is Abercrombie’s contradictory image. He’s sometimes too open and bigmouthed … then later too secretive. He’s uniquely liberal — even radical in his anger — among Hawaii’s politicians, but then he embraces the status quo in ways that even the most conventional, conformist politicians do not. So that’s the real issue, perhaps: cognitive dissonance. Abercrombie is a campus radical who compromised, and so liberals such as yourself feel disturbed.
I personally see him as a good guy who would be just another impotent professor in some academic department if he had not compromised his politics, and we’d might have some sociopath in the governor’s office now in his stead. So viva Abercrombie.