Attorney Jim Bickerton has shaken up the legal and political establishment by filing a lawsuit alleging that the chair of the state’s Judicial Selection Commission has violated provisions of the State Constitution and commission rules by unilaterally directing that advertising begin for the expected vacancy in the position of Chief Justice of the Hawaii Supreme Court.

[Note: Unfortunately, the link to Bickerton’s complaint as filed in state court was broken much of the day today, but it should now be working properly. My apologies!! I wish someone had pointed it out to be me earlier!]

In his complaint, Bickerton argues that the authority to proceed with advertising a vacancy lies with the commission and not with the chair. He points to a constitutional requirement that the commission act “only in accordance with the vote by a majority of the voting members.”

Bickerton was elected to the commission by a vote of the Hawaii State Bar Association membership last fall with a campaign stressing his independence and integrity, and only began his term in April 2009.

Bickerton declined to comment on the suit, citing the confidentiality the commission.

“Under JSC rules I am prohibited from discussing JSC business outside of JSC meetings. While that does not prevent the filing of the suit, it does limit my ability to discuss the suit publicly, as the suit involves JSC business. I will therefore allow my court filings to speak for me, and will limit my public comment to noting that in filing the suit I am merely carrying out my sworn duty as a public official to uphold the law and defend the State Constitution.”

The Judicial Selection Commission is highly secretive and acts only behind closed doors, but plays a powerful role as gatekeeper for the Judiciary.

Judicial nominations are screened by the commission, and all significant judicial appointments must be made from nominees approved by the commission.

For years, it was alleged to be under the tight political control of the late Tom “Fat Boy” Okuda, the top court administrator who was also in charge of the Judiciary’s influential lobbying organization. Okuda was said to control nominations to the commission, and also to use his subsequent influence with commissioners to have power over judicial appointments.

The State Constitution requires the commission to maintain full confidentiality, and its rules provide:

…all commission records, proceedings, and business, including the names of all proposed nominees and the names of nominees forwarded to the appointing authority, shall be confidential and may not be discussed outside commission meetings, except among commission members…

Bickerton’s complaint alleges that the commission chair, Sheri Sakamoto, has unilaterally and, without a discussion or vote by the commission, directed advertisements to be run announcing the future vacancy of the position as chief justice and setting a very short deadline for submitting applications.

The notice is already posted on the Judiciary web site and is slated to run in newspapers this Sunday.

Bickerton argues:

The legal right of Plaintiff as a duly elected and sworn member of the Commission to participate in a meeting and vote on whether the JSC should undertake these acts is being denied, as is the right of the public to (a) have the JSC operate in accordance with law and (b) have the votes of all its duly appointed or elected members on acts of public concern, and Plaintiff and the public are both therefore sustaining irreparable harm.

My own closest run-in with the Judicial Selection Commission came in a 1999 Star-Bulletin story in which I described how then-United Public Workers executive director Gary Rodrigues, a member of the commission, took part in deliberations on the nomination of Rey Graulty to a position on the Circuit Court. At the time, Graulty was the state insurance commissioner and his office was actively investigating Rodrigues and his union.