Hawaii’s Judiciary is soliciting comments on a number of proposed amendments to the Rules of the Supreme Court. The proposed rule changes are currently listed on the Judiciary website.

One of these deals with proceedings of the Commission on Judicial Conduct, which handles complaints against judges. Here’s a description from the commission’s annual report.

Any person may file a complaint relating to the conduct of a judge. Upon receipt of the complaint, the Commission shall determine whether sufficient cause exists to proceed with an investigation. Judicial misconduct involves any violation of the Code of Judicial Conduct. Disability involves the physical or mental inability to perform judicial duties and functions. Judicial misconduct does not include making erroneous findings of fact, reaching an erroneous legal conclusion, or erroneously applying the law.

Even though the Commission may find no further proceedings are necessary, it may recommend that the Supreme Court: issue a private reprimand, admonish the judge that his or her conduct may be cause for discipline, direct professional counseling or assistance to the judge, or impose conditions on the judge’s conduct.

During the period of July 1, 2018 through June 30, 2019, the commission fielded 410 “inquiries,” of which it handled only 17 as complaints. Each of those 17 complaints was dismissed, according to the commission’s most recent annual report available online.

The proposed amendment to the commission’s rules appears to narrow the application of existing confidentiality provisions.

While the confidentiality requirements current apply to “all participants in the proceeding,” the proposed amendment would limit its reach to “the Commission and special counsel and their staffs….”

The amendmendment appears to clarify that the rule doesn’t apply to other participants, perhaps including complainants or other witnesses.

PROPOSED AMENDMENTS TO
RULES OF THE SUPREME COURT OF THE STATE OF HAWAII
(Deleted material is bracketed and stricken; new material is underlined.)

Rule 8. JUDICIAL DISCIPLINE

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8.4. Confidentiality.
(a) In general. All proceedings involving allegations of misconduct by or disability of a judge shall be kept confidential until and unless the supreme court enters an order for the imposition of public discipline or the judge requests that the matter be public. [All participants in the proceeding] The Commission and special counsel and their staffs shall conduct themselves so as to maintain the confidentiality of the proceedings.
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I was plaintiff in a federal lawsuit challenging a similarly broad law providing for confidentiality of complaints filed with the Campaign Spending Commission.

The case was argued in the federal district court in Honolulu, and resulted in a decision which declared the confidentiality requirements unconstitutional.

The proposed Judicial Conduct rule appears to prevent a similar type of challenge.

See:

Lind v Grimmer
US District Court for the District of Hawaii
859 F. Supp. 1317 (D. Haw. 1993)
April 20, 1993

Lind v. Grimmer
9th Cir. 1994
Argued and Submitted April 12, 1994
30 F.3d 1115,