State’s top court could use Native Hawaiian insight

The state is replacing Simeon Acoba, associate state Supreme Court justice, because he has reached the mandatory retirement age of 70.

This is a big loss to Hawaii. Acoba’s bright mind contributes much to the balance and thoughtfulness of the court, but our state Constitution says when you hit 70 on the Supreme Court, you are pau.

So the state through the Judicial Selection Commission is in the process of filling the position, and many are asking a good question: Where are the Native Hawaiians on the court?

In the rest of the country, Native American judges are common on tribal courts on Native American tribal lands. Hawaii has no tribes, but Hawaii has laws and legal decisions from when Hawaii was a sovereign country. Back then, there was a Supreme Court and those judicial decisions from the monarchy’s court are still part of Hawaiian law.

"There has been a marriage of brown culture into white law," says Sen. Clayton Hee, a Native Hawaiian and chairman of the Senate Judiciary Committee.

Both Hawaii law and the experience of Native Hawaiians are unique.

Hawaii has had just two Native Hawaiians on the top court. The most influential justice on the court was the late Chief Justice William S. Richardson, whose name now graces the University of Hawaii law school. Richardson’s water rights and beach access decisions have absolutely shaped how we live in Hawaii.

Others will argue also that Native Hawaiian Robert Klein’s decision redefining customary and traditional rights of access also was a landmark.

It is too soon to know whether the nominees for Acoba’s seat include any Native Hawaiian judges or lawyers. If they do, it would be for the better.

"If you go back to statehood, there have been only two part-Hawaiian justices. Certainly that perspective is necessary," said Richard Naiwieha Wurdeman, a board member of the Native Hawaiian Bar Association.

"Given the history of Hawaii and constitutional provision that protects native customs and practices, it is very important to have that Native Hawaiian perspective," Wurdeman said.

Walter Heen, a former state Intermediate Court of Appeals judge, agreed with the sentiment that this is a unique situation.

"There is always a benefit to have someone on the bench whose family and cultural background have been exposed to the kind of issues and problems that face Native Hawaiians who have seen the effects of modern-day livings on those cultural practices," said Heen.

Hee added that the importance of having everyone at the table extends past just the Legislature to also include the judiciary.

"Issues arise regarding Hawaiian culture and there are many regarding the land and the water rights," Hee said. "Being Hawaiian is helpful in resolving them."

Jackie Young is a newly appointed member of the Judicial Selection Commission, which is charged with selecting four to six possible appointees for Gov. Neil Abercrombie to pick from. She declined to say if there are any Native Hawaiian candidates being considered.

Young, the former state affirmative action officer, does say that, "We have a very good list of applicants."

Picking members of the court, especially the Supreme Court, remains one of any Hawaii governor’s most important duties. It would be good for the court to not just be from Hawaii, but to feel Hawaii.

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Richard Borreca writes on politics on Sundays, Tuesdays and Fridays. Reach him at rborreca@staradvertiser.com.