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Friday, September 19, 2014         

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For Moon, applying the law was foremost

The retired chief justice says he put aside his own beliefs and public opinion in his rulings

By Ken Kobayashi

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Ronald Moon recalls the advice of his mentor, the late U.S. District Judge Martin Pence:

Consider factors such as your personal beliefs or what might be popular, then set them aside. Focus on the facts and apply the law.

Moon said he tried to follow that advice during his 17-year tenure as Hawaii Supreme Court chief justice, which included rulings in the 1993 same-sex marriage case and the more recent Superferry and Turtle Bay Resort decisions.

"I hope that throughout the years, I did what he taught," he said in an interview Wednesday.

Moon believes Pence's remarks form the bedrock philosophy for an independent judiciary, which his supporters say he championed throughout his term -- the longest of any state or territorial chief justice.

He stepped down Aug. 31 before turning 70, the mandatory retirement age for justices and judges under the state Constitution.

As chief justice, Moon drew his share of criticism, both public and private, for his style and the way he administered the judiciary.

But under his leadership the judiciary expanded and adopted programs that have won national acclaim, including the HOPE probation and the court interpreter programs.

The judiciary also developed drug and mental health courts and expanded with three new state appeals judges, about a half-dozen more circuit judges and four new court complexes.

PROFILE: RONALD T.Y. MOON

» Born: Sept. 4, 1940
» Education: Mid-Pacific Institute, Coe College in Iowa, University of Iowa law school
» Legal career: Law clerk, U.S. District Judge Martin Pence, 1965-66; city deputy prosecutor, 1966-68; associate and partner, Libkuman, Ventura, Moon and Ayabe, 1968-1982
» Judicial career: circuit judge, 1982-1990, associate justice, 1990-1993; chief justice, 1993-Aug. 31, 2010
» Family: Wife Stella, three children, three stepchildren

Moon himself sworn in most of the justices and judges, advanced expansion of the mediation and arbitration programs and fought for judicial pay raises.

But the concept of "judicial independence" was always close to his heart, Moon's successor, Mark Recktenwald, said Friday at the Hawaii State Bar Association convention.

"CJ Moon has been an articulate and persuasive defender of that fundamental principle of our democracy," said Recktenwald, who served on Moon's court for more than a year before his appointment as chief justice.

MOON WAS BORN and raised in Wahiawa, a plantation town in the 1940s and 1950s. His father, Duk Mann Moon, owned a clothing store and became a leader in Wahiawa Korean Christian Church and the large Korean community.

Moon, who attended church three times a week, grew up with a strong belief that marriage is reserved for a man and a woman. But in 1993, he sided with Associate Justice Steven Levinson, who wrote the pioneering opinion that the state's ban on same-sex marriage violated the Hawaii Constitution.

Moon recalled that at conferences after the ruling, "I was the butt of many jokes."

But he hasn't changed his mind. "It was very difficult for me. But when we looked at the facts and researched the law, it was the right thing to do."

In April, Moon wrote the decision that a proposal to build thousands more hotel rooms at Turtle Bay had to undergo a new environmental review.

"I know how much Hawaii suffers economically and I know what the view was in terms of more jobs, construction and employees and so forth," Moon said.

It was the same with the decision striking down a state law that exempted the Superferry from environmental review , Moon said.

"I knew and believe that (the Superferry) was a real asset, but I couldn't go along with that, just based on the fact that it would help our economy, and forget what the law is," he said. "As Judge Pence said, you need to think of these things which are outside factors that kind of give a tug and a pull, but this is what judicial independence is all about, applying the law to the facts before the court."

Moon, who comes from a Republican background, began his public service on the bench in 1982 when he was named a circuit judge by Democratic Gov. George Ariyoshi.

He recalled the words of his father, who had passed away earlier: "Public service is the rent one pays for occupying the space here on earth."

"I truly believe that," Moon said.

In 1990, another Democratic governor, John Waihee, appointed him as an associate justice on the Supreme Court.

Moon turned down a bid to become a Reagan appointee as a U.S. district judge here, a prestigious and lifetime appointment that doesn't have a mandatory retirement age.

But that would have meant returning to the trial court level. "It didn't have the opportunity to be a court of last resort, which I felt was much more important and gave me an opportunity to be involved in the law as it applied to Hawaii," he said.

In 1993, Waihee appointed Moon chief justice, and he became the first and only chief justice of Korean ancestry in the country.

His written opinions fill several law books. Peter Esser, a Honolulu lawyer who specializes in appeals cases, said Moon's opinions were well-written and clear about why he reached his conclusions, Esser said. "When you get done reading them, you knew exactly what the law is," Esser said.

Moon and the justices came under harsh attack in the 1997 Broken Trust essay that criticized the conduct of Bishop Estate trustees and the way the justices selected them. It included the charge that they tried to appoint Waihee to a trusteeship.

Moon and the justices responded that the essay was "inaccurate" and "distorted."

"It is entirely false that any justice wanted John Waihee to be a trustee," Moon said in the interview.

Moon and three of the four other justices later ended the more than century-old practice of selecting the trustees, as called for in the will of Princess Bernice Pauahi Bishop.

He noted that the Supreme Court was the probate court when the will was written but that is no longer the case.

"We did not want to diminish the trust and confidence of the Supreme Court by continuing, and the majority of the justices were pleased to be out of it because it consumed a lot of time and energy," he said.

Although Moon had less-than-cordial relations with Waihee's successors, his supporters give him high marks for his leadership, particularly in dealing with the Legislature.

MOON HAS BEEN successful in obtaining money for courthouses at Kaneohe, Kauai, Hilo and Kapolei. The $130 million Kapolei courthouse complex was named after him this year.

Rick Keller, Moon's administrator director for seven years, said a key to Moon's success was his relationship with legislators. He met with them at their offices rather than having them come to the courthouse.

Through the years, he earned their respect, which does not come automatically with the position, Keller said.

"He built such great relationships and he worked really hard to do that," Keller said.

With the public, however, the high court's rulings came under occasional criticism. Voters have gone as far as to negate high-court rulings, most famously with the 1998 constitutional amendment overturning the same-sex marriage decision five years earlier.

Moon did not publicly speak out on the amendments when they were being considered by the Legislature and up for ratification by the voters.

During the interview, he said it was the proper way for the legislators and public to deal with decisions they don't like.

"I have no criticism of the process," he said.

Moon also did not publicly comment on the proposed constitutional amendment that would have lifted the mandatory retirement for justices and judges at age 70. Voters rejected the proposal in 2006.

Critics said the amendment was politically motivated to allow Moon to remain in office so the next governor could fill his vacancy. Supporters argued the restriction was unfair and would allow Lingle to name the replacement.

Now in retirement, Moon said he believes the mandatory retirement is unconstitutional.

The U.S. Supreme Court earlier held that judicial mandatory retirement provisions are a matter for states to decide. But Moon said other state employees here, including the governor, and federal justices and judges do not have retirement requirements.

"There is no question in my mind that (the retirement requirement) is arbitrary and capricious," he said, and adding that he doesn't think it could withstand another constitutional challenge.

"Age 70 doesn't create a person who is incapacitated from doing his or her work," Moon said.

But for himself, he does not have any problem, even though he had more than two years left on his term, he said.

After a legal career of 45 years, including 28 years on the circuit and high courts, "it was the right time to step down."

Moon said he'll take six months off, spending time with his grandchildren here and on the mainland.

From the gallery on Tuesday, Moon watched Recktenwald take the oath of office.

He felt a tinge of nostalgia, he said, because he'll miss the "Judiciary ohana."

"It was somewhat an elation and relief that we have someone in place that I feel has the tools to be a great chief justice," Moon said.






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