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Wednesday, April 23, 2014         

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State bar to share evaluations

A policy shift comes after recent controversy over a court nominee

By Ken Kobayashi

POSTED:



In the wake of the controversy over its negative rating of chief justice nominee Katherine Leonard, the Hawaii State Bar Association has amended its rules to allow for the disclosure of the reasons for its "qualified" or "unqualified" findings for judicial nominees.

The new policy will be in place for Gov. Neil Abercrombie's upcoming judicial appointments, including the nomination of an associate justice to the five-member Hawaii Supreme Court.

The HSBA board of directors approved the changes last month after a review of its rules and the firestorm over the "unqualified" rating of former Gov. Linda Lingle's chief justice nomination of Leonard.

The state Senate later turned down the nomination. Lingle's subsequent chief justice selection was Mark Recktenwald, who was confirmed by the Senate.

Hugh Jones, president last year of the 4,700-member association, told the Senate Judiciary Committee last year that the HSBA board gave Leonard a rating of "unqualified." But he said under the HSBA policy he could not disclose the reasons.

The HSBA's rating and the Senate's unprecedented rejection of a governor's chief justice nominee led to strong criticism by Leonard supporters and others who contended the board should have at least provided reasons for its decision.

UPCOMING APPOINTMENTS

The Hawaii State Bar Association will be evaluating judicial appointments, which must be approved by state senators. The HSBA's board of directors will also evaluate Gov. Neil Abercrombie's appointment of David Louie as attorney general, which also requires Senate approval.

Gov. Abercrombie's appointments:

» Hawaii Supreme Court associate justice
» Circuit judge on Maui
» David Louie as attorney general

Chief Justice Mark Recktenwald's appointments:

» Five judges to the Honolulu District Court bench

Star-Advertiser staff

Jones said last week the HSBA sought input from its members following the controversy and received hundreds of responses from lawyers that showed support to keep the evaluation process confidential, but many felt strongly that reasons for the findings should be made public.

After a review of the responses, the HSBA board of directors changed the policy to allow the bar association president, with board approval, to disclose the reasons, Jones said.

"It gives the board president a little more of a license to comment on the reasons for the vote," he said.

Louise Ing, current bar president, who will present the "qualified" or "unqualified" findings to the Senate Judiciary Committee, applauded the change.

"I think it's a good move because there was frustration both from the HSBA's board standpoint and the Senate that we were not able to give any kind of rationale for a vote," Ing said.

She said she suspects that people will still want more information, but "at least it will answer some burning questions."

Ing envisioned that the board might authorize her to disclose that a nominee deemed "unqualified" did not meet HSBA's criteria in categories such as legal knowledge and ability, professional experience and judicial temperament.

Ing said it might not be necessary for the board to disclose reasons for all nominees, but thinks the need might arise for an "unqualified" vote or a "qualified" vote for a nomination that has drawn mixed feedback or negative publicity.

The HSBA board's ratings generally have not caused controversy since the findings have mostly been positive. The HSBA board rated only three of about 30 of Lingle's judicial appointments to be unqualified.

The board members will continue to cast secret ballots, and the breakdown of the vote will remain confidential.

Ing said the board wanted to protect the confidentiality of the voting process, and the HSBA wants the board to speak with "one voice," regardless of the vote breakdown.

Abercrombie will be making his first judicial appointments once the Judicial Selection Commission gives him lists of candidates for a vacancy on the high court and another on the Maui Circuit Court bench.

Sheri Sakamoto, commission chairwoman, said they hope to send the names to the governor before the end of the month.

The HSBA board will also evaluate Abercrombie's nomination of David Louie as attorney general.

Ing said the board will set a meeting on Louie once the Judiciary committee sets the hearing date on his appointment.

The HSBA has never found a candidate nominated for attorney general to be unqualified, according to the bar association.

At its Dec. 16 meeting the board also strengthened its conflict-of-interest provision by requiring any board member who intends to testify for or against a nomination to withdraw from voting on that appointment.

Also, the board approved allowing prior HSBA evaluations of judges nominated for a higher judgeship to be considered by the board members.

"The review process has resulted, I think, in a vastly improved and strengthened policy and that the process also revealed very strong support to continue the confidential nature of the input that was received," Jones said.






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