New justice will be named in June

Hawaii’s next associate justice on the Hawaii Supreme Court will either be one of four lower state court judges or a newcomer applying for a judicial position for the first time.

Gov. Neil Abercrombie will select from a list of the five candidates the next member of the state’s highest court to replace Associate Justice James Duffy, who must retire because he turns 70 next month.

The four state judges were also on the list when Abercrombie appointed Sabrina McKenna to the high court last year. The fifth candidate, David M. Forman, is the interim director of the University of Hawaii law school’s environmental law program.

The appointment to a 10-year term is considered significant because it could influence direction of the five-member court whose justices have split 3-2 in some major decisions, particularly in recent criminal cases.

Duffy has tended to side with Associate Justice Simeon Acoba, who has acquired a reputation as the most liberal jurist on the court. The two have been in the majority in recent rulings upholding defendants’ rights and overturning convictions.

The Judicial Selection Commission announced May 17 that it was sending the five names to the governor. The governor has 30 days from the time he received the list to make the selection.

The appointment is subject to state Senate confirmation.

Donalyn Dela Cruz, the governor’s spokeswoman, on Thursday said Abercrombie recently received the list and plans to interview the candidates in the near future.

She said "the time dedicated to making such a decision requires a thorough process."

The four judges on the list:

» Derrick Chan, 56, chief judge of Oahu’s Circuit Court, who was appointed by Gov. Ben Cayetano in 2000. He is a former state deputy public defender. He has also served as Kauai’s first deputy prosecutor and state deputy attorney general.

» Daniel Foley, 65, the longest-serving appeals judge and the only one appointed by a Democratic governor among the six on the Intermediate Court of Appeals, the state’s second-highest court. A former American Civil Liberties Union attorney, Foley was appointed by Cayetano in 2000.

» Craig Nakamura, 55, chief judge of the appeals court. He was appointed as an appeals judge by Gov. Linda Lingle in 2004, then chief judge by Lingle in 2009. He was an assistant U.S. attorney for 14 years.

» Richard Pollack, 61, an Oahu circuit judge who was appointed by Cayetano in 2000. He served as the state public defender, managing the office’s deputies around the state for 13 years until his appointment.

Forman, 46, a UH law school graduate, served as staff attorney for the Native Hawaiian Legal Corporation, executive director of the Hawai‘i Appleseed Public Interest Law Center and enforcement attorney with the Hawaii Civil Rights Commission. He was also an associate attorney with the Alston, Hunt, Floyd & Ing law firm from 2000 to 2004.

Forman is past president of the Hawaii Filipino Lawyers Association and the Honolulu chapter of the Japanese American Citizens League.

Duffy, a veteran lawyer, also did not have judicial experience when Lingle picked him for the high court in 2003.

In some of the split decisions, Acoba and Duffy were joined by Abercrombie appointee McKenna.

One example is their majority 86-page opinion this month overturning the manslaughter conviction and ordering a retrial for Less Schnabel Jr., accused of delivering a fatal punch to a visitor at a Nanakuli beach park.

Chief Justice Mark Recktenwald and Associate Justice Paula Nakayama filed a 51-page dissent.

The court also split along the same lines last month in overturning an attempted manslaughter conviction. The majority held that a defendant’s statements were not admissible because the detective invited him to tell his side of the story before warning him of his right to remain silent.

Abercrombie will also get to name a third justice to the high court. Acoba must retire when he turns 70 before the governor’s term expires in 2014.

The retirement age for judges and justices is set by the state Constitution.

In announcing the names of the five candidates, the selection commission said they were selected from among nine applicants — three women and six men.

Abercrombie departed from the practices of Lingle and Cayetano when he said last year he would not release the names of the judicial applicants.

He disclosed the names after a state judge granted a request by the Honolulu Star-Advertiser ordering him to release the names, and the selection commission said for future appointments it would make the names public.