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Simeon Acoba Jr. is the latest victim of a Hawaii law that forces judges to retire at age 70, but he’s actually OK with that.
"That is what the law is, and that’s something I basically accept," said Acoba, who until Feb. 28 had been an associate justice on the Hawaii Supreme Court.
Acoba, appointed to the court in 2000, said earlier this month he does think a judge should be allowed to serve past the age of 69 — "if the person is competent and can perform the job" — and he fully expects that someday the state Constitution will be amended to authorize that.
But for now, he said, "when I reached 70, I cannot serve in any judicial capacity. That pretty much shuts everything down."
Not that he won’t be keeping busy.
"I haven’t firmed up any permanent plans," he said, "but I am currently teaching a course in criminal procedure at the UH law school in conjunction with Justice (Richard) Pollack. And in the summer I’m committed to teaching a course on the Hawaii Constitution." He said he also will be working on about "four or five" Judiciary- and Hawaii State Bar Association-related committees.
It seems Acoba has always been busy. A graduate of Farrington High School, he earned a bachelor’s degree in political science at the University of Hawaii, then a law degree at Northwestern University in Chicago.
Jobs after college included clerking for Chief Justice William S. Richardson, then serving as special assistant to UH President Harlan Cleveland. He also was a deputy state attorney general, as well as a special counsel to several state agencies. From 1973 to 1980 he was in private practice.
"I did everything: wills, trusts, land, stocks, divorces, criminal cases," he said. "As it turned out, it was actually great background for being a judge."
His career as a judge began in 1979 when he was named a per diem District Court judge. In 1980, he was appointed by Gov. George Ariyoshi to the Circuit Court. In 1994, Gov. John Waihee named him to the Intermediate Court of Appeals. And finally, Gov. Ben Cayetano appointed him to the state Supreme Court, which at the time was headed by Chief Justice Ronald Moon.
The current chief justice, Mark Recktenwald, issued a proclamation on Acoba’s last day on the court, praising his "principled analytical approach" and "substantial impact in protecting individual rights in areas including criminal law and criminal procedure."
For his part, Acoba said he "really enjoyed working with my colleagues: Mark (Recktenwald), Paula (Nakayama), Sabrina (McKenna) and Richard (Pollack)."
"You know," he reflected, "when Justice (Sonia) Sotomayor from the U.S. Supreme Court visited with us (in February 2012) — and this is really to the chief justice’s, Mark’s, credit — she said we were the most collegial court she had met. And I think that really says a lot about our court."
QUESTION: On the issue of Michael Wilson, who was nominated and confirmed to replace you on the state Supreme Court, what do you think about the Hawaii State Bar Association’s secrecy surrounding its position on him?
ANSWER: I think the Bar has a significant role to play, and under its code of professional conduct, they are responsible for the quality of justice in the community, and certainly they have the right of free speech. I may not always agree with what the Bar members say, but they are directly involved in the judicial process.
Q: But that they can give just a thumbs up or a thumbs down — qualified or unqualified — that’s kind of rough, don’t you think?
A: Yeah, well, I think the issue is whether they should adopt guidelines that are clearer and more definite, and the process would be fairer.
Q: I’ve read that while you were on the Supreme Court you wrote, like, 200 majority opinions and about the same number of concurring or dissenting opinions. Is that right?
A: I never counted them. That’s what people say.
Q: What are some of the opinions you wrote that you’re most proud of?
A: One case was State v. Haanio, a criminal case. In that case, I said it was in the public interest to allow, or require, the court to give what are called lesser-included-offense instructions, because lawyers tend to go for an all-or-nothing result. For example, the prosecution would want a murder conviction, and defense would want a "not guilty" verdict, but the facts may at the trial … indicate there’s an offense that falls in between those two. So rather than the lawyers deciding it should be all or nothing … the court should allow the jury — should instruct the jury — to consider that along with murder and "not guilty," if there is a rational basis in the evidence to do so.
Q: What else?
A: One of the more recent cases was State v. Walton, which had to do with the right of privacy.
The U.S. Supreme Court has held that the right of privacy, under the federal Constitution, is not protected if you disclose information to third persons. I guess our focus was that today you have search engines, emails, and people do transactions online involving everyday tasks, so it’s just a matter of necessity that information is disclosed to third persons. So we said that the expectation of privacy should extend to these transactions, and if government wanted this information, the government should get a warrant for it. We said this is a rule that should be considered in the future.
Q: We’ve had a couple of commentaries on that third-party doctrine in the Star-Advertiser in recent months, about how that’s sort of how the NSA (National Security Agency) spun out of control, relying on a Supreme Court ruling from 1967 or some year long ago.
A: But our ruling would only apply in Hawaii, because we’re going under the state Constitution. Obviously we don’t have the last say on what the federal Constitution means.
Q: Any more cases?
A: The most recent one I consider important is called "In the Interest of TM," where we said that any parent sued to terminate parental rights must be afforded an attorney under the Hawaii Constitution.
A: Wasn’t that related to foster children?
Q: Right. Exactly. And then there was another case called State v. Maugaotega, wherein judges were, in effect, allowed to double a sentence at their own discretion. That was a statute that prevailed in most states, including our state, and I dissented and so did Justice (James) Duffy. That issue went up to the United State Supreme Court, along with other states who had the same statue, and the U.S. Supreme Court, in effect, vindicated our dissent.
Q: The court said judges do not have the discretion to double a sentence?
A: Right. The Supreme Court said juries should do that, not judges.
Q: Any other cases?
A: One other: We recently held that in this case called Diamond v. Dobbin, a Kauai case, that the state Department of Land and Natural Resources set shoreline boundaries, and it essentially did a one-time inspection of how far the wash of the waves went. The Hawaii Supreme Court had said that the public has the right to, in effect, walk along the shoreline, and the question was how wide was this access from the sea to going inland. … So in Diamond we reaffirmed that and said, in effect, that to determine how far inland you had to go, you couldn’t base it only on one inspection, like the DLNR was doing. But you had to take into consideration historic data based on kamaaina testimony.
Q: What kinds of cases did you most enjoy working on?
A: Well, there are basically two types of cases. This is a rough estimate, but about 75 percent of our cases are criminal cases, and those are the cases in which the Bill of Rights comes up most often. I think the courts have a special obligation to protect the Bill of Rights. Those cases are challenging but represent an important part of what courts have to do.
Other cases are where the question about the separation of powers between the three branches of government comes into play. On the one hand we are a check on each other, and on the other hand we have to respect the powers that each branch is given. So those are, I think, two types of cases that are important.
Q: Was the court during your tenure an "activist" court to any extent, … kind of making it up as you went along, making law rather than interpreting it, because it was virgin territory or whatever?
A: Well, relatively speaking we’re a new jurisdiction, as opposed to states on the mainland, so there are lot of areas in our law where there is no established rule. So as cases come up, we’re sort of filling those areas.
Q: Is part of that equation the whole Native Hawaiian rights issue?
A: Well, I haven’t looked at all state constitutions, but unique obviously to Hawaii is that we do have provisions protecting traditional and customary Hawaiian rights, so that’s relatively new, and we have to take really what are broad terms and apply it to specific cases. We’ve actually had, in my estimation, a rise in cases aimed at protecting natural resources and cultural resources, and part of that is that our Constitution specifically says that natural resources are to be protected, and specifically establishes environmental rights to a clean and healthful environment.
Q: What was the last opinion you worked on before you turned off the lights and officially retired?
A: The last case was a domestic abuse case, State v. Decoite.
Q: What was the issue there?
A: The issue was whether domestic abuse could be considered a continuing offense or whether it consisted of separate acts. The prosecution had charged domestic abuse over a two-year period and considered that as one offense. If it didn’t, then it would violate the statute of limitations.
Q: Because some of the abuse went too far back?
A: Right. And so the majority said, well, you know, as a matter of law you couldn’t have an offense that took longer than two years, that’s spread out over more than two years. And I said, I agreed with the result, but I said I would treat each case differently because each case is different on its facts, rather than establish a specific two-year rule.
Q: One legal expert told me he thought your opinions were very well organized but focused perhaps too much on procedural issues, so your opinions tended to be longer than needed. Is there some truth to that?
A: I actually did say in one case that our primary function is to protect the judicial process and not subvert it. If you ensure the process is correct, then, you know, the result should be true. … I think that’s our obligation as a court. Our cases shouldn’t be result-oriented. It’s ensuring the process is correct.
Q: I heard, too, that you’re kind of shy typically, but in the court you ask direct, pointed questions.
A: Yeah, I think oral argument is so important, and we were not having very many earlier. But it’s one way the public can see what we do actually. It’s part of our decision-making that’s visible. So much of what we do is not.
By the way, I wanted to mention one other opinion; called State v. Harada. … The question in Harada, was when the police execute a warrant, they’re supposed to knock and announce and request entry, under the statute. So the statute provides for a specific way the police execute a warrant. … This case involved a situation where the police used a ruse to get the door open. … The majority said that the entry was not legal because the door wasn’t fully opened and the police had to force their way in. The prosecution said the door was open, so the police had a right to enter. But I wrote a separate opinion where I said the problem for me was the statute set out the procedure to follow, and there was nothing that said you didn’t have to follow it, and that, in my mind at least, if you use a ruse to enter, then you, in effect, are not following the statute to get the door open.
Q: Is that why we don’t have more no-knock, SWAT team raids in Hawaii?
A: I don’t think we have a procedure for a no-knock. I’ve never seen that, so I’m not sure if we recognize no-knock.
In other states, the U.S. Supreme Court has approved no-knock warrants where the police can enter without knocking. But they have to show special circumstances for that.
Q: I thought the lack of no-knocks might be because of our culture here.
A: Well, you know, I think it is that Hawaii is in a lot of ways unique just because of the culture. People are — well, in my mind anyway — a lot more tolerant; you know, tolerant, caring and sensitive to other people. And, in a way, that fits in nicely with the Constitution of this state. So this is sort of cultural values fitting in with constitutional principles.