Bill floats idea of electing attorney general

A proposed constitutional amendment to allow the public to elect Hawaii’s attorney general advanced a step forward in the state Senate on Wednesday over the objections of current Attorney General Douglas Chin.

Senators also considered a separate proposed constitutional amendment to shift to a system of elected judges in Hawaii, but that measure met with a groundswell of opposition from the state’s legal community. Lawmakers deferred action on that issue Wednesday and may instead opt for a study of whether judicial elections are a good idea.

Hawaii’s attorney general is now appointed by the governor and confirmed by the state Senate, and Chin said the post has been an appointed position for the last 150 years. Once an attorney general is confirmed, that person cannot be fired by the governor, which is a safeguard put in place to allow attorneys general to be independent.

Converting the job to an elected position would force the candidates to raise campaign money for the election, which could give the appearance later that legal decisions made by the winner are influenced by campaign contributors, Chin said in written testimony.

He also warned that running for office would take time and attention away from the primary job responsibilities of the attorney general.

Hawaii’s attorney general is tasked with giving legal advice to the governor, state departments and the Legislature and is also responsible for prosecuting some criminal cases.

State Sen. Donna Mercado Kim (D, Kalihi Valley-Moanalua-Halawa) said attorneys general in the past have seemed willing to “bend” to the wishes of the governor when making legal decisions, rather than deciding issues based on what might be in the best interests of the state or the Legislature.

Kim said that “there has always been the issue of whom does the AG serve. Does the AG serve the governor who appointed him, or the Legislature, or both? And there has been a conflict, a very visible conflict.” That is why she advocated to make it an elected position, she said.

Chin reminded Kim that the Senate has the power to confirm or reject the governor’s nomination for the job, and can also remove a sitting attorney general with a two-thirds vote. Those safeguards serve as a “check” on any attorney general who might favor the governor over the Legislature, he said.

However, Senate Judiciary and Labor Chairman Gil Keith-Agaran said it still appears to senators that the attorney general is “beholden to the governor.”

“If you’re elected, then you have that independence,” said Keith-Agaran (D, Waihee-Wailuku-Kahului). “I think that’s why there’s interest in this particular amendment.”

He said the only other states where the governor appoints the attorney general are Alaska, New Hampshire, New Jersey and Wyoming, “so we’re a little bit of an outlier, in that most of the other states elect their AG.”

The Judiciary Committee voted to approve Senate Bill 2418, with only Sen. Laura Thielen (D, Hawaii Kai- Waimanalo-Kailua) voting against the measure. That vote positions the proposed constitutional amendment for further consideration by the full Senate.

Even if the bill is approved in the Senate, it may face resistance in the state House. House Judiciary Chairman Karl Rhoads said he will not consider a similar proposed constitutional amendment that was introduced in the House. Rhoads declined comment on whether he will consider the Senate version of the bill, saying he will wait to see if it reaches his committee.

If the measure is approved by both the House and Senate, it will be placed on the ballot for the voters to decide whether to amend the state Constitution.

A separate proposal for a constitutional amendment requiring that Hawaii judges be elected instead of appointed was opposed by the state Judiciary, the Judicial Selection Commission that currently nominates judges, the Office of the Public Defender, the Hawaii State Bar Association and others.

Critics of the proposal said the state’s current system nominates judges based on merit, and said requiring candidates to solicit campaign funds from lawyers and others to help them win elections to become judges would undermine confidence in the fairness of the system.

The bar association warned in its testimony that “nothing erodes public confidence in the judiciary more than the belief that justice is ‘bought and paid for’ by particular lawyers, parties or interest groups.”

Keith-Agaran deferred action until next month on Senate Bill 2239, which proposes a constitutional amendment to require that judges be elected to serve six-year terms.

He instead advanced another bill that requires the state Judiciary, the Office of Elections and the Campaign Spending Commission to study ways to implement judicial elections and report back to the Legislature with their findings.