Legislature keeps grip on Judiciary’s purse strings

For the past five years, the state Judiciary has asked legislators for money to hire a new Oahu Family Court judge and three support staff.

This year the request was for $330,000.

Court officials say the positions — authorized a decade ago by the Legislature but never funded — are needed to help handle a caseload growing in numbers and complexity.

Each year, lawmakers have rejected the request.

They also did not fund a new judge each for Kauai and Maui — annual requests that have been spurned the past four and three years, respectively.

At a time when the Judiciary is grappling with a congestion problem, the legislative rejections underscore broader questions that some lawmakers have about whether the judicial system is adequately managing caseloads and whether enough is being done to attract female candidates for judgeship positions.

The rejections also have fueled speculation that legislators are still smarting over court decisions that some believe have undermined the separation of powers between the legislative and judicial branches of government.

In 2015, for instance, a state judge ruled that the Legislature failed to appropriate sufficient funds to the Department of Hawaiian Home Lands for its administrative and operating budget, violating a constitutional requirement.

“It’s largely political,” Jack Tonaki, the state’s public defender, said of the Legislature’s reluctance to fund judge positions, though he added that cost also was a factor.

But Senate President Ron Kouchi said the state simply does not have the resources to cover all requests from agencies, requiring legislators to make difficult choices that will leave some priorities unfunded.

“All departments are disappointed,” Kouchi said.

In the recent session, though, the Legislature appropriated more than $5 million to pay for the Judiciary’s top priority: furniture and equipment for the Hawaii island court complex in Kona that is scheduled to open next year, according to Kouchi.

The Legislature appropriated $35 million in 2014 to build the complex.

State Rep. Sylvia Luke, head of the House Finance Committee, maintains that the Judiciary has fared substantially better than the executive branch in funding requests, particularly for new buildings.

“Any time the Judiciary has asked for a new courthouse, they have been successful because we give tremendous deference to the Judiciary,” Luke said.

Kouchi disputed the notion of tensions between the two branches of government.

“I don’t have any ill will or animosity toward the Judiciary or the CJ,” Kouchi said, referring to Chief Justice Mark Recktenwald.

For its part, the Judiciary expressed appreciation to lawmakers.

“We are very grateful to the Legislature for the funding we have received over the years,” Rod Maile, administrative director of the courts, said in a statement to the Honolulu Star-Advertiser.

Mindful of the hundreds of requests legislators get each year, Maile said the Judiciary submits only its most pressing ones.

“We recognize that there are always more needs than available funds, and that the Legislature has to make very difficult choices between very compelling programs,” he wrote.

The Judiciary’s difficulty in getting money for new judges has persisted for years.

The last time the Legislature approved funding for a new judge was in 2012, providing money to hire one of the two Oahu Family Court positions that were authorized but not funded a decade ago.

Specialty courts

The Legislature is reluctant to fund new judges for several reasons, including concerns about how the courts manage caseloads, particularly in light of the nearly dozen specialty courts the Judiciary has created since the early 2000s, according to Luke.

She said the Judiciary has yet to satisfactorily answer whether spending money on the specialty courts, which are considered successful but resource intensive, is coming at the expense of the regular civil and criminal caseloads.

The Judiciary has established specialty courts to focus on truancy, the environment, mental health, girls, veterans, drunken driving, juvenile drug abuse and other matters.

Applicants wanted

Adding to the legislative reluctance, Luke said, are concerns about the low number of applicants for Hawaii judgeships and the especially pronounced lack of female candidates seeking those jobs.

Since the beginning of 2017, for instance, men have submitted applications at a rate 3-1/2 times greater than women. One Big Island position in July attracted only eight applicants — all men.

The lack of female applicants in recent years has persisted even as the ranks of female graduates at law schools here and nationally have surged, according to Luke. It also has persisted despite a major boost in Hawaii judge salaries a decade ago.

Luke thinks the applicant disparity traces to the early 2000s when five female judges in Hawaii were forced off the bench, reportedly for reasons of temperament. Legislators were outraged because such retention criteria were not used for evaluating male judges, she said.

Until the Judiciary sufficiently answers the caseload question and the legal community, including the Judiciary, determines a way to convincingly deal with improving the applicant pool for bench seats, the Legislature thinks use of per-diem judges is the way to address the backlog problem, Luke said.

Judge R. Mark Browning, chief judge for the 1st Circuit, which covers Oahu, said judges assigned to the specialty courts, with one exception, also carry full regular caseloads, and the extra work has not resulted in congestion in the Circuit Court.

“Because of the success of these (specialty) courts, recidivism has been reduced, prison costs have been reduced, and the number of individuals who would have been homeless or on welfare have been reduced,” Browning said in a statement. “Lives have been saved and are being changed for the better.”

He also added that the success of the specialty courts has saved taxpayers thousands of dollars.

What’s more, the long-term use of part-time judges would be fiscally and operationally challenging, according to Browning.

In its legislative testimony supporting funding for the extra Oahu judge, the Judiciary said it has relied increasingly on per-diem ones. In fiscal year 2017 the Family Court used part-time judges about 1,100 times, an 87 percent increase from five years earlier.

Lacking experience

Some attorneys bemoan the frequent reliance on part-time judges in Family and District courts because the part-timers generally don’t have the same experience levels as full-time ones, do not receive as much training and are not as versed in the law.

On the diversity issue, the Judiciary’s Maile said that since Recktenwald was named chief justice in 2010, half the 28 people he has appointed to the District Court bench have been women — a fact that Luke applauds.

Recktenwald makes his appointments from a list of finalists recommended by the Judicial Selection Commission, which vets the applicants. The appointments are subject to Senate confirmation.

The commission has been active in attracting a diverse pool of applicants, and the Hawaii Women Lawyers organization likewise has been supportive, according to Maile.

The Judiciary has been asking for the extra Family Court judge on Oahu to help with a growing caseload in the divisions that deal with divorces, temporary restraining orders and related matters. In fiscal 2017 the number of cases in the two divisions collectively totaled 17,300, a 12 percent jump from three years earlier, according to Judiciary data.

Deputy Prosecutor Keith Seto, who supervises his colleagues pursuing misdemeanor abuse cases on Oahu, said an extra judge to complement the two who preside over jury trials would help with the persistent backlog.

“One more judge would get rid of this problem,” Seto said.

Nanakuli resident Richard Mole hopes lawmakers listen to such pleas.

His son, Daniel, 23, and another man on the road shoulder repairing a tire were killed in February by a hit-and-run driver who police suspect had been drinking. A prior DUI charge against the driver was dismissed in 2016 partly because of court congestion. Daniel’s mother believes her son would still be alive if the driver had been prosecuted for the 2016 charge.

Asked what he would say to legislators who have the power to fund more judges, Mole said, “What you do and the decisions you make, there’s impact to people whether you realize it or not. So just place human value to it.”