Hawaii doesn’t have effective laws governing conflicts of interest for judges, according to the State Integrity Investigation.

Hawaii received an overall D+, or 67 percent, grade for Judicial Accountability.

But it got a 46 percent score when it came to the effectiveness of its regulations governing judicial conflicts of interest.

This was largely because in practice the regulations restricting post-government private sector employment for state judges aren’t effective, judges’ asset disclosures aren’t audited and there are no restrictions on judges setting up non-profit organizations that can be used to reward political supporters.

Overall, the State Integrity Investigation ranked Hawaii 10th after Civil Beat reporters researched 330 “Corruption Risk Indicators” across 14 categories of government. (Click here to learn more about the methodology used for the project.) It ranked Hawaii 31st for Judicial Accountability. And its worst score when it came to the five questions that resulted in the Judicial Accountability grade was for the effectiveness of its conflict of interest regulations.

Bottom line: Hawaii could have much more effective laws governing judicial conflicts of interest.

Here’s the basis for the 46-percent grade that contributed to the overall 67 percent for Judicial Accountability. It’s your turn to evaluate whether Civil Beat got it right and to share what you think should be done to improve the situation. Share your comments at the bottom of this story.

Here’s the fourth question the State Integrity Investigation asked regarding Judicial Accountability.

Are the regulations governing conflicts of interest for the state-level judiciary effective?

Overall score: 46%

Here are the criteria Civil Beat used to answer that question and what Civil Beat found.

1. Are the regulations governing conflicts of interest for the state-level judiciary effective?

Notes: Judges and justices are excluded from the post-employment rules. According to Mark Santoki with the Hawaii State Judiciary, there are no specific provisions which directly relates to post-employment for judges.

Gerald Sekiya with the Hawaii Judicial Conduct Commission confirms that judges are not covered by post employment rules. However, all judges are lawyers when they leave the judiciary, so they will have to abide by the lawyers code of conduct which details conflicts of interest, Sekiya said.

Sources:

• Mark Santoki, public information officer, Hawaii State Judiciary, 9/1/11 and 10/12/11, email response.

• Gerald Sekiya, chair, Hawaii Judicial Conduct Commission, 8/31/11, telephone interview.

Score: 0%

Scoring criteria: These are the scoring criteria for this question.
Very Strong: The regulations restricting post-government private sector employment for state-level judges are uniformly enforced. There are no known cases of judges taking jobs in the private sector after leaving government where they directly lobby or seek to influence their former government colleagues without an adequate cooling off period.
Fair: The regulations are generally enforced though some exceptions exist. In certain cases, judges are known to sometimes take jobs in the private sector that entail directly lobbying or seeking to influence their former government colleagues. Cooling off periods are short and sometimes ignored.
Very Weak: The regulations are rarely or never enforced. Judges routinely take jobs in the private sector following government employment that involve direct lobbying or influencing of former government colleagues. Cooling off periods are non-existent or never enforced. A zero score is also earned if judges are allowed to hold private sector jobs while serving on the bench.

2. In practice, the regulations governing gifts and hospitality offered to members of the state-level judiciary are effective.

Notes: The Hawaii Judicial Conduct Commission’s Gerald Sekiya said judges very rarely receive gifts and nothing significants comes to mind. Mark Santoki with the Hawaii State Judiciary said he isn’t aware of any instances of irregularities with gifts to judges or justices.

Sources:

• Gerald Sekiya, chair, Hawaii Judicial Conduct Commission, 10/7/11, telephone interview.

• Mark Santoki, public information officer, Hawaii State Judiciary, 10/10/11, telephone interview.

Score: 75%

Scoring criteria: These are the scoring criteria for this question.
Very Strong: The regulations governing gifts and hospitality to members of the state-level judiciary are regularly enforced. Judges never or rarely accept gifts or hospitality above what is allowed.
Fair: The regulations governing gifts and hospitality to members of the state-level judiciary are generally applied though exceptions exist. Some judges are known to accept greater amounts of gifts and hospitality from outside interest groups or private sector actors than is allowed.
Very Weak: The regulations governing gifts and hospitality for state-level judges are routinely ignored and unenforced. Judges routinely accept significant amounts of gifts and hospitality from outside interest groups and actors seeking to influence their decisions.

3. In practice, state-level judiciary asset disclosures are audited.

Notes: Financial disclosure statements are not independently audited, according to Mark Santoki with the Hawaii State Judiciary. Financial disclosure statements of judges can be randomly audited, according to Gerald Sekiya with the Hawaii Judicial Conduct Commission. The Hawaii Judiciary will only conduct an investigation if they receive a complaint.

Sources:

• Mark Santoki, public information officer, Hawaii State Judiciary, 8/29/11, email interview.

• Gerald Sekiya, chair, Hawaii Judicial Conduct Commission, 8/31/11, telephone interview.

Score: 0%

Scoring criteria: These are the scoring criteria for this question.
Very Strong: State-level judiciary asset disclosures are regularly audited using generally accepted auditing practices.
Fair: State-level judiciary asset disclosures are audited, but audits are limited in some way, such as using inadequate auditing standards, or the presence of exceptions to disclosed assets.
Very Weak: Judicial branch asset disclosures are not audited, or the audits performed have no value. Audits may be performed by entities known to be partisan or biased in their practices.

4. In practice, the requirements for state-level judges to recuse themselves from cases in which they may have a conflict of interest are effective.

Notes: Judges may recuse themselves from cases, according to Gerald Sekiya with the Hawaii Judicial Conduct Commission. If somebody complains of conflict of interest, then the commission will conduct an investigation, Sekiya said. According to the Honolulu Star-Advertiser, Sabrina McKenna was nominated for the state high court position in 2011. Because she is openly gay, McKenna said as a precaution she would check with commission on recusing herself from a case like civil unions, according to Honolulu Star-Advertiser. As another example, the Honolulu Star-Bulletin reported an Oahu judge failed to disclose his son’s criminal prosecution which created an appearance of conflict in 2005. In 1998, the Honolulu Star-Bulletin reported that all five state Supreme Court justices recused themselves from Bishop Estate matters following a recommendation from the state Judicial Conduct Commission.

Sources:

• Gerald Sekiya, chair of Hawaii Judicial Conduct Commission, 8/31/11, telephone interview.

• Honolulu Star-Advertiser, Ken Kobayashi, 1/31/11, “Judge secure with sexual orientation”

• Honolulu Star-Bulletin, Rob Perez, 2/20/05, “Judge fails to disclose legal woes of son”

• Honolulu Star-Bulletin, Ian Lind and Harold Morse, 3/12/98, “Justices Recuse”

Score: 100%

Scoring criteria:
These are the scoring criteria for this question.
Very Strong: Clear recusal rules ensure that judges do not have any conflicts in cases over which they preside. States provide a review of recusal motions by a neutral third party and not the presiding judge.
Fair: Recusal rules may be overly general or vague, and may allow judges to determine impartiality of cases for themselves.
Very Weak: Recusal rules are nonexistent, or routinely ignored.

5. In law, there are restrictions on state judges setting up non-profit organizations (e.g. community groups and think tanks) that can be used to reward political supporters and/or evade campaign finance rules.

Notes: It is important to note that judges in Hawaii do not run for office or raise campaign funds. All judges in Hawaii are appointed. The judicial conduct code limits judges’ involvement in nonprofits, according to Gerald Sekiya with the Hawaii Judicial Conduct Commission. However, it does not specify restrictions for judges on setting up nonprofits.

Sources: Exhibit B, Hawaii Revised Code of Judicial Conduct, Rule 3.7 Participation in Educational, Religious, Charitable, Fraternal, or Civic Organizations and Pro Bono Activities. Visit
http://www.courts.state.hi.us/docs/court_rules/rules/rcjc.htm#Rule_3.7 for details.

Score: 0%

Scoring criteria: These are the scoring criteria for this question.
Yes: A YES score is earned if there are regulations restricting the ability of state judges to create third-party organizations that could be used to reward political supporters and/or evade campaign finance rules.
No: A NO score is earned if there are no requirements mandating the disclosure of non-profit organizations set up by state judges.

6. In law, there are regulations to prevent nepotism (favorable treatment of family members), cronyism (favorable treatment of friends and colleagues), or patronage (favorable treatment of those who reward their superiors) amongst members of the judicial branch.

Notes: Under the judicial conduct rules, judges shall avoid from making administrative appointments by hiring family members (nepotism), favorable or unnecessary picks. The rule reads: “nepotism is the appointment or hiring of a member of the judge’s family or any relative who falls within the third degree of relationship of the judge.”

Sources: Exhibit B, Hawaii Revised Code of Judicial Conduct, Rule 2.13 Administrative Appointments. Visit http://www.courts.state.hi.us/docs/court_rules/rules/rcjc.htm#Rule_2.13 for details.

Score: 100%

Scoring criteria: These are the scoring criteria for this question.
Yes: A YES score is earned if there are specific formal rules prohibiting nepotism, cronyism, and patronage amongst members of the judicial branch. These should include competitive recruitment and promotion procedures as well as safeguards against arbitrary disciplinary actions and dismissal.
No: A NO score is earned if no such regulations exist.

7. In practice, judicial branch actions (e.g. hiring, firing, promotions) are not based on nepotism, cronyism, or patronage.

Notes: While there is no anti-nepotism law, there are fair treatment and conflict of interests laws that may apply. The state Legislature failed to pass a measure outlawing nepotism in state hiring. Hawaii State Ethics Commission received complaints of nepotism in state government offices and testified in favor of a measure addressing the issue, according to the Honolulu Star-Advertiser.

The evaluation process of Hawaii judges seeking retention are secret, so the public and judges are kept in the dark, according to the Honolulu Star-Bulletin. It is tough for the public to gauge whether the selection and retention of judges are done fairly by the Judicial Selection Commission, according to Honolulu Star-Bulletin.

Sources:

• Honolulu Star-Advertiser, Susan Essoyan, 12/5/10, “Efforts have failed to outlaw employing close relatives”

• Honolulu Star-Advertiser, Susan Essoyan, 3/11/11, “Bill to ban nepotism in hiring for state jobs clears key hurdle”

• Honolulu Star-Bulletin, Rob Perez, 5/30/04, “Rejected judges remain in dark”

Score: 50%

Scoring criteria: These are the scoring criteria for this question.
Very Strong: Nepotism, cronyism, and patronage are actively discouraged at all levels of the judicial branch. Hirings, firings, and promotions are based on merit and performance.
Fair: Nepotism, cronyism, and patronage are discouraged, but exceptions exist. State judges sometimes appoint family members or friends to favorable positions, or lend other favorable treatment.
Very Weak: Nepotism, cronyism, and patronage are commonly accepted principles in hiring, firing and promotions.

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