On the last day for the Hawaii Senate to send bills to the House, it rejected a measure that would have proposed altering the state constitution to task the Senate, not the Judicial Selection Commission, with renewing terms of judges.

Senate Bill 2420 would have granted the Senate the final say on whether judges should stay in office, with the commission relegated to making recommendations.

While one person submitted testimony in favor of the bill, 40 groups and individuals – including the Judiciary, Office of the Public Defender and Hawaii State Bar Association — testified against it, according to a report from the Senate Judiciary and Labor Committee.

Chair Gil Keith Agaran in a meeting about Senator Brickwood Galuteria’s residency. 27 april 2015. photograph by Cory Lum/Civil Beat

Sen. Gilbert Keith-Agaran introduced three bills this session that would have altered the judicial term renewal process.

Cory Lum/Civil Beat

Rodney Maile, administrative director of the courts, said in written testimony there was no pressing need to change the reappointment process for judges and the commission has served the state well since the 1978 Constitutional Convention, when the system was devised.

He said jurors are surveyed to evaluate the overall performance of a judge whose term is halfway over or up for renewal, and noted the Commission on Judicial Conduct also serves to keep judges in line.

If the Senate were added into the mix, it wouldn’t be able to access confidential information the commission has on the judges, Maile said. He also said the process of retention would be slowed down, possibly carrying over to “multiple sessions if there are concerns.”

He pointed to Vermont’s experience with a similar system in 1997, when political candidates said they would use the system to remove three justices they considered too liberal from the bench. Although the justices were retained, Maile said the incident shows how senators could manipulate judges.

Under current law, judges undergo a retention process of six months, but SB 2420 called for a process of nine months to a year.

“District and family court judges, who serve six-year terms, could spend as much as the last year — or one-sixth — of their term in the retention process,” Maile wrote.

“We are concerned that the procedure proposed by this bill would inject politics and special interests into the retention process.” — Hawaii Office of the Public Defender

The Office of the Public Defender submitted written testimony to oppose open Senate hearings for the retention of judges because public input is already sought in the commission’s initial selection process and confidential information about judges must be maintained.

“We are concerned that the procedure proposed by this bill would inject politics and special interests into the retention process,” the Office of the Public Defender wrote.

Jodi Kimura Yi, president of the Hawaii State Bar Association, shared her own concerns that the bill would diminish judicial independence and “politicize the retention process.”

She pointed out that if senators wished to comment on individuals up for term renewal, they could do so confidentially through the commission.

The Hawaii Government Employees Association was also among those that felt the current system works, and that the bill would expose judges to political scrutiny.

“It is essential for our judicial system to be composed of justices and judges who have the authority and autonomy to exercise their independent judgment,” HGEA’s testimony read. “When justices and judges must return to the Senate for confirmation to renew each term, they are exposed to politics influence and their rulings on controversial cases may be swayed to ensure another term.”

Civil Beat Columnist Ian Lind recently speculated the bill could be a result of conflict following a judge’s ruling in a lawsuit that found $28 million was owed to the Department of Hawaiian Home Lands.

SB 2420, authored by Sen. Gilbert Keith-Agaran, was one of three bills he authored in the senate designed to alter the judicial selection process.

SB 2238 would have allowed for a judicial election system by the public, while SB 2239 would have essentially done the same thing as SB 2420.

Both had similar versions in the House introduced by Rep. Joseph Souki, but neither made it to a hearing.

During Thursday’s Senate floor session, SB 2420 was recommitted back to the Judiciary and Labor Committee, which Keith-Agaran chairs. He could not be reached for comment afterward.

Two other bills unanimously passed through the Senate during the final crossover day.

SB 2372 would require that counties take responsibility for the repair and maintenance of private roads that have not been owned by another entity in at least five years.

SB 2693 would allow owners of “transient accommodations” (such as AirBnB, VRBO or Flipkey) to register as tax collectors and collect taxes from customers.

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