UPDATED 3/16/2014 5 p.m.
Brook Hart is livid. For the past week he’s watched the Hawaii State Bar Association trash the reputation of his good friend Michael Wilson through what Hart considers to be rumor and innuendo.
Hart is a longtime Honolulu attorney and one of the most highly regarded criminal defense lawyers in the state. He’s also one of the most prominent supporters of Wilson, a former law firm partner, who Gov. Neil Abercrombie nominated to the Hawaii Supreme Court last month.
Wilson, a Circuit Court judge, has come under fire over vague allegations from the bar association about his work ethic, professionalism and his treatment of women. These are the reasons the association, which helps vet judicial nominees, gave Wilson a rating of “not qualified.”
But secrecy surrounds the allegations, which has raised questions about the veracity of the claims. The bar has also refused to elaborate on why it considers Wilson unqualified to be a Supreme Court justice, leaving many guessing as to the true motives behind the association’s rating of Wilson.
As Hart says, without proof there’s no reason to believe any of the complaints the bar association has lodged against Wilson.
“Why should any of this be given any weight at all?” Hart said. “We don’t operate by secret society in this country.”
Attorney Brook Hart.
Hawaii is not known as a bastion of transparency and accountability when it comes to nominating judicial nominees. In 2012, the state received a D+ in a national survey that ranked how open the process was for selecting judges.
The Judicial Selection Committee — which sent the names of six applicants including Wilson to the governor for consideration in late January — has also come under fire for its vetting process.
But Wilson’s nomination has once again put the spotlight on the Hawaii State Bar Association, which has a history of doing its business in secret.
In 2010, the Senate rejected Gov. Linda Lingle‘s nomination of Katherine Leonard, an Intermediate Court of Appeals judge, to be chief justice. The bar had rated Leonard unqualified for the job, and concerns were raised about the nominee’s lack of leadership and management experience.
In 2007, another Lingle nominee, Circuit Court Judge Randal Lee, was rejected for the appellate court. As the Honolulu Star-Bulletin reported then, senators said Lee did not have sufficient experience and that Lingle had appointed too many former prosecutors to the bench.
Both rejections were political defeats for Lingle, a Republican, who faced a Democrat-controlled Senate. Abercrombie is a Democrat, but he is unpopular and faces a potentially tough re-election.
In a rare instance the bar association revealed, under pressure, that it was divided over Lee’s nomination, according to The Honolulu Advertiser.
Jeff Portnoy was the bar association president at the time of the Lee nomination.
“I had strongly urged the bar board to allow me to at least provide some information as to why the bar board rated an applicant as not acceptable,” Portnoy told Civil Beat this week in reference to the Lee nomination. “I was still not permitted to go into specific details, which I did not agree with, but that was the policy of the board.”
After the hearings on Lee, Portnoy tried to address the board’s “lack of transparency,” but little changed. Like Brook Hart, Portnoy is upset with the board’s process in handling Wilson’s nomination, although he says he has no firsthand knowledge of the allegations.
HSBA Executive Director Pat Mau-Shimizu.
The Hawaii State Bar Association has made clear that it has no plans to reveal more information about the concerns it has raised about Wilson.
On Wednesday, the association’s president-elect, Greg Markham, sent additional testimony to the Senate Judiciary and Labor committee, which last week rejected the bar’s rating and sent Wilson’s nomination to the full Senate for a final vote.
But, as with allegations raised about Wilson in the Senate Judiciary hearing March 6 — regarding a Miss Universe contestant and public intoxication — there has been no evidence to back the accusations.
The public also has no idea how many people actually opposed the nominee. Bar association leaders insist that the evaluating process must remain confidential, because as attorneys they could one day find themselves before Wilson’s bench.
Bar Association Executive Director Patricia Mau-Shimizu told Civil Beat that this confidentiality is needed. She also said that if she revealed any details about the association’s rating of Wilson her organization could remove her from her job.
“In all our votes on judicial nominations, how many people voted and the breakdown of the votes are never released,” Mau-Shimizu said. “It’s not just this instance.”
The entire Bar Association’s board of directors is allowed to vote on judicial nominations, unless there is a conflict of interest and a member must be recused.
There are 21 people on the board and, Mau-Shimizu said, the president only votes if there is a tie. She added that a minimum of 11 directors are needed to vote on a nomination while also noting that the board takes that responsibility “very seriously.”
A simple majority is all that’s needed to issue a rating on a judicial nominee. What this means is that anywhere from six to 20 people found Wilson to be unqualified to be a Hawaii Supreme Court justice.
Sen. Malama Solomon, HSBA President-elect Greg Markham and Judiciary Chairman Clayton Hee.
When a governor selects someone for the Hawaii Supreme Court, the bar association forms a subcommittee made up of at least three people from its board of directors to vet the candidate. That committee is charged with soliciting comments from the association’s membership and giving a neutral presentation of the facts about a nominee to the board of directors before the group votes on a rating. (To see the full list of the board of directors, click here.)
Correction 3/16/2014 5 p.m. An earlier version of this story identified the wrong members of a bar association Supreme Court nominating committee. According to the bar, the nominating subcommittee identified by Civil Beat advises the Supreme Court on nominees to four boards — the Bar Examiners, the Disciplinary Board, the Lawyers Assistance Program and Lawyers Referral. But the subcommittee is not involved in the appointment of judicial nominations; that is the exclusive province of the Judicial Selection Commission, the appointing authority and the HSBA board of directors.
The bar association doesn’t require any identifying information when an attorney submits comments, according to Mau-Shimizu. But any identifying information that may be included is redacted by the bar association president, the executive director or any other designee before the subcommittee sees the comments. If the comments require further investigation, the committee can ask that attorney to come forward to further explain an allegation.
Once the subcommittee completes its due diligence, its findings are sent to the board of directors. A nominee will be informed in general terms of the those findings, but will not be provided with any documentation or comments that were receiving during the vetting process.
Mau-Shimizu refused to comment on how thorough bar association investigations are into specific allegations. She also noted that the American Bar Association — which is in charge of vetting U.S. Supreme Court nominees as well as other federal judges — has a lot more firepower when it comes to investigating someone’s background.
“I can say that I don’t have an investigator on my staff, unlike the ABA,” Mau-Shimizu said. “The ABA has a longer period of time (to vet a nominee), and the ABA has a huge staff.”
A major difference between the American Bar Association and the Hawaii State Bar Association is the amount of information about the candidate that’s released after a rating is made.
When a U.S. Supreme Court justice is vetted the American Bar Association provides a summary report that lays out some of the findings. That report is submitted to the Senate Judiciary Committee in advance of a confirmation hearing. The information is also posted on the bar association’s website along with a video of the Senate Judiciary proceedings.
Perhaps the most famous example of the public vetting of a Supreme Court nominee was in the 1991 U.S. Senate confirmation hearings on Clarence Thomas, which involved charges of sexual harassment made by a former employer, Anita Hill.
The Senate Judiciary and Labor hearing on Judge Mike Wilson.
Among the criteria that are used to rate a Hawaii judicial nominee are integrity, diligence, legal knowledge and ability, professional experience, judicial temperament, financial responsibility, public service and health.
Many of these criteria — character, reputation, compassion, humility, tact, freedom from bias, ability to fulfill the responsibilities and duties of the position — would seem to explain the negative comments raised by Markham in his March 12 testimony to the Senate Judiciary Committee.
It may also help explain why some attorneys have said there might be enough doubt to question Wilson’s ability to serve on the Supreme Court.
More than three dozen people were contacted by Civil Beat on Monday and Tuesday, before Markham sent his follow-up letter on Wednesday. While many said they did not believe the allegations raised during the Senate hearing, at least a half-dozen raised concerns about Wilson’s suitability for the job.
The sources were granted anonymity so that they could speak freely about the bar and Wilson without fear of reprisal.
There is also doubt about how many bar members weighed in on the Wilson nomination.
An email that was sent by a local attorney to other lawyers on March 2 explained that a member of the board of directors was troubled by the lack of input. (Civil Beat obtained the message on the condition that the sender not be identified.)
“The time period to submit written comments to the HSBA has passed, but if you have comments, Ronnie has graciously offered to take verbal comments, which shall remain absolutely confidential,” the attorney said, referring to Ronette Kawakami, an associate dean for student affairs at the University of Hawaii’s law school and the secretary of the board of directors.
The email continued: “She (Kawakami) writes, ‘The comments are in confidence. Complete confidence.’ She would need any comments by 12:00 p.m. Tuesday.”
That was two days before the Judiciary hearing, where senators unanimously rejected the bar association’s recommendation and sent Wilson’s nomination to the full Senate for a final vote March 18. Judiciary Chairman Clayton Hee said that would allow for additional time for people to raise further concerns to his committee.
That happened Thursday when the eight members of the Senate Women’s Caucus informed Hee that the March 12 testimony from the bar raised questions that “warrant further inquiry by the Senate.” They referred specifically to the allegations related to Wilson’s treatment of women.
Hee has scheduled a new Judiciary hearing Saturday.
Contact Chad Blair via email at firstname.lastname@example.org or follow him on Twitter at @chadblairCB.