Steven Levinson, the retired Hawaii Supreme Court justice, refers to it as the “lead in the okole” factor.
Lead as in a heavy weight. Okole as in Hawaiian for “rear end.”
It’s an amusing analogy — meaning, essentially, that somebody won’t budge even when they should.
But Levinson used it to illustrate his view on a serious question: At what point does a sitting judge or justice become ineffective in his or her job and maybe needs to be nudged into retirement?
“The longer you are there, the more dug in you are, the more intellectually resistant to change you become and the less imaginative you are in what you create,” Levinson said about some judges who stay on past their prime. “I think that is a reality, a real consideration, in questions about retirement.”
Levinson retired from Hawaii’s high court in 2008, eight years before he would have hit the state’s mandatory retirement age for judges and justices. But, the “lead in the okole” concern aside, the 68-year-old Levinson feels strongly that many judges and justices can serve well past the age of 70, something he sees as beneficial both to the men and women on the bench as well as to the state.
The Nov. 4 ballot includes five constitutional amendment questions, one of which ask voters whether the retirement age should be increased from 70 to 80. Because it is the third question listed on the ballot, it is referred to as Constitutional Amendment No. 3.
Another question concerns allowing the use of public money for private preschool programs, as Civil Beat reported Monday. It is question No. 4. There is also a second question relating to judges (question No. 1) that involves the public disclosure of judicial nominees.
Two other ballot questions concern the use of special purpose revenue bonds for agricultural projects (question No. 2) and to improve dams and reservoirs (question No. 5).
All five constitutional amendment questions require that “yes” votes exceed 50 percent of the total votes cast — including ballots left blank — in order to pass.
In 2006, Hawaii voters rejected a constitutional amendment that would have repealed the mandatory retirement age of judges and justices.
The question was put before voters in part because of genuine concern that good judges should be permitted to continue serving on the bench. But it was also partly political, as there was a Republican governor at the time, Linda Lingle, who selected from the nominees provided by the Judicial Selection Commission. Democrats controlled the Legislature then as they do now, and understandably some wished to control the judiciary.
When the bill proposing the age change moved through the Hawaii Legislature this spring, Attorney General David Louie and his deputy, Charleen Aina, strongly supported the measure. They pointed out that, when Hawaii became a state in 1959, the retirement age of 70 was established along with limits on terms.
Since then, term lengths have been extended but the age cap has not changed. The attorneys general argued that, in an era when people are living longer, healthier and more productive lives, the cap was long outdated.
Louie and Aina also said that the age change would align Hawaii closer with the federal judiciary and at least 20 other states that have no age limit. They cited a prominent example they believed exemplified the “accumulated wisdom” that comes with age: John Paul Stevens, who did not retire from the U.S. Supreme Court until he turned 90.
“Shall the mandatory retirement age for all state court justices and judges be increased from 70 to 80 years of age?”
Levinson thinks extending the retirement age for Hawaii judges and justices is a good idea, too. He was part of a committee of the Hawaii Chapter of the American Judicature Society that tackled the issue a couple of years back.
“The committee was in strong support of an amendment raising the retirement age,” he recalled. “There was some lukewarm support for it, too, but there was no minority report. Overall, the majority of the committee had the feeling that we could have our cake and eat it to.”
Levinson said the state’s Judicial Selection Commission, meanwhile, would ensure that judges and justices would face periodic review.
“If a guy was a dud after, the commission could choose not to renew him,” he explained. “There are ways built into the system to weed out people who need to go.”
Some government officials oppose the age change, however, notably the Honolulu city prosecutor. Keith Kaneshiro was traveling this week and could not be reached for comment, but in his written testimony on the legislation he argued that the existing cap allows the best opportunity for aspiring judges or justices to “move up through the ranks of our judicial system.”
The state Office of the Public Defender was more blunt in its testimony: “We don’t believe a bench dominated by septo and octogenarians would give the public confidence in the judicial system. But we do feel that a mix of judges of various ages, gender, ethnicity and background does provide for a strong judiciary.”
Levinson said he appreciated the opinion that “new blood” would help Hawaii’s courts.
“We were hung up on that,” he said of his fellow committee members with the American Judiciary Society.
But Levinson said that increasing the retirement age does not necessarily mean judges and justices will stay the maximum time. What the current age limit may be doing, though, is discouraging qualified applicants who are in their early 60s from applying for a judge or justice vacancy, believing the Judicial Selection Commission and governors will reject nominees who would have to step down in only a few short years.
There have been differences of opinion regarding another judicial matter, that of publicly releasing the names of nominees for judge and justice vacancies as the same time they are presented to the governor or chief justice by the Judicial Selection Commission.
The issue made news in 2011 when Abercrombie would not release the names of nominees for a Supreme Court pick. The governor and his attorney general, Louie, argued that releasing the names would discourage people from applying.
The Honolulu Star-Advertiser sued to have the names released, and a Circuit Court judge agreed with the newspaper. Civil Beat wrote at the time, “The public deserves to see much more clearly how Abercombie is shaping state policy by who he picks — and who he doesn’t — for such important positions, including the Hawaii Supreme Court.”
But then the Judicial Selection Commission amended its own rules to disclose the names, and that has been the practice over the past three years. The concern is whether a future commission will amend its rules once again.
“In recent years the number of judicial applications has increased.” — Rep. Scott Saiki
“The commission promulgated a change to require disclosure, but it could always do away with that,” said Scott Saiki, the House majority leader who authored the 2013 legislation that resulted in the ballot question. “A constitutional amendment will guarantee the names be made public.”
Saiki, an attorney, was asked whether the disclosure discouraged attracting a pool of qualified applicants.
“That argument has not been verified,” he said. “In fact, in recent years the number of judicial applications has increased.”
Of note: Just last week the Judicial Selection Commission released the names of applicants for two vacancies on the First Circuit Court on Oahu. One vacancy was caused by the retirement of Judge Patrick W. Border and the other occurred with the elevation of Judge Michael D. Wilson to be an associate justice.
The six applicants for both positions (four men and two women) were drawn from a pool of 19 (four women and 15 men). Five applicants are government attorneys, two in private practice and two are judges. And, relating to the question of retirement ages, all but four are under the age of 61.
The remaining two constitutional amendment questions attracted no opposition as the bills calling for ballot status moved through the Legislature. Both concern special purpose revenue bonds.
Question No. 5 asks voters whether the state should issue bonds in order to offer loans to qualifying dam and reservoir owners to improve their facilities, protect public safety and “provide significant benefits” to the public as important water sources. It was proposed by the Abercrombie administration.
Abercrombie’s Land Board director, William Aila, told lawmakers that the constitutional amendment was necessary because the state’s Dam and Reservoir Safety Act of 2007 mandates dam and reservoir owners bring their properties into compliance. The act came out of the Legislature in response to the collapse of Kauai’s Kaloko Reservoir in 2006 that killed seven people.
According to Aila, over 80 percent of the dams in Hawaii were constructed before 1940 to support the sugarcane plantations.
In addition to the state, question No. 5 received testimony in support from the Hawaii Farm Bureau, which advocates for agricultural interests, the Land Use Research Foundation, which represents major Hawaii landowners and developers, and Alexander & Baldwin and its Hawaiian Commercial & Sugar Company, which has 29 reservoirs on Maui.
Over 80 percent of Hawaii’s dams were built before 1940 and may need maintenance.
Meanwhile, question No. 2 asks whether state bond money should be used to help agricultural enterprises on “any type of land” rather than only “important” agricultural lands.
The author of the bill that led to the ballot question, state Rep. Richard Onishi, said bonds can can only be used for lands designated as “important” ag land, meaning that they will be preserved in perpetuity for that purpose and not used later for, say, residential purpose.
Onishi said there is a need for businesses to borrow money at the lower rates the bonds provide to take care of other land that does not have the “important” designation. He gave the example of a macadamia nut farm on his home island, the Big Island, where a processing facility might need renovation.
“It’s not easy to qualify for special purpose revenue bonds,” he said. “You really have to prove to the state that you have the capacity to repay the bond. It’s not free money.”
Onishi called the legislation a “housekeeping bill,” meaning it was intended to fix something in earlier legislation — in this case, the legislation that created the “important land” designation.
The ag legislation was backed by the Farm Bureau, LURF, A&B and others in the business.
“The bonds will help to make Hawaii more sustainable and resilient, without using taxpayer money,” said Michelle Galimba of Kuahiwi Ranch, also on the Big Island, told Civil Beat.
Galimba said the ranch could use the low-interest private financing to invest in things like water systems for irrigation, on-farm energy systems and waste recycling facilities that can return nutrients to the soil.