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UPDATED 2:30 p.m., 10/22/2014
One of three judicial appointments pending this week in the state Senate has been labeled “unqualified” by the Hawaii State Bar Association despite significant testimony supporting her.
Margaret Masunaga was nominated to a six-year term as a district judge in Big Island’s 3rd Circuit Court by Hawaii Supreme Court Chief Justice Mark Recktenwald, who chose her from a list of six names recommended by the Judicial Selection Commission in September.
However, the bar association’s president, Calvin Young, told lawmakers in his written testimony that the board of directors “seriously questions the nominee’s legal knowledge, diligence, ability to fulfill the responsibilities and duties of the position, and professional experience in legal practice and in civil and criminal proceedings and trials.”
Masunaga worked in private practice early in her career, but has spent most of her time in the public sector, working at the state Attorney General’s Office, the Hawaii County Planning Department and the Office of Corporation Counsel.
The bar association’s findings come in stark contrast to the support Masunaga has received from U.S. Rep. Colleen Hanabusa, U.S. Sen. Mazie Hirono, Big Island Mayor Billy Kenoi and attorneys from top law firms. Even the judge she would replace, Joseph Florendo, who retired earlier this year, recommends her for the job.
“Certainly there is no question that the nominee possesses qualifications that are integral to the position: integrity & diligence, legal knowledge & ability, financial responsibility, public service, good health,” Florendo said in his written testimony. He added that she may not have an extensive background in trial practice and procedure, but would quickly learn.
It’s not unlike what happened in March with the appointment of 1st Circuit Judge Michael Wilson to the Supreme Court.
“I am stunned that an attorney with decades of legal experience can be found lacking in ‘professional experience.'” — Lisa Woods Munger, partner at a major Honolulu law firm
The bar association found Wilson unqualified to serve on the high court after Gov. Neil Abercrombie nominated him. The bar association cited its concerns over Wilson’s work ethic, lack of professionalism and conduct toward women, despite many pages of testimony from others in support of the nomination.
The Senate Judiciary Committee, chaired by Clayton Hee, ultimately approved Wilson’s appointment and the full Senate followed suit.
But not before the bar association was criticized for its secretive process of determining ratings for judicial candidates, particularly given its vague allegations that Wilson had acted inappropriately in the workplace toward women.
The bar refused to explain in any detail why the 21-member board found Wilson unqualified to serve as a justice and instead defended its policy as critical to protecting lawyers who serve on the board from retaliation over unfavorable ratings.
In reviewing Masunaga’s nomination, the bar went through a similar process. It started by asking its membership for comment and then, on a confidential basis, interviewed attorneys who provided “less than positive observations.” A subcommittee then reviewed the comments, contacted Masunaga’s references and considered her resume and other documents that she submitted. The board then interviewed Masunaga on Oct. 16.
The board noted Masunaga’s “exemplary history of public service” in its testimony to lawmakers, but concluded that she was unqualified to serve.
Hee seemed concerned over the bar association’s rating of Masunaga at a hearing Monday, much as he was during the hearings over Wilson.
Update The Judiciary Committee unanimously approved the appointment Wednesday. The full Senate is expected to take it up Thursday.
“I am deeply disturbed by yet another ‘unqualified’ determination from the Hawaii State Bar Association,” Lisa Woods Munger said in her testimony. She’s a partner at Goodsill, Anderson, Quinn & Stifel, a top Honolulu law firm where Masunaga used to work.
“I am stunned that an attorney with decades of legal experience can be found lacking in ‘professional experience in legal practice and in civil and criminal proceedings and trials,” Munger said.
Hanabusa, an attorney and former state Senate president, is familiar with the concerns over the bar association’s method of rating nominees. She said she had such problems with the rating system that she participated in an American Judicature Society study on it.
But Hanabusa was careful to point out that she has great respect for the bar association’s president, Calvin Young, and executive director, Patricia Mau Shimizu. She also disclosed that Masunaga’s daughter works in Hanabusa’s office in Washington, D.C.
“It is up to each Senator to determine how much weight any testimony should be given.” — U.S. Rep. Colleen Hanabusa
“I know that the HSBA’s rating, when agreed to, has been part of many speeches,” Hanabusa said in her testimony to the Judiciary Committee. “I also know that when this body has disagreed with the HSBA or the appointing authority, it has not hesitated to ignore or strongly disagree with both or either.
“That is how it should be,” she said. “The HSBA provides input; it is up to each senator to determine how much weight any testimony should be given.”
The other two appointments up for decision-making, Jeff Crabtree and Christine Kuriyama, come from Abercrombie via a list of six names the Judicial Selection Commission gave him in September to choose from.
The bar association found both to be qualified to serve 10-year terms in Oahu’s 1st Circuit Court and they received glowing recommendations from their peers. They would replace Judges Patrick Border, who retired, and Wilson, who left to serve on the Supreme Court.
Update The Judiciary Committee unanimously confirmed both appointments Wednesday. The full Senate is set to vote Thursday.
“One of the most difficult aspects of confirmation is being in the receipt of anonymous calls, innuendo, issues like that that speak against transparency and full disclosure,” Hee said at the hearing Wednesday.
Hee said he believes the bar association’s rating of candidates is “one aspect of the process,” just as Young describes it. Hee added that he believes the bar is improving.
“There’s a ways to go for everyone, Senate included,” Hee said.