A face-off between the Legislature and the Judiciary over several bills that would reduce judicial independence and exert more political control over judicial retention decisions was apparently triggered by legislative anger over a recent court ruling in a long-running lawsuit over funding for the Department of Hawaiian Home Lands.

Two bills that would have required judges to be elected finally died in committee, but a third bill, Senate Bill 2420, was debated on the Senate floor on Tuesday.

This measure would require Senate consent or approval of judges seeking reappointment to additional terms. Currently, the state’s Judicial Selection Commission is responsible for screening judges and determining if they should be reappointed. The move to put the Senate into the mix is widely viewed as a further politicization of the selection process.

Despite political arm twisting by Senate President Ron Kouchi and Maui Sen. Gil Keith-Agaran, chairman of the Judiciary and Labor Committee, there were a number of senators who remained reluctant to support the bill.

Senator Gilbert Keith Agaran during hearing on Senate Transportation. Capitol. 19 march 2015. photograph Cory Lum/Civil Beat

Sen. Gil Keith-Agaran, seen here during a 2015 hearing, has been pushing for judicial elections this session.

Cory Lum/Civil Beat

In a last-minute procedural move, a floor amendment to insert a defective date into the bill was proposed and passed. The bill will be up for a vote on third reading on Thursday.

The floor amendment was essentially a compromise between backers and opponents of the SB 2420. It prevents the possibility that the bill could be approved by the House without amendment and then, as a constitutional amendment, go directly onto this fall’s election ballot without the possibility of a veto by the governor. 

And it allowed senators feeling the political pressure to vote for the bill now, knowing that even if the House passes the measure without substantive changes, the effective date will have to be fixed, requiring the amended bill to go to conference. This provides  opponents several more chances to defeat the bill in the House, in conference committee, or if and when a conference draft returns for a final vote.

So what links the selection of judges to the funding of the Department of Hawaiian Home Lands? The answer, simply, is politics.

The Politics Behind The Bills

In late November, First Circuit Judge Jeannette Castagnetti ruled legislators would have to make available an additional $18 million to DHHL this year to comply with Article XII of the Hawaii State Constitution, which requires the legislature to “make sufficient sums available” for the department’s administrative and operating budget.

Legislative leaders reportedly reacted angrily and strongly to Castagnetti’s decision, which they perceived as an intrusion into an area of their exclusive legislative jurisdiction.

The attorney general’s office quickly filed legal papers asking Castagnetti to reconsider her decision, and also filed an appeal of her ruling in case the reconsideration was not granted.

Meanwhile, House and Senate leaders hired former attorney general Mark Bennett to file an amicus brief in the proceedings on behalf of the Legislature.

Senate President Ron Kouchi has been involved in a political battle between the Senate and the Judiciary over funding for the Department of Hawaiian Home Lands.

Senate President Ron Kouchi has been involved in a political battle between the Senate and the Judiciary over funding for the Department of Hawaiian Home Lands.

Cory Lum/Civil Beat

The leadership agreed that each chamber would put up $25,000 to fund Bennett’s efforts. Individual legislators grumbled that members were not consulted on the matter and, in the case of the Senate, some members complained they were not even notified, and first learned of the legal effort when it appeared in the news.

But legislative leaders were apparently less than confident of their legal position, because they also apparently decided to fire a political “shot across the bow” by pushing the bills calling for the election of judges and requiring Senate consent for judicial reappointments.

These bills were apparently meant to threaten the independence of the Judiciary, just as legislative leaders seemed to feel threatened by what they saw as the courts’ intrusion into their primary mission of controlling the state’s purse strings.

The Judge Reconsiders

Judge Castagnetti issued an oral ruling on the motion for reconsideration on Feb. 29, the last day of the month.

In her detailed ruling, Castagnetti agreed to slightly alter the wording of her decision. Initial news reports made it sound as if the legislative power play had worked and, facing the threat that judges could be forced to face elections, she backed down.

Two things need to be made clear. First, a close reading of documents in the case show Castagnetti didn’t back down. And, second, even the mistaken impression that the adjustments she made in the original ruling were in response to political pressure, rather than legal judgment, could reasonably be expected to undermine confidence in the courts.

It’s a clear and potent demonstration of the dangers of further politicizing the courts, as opponents of the Senate bills have consistently warned.

The Legal Arguments

In support of their request that Castagnetti reconsider or revise her original Hawaiian Home Lands funding decision, Attorney General Douglas Chin and deputies Girard Lau and Charleen Aina presented several basic points.

First, they argued that there simply wasn’t enough evidence to support the finding that the Legislature is obligated to provide more than $28 million in this year’s budget in order to meet the constitutional requirement. To support their position, they dismissed the testimony and documents presented by DHHL officials as “mere assertions,” and as “wholly conclusory assertions or assumptions.” The validity of the department’s budget figures had been erroneously assumed, they argued, rather than actually demonstrated to be accurate.

Second, they argued that whether or not any particular amount is “sufficient” to fund DHHL is a question to be answered by the Legislature, which under the constitution has the sole power to appropriate funds.

Deciding what amount is sufficient is the “exclusive prerogative” of the Legislature, and the separation of powers means the courts cannot order the Legislature to appropriate funds, they argued.

Mark Bennett, arguing for the Legislature, said “the main issue for reconsideration is whether this court is invested with constitutional  authority to order the Legislature to appropriate funds to DHHL.”

Not surprisingly, Bennett answered in the negative.

Echoing the state’s arguments, Bennett argued that appropriating funds is within the sole jurisdiction of the Legislature, and that the courts are bound to give suitable deference to the Legislature’s budget decisions.

Kaahumanu Hale First Circuit Court Building in downtown Honolulu.

Kaahumanu Hale First Circuit Court Building in downtown Honolulu.

Cory Lum/Civil Beat

In response, attorney David Frankel of the Native Hawaiian Legal Corp., representing the Hawaiian plaintiffs in the case, ripped apart these legal claims.

Frankel pointed out that the law does not allow a request for reconsideration to be used to relitigate old matters or raise arguments or present evidence that could and should have been introduced in the original proceedings. He noted that during the eight-day trial, the state had not questioned, challenged, or objected to the financial data and testimony presented by DHHL officials and therefore could not come back at this late date to challenge that evidence.

And responding to the claim that the Legislature has sole authority under the Hawaii Constitution to appropriate funds and should therefore be deferred to, Frankel pointed to the record of the 1978 Constitutional Convention, where the amendment requiring sufficient DHHL funding was drafted.

The committee report on this amendment declared: “Your committee proposal makes it expressly clear that the legislature is to fund DHHL for purposes which reflect the spirit and intent of the Act. Your Committee decided to no longer allow the legislature discretion in this area.”

“Thus,” Frankel argued, “the framers of our constitution did not intend for deference to be given to legislative discretionary determinations.”

Instead, in this specific area of appropriations, the constitutional provision was intended precisely to remove the Legislature’s discretion because of its long history of failing to meeting its constitutional obligations to the Native Hawaiian beneficiaries of the Department of Hawaiian Home Lands.

The Hawaii Department of Hawaiian Home Lands has been historically underfunded.

The Hawaii Department of Hawaiian Home Lands has been historically underfunded.

Department of Hawaiian Home Lands

And in her Feb. 29 ruling, Castagnetti affirmed most of her original ruling, siding with the plaintiffs on most points.

Calling the case “truly an extraordinary and important case,” she left intact her finding that the state had failed to provide sufficient funds for DHHL’s administrative and operating budget, in violation of the constitution.

She also left intact her order that the state must provide sufficient general funds so that the department does not have to rely on revenue from general leases to operate.

Judge Castagnetti did delete the reference in her order to the specific figure of $28 million as a sufficient amount to be appropriated. However, her revised order states that the current amount of $9.6 million is not sufficient, and reaffirms that the constitution requires the the state to provide sufficient funds.

And she also rejected the state’s motion to drop the $28 million figure as unsupported by the evidence.

She then restated her point for the record.

“To be clear, the Court is not ordering an appropriation,” Castagnetti said in her oral ruling. “The Court is, however, ordering that the State must comply with its constitutional duty to make sufficient sums available.”

Of course, the legal case is not over. The state still has an appeal pending, if it decides to pursue it. And, of course, the plaintiffs may also file their own appeal in order to preserve their rights long enough to determine whether the Legislature is going to comply by providing “sufficient” general funds.

What Now?

And now there are new political questions to be answered.

If Keith-Agaran’s bill to require Senate consent to any judicial reappointments does pass, the primary beneficiaries will the the Senate and, in particular, Keith-Agaran, as chairman of the committee that would consider the appointments.

The senator is a practicing attorney and a partner in the firm of Takitani Agaran and Jorgensen.

Someone put the question to me today: “How will a judge rule on a case involving a client of Keith-Agaran’s law firm if they know he will have veto power if they apply for reappointment?”

It’s a good question, ripe with the smell of conflict of interest that would be hard to avoid.

I have a lot of repect for Sen. Keith-Agaran, and regret that he has put himself in this situation.

Further, there will be little for the Senate to review in the case of reappointments except for a judge’s prior rulings. So the process of reappointment could easily become an an occasion for pressuring judges over past legal rulings, with the aim of altering their future rulings.

And by appearing to hold the threat of judicial elections over the Judiciary while this case is playing out in court, the Legislature is showing exactly why making the process more political is a bad idea.

Perhaps the worst thing about the situation is that none of the legislative leadership have owned up to their role in pushing these bills. They haven’t defended the bills, or had to answer for bending the process to make a political point or gain an advantage in court.

It feels a lot like the bad old days when back room deals ruled and no explanations were due to the public.

About the Author

  • Ian Lind
    Ian Lind is an award-winning investigative reporter and columnist who has been blogging daily for 15 years. He has also worked as a newsletter publisher, public interest advocate and lobbyist for Common Cause in Hawaii, peace educator, and legislative staffer. Lind is a lifelong resident of the islands. Read his blog here. Opinions are the author's own and do not necessarily reflect Civil Beat's views.