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Gov. David Ige is expected to appoint Hawaii’s next Supreme Court justice this year, his first and perhaps only pick for the high court.
The opportunity comes with the retirement Tuesday of Associate Justice Richard Pollack, who turns 70 on Thursday — the mandatory retirement age for Hawaii judges and justices.
Pollack’s retirement could fundamentally change the legal bent of the five-member court. Pollack has often ruled in the majority with justices Sabrina McKenna and Michael Wilson, who are described as being more liberal compared with Paula Nakayama and Chief Justice Mark Recktenwald.
“I think it can have a profound effect when you see a lot of 3-2 decisions,” said Jeff Portnoy, an attorney with Cades Schutte and a former member of the state’s Judicial Selection Commission. “Whoever that third judge is on the bench — and we don’t know who that could be — it could easily flip the entire Supreme Court.”
Portnoy described Pollack, who was appointed by Gov. Neil Abercrombie in 2012, along with Wilson, another Abercrombie appointee in 2014, as “clearly willing to move to extend the rights of criminal defendants, environmentalists, Native Hawaiians, and ones who have been less likely to rule in favor of developers and prosecutors.”
McKenna was also appointed by Abercrombie, in 2011. Recktenwald was appointed chief justice by Republican Gov. Linda Lingle in 2010. Nakayama was appointed to her first 10-year term by Democrat Gov. John Waihee in 1993.
The court has also been willing to review and overturn rulings from the Intermediate Court of Appeals, especially in criminal cases. In just the past two weeks it ruled 3 to 2 in six cases with only Recktenwald and Nakayama dissenting.
They included cases involving driving while intoxicated, an assault against a law enforcement officer, a denial of a right to trial and a personal injury claim.
In another case in June — a taxpayer challenge to Maui’s timeshare real property tax classification — McKenna, Pollack and Wilson also wrote in the majority with Recktenwald concurring in part but also dissenting in part with Nakayama. A similar outcome came in a case about evidence in a murder trial, but in that instance it was Nakayama who concurred and dissented with Recktenwald.
Pollack has not always ruled uniformly.
David Kimo Frankel, an environmental attorney, noted that the justice was part of the 4 to 1 decision (with Wilson dissenting) upholding the building of the Thirty Meter Telescope on Mauna Kea in 2018.
Pollack also sided with the majority (with Wilson again dissenting) in a case in 2018 that determined the Hawaii Legislature is only required to fund the Department of Hawaiian Home Lands the amount that the delegates of the 1978 Constitutional Convention estimated was necessary for administration and operating expenses.
Frankel calls Pollack “a workhorse” who has been prolific in his opinions and who has been consistently in the majority beginning in 2015.
“He is an incredibly good writer and his legal analysis is incredibly sophisticated,” he said.
But Frankel also credits the chief justice for his “judicial restraint and respect for the judicial process” for not blocking the recent 3 to 2 decisions, even though Recktenwald was usually on the losing side.
Pollack has his detractors.
“The test for a Supreme Court justice — the key question — is whether their decisions withstand the test of time. When a justice makes a decision based on faulty analysis or improper standards, then that decision will probably not last very long,” said House Speaker Scott Saiki.
Saiki did not point to a specific ruling.
Pollack declined to comment for this article.
Recktenwald issued this statement:
“Throughout his career, Justice Pollack has never wavered in his commitment to ensuring that our legal system’s promise of justice for all is in fact kept, particularly for those who are most marginalized in our society. He has been an extraordinarily productive member of the Supreme Court, whose opinions are always meticulously researched and clearly written.
He shaped the court’s jurisprudence in areas including public trust resources and the environment, criminal procedure, evidence, and public access to governmental proceedings. He was always respectful in his decisions, even when others held different points of view.
He will be missed by everyone at the court, and we are grateful for his friendship and service.”
Asked to comment, the governor said via email that he expected there would be “a lot of interest in this appointment. There are only five justices on the Hawaii Supreme Court, and they have a significant impact on our community. I will interview each nominee and seek public comment before making this important appointment to our state’s highest court.”
Sen. Karl Rhoads, chair of the Judiciary Committee that hears judicial nominations, said there are as many as 20 judicial appointments awaiting confirmation hearings. Many of them will likely be taken up in special session in September and the remainder after the Nov. 3 general election.
Rhoads said he expected Pollack’s replacement to be taken up after the election because “the vetting process is heightened” for a justice.
Ronette Kawakami, chair of the Judicial Selection Committee, said the position has been advertised since the beginning of this year. Once the commission has done its due diligence on applicants — including background checks and interviews — the names of perhaps four to six candidates will be forwarded to the governor, who has 30 days to submit an appointee to the Senate, which itself has 30 days to either confirm or deny.
Confirmation hearings for justices can be spectacles.
For example, in 2016 the bar rated Wilson unqualified for the position amidst “vague allegations from the bar association about his work ethic, professionalism and his treatment of women.” But Wilson won confirmation.
In 2010, Lingle’s pick of Intermediate Court of Appeals Judge Katherine Leonard to be chief justice was also deemed unqualified, with critics saying she lacked adequate administrative experience. Leonard was rejected by the Senate.
Recktenwald will appoint a judge to temporarily fill Pollack’s seat on the bench, most likely a Circuit Court judge. According to the Judiciary, substitutes are selected on a rotational basis from a list of First Circuit Court judges. When the list is exhausted, selection reverts back to the top of the list and the process is repeated.
The current term for Recktenwald, 64, is up in September. His retention for another term is up to the Judicial Selection Commission.
The nine-member commission is comprised of two members appointed by the governor, two by the House speaker, two by the Senate president, two by the Hawaii State Bar Association and one by the chief justice. There is currently a vacancy for one of the Senate president’s appointments.
In 2014, Hawaii voters rejected by a 73% to 22% margin a constitutional amendment to increase the retirement age for state judges and justices from 70 to 80.
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