About the Author

Chad Blair

Chad Blair is the politics editor for Civil Beat. You can reach him by email at cblair@civilbeat.org or follow him on Twitter at @chadblairCB.

The U.S. Supreme Court’s ethical issues and recent code of conduct have Hawaii officials talking about whether stronger scrutiny is needed here.

What if a Hawaii judge or justice went on a fishing trip with a billionaire mega-donor?

Or if a loan from a wealthy benefactor was forgiven for a luxury recreational vehicle?

Or if a judge or justice, with the help of staff, advanced personal book sales through college visits?

You’d want to know that, right? As a reporter and a Hawaii citizen, I certainly would.

The U.S. Supreme Court’s recent adoption of its first-ever code of ethics has some in Hawaii wondering whether there should be greater ethical oversight of the folks who sit on our benches.

While the Hawaii State Ethics Commission has oversight over employees of the Hawaii State Judiciary, state law explicitly excludes judges and justices. That makes it hard for the public and media to learn what kind of gifts are reported, when complaints are made and what the review process entails.

Now, the ethics commission is discussing possible increased oversight of the judicial branch. Executive Director Robert Harris told commissioners at a Nov. 15 meeting that his office has “initiated a conversation” with the state judiciary in order “to try to better understand their processes and see if there are any areas that could use some review or tightening. And they have agreed to have that conversation.”

State Ethics Commission Director Robert Harris speaks to editors during ed board meeting held at the Civil Beat office.
State Ethics Commission Director Robert Harris says his office is in discussion with the Hawaii State Judiciary regarding oversight. (Cory Lum/Civil Beat/2022)

The idea of ethics oversight of the judiciary was proposed by Wesley Fong, the chair of the ethics commission. He is an attorney and an adjunct professor who teaches law and ethics at the University of Hawaii.

“The public has asked about the oversight of the Judiciary in light of what’s happening in our United States Supreme Court, and I think a lot of you know that the United States Supreme Court has adopted a code of ethics,” Fong said at the commission’s meeting.

He noted that SCOTUS would self-monitor its own conduct, something Fong suggested was not an ideal situation.

But Fong said he was pleased that “our judicial family is receptive to our exploring an oversight for the Judiciary. So stay tuned. We will be having a meeting with them and see if we can resolve this concern.”

Whether anything comes out of the discussion, of course, remains to be seen. It’s not clear whether the Legislature would consider legislation to cast greater scrutiny over the Judiciary, whether a governor would sign such legislation and whether the Judiciary would accept it.

But the state Senate and House of Representatives appear to take judicial ethics seriously. They unanimously approved a Senate concurrent resolution in the 2023 session that “strongly” urged SCOTUS to adopt “a formal code of ethics” for the justices.

“The disclosure of conflicts of interest and potential or perceived conflicts of interest are important to promoting openness, transparency, and trust in our judicial system,” the SCR states. It was introduced by Senate Judiciary Committee Chair Karl Rhoads.

That judges and justices sometimes can and do behave badly is a reality, with SCOTUS exhibit No. 1. The new code of ethics was quickly and widely criticized as weak, non-binding and “designed to fail,” as Michael Waldman, the president and CEO of the nonpartisan Brennan Center for Justice at NYU School of Law, put it.

“The justices only took this step, they explain, because of some ‘misunderstanding’ by the public about their probity. It’s not accountability — it’s the appearance of accountability,” Waldman wrote on Nov. 14. “The Supreme Court has been the only court in the country without a binding ethics code. Now it has one of the country’s weakest. These new rules are more loophole than law.”

Hawaii’s Judicial Code

The Hawaii Judiciary does have standards of ethical conduct. The Hawaii Revised Code of Judicial Conduct spells out in solid detail key requirements, including these laudable positions:

  • A judge shall not be swayed by public clamor or fear of criticism.
  • A judge shall perform the duties of judicial office without bias or prejudice.
  • A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary and shall avoid impropriety and the appearance of impropriety.
  • A judge shall not lend the prestige of judicial office to advance the personal or economic interests of the judge or others, or allow others to do so.
  • A judge shall not make any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court or make any nonpublic statement that might substantially interfere with a fair trial or hearing.
  • A judge having knowledge that another judge has committed a violation of this Code that raises a substantial question regarding the judge’s honesty, trustworthiness, or fitness as a judge shall inform the appropriate authority.
  • A judge shall not accept any gifts, loans, bequests, benefits, or other things of value, if acceptance is prohibited by law or would appear to a reasonable person to materially impair the judge’s independence, integrity, impartiality, temperament, or fitness to fulfill the duties of judicial office.

Judges and justices are also required to post online their personal financial interests.

  • A Special Commentary Project

But here’s the thing: If there is a complaint of judicial misconduct — or about the physical or mental inability to perform their jobs — who does the investigation? It’s the Commission on Judicial Conduct, a seven-member panel (four lay members and three attorneys, one of whom serves as chair) appointed by — wait for it! — the Hawaii Supreme Court.

That commission may recommend that the Supreme Court issue a private reprimand, admonish a judge over conduct that may be cause for discipline, direct professional counseling or assistance to the judge, or impose conditions on the judge’s conduct.

The judicial conduct commission, however, doesn’t seem to find much evidence of wrongdoing very often.

In its most recent report, for fiscal year 2021, for example, it received 274 complaints and related inquiries. They included allegations of abuse of power, conflict of interest, prejudice or bias, and concerns about temperament or demeanor.

But of those 274 complaints, only seven were processed by the commission, and all seven were dismissed. Comparable statistics were posted for fiscal year 2020 and fiscal year 2019.

I had to go back to FY 2018 to find a complaint that was not dismissed by the judicial conduct commission. But the annual report doesn’t say a peep about what the complaint was about, who it targeted and what was done.

And just last week, I reported that a new Hawaii Supreme Court justice, Vlad Devens, didn’t disclose on his application to be a judge or to the state Senate that he was until recently a director of the political action committee that helped put Gov. Josh Green in office.

Maybe the Hawaii State Ethics Commission is on to something.

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About the Author

Chad Blair

Chad Blair is the politics editor for Civil Beat. You can reach him by email at cblair@civilbeat.org or follow him on Twitter at @chadblairCB.

Latest Comments (0)

Seems this line is already being violated by the recent appointee Devens, and along with that the fellow Justices who are aware of his appointment violating that.Now if Devens were to step forward and face this scrutiny head on, along with Green who put him in office, then they would be "acting in a manner that promotes public confidence". Until such time, they are already in violation of their own code of conduct.

solve4HI · 2 months ago

"The justices only took this step, they explain, because of some 'misunderstanding’ by the public about their probity"It was much more than the public's perception of a misunderstanding, it was that the Supreme Court Justices had been engaged in serial unethical behavior that saw the light of day, and there was public outrage.The Justices issuing a false statement such as this makes it sound like they are not taking responsibility for their actions and will not be changing their attitudes, even if they are under increased scrutiny.In case Senator Hirono missed it, the Supreme Court handed over their sense of ethics to the billionaire class on a golden platter when they passed the Citizen United Decision."A judge shall perform the duties of judicial office without bias or prejudice"That could only be true if they relinquish the decision making process to AI Algorithms. All humans on earth, even the exalted ones who have been through law schools, possess biases and prejudices.As much as they posture that they don't, if they're human, they have biases and prejudices. Why deny it?Let's hope our Hawaii's judges will at least be honest with us.

Joseppi · 3 months ago

Are there consequences for nondisclosure? If yes, what are they? Certainly had senators known about this, there would have at least been some questions and probably some "no" votes. And why is it so difficult to find any Form 990s online for Be Change Now? I've looked at several sites that post 990s as a service to the public, and not one of them has anything from Be Change Now. Are they in compliance with federal law?

Natalie_Iwasa · 3 months ago

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