Published on March 14, 2014
1 [Excerpt from HSBA Board Policy Manual] 1.8 BOARD PARTICIPATION IN JUDICIAL AND EXECUTIVE APPOINTMENTS [Bylaws, Article IX] A. Evaluation and Recommendation [Board revised language 1/14/05; 4/26/12; 5/24/12] In order to assist the HSBA Board in its evaluation of federal and state judicial and executive appointments in Hawaii, the following procedures shall be followed: 1. Appointment of Review Subcommittee. Upon the announcement of the Chief Justice of the Hawaii Supreme Court or the Governor of the State of Hawaii seeking comments of the judicial nominees on the published list, or announcement of the Governor of any executive appointment, or any other announcement by the President of the United States of any federal judicial nominee or executive appointment involving the State of Hawaii, the HSBA President shall appoint a fact-finding Subcommittee consisting of elected HSBA Board members to assist the Board in evaluating the judicial, executive, or federal appointment. 2. Purpose and Mission. The Subcommittee shall be a neutral fact-finding body charged with gathering information pertinent to the judicial or executive appointment and making a neutral presentation of such information to the HSBA Board for its evaluation and recommendation. 3. Composition and Confidentiality. The Subcommittee shall consist of at least three elected HSBA Board members. For each neighbor island judgeship, the neighbor island board member for that district is added to the Subcommittee ad hoc if not already on the Subcommittee. The chairperson for the Subcommittee shall be selected by the President. The Subcommittee members shall not be nominees for judicial or executive office and, where possible, consist of a diverse cross-section of the legal practice areas within the bar. All members must agree to strict confidentiality and non-disclosure of their work product prior to their appointment to the Subcommittee. 4. Notification to Appointee. Upon notification of a state or federal bench or executive appointment, the Executive Director will immediately notify the appointee of the HSBA review process, including the solicitation of comments from the bar. The appointee will be requested to transmit to the HSBA the application and materials submitted to the pertinent selection commission and to complete the HSBA questionnaire. The appointee will also be requested to schedule an interview with the HSBA Board. a. The appointee will be requested to redact any personal information contained in any documentation submitted. If the appointee does not redact personal information on documents submitted, the HSBA Executive Director may redact personal information as appropriate. b. Upon receipt of the documents (redacted) submitted by the appointee, the HSBA staff will prepare packets for the aforementioned Subcommittee in order that they may begin their work. (Note that packets will also be prepared for the rest of the Board members.) Each packet will be
2 photocopied and assigned a unique watermark, which will appear on every page of the documents in the packet. The packets will be marked CONFIDENTIAL. A packet inventory will be maintained by the HSBA. These packets will be mailed or hand-delivered to the Subcommittee as well as the rest of the HSBA Board. 5. Solicitation of Comments From HSBA Membership. Comments shall be solicited on judicial and executive appointments by the HSBA President via mass e-mail to HSBA members, including law-related organizations. Comments will be received by e-mail through a secure mailbox andidentifying information will be redacted by the Executive Director or his/her designee. a. Members may also submit comments by correspondence, telephone, facsimile, or email to the HSBA President or his/her designee, the Executive Director or his/her designee or to any member of the HSBA Board. To ensure confidentiality of those offering comments, all identifying information will be removed electronically by the HSBA President or his/her designee, Executive Director or his/her designee or by the HSBA Board member who receives any comments, unless the author of the comment consents to the disclosure of his or her identity. b. A designated HSBA staff member will compile the comments received from bar members and any other person submitting comments, and will redact any personal identifying information of the contributor. After the deadline for member comments, the redacted comments will be photocopied and assigned a unique watermark, which will appear on every page of the documents in the packet. The packets will be marked CONFIDENTIAL. A packet inventory will be maintained by HSBA. These comments, with all identifying information removed, will then be sent to the Subcommittee of HSBA Board members appointed by the President. 6. Review by the Subcommittee. The Subcommittee shall review all information pertinent to the appointment, including the comments, and present an oral or written summary to the HSBA Board prior to the Board's interview with the appointee. a. Prior to its presentation to the HSBA Board, the Chairperson of the Subcommittee shall, as soon as reasonably possible, advise the HSBA President, or his/her designee, of any negative information received during the Subcommittee’s investigation. Without revealing the source(s), the President, or his/her designee, shall disclose the general themes and nature of any negative information to the appointee as far in advance of the HSBA interview with the appointee as is reasonably possible. b. An appointee shall not, however, be provided with any documents or copies of any comments received by the HSBA Board. c. In addition, any person who submits a comment that is deemed by the Subcommittee to be materially negative regarding the qualifications or suitability of any nominee may be invited to address the Subcommittee. 7. Dissemination of Nominee Information. The HSBA staff shall provide the HSBA Board all information pertinent to the judicial or executive
3 appointment. Pertinent information shall include, but is not limited to, the HSBA judicial questionnaire, the Judicial Selection Commission questionnaire/application, any personal references designated by the appointee, and all public and confidential comments from the HSBA membership. a. An email notification will be sent to all Board members that the confidential packets of the appointee’s pertinent information are available for pickup at the HSBA office for Board members in Honolulu and will be transmitted via mail to neighbor island Board members. b. All Board members (including those serving on the Subcommittee) should not photocopy or reproduce these documents in any fashion. c. Upon receipt of the Subcommittee’s report, the HSBA staff will notify all Board members that the report and member comments are available for review at the HSBA office. d. In exigent circumstances, the appointee’s information and confidential comments may be emailed (password-protected) to the Subcommittee and/or the Board. 8. Presentation to the HSBA Board. The Subcommittee shall present its findings at a time and place designated by the HSBA Board in executive session, and all disclosures shall remain confidential. The Subcommittee shall make a neutral presentation of the information regarding an appointee and shall not take a position on a nominee to the HSBA Board. 9. HSBA Board Interview of Appointees. If an appointee is unable to appear in person, the HSBA Board may allow the appointee to be interviewed by a telephone conference call. If an appointee is not interviewed by the HSBA Board, the HSBA Board shall vote on the qualifications of the appointee based on the information available to the HSBA Board. Prior to the interview of the appointee, the HSBA President or his/her designee should remind Board members that all communication and all discussions are confidential. 10. Destruction of Comments and Other Documents. All material and identifying information received in any form by the HSBA President, Executive Director, or any HSBA Board member regarding an appointee shall be destroyed by every recipient immediately after the Board has taken a position on the appointee’s qualifications. After the appointee’s interview with the HSBA Board is completed, all Board members shall return the information packet and all other relevant documents to the HSBA Executive Director or Assistant Director as soon as practicable for immediate destruction.
4 B. Board Procedures for Judicial and Executive Appointments [Board adopted 10/15/92; replaced with new language 3/20/03; further revised 1/14/05; revised procedures 01/14/05] 1. Solicitation of Comments From HSBA Membership. Comments shall be solicited on judicial and executive appointments by the HSBA President via mass e-mail to HSBA members, including law-related organizations requesting their assistance in encouraging their constituents to respond directly to the HSBA. The nominee’s name and vita will be posted (with the nominee’s permission) on the HSBA website. Comments received by e-mail to the HSBA President will be received through a special mailbox secured by a password. Members may also submit comments by correspondence, telephone, facsimile or e-mail to the HSBA President or any member of the HSBA Board. All comments received shall be referred to as “Comments” for purpose of this policy. To ensure confidentiality of those offering comments, all identifying information will be removed electronically, by the HSBA President or an administrative aide, or by the HSBA Board member who receives any comments, unless the author of the comment consents to the disclosure of his or her identity. These Comments, with all identifying information removed, will then be sent to the three-member Subcommittee of HSBA Board members appointed by the President. The Subcommittee shall review the Comments and present an oral or written summary to the HSBA Board, along with the redacted Comments, prior to the Board's interview with the nominee. A nominee shall be advised by the President or his/her designee of any negative Comments prior to the nominee’s interview with the HSBA Board. A nominee shall not, however, be provided with a copy of any Comments received by the HSBA Board. In addition, any person who submits a Comment that is deemed by the Subcommittee to be materially negative regarding the qualifications or suitability of any nominee may be invited to address the 3-member Review Subcommittee under 1.8.A.1. 2. HSBA Board Interview Of Nominees. The HSBA Board shall request that the nominee appear for a personal interview before the HSBA Board as soon as reasonably possible. If a personal appearance before the HSBA Board presents an undue hardship or, if for unforeseen circumstances, the nominee is unable to appear in person, the HSBA Board may allow the nominee to be interviewed by telephone conference call. If, for whatever reason, a nominee cannot or will not agree to be interviewed by the HSBA Board, nonetheless the HSBA Board shall vote on the qualifications of the nominee based on the information available to the HSBA Board. Prior to the interview of the nominee, the President or his/her designee shall remind board members that all communication and all discussions are confidential. 3. Destruction of Comments from HSBA Membership. All material and identifying information received in any form by the HSBA President or any HSBA Board member regarding a nominee shall be destroyed by every recipient immediately after the Board has taken a position on the nominee's qualifications.
5 C. Conflicts of Interest 1. Disclosure a. Relationship - Board members must disclose any past or present relationship with the nominee, regardless of whether they feel it would affect their ability to vote fairly on the nominee. Any Board member who has or intends to support or oppose any nominee before any nominating or confirming body, in person or in writing, for the position which the Board is rating the nominee may, upon disclosure to the Board, participate in the Board discussion but shall recuse himself or herself from voting on the nominee’s qualifications. b. Self-Interest - Board members who applied for the same position as the nominee under consideration shall not participate in the Board discussion regarding that nominee and he/she shall tender a general recusal from the vote. c. Other Bias - Board members must disclose any other bias for or against a nominee which would affect their ability to vote fairly on the nominee. If a Board member is uncomfortable about disclosing the specific cause or nature of the bias, he/she should tender a general recusal from the vote. 2. Recusal a. By Self - if a Board member feels that he/she cannot vote fairly on the nominee because of a past or present relationship with the nominee, or for any other reason, that member can recuse him/herself from the vote. b. By Board Request - if after disclosing a relationship or bias against the nominee, the Board member does not recuse him/herself, and the Board feels that the person should be recused either because of an actual conflict or the appearance that a conflict may exist, the Board may vote to recuse that person from the vote. D. Criteria for Judicial Qualification Ratings - The HSBA Board has established criteria for determining the qualifications of judicial and executive appointments generally utilizing the ABA Standing Committee on Federal Judiciary and the ABA Guidelines for Reviewing Qualifications of Candidates for State Judicial Office. The HSBA Board shall consider the following criteria when voting on the qualifications of a judicial or executive appointment; however, the criteria are not exclusive. • Integrity and Diligence - A nominee should be of undisputed integrity. This includes the nominee’s character and general reputation in the legal community as well as his or her diligence. • Legal Knowledge and Ability - A nominee should possess a high degree of knowledge of established legal principles and procedures and have a high degree of ability to interpret and apply them to specific factual situations. • Professional Experience - Substantial courtroom and trial experience as a lawyer or judge is important for a nominee to the trial and appellate courts. Significant evidence of distinguished accomplishments in the field of law can compensate for a nominee’s lack of substantial courtroom experience.
6 • Judicial Temperament - A nominee should possess a judicial temperament which includes intelligence, common sense, compassion, decisiveness, firmness, humility, temperance, open-mindedness and impartiality, patience, tact, understanding, freedom from bias, and commitment to equal justice under the law. • Financial Responsibility - A nominee should be financially responsible. • Public Service - A nominee should possess a history of civic activities and public service, whether that experience be in the private or public sector. • Health - a nominee should have the physical and mental capacity to fulfill the duties of the position for which the nominee has been selected. • Responsibilities and Duties - a nominee should possess the necessary ability to fulfill the responsibilities and duties that are required of the position for which the nominee has been selected. A resume/questionnaire form may be used to elicit the criteria information in a standardized format. Other information may be obtained through other sources and references such as former employers and colleagues of the nominee. If the nominee is a sitting or former judge, prior judicial evaluations conducted by the HSBA may be considered in assessing the nominee’s qualifications for the office to which the nominee has been nominated. E. Position on Qualifications and Rating Categories - when appropriate, the HSBA Board shall take a position on judicial and executive appointments in the following manner: 1. qualified - nominee meets the HSBA criteria. 2. not qualified - nominee does not meet one or more of the HSBA’s criteria [Board adopted form of position on 12/7/92; added highly qualified category on 12/15/94; added definitions of positions (ratings) on 4/12/95; added descriptions for rating categories on 3/20/03; deleted highly qualified category on 6/26/08 (effective 1/1/09); revised definition of positions (ratings) on 1/9/09; amended Disclosure requirements, Criteria for ratings, Position on Qualifications on 12/16/10.] F. Board Voting Procedures 1. Before deliberations, the President or his/her designee will discuss the disclosure of conflict and recusal by board members and will review the criteria for judicial qualifications and rating categories. 2. Each director shall cast a confidential written ballot on the question of whether any nominee is qualified or unqualified. Directors participating by teleconference, videoconference, or other electronic means may transmit their vote electronically. All ballots received will be counted by the Secretary and the Executive Director who will certify the results of the balloting. Under Article V, Section 2(b) of the HSBA Constitution, the President is a voting member of the Board, therefore the President shall vote, abstain or recuse himself or herself, as may any other director, and his/her vote shall be counted only in the event of a tie. Ballots shall be retained until such time as the nominee is confirmed or not confirmed by the Senate and then destroyed. [Board approved participation at board meetings by electronic means on 6/26/08.]
7 G. Evaluation of Per Diem Judges [Board adopted 05/26/11] 1. Evaluations of per diem judges appointed by the Chief Justice of the Hawaii Supreme Court shall be solicited at least once during the first year of appointment and again at midterm. The evaluations shall retain their confidentiality in the same manner as set forth in above subparagraph1 in this Section B regarding the solicitation of comments from the membership. 2. The results of the confidential evaluations, with all identifying information removed, shall be provided to the Chief Justice of the Hawaii Supreme Court. In addition, upon request, the confidential evaluations, with all identifying information removed, shall be submitted to the State of Hawaii Judicial Selection Commission for its review. H. Guidelines for Commenting regarding Judicial and Executive Appointments and Judicial Retention [Board adopted 10/10/03] Judicial selection and retention and executive appointments are critical functions to ensure that our system of justice is an independent and vibrant branch of government. The Hawaii State Bar Association provides valuable input to those processes. To assist the HSBA Board in formulating its opinions, the HSBA Board has implemented a procedure by which it solicits confidential input from its members. The Board also recognizes that from time to time, individual HSBA officers and directors are asked to comment on particular nominees for judicial selection, judicial retention and executive appointments. In order to assure that HSBA members can feel confident that comments given to HSBA officers and directors regarding judicial selection and retention and executive appointments remain confidential, while at the same time respecting each individual HSBA officer’s and director’s right to comment at large regarding judicial selection and retention and executive appointments, the following guidelines are provided: 1. Judicial and Executive Appointments. Since HSBA Board deliberations regarding the rating of judicial nominees and executive appointments take place in executive session, officers and/or directors may only reveal the position of the board (e.g. qualified or not qualified) but not the substance or specifics of any discussion or the vote of any individual director or the breakdown of the Board’s vote. The HSBA President or his/her designee may present a prepared statement by the Board on the rating of the nominee and the President or his/her designee shall appear before the confirming authority to answer any questions but only as to the HSBA policy and procedures for its rating and not as to specific reasons or basis for the Boards rating of the nominee. 2. Judicial and Executive Retention and Evaluation. The Board does not take a formal position regarding judicial and executive retentions. Rather, the HSBA has established a forum for members to provide confidential comments to the HSBA president regarding retention and has established a
8 confidential written evaluation procedure (see Section 1.9, Bar-Sponsored Judicial Evaluation). As a result, no officer or director shall disclose any specific confidential comments regarding the retention or evaluation of a judge. If, however, the president has received more than 30 comments regarding a neighbor island judge and 100 comments regarding an Oahu judge and at least 34% of those comments establish a general theme regarding the judge’s performance, the president may, in the president’s sole discretion, disclose the theme of said comments to the requesting media or state that the general theme of comments were forwarded to the Judicial Selection Commission. This policy is not intended to encourage or discourage the president from making personal comments. No officer or director may disclose any information regarding the contents of the confidential written evaluations. If the HSBA President has been involved in the review or tabulation of responses to the HSBA evaluation responses, the President may not comment regarding the general theme of comments regarding a judge under consideration for judicial retention. To do so, would result in an appearance of breaching confidentiality of the HSBA judicial evaluation process. An officer or director however, if requested, may comment that the tabulated results of the written evaluations were forwarded to the Chief Justice of the Hawaii Supreme Court, the Judicial Selection Commission and the individual nominees reviewed. 3. Public Comments by Officers and Directors. Because officers and directors have a fiduciary duty to preserve the confidences of board deliberations, including but not limited to deliberations conducted in executive session, no officer or director may comment publicly on any judicial nominee, unless that person recuses themselves from voting on the nominee in accordance with Section 1.8(c).
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