2017 State of the Judiciary
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2017 State of the Judiciary

November 17, 2019


Will the joint session of the Twenty-Ninth
Legislature please come to order. Before receiving the Chief Justice’s message,
I’d like to recognize some of our honored guests. . .and when I got up this morning
all I thought I had to do was read the names on the paper. . . and then I saw the speaker was critiqued
for his presentation . . . and all of a sudden feel tremendous pressure as I’m going to
read this list. We have Governor David Ige. Ms. Rowena Akana, Chair of the Office of Hawaiian
Affairs. Mrs. Gailynn Williamson. Did I skip where I call for the person with
the lei? For – I’m going to get a bad grade tomorrow. For Governor Ige: Senator Kidani. For Chair Akana: Representative Cedric Gates. And for Vice Speaker Mizuno for Gailynn Williamson. We have Andrew Recktenwald and Mrs. Jessica Recktenwald,
leis being presented by Representative Marcus Oshiro and Senator Lorraine Inouye. Please join me in welcoming other distinguished
guests, joining us in the Senate Chamber this morning: Former Governor George R. Ariyoshi
and Mrs. Jean Ariyoshi. Former Governor John D. Waihe‘e the third. Former Governor Ben Cayetano and Mrs. Vicky Cayetano. Former Chief Justice Ronald T.Y. Moon. Associate Justice Paula A. Nakayama. Associate Justice Sabrina S. McKenna. Associate Justice Richard W. Pollack. Associate Justice Michael Wilson. Former Associate Justice Simeon Acoba and Mrs. Carolyn Acoba. Former Chief Judge James Burns. U.S. Ninth Circuit Judge Richard Clifton. U.S. Chief Judge J. Michael Seabright. U.S. Magistrate Kenneth J. Mansfield. U.S. Attorney Florence Nakakuni and members
of the law enforcement community, including the county chiefs of police and prosecuting
attorneys. Mr. Alan Yamamoto representing United States
Senator Maize Hirono. Mr. Kainoa Penaroza representing United States
Representative Tulsi Gabbard. Mr. Joshua Michaels representing United States
Representative Colleen Hanabusa. The Chair hereby appoints the following legislators
to escort the Honorable Mark E. Recktenwald, Chief Justice of the Hawaii Supreme Court,
to the rostrum. On behalf of the Senate, Senator Gilbert Keith-Agaran
and Senator Kalani English; and on behalf of the House, Representative Scott Nishimoto,
Representative Scott Saiki, and Representative Beth Fukumoto. The Chair hereby requests the following legislators
to present leis to the Chief Justice: On behalf of the Senate, Senator Maile Shimabukuro; and
on behalf of the House, Representative Cindy Evans. Members of the Twenty-Ninth Legislature, ladies
and gentlemen, please join me in extending our warmest Aloha and welcome to the, Chief
Justice of the Hawaii Supreme Court, the Honorable Mark E. Recktenwald. Thank you. Thank you very much. Thank you so much. Thank you so much for that warm welcome. President Kouchi, Speaker Souki, Governor
and Mrs. Ige, members of the Senate and House, Governor and Mrs. Ariyoshi, Governor Waihe‘e,
Governor and Mrs. Cayetano, Chief Justice Moon, my fellow justices, judges and Judiciary
staff, members of the Consular Corps, members of the Royal Order of Kamehameha, distinguished
guests and friends, good morning, and Aloha! I note with sadness the recent passing of
Representative Clift Tsuji, who always made time to honor those attorneys who provide
volunteer legal assistance to the community, and we will forever miss his warm presence here
in the House. I thank the Legislature for its strong support
of the Judiciary. We are grateful to all of you for funding
construction of a new courthouse in Kona. More than 200 people came to the groundbreaking
in October–the pride in the community was overwhelming, and when that courthouse opens
in 2019, it will provide the people of West Hawai‘i with a modern, efficient, and secure
place for obtaining justice. Thank you. I also thank Governor Ige for his strong support
of the Kona courthouse, as well as for the Judiciary’s efforts to increase access to
our civil justice system. I deeply appreciate this opportunity to report
to the Legislature and the public. We live in times of uncertainty, when people
are rightfully asking tough questions. How are we ensuring that their voices will
be heard? What are we doing to address the profound
problems — such as public safety, homelessness, and drug abuse — that face us as a community? No one knows exactly what the future holds. What we do know is that there will be tough
questions along the way. There will be different visions of what Hawai‘i
is, and can be, and there will be divergent interests that will come into conflict. And that’s where the Judiciary comes in. We provide the forum where people can obtain
a just and fair resolution of their disputes. In performing our mission of deciding cases,
we affect and touch the lives of virtually everyone in our community. The broad range of matters that come to our
courts for resolution include criminal prosecutions, and disputes involving family relationships
and children, the environment, land use, civil rights, employment, personal injury, collective
bargaining, and business relations, among others. Our ability to perform that role comes from
one thing, and only one thing: the public’s trust in our integrity and impartiality. People must know that they will get a fair
shake in our courts, whatever their background or economic status, and even if their views
are not popular or shared by the majority. Essential to our ability to decide cases fairly
and impartially is the principle of judicial independence. This is a critical part of the separation
of powers that is fundamental to our democracy. Judicial independence does not mean that judges
are free to decide cases however they may want. To the contrary, they must follow the rule
of law, and faithfully apply the constitutions and laws of the United States and Hawai‘i
to the facts of each case. Judicial independence does mean that judges
are able to decide cases impartially — free from passion, pressure, or outside influence. Only then can we expect the public to have
confidence and trust in our decisions. We must earn that trust every day. I am honored to be here this morning to share
with you how we are doing so. One of the most fundamental roles of the courts
is to ensure the safety and well-being of our community, and we do that in many different
ways. First and foremost, we provide a fair and
transparent forum for the peaceful resolution of disputes. We do a lot of that: This past fiscal year
alone, more than 100,000 cases were filed in Hawaii’s courts, along with hundreds
of thousands of traffic and parking citations. I am grateful to our eighty-two full time
judges, many of whom are here today, and our dedicated staff who strive to ensure that
everyone is treated with fairness and respect when they come before our courts; and can
you please join me in recognizing them? We make every effort to enable parties to
reach a resolution on their own. Mediation helps parties avoid the cost of
litigating in court, can result in quicker resolutions, and helps to preserve relationships. The Judiciary provides free mediation services
for ALL small claims and residential landlord-tenant cases statewide. But despite the availability of mediation,
there are nevertheless parts of the state with significant increases in demand for our
services. For example, on Maui, the last district court
judge was added in 1982, when the population was less than half of what it is today. In the past five years alone, criminal case
filings in Maui County have increased by fifty percent, significantly increasing the workload
of each judge. Accordingly, we are respectfully requesting
funding for an additional district court judge position on Maui, as well as family court
judges on O‘ahu and Kaua‘i. When a dispute does go to court, it is essential
that it be decided in a way that is transparent. The media are welcome to bring cameras into
most courtrooms. And all of our appellate court decisions are
available online, along with many other court records. Simply put, the rule of law is best nurtured
in the sunshine. But for all of the — But for all of
the audiences that we strive to reach, there is one that is closest to our hearts: our
young people. Our future depends on their understanding
of our democracy and the constitution. Yet there are so many issues competing for
the attention of our youth — how do we get them to focus on this one? The best way to make the judicial process
real for our young people is to have them witness it firsthand. The Hawai‘i Supreme Court has been traveling
to high schools across the state, holding oral arguments in actual cases, in what we
call the Courts in the Community program. Hundreds of attorneys have volunteered their
time to join teachers in educating the students about the case that will be argued. So far, the Supreme Court has convened at
eight schools on O‘ahu and the neighbor islands, most recently at Wai‘anae and McKinley
High Schools. Nearly 2,800 students from 51 schools have
participated, including students from Ka‘ū to Ni‘ihau and we are excited to continue
this unique educational opportunity, and to visit Maui this April. If we expect the public to trust the judicial
system, we must provide a level playing field in our courts. Nowhere is this need more acute than in our
civil courtrooms, where thousands of people must represent themselves each year because
they cannot afford a lawyer. Going to court can be difficult, even under
the best of circumstances. Imagine how it feels for a nineteen-year-old
domestic violence survivor to stand alone before the court to confront the alleged abuser
and seek a restraining order. How do we ensure that every person has their
day in court? Partnerships and innovation have been the
key. Our Access to Justice Commission, under the
leadership of its chair, Justice Simeon Acoba, has achieved amazing things with very limited
resources: Self-help centers are successfully operating
in courthouses from Hilo to Līhu‘e, where volunteer attorneys provide information to
individuals representing themselves in civil cases. Nearly 15,000 people have been assisted free
of charge since the first center opened in 2011, at almost no cost to the public. Volunteer attorneys are assisting self-represented
parties on appeal . . . where the issues can be particularly complex. We are utilizing digital resources to reach
even more people. In October, Volunteer Legal Services of Hawai‘i
rolled out a program called Hawai‘i Online Pro Bono, where people can ask legal questions
online and obtain answers from volunteer attorneys. And the Legal Aid Society of Hawai‘i has
developed an interactive software program that generates legal documents to file with
the courts. This resource is available on our website,
and on public computers at Hawai‘i State Public Library locations statewide. Now, these efforts have received national
recognition. In 2016, the Justice Index survey ranked Hawai‘i
among the top three states in the country for practices that provide access to justice. And we were also ranked number one for providing
support for people with limited English proficiency. And this is another area in which the Legislature
has provided vitally needed resources, which we deeply appreciate. Because of Hawaii’s established track record,
we were recently awarded a $100,000 grant to develop a roadmap for further expanding
access to justice. We appreciate the Legislature’s strong support
of these efforts, including providing additional funding last session for civil legal services. Such funding makes economic sense — a recent
study showed that for every dollar spent on civil legal
services in Hawai‘i, more than $6 is returned to the economy. And we also thank our other partners: the
Access to Justice Commission, the Hawai‘i Justice Foundation, the Hawai‘i State Bar
Association, including President Nadine Ando and Executive Director Pat Mau-Shimizu, the
neighbor island bar associations, the William S. Richardson School of Law and its Dean,
Avi Soifer, our civil legal services providers and their incredibly hardworking staff, and
the hundreds of attorneys who have generously donated their time and expertise. Many of these partners are here today, the
members of all the organizations I mentioned, as well as the volunteer attorneys, and I’d
like to ask them to stand and be recognized. Strong families are the foundation of a safe,
vibrant community, and when families break down, the effects can be profound, particularly
for children. Our family courts see that every day in cases
involving divorce and child custody, domestic violence, juvenile offenses, and abuse and
neglect of children. And the volume is staggering — last fiscal
year, there were more than 27,000 new cases filed in our family courts. You might think that family court would be
a dark place, but in fact it is often a place of hope, innovation, and new beginnings. For example, our Girls Court program, which
addresses the unique needs of teenage girls in the juvenile justice system, was one of
the first in the nation. Girls Court significantly reduced recidivism,
and we recently expanded it to Kaua‘i. And, with the support of the Legislative and
Executive Branches, we’re pushing ahead with reforming our juvenile justice system
by emphasizing more treatment for kids with substance abuse or mental health issues, and
by increasing accountability by having juvenile offenders perform community service and make
restitution to victims. Now, we all know that education is the key
to a brighter future, but there are schools where too many kids are chronically truant. Our Family Court worked with partners in the
community to come up with solutions. We learned that cases of chronic truancy weren’t
making their way to the courts until the school year was almost over, that there are root
causes, such as medical issues, that can be addressed, and that a team approach could
be effective, particularly when parents become active partners in their children’s success. We put those principles into practice last
year at Wai‘anae Intermediate School, which had the highest rate of truancy among middle
schools on O‘ahu. Of the 63 students in the program, most had
missed more than three months of the prior school year. The results were amazing. Seventy-eight percent of those students completed
the school year with less than ten unexcused absences. The statistics are impressive, but let me
put it in human terms. One young man was living with his family in
a tent, and had not been attending school for two years. Some of the challenges he faced were heartbreakingly
simple — for example, he often didn’t have dry clothes to wear to school. The Department of Education and other partners
stepped up to address those issues. This young man began going to school again,
and earned a promotion to the next grade on merit. And we recognized his success by awarding
him some donated movie passes. It turned out it was the first time he’d
ever been to the movies, and it was the first time that people at Family Court had seen
him smile. That smile is what hope looks like. To the members of our community who are cynical
about government and wonder whether it is up to the task of addressing our most intractable
problems, I’d simply say this — come on down to Family Court. I’d like to acknowledge the team that made
this happen, including Family Court and partners from the Department of Education and the Offices
of the Attorney General and Public Defender. Could you please stand and be recognized? As our experience at Wai‘anae Intermediate
illustrates, we sometimes have a role that goes beyond what takes place inside the courtroom. Simply put, it’s not enough to hit the gavel
and walk off the bench, if that means losing an opportunity to bring about a more lasting
resolution. We’ve done this successfully in addressing
illegal drug use and addiction, through the creation of drug courts. The court intensively supervises each defendant
in the community, with the goal of getting them clean, sober, and employed or in school,
through a treatment team that includes prosecutors, defense counsel, drug counselors, and probation
officers. Drug courts costs substantially less than
incarceration — $25 a day versus about $140 a day for prison — and the graduates are far
less likely to create additional crimes. With the State considering construction of
a new jail, it’s important to determine whether the expanded use of drug courts could reduce
the size of such a facility, while increasing public safety. A task force chaired by my colleague, Justice
Michael Wilson, is considering that issue, among others, and I appreciate their work. We’ve extended the treatment court model
to different contexts. We have a pilot Driving While Impaired Court
for chronic drunk drivers, which received national recognition and has zero recidivism
among the first thirty-four graduates. We also have a Mental Health Court for individuals
with severe mental illness. And we have HOPE Probation, which uses a lower
level of supervision while still holding defendants accountable for becoming clean and sober. But we’ve taken the treatment court model
to a new level with Veterans Treatment Courts, which address the special challenges faced
by veterans who have substance abuse or mental health issues. Under the leadership of Judge Edward Kubo,
the Veterans Administration has been made a part of the treatment team, to ensure that
the vets receive the VA benefits that they earned through their service. This brings in additional federal funds that
were previously being left on the table. And, we’ve established a team of mentors:
fellow veterans who can assist the vet with anything from advice to helping them obtain
housing. One of the veterans succinctly explained the
significance of Veterans Court when he graduated from the program just two weeks ago. He explained that before the program, he was
addicted to drugs, was on welfare, and was in public housing. Now, he has a job and an apartment, and, in
his words, is living on his own two feet. He said, quote, “Before, I used to hurt
people. Today I don’t hurt people, I help people.” Given the success of Veterans Court here on
O‘ahu, we’re bringing it to other parts of the state. We now have Veterans Courts in Kona and Hilo,
a special calendar for veterans on Maui, and we’ll be opening a Veterans Court on Kaua‘i
this year. I’d like to recognize all of the Veterans
Court mentors who are here with us in the chamber today, both for serving our country,
and for supporting their fellow veterans. Could those mentors and Judge Edward Kubo
please stand and be recognized? There is another seemingly intractable problem
that affects the health, safety, and well-being of our community: homelessness. Although the Judiciary cannot solve this problem
by itself, it can be a part of the solution, by bringing people together to address some
of the root causes. For people who are unable to pay their rent,
our district court’s landlord-tenant calendar is often the last stop before the street. Sometimes, there is a possible solution that
can keep the tenant in the unit, and be a win for the landlord as well. To facilitate those positive outcomes, we’ve
launched a program in Honolulu that brought together the State, the City, landlords, private
attorneys, Legal Aid, and nonprofit organizations, which we call Steps to Avoid Eviction or “STAE,”
and this initiative was recently expanded to Maui. Some homeless individuals repeatedly come
through our district courts, arrested on minor offenses and held for a couple of days, building
up unpaid fines or outstanding warrants that can keep them from obtaining gainful employment. In order to break this pattern, we must treat
these encounters as opportunities to bring about change. I want to commend Honolulu Prosecutor Keith
Kaneshiro and state Public Defender Jack Tonaki for putting these ideas into action through
a program called Community Outreach Courts. The ultimate goal is to send the court and
a treatment team out into the community, and offer these individuals an opportunity to
resolve pending cases, obtain needed services, and move forward in their lives. The Prosecuting Attorney obtained grant funding
to start their project, and the first session of this court will be held tomorrow. We also provide services to homeless individuals
who commit more serious crimes. Our treatment courts work to get a roof over
their heads, and help them develop a support structure and the skills to stay off the street,
and we’re asking for additional funding to support these efforts in our budget request
this year. I’d like to talk about the challenges of
the future, and the values that will guide us. Our courts will face challenging environmental
issues in the years ahead. We’re well positioned to address those issues
in a consistent, informed manner, thanks to the Legislature’s decision to create the
Environmental Court in 2015. We are only the second state in the nation
to have a statewide environmental court. We view technology as an opportunity to make
the courts more transparent, more accessible and more responsive. We’re moving away from conducting business
on paper. On Monday, we rolled out a new system in our
circuit courtrooms so documents in criminal cases can now be filed and accessed electronically. We’re also making it easier to obtain information
about the Judiciary. We just launched a free Judiciary mobile app
that provides quick access to a wealth of information about our courts. It’s called Hawai‘i Courts Mobile App,
and we are only the second statewide judiciary in the country to offer this service. Although we are embracing changing technology,
we must remain true to those core values that provide our foundation as an institution. I spoke earlier about our commitment to transparency. Another core value is integrity. Integrity means standing up for what’s right,
even when it’s not easy or comfortable to do so. For judges, it means faithfully applying the
law to the facts of each case, without regard to the popularity or status of the parties,
or fear of reprisal. Hawaii’s merit-based system of selecting
and retaining judges protects their ability to make those tough calls, while
still holding them accountable for their performance. And it has also helped to ensure that our
judges reflect the remarkable diversity of our community: a study released last year
by the American Constitution Society found that Hawai‘i had the most diverse judiciary
in the nation. The fight for human freedom and dignity is
not easy. Throughout Hawaii’s history as a state,
our courts have been open to all. Our merit-based system of judicial selection
and retention gives judges the independence to make the calls when the legal interests
of a minority are challenged by the will of the majority. Our judges are grateful for that trust and
ever mindful of the great responsibility that accompanies it. In conclusion, I would like to thank our dedicated
judges and staff who work hard every day to treat all people with respect and fairness,
even in the face of high caseloads and often contentious circumstances. It is a tough job, but they do it with dedication,
excellence, and aloha, and we could not succeed in our mission without the passion and commitment
of every one of them. While we are all blessed to live in this great
state, the path forward has not always been straight or smooth. But despite the setbacks and sometimes grave
injustices that people have encountered, the shared values that unify us have always been
stronger than the forces of division. And we must never lose sight of the unique
power of Hawaii’s message of diversity and inclusion. Dr. Martin Luther King, Jr. spoke about it
when he visited Hawai‘i just after we became a state, in the fall of 1959. Dr. King addressed the Hawai‘i House of
Representatives, next door at ‘Iolani Palace. The struggle for civil rights was gaining
strength in the South, but still faced terrible obstacles, and Rev. King referred to Hawai‘i
as an inspiration, saying, quote: “You can never know what it means to those of us caught
for the moment in the tragic and often dark midnight of man’s inhumanity to man, to
come to a place where we see the glowing daybreak of freedom and dignity and racial justice.” That glowing daybreak still burns bright in
Hawai‘i. It is a unique gift to the world, forged through
the toil, sweat and sometimes blood of those who came before us in this beautiful place. At the Judiciary, we are sworn to protect
that legacy, by upholding the rule of law and the freedoms set forth in our Constitution. Once again, thank you to the Legislature for
its support of the Judiciary’s work, and for giving me this opportunity to speak with
you today. Mahalo, and aloha. Well, thank you very much for that very inspiring speech, Justice Recktenwald. I’ve never met a more — more humble man, and with great inner strength. And I want to congratulate the justice system to come out with all of these innovation programs that we have. The outreach to the poor and to the needy, and to the veterans especially, and me being a veteran, someday I may need your help. However, I wish to, uh, just to advise the justices that we also believe in the equal justice system. We – we believe in the executive, judiciary, and the legislative, and we ask the justices also not to forget that. And with this I will close. Thank you all for being here. Thank all you justices in the system for doing a very, very good job. With this we shall adjourn the state of the state message to the state. House has adjourned.

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