Honorable Robert Bunda

President of the Senate

Twenty-Second State Legislature

Regular Session of 2004

State of Hawaii

Sir:

Your Committee on Judiciary and Hawaiian Affairs, to which was referred Governor's Message No. 152, submitting for study and consideration the nomination of:

begs leave to report as follows:

Upon review of the resume, application for judicial office, letter of the nominee dated February 17, 2004, and testimony, your Committee finds that Ted H.S. Hong received a BA and a JD degree from the University of Hawaii at Manoa. Currently, he is the Chief Negotiator for the State of Hawaii and an interim Board of Regent for the University of Hawaii. He was a solo practitioner, Grand Jury Counsel for the Third Circuit Court, Corporation Counsel for the County of Hawaii, Deputy Corporation Counsel for the City and County of Honolulu, associate attorney at Roehrig, Roehrig, Wilson, Hara, deSilva, and Deputy Prosecuting Attorney for the City and County of Honolulu.

The nominee is a member of the Hawaii State Bar Association (HSBA) and American Bar Association (ABA).

Your Committee has received testimony in support of the nominee from the Attorney General, Department of Defense, Department of Human Resources Development, Office of Human Resources of the Judiciary, University of Hawaii Professional Assembly, Mayor of the County of Hawaii, Moanalua High School, Hawaii County Bar Association, the County of Hawaii Mayor's Office, Hawaii County Police Department, Honolulu Prosecuting Attorney, UH Hilo Student Association, Big Island Candies, Inc., Hawaiian Floral Express, Hawaii Island Portuguese Chamber of Commerce, Hawaii Tire Company, International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Kamuela Kayak Corporation, Kope Kope Espresso Cafe, Mauna Kea Anaina Hou, Pacific Transfer, Pinnacle Investment Group, Rotary Club of Hilo, Rotary Club of Hilo Bay, State of Hawaii Organization of Police Officers, Hawaii Fire Fighters Association, Korean American Bar Association of Hawaii, Society for Human Resource Management, Communications Pacific, Hilo Reporters, Dolan, Silva & Associates, CPAs, Inc., Stryker, Weiner & Yokota, Victor V. Vierra and Associates, Hawaii Orchid Growers Association, ninety-eight attorneys, and two hundred ninety-two individuals. Your Committee has received testimony in opposition of the nominee from one attorney and twenty individuals. Your Committee has received comments regarding the nominee from the Chair of the Hawaii County Council, Hawaii County Corporation Counsel, two attorneys, and four individuals.

The Board of Directors of the HSBA found the nominee to be unqualified to serve as a circuit court judge. As part of the HSBA Board's procedures for taking a position on judicial appointments, the candidate is asked to submit a resume, respond to a questionnaire, and appear before the Board to answer questions. The HSBA Board utilizes a modified version of the ABA Guidelines for Reviewing Qualifications of Candidates for State Judicial Office. These Guidelines include the following criteria for judicial positions: integrity, legal knowledge and ability, professional experience, judicial temperament, diligence, financial responsibility, public service, collegiality, and writing ability.

Your Committee notes that there are issues regarding the judicial candidate's evaluation process performed by the HSBA. Specifically, your Committee expressed concerns about the short time frame in which the evaluation process takes place. Thus, if concerns are raised regarding a nominee, the HSBA does not have enough time to investigate a candidate any further. As a practice, your Committee postpones confirmation hearings as much as possible to accommodate the HSBA's initial evaluation process to enable the HSBA adequate time to prepare an evaluation. If there is a situation where a further investigation is warranted, the HSBA may be unable to address any of the issues and must evaluate a nominee based on the information immediately available.

Your Committee is concerned about the HSBA's methodology in evaluating a judicial candidate. Specifically, issues were raised regarding the necessity for total anonymity of comments submitted for the evaluation process and the anonymous ballot voting used for this nominee's HSBA judicial evaluation. While your Committee appreciates the HSBA's efforts in evaluating this nominee, this nominee's evaluation brings to light the apparent flaws and inequitable nature of the HSBA's evaluation processes.

In response to the concerns raised with the HSBA's judicial evaluation process, your Committee heard testimony from the Judicial Selection Commission (Commission) regarding their evaluation process. The Commission is authorized under the Constitution of the State of Hawaii to nominate no less than four and no more than six potential candidates from a pool of applicants for the Governor to choose from. The Commission is bound by the amount of information they are allowed to disseminate to this legislative body and the public. However, only the names of qualified candidates are submitted to the Governor for consideration.

Moreover, your Committee finds that the nominee was screened by the Judicial Selection Commission after an exhaustive process of finding qualified candidates. Additionally, in the HSBA screening process, only fifty-six of the four thousand three hundred bar members in Hawaii sent in comments about the nominee, which your Committee finds to be too small a minority of that organization to provide a true representation of the nominee's qualifications.

Your Committee has reviewed all of the testimony submitted, heard testimony from those who were present, and provided each person testifying with the amount of time needed to articulate their position. The testimony was overwhelmingly in support for the nominee; however, testimony was presented in opposition to the nominee. The main concern raised to this Committee was the nominee's judicial temperament.

From the testimony of the HSBA and others familiar with the judicial evaluation process, the term "judicial temperament" is subjective. The Commission testified that judicial temperament is one of the qualifications evaluated to determine if a candidate is qualified or unqualified. The Commission uses the ABA Guidelines to define "judicial temperament" for their evaluation process. Under this definition, "judicial temperament" is a nominee who possesses "a judicial temperament which includes common sense, compassion, decisiveness, firmness, humanity, open-mindedness, patience, tact and understanding."

Your Committee notes the concerns regarding the nominee's judicial temperament. However, in evaluating the criticism of this nominee, it appears that the nominee's direct nature and zealous advocacy on behalf of his clients are confused with the definition of judicial temperament. Your Committee believes that the criticisms articulated were not traits that would impede his ability to perform in an effective and fair manner as a judge, with the proper judicial demeanor.

Your Committee also considered the number of Big Island testifiers that were present in support of the nominee from attorneys, individual residents, students and faculty from the University of Hawaii at Hilo, and the Hawaii Community College. The University of Hawaii Regents were also present to support and clarify some misconceptions regarding the issues surrounding this nominee.

From all of the testimony, questions and answers, and a review of the personal history, résumé, and statements submitted by the nominee, your Committee finds the nominee to have the necessary qualifications to be appointed to the position of circuit court judge.

As affirmed by the record of votes of the members of your Committee on Judiciary and Hawaiian Affairs that is attached to this report, your Committee, after full consideration of the background, experience, and qualifications of the nominee, has found the nominee to be qualified for the position to which nominated and recommends that the Senate consent to the nomination.