State of the Judiciary 2019


[ President Kouchi ] Will the joint session of the 30th legislature
please come to order. Before receiving the Chief Justice’s message,
I would like to recognize some of our honored guests: Governor David Ige and Mrs. Dawn Amano Ige, Lieutenant Governor Josh Greene and Mrs. Jamie Green, Mrs. Gailynn Williamson, Mr.
Andrew Recktenwald, Ms. Sarah Recktenwald. Please join me in welcoming other distinguished
guests joining us in the Senate chamber this morning. Mrs. Jean Ariyoshi, former Governor John D. Waihee III and Mrs. Lynne Waihee, former Chief Justice of the Hawaii Supreme Court
Ronald T.Y. Moon, Associate Justice Paula A. Nakayama, Associate Justice Sabrina S.
McKenna, Associate Justice Richard W. Pollack, Associate Justice Michael D. Wilson, former
Associate Justice Simeon Acoba and Mrs. Carolyn Acoba, U.S. Ninth Circuit Court Judge or Ninth
Circuit Judge Richard Clifton, U.S. Chief Judge J. Michael Seabright, U.S. Magistrate
Kenneth J. Mansfield, U.S. Magistrate Rom. A. Trader, U.S. Attorney Kenji M. Price and
members of the law enforcement community, including the County Chiefs of Police and
Prosecuting Attorneys, representing United States Senator Brian Schatz: Ms. Malia Paul,
representing United States Senator Mazie Hirono: Mr. Alan Yamamoto, representing United States
Representative Tulsi Gabbard: Mr. Kainoa Penaroza, representing United States Representative
Ed Case: Ms. Jackie Conant, representing Mayor Kirk Caldwell of the City and County of Honolulu:
Mr. Roy Amemiya, and representing Mayor Mike Victorino of the County of Maui: Mr. Tyson
Miyake. 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 Carl Rhoades,
Senator Kalani English, and Senator Kurt Favella. On behalf of the House: Representative Chris
Lee, Representative Della Au Belatti, and Representative Bob McDermott. As we wait for the legislators to escort the
Chief Justice, we also have former Justice Duffy with us. 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 Joy San Buenaventura. Members of the 30th 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 very, very much everyone. Thank you so much. Good Morning, Aloha. President Kouchi, Speaker Saiki, Governor
and Mrs. Ige, Lt. Governor and Mrs. Green, members of the Senate and House, Mrs. Ariyoshi,
Governor and Mrs. Waihe`e, Chief Justice Moon, my fellow justices, judges and Judiciary
staff, members of the Consular Corps and the Royal Order of Kamehameha, distinguished guests
and friends, good morning, and aloha. I’d like to thank the Legislature for this
opportunity to speak today. I am grateful for your strong support of the
Judiciary, and in particular, for enabling us to achieve the decades-old vision of constructing
a modern, secure courthouse for the people of Kona. Thanks to you, the new Keahuolu Courthouse
will open this fall, on time and on budget. Thank you so much. The judiciary has one mission, to provide
justice. We offer a fair and impartial forum where
people can peacefully resolve their disputes. We strive to ensure that the peace they find
is a lasting one by helping them address the causes of what brought them before the courts. And, we provide justice for all, regardless
of the person’s background or economic status. Under our constitution, the Judiciary is sometimes
called upon to protect the rights of those whose views may
be unpopular. In making decisions, our judges must faithfully
apply the constitutions and laws of the United States and Hawaii to the facts of each
case — free from passion, pressure or outside influence. While our core values are timeless, the tools
we use to achieve our mission cannot be frozen in time. We must constantly ask whether our justice
system is achieving the results that our people rightfully expect. We appreciate it when the Legislature asks
tough questions, because we are asking those questions ourselves: Is our criminal justice
system keeping our communities safe, while respecting the constitutional rights of defendants
who are awaiting trial? Are we rehabilitating those who have been
convicted? Is our civil justice system providing justice
that is timely and affordable? While there is much work to do, we have a
strong foundation to build on. Our efforts to increase access to our civil
courts have received national recognition. With the support of the Legislature and the
Bar, we are exploring new ways to use technology. These range from using text messages to remind
criminal defendants to appear for court to using Artificial Intelligence to make the
civil litigation process more understandable for self-represented litigants. We have made progress because we have so many
partners who share our passion for providing justice for all including the Legislature,
the executive branch, with Governor Ige and Lieutenant Governor Green, the Hawaii State
Bar Association, the William S. Richardson School of Law, the American Judicature Society,
and the community as a whole. Last year, approximately 500,000 cases were
filed in our courts, including traffic offenses. Every day, our judges address some of the
most sensitive and challenging problems facing our community . . . from violent crimes, to
bitter disagreements between divorcing spouses, to complex environmental cases. I will address each of those areas. . . our
criminal, family and civil courts . . .to highlight the challenges we face and the opportunities
we see. Our criminal courts are home to some of our
most innovative programs. In order to keep our communities truly safe,
we are often called upon to address the underlying challenges–such as substance abuse and
mental illness–that defendants face. “One size fits all” simply doesn’t work
in this context, so we offer programs that are targeted to specific populations: Drug
Court, HOPE probation, Mental Health Court, and Veterans Treatment Court, to name a few. One recent example of this approach involves
homeless individuals, some of whom have multiple cases in our district courts for non-violent
offenses such as sleeping in public parks. With the strong support of the Legislature,
we have partnered with the Prosecuting Attorney and the Public Defender to launch Community
Outreach Court on Oahu. The goal is to enable homeless individuals
to resolve their pending cases by performing community service, while offering them services
that can get them back on their feet. Since the program started in 2017, 102 participants
have performed more than 2,100 hours of community service, and more than 1,100 pending cases
have been cleared. Many participants have found jobs, housing
and more stable shelter, and have earned driver�s license permits. When we started the program, court sessions
were held in a typical court setting — a courthouse in downtown Honolulu, with a judge sitting
up high on the bench. Thanks to funding from the Legislature, we
were able to expand the program to the Wahiawa district court. But the vision has always been to hold sessions
outside of a traditional courthouse to make the program more accessible. This became a reality in September, when Judge
Darolyn Lendio held court at the Wai`anae Public Library. She sat at a plastic folding table, at eye
level with the participants. And that truly is justice in action! We have several participants from Community Outreach Court in the gallery
today, along with Deputy Chief Judge Lono Lee, Deputy Court Administrator Calvin Ching,
and the staff and community partners. Could they all please stand and be recognized? There are other significant developments underway
in our criminal justice system. The first involves reforming the way that
we handle criminal defendants who have been accused of crimes, but are awaiting trial. Under the law, they are presumed innocent
and are entitled to bail or other forms of release, except to the extent necessary to
ensure their appearance and protect the community if they pose a danger. Low-risk defendants should not be in jail
simply because they are too poor to afford bail. At the same time, the community must be protected
from those who are dangerous. A number of states have undertaken pretrial
reforms. In response to House Concurrent Resolution
134, the Judiciary convened a task force led by circuit judges Rom Trader and Shirley Kawamura. That task force had 30 members, including
the chiefs of police and prosecuting attorneys of all four counties– and I appreciate many
of them being here today–defense attorneys including the public offender and I appreciate
Jack Tonaki being here today, the Office of Hawaiian Affairs and other agencies, and Senator
Clarence Nishihara and Representative Scott Nishimoto. They recently delivered a comprehensive report
with recommendations for legislative and administrative action. The Judiciary is already implementing several
of the recommendations, such as obtaining more information about each defendant’s
ability to afford bail. We are also creating an electronic reminder
system for defendants so they can receive text reminders before their next scheduled
court date. We have implemented this system on the neighbor
islands, and expect to extend it to First Circuit district court in February. These reminders increase the likelihood that
defendants will appear and save scarce public resources by decreasing the number of bench
warrants that are issued. Another important statewide initiative is
the Prison Reform Task Force chaired by my colleague Justice Michael Wilson. This task force, with broad representation
from the community, including Senator Nishihara and Representative Gregg Takayama, studied
effective incarceration policies in other jurisdictions, and has made recommendations
to improve Hawaii’s correctional system by focusing on rehabilitation. Those recommendations include expanding drug
court to provide an alternative to incarceration for defendants with serious drug problems. I thank Judges Trader and Kawamura, Justice
Wilson, and the members of both task forces. Thanks to their hard work, we have a unique
opportunity to make Hawaii safer, and our criminal justice system more fair and effective. Our family courts also have a long tradition
of innovation and working collaboratively with many partners to protect Hawaii’s
children and support Hawaii’s families. Virtually all of the youth in our juvenile
justice system have been subjected to trauma in their lives, so we have focused on addressing
the effects of that trauma. That approach has worked. Over the last ten years, the number of youth
held in custody has decreased by sixty-one percent. I want to thank the senior family court judges
who have led this effort, including Mark Browning, Cathy Remigio, and Christine Kuriyama, and
our entire family court team. While these strategies require additional
resources up front, that expense is modest in comparison to the cost, both financial
and social, of having these children become adult offenders. We have many programs, such as Girls Court,
that have contributed to these positive results by providing individualized care where it
can help the most. Notably, our Oahu Juvenile Drug Court,
which provides drug treatment and intense supervision, last year had the lowest recidivism
rate since the program began in 2001. Another example of this individualized approach
is the Family Court’s effort to address truancy by collaborating with the Department
of Education to intervene early when children start missing school, and addressing the circumstances
that caused them to be absent. This approach resulted in a significant decrease
in unexcused absences when we first used it at Waianae Intermediate School. Building upon that success, the Judiciary
launched another truancy collaboration on Kauai, under the leadership of Judge Edmund
Acoba, at Waimea Canyon Middle and High School. That effort reduced truancy petitions in the
district from 56 in 2016 to only six the following year. And on the Big Island, we recently launched
another truancy collaboration project under the leadership of Judge Darien Nagata at Keaau
Middle School, with partners including the Salvation Army and the Children’s Law Project. Other important innovations include a public-private
partnership to build a center for youth offenders, along with nearly 200 affordable rental apartments
on Alder Street in Honolulu. This project– which is expected to be completed
by 2021 – will include a 24-hour youth shelter, and a meeting space for youth to take after-school
classes and receive other vital services. We are grateful to Speaker Scott Saiki, Councilmember
Ann Kobayashi, the Hawaii Housing and Finance Development Corporation, and the many others
who have helped make this project possible. This is the first joint partnership of its
kind between two branches of government and a private entity. Our family court also addresses some of the
most heartbreaking cases we see involving the abuse and neglect of children. Some are newborns whose mothers abused crystal
meth or alcohol during their pregnancy; others are mere toddlers. To meet their special needs, we have created
a Zero to Three Court designed to provide them with permanency as quickly as possible,
whether through reunification with their parents, legal guardianship, or adoption to a safe,
new home. To cite one example, a homeless family entered
the program as a result of a domestic violence report. The Zero toThree team helped them obtain employment
and find an apartment, furniture and household goods. Thanks to these steps, the family eventually
was reunited. The judge and the court team members took
the time to show these parents that they mattered — and sometimes, that is the most important
thing we can do to help families succeed. Finally, I want to thank the Legislature for
its support of our efforts to more effectively address domestic violence. In 2017, the Women’s Legislative Caucus
held meetings across the state to hear from stakeholders, including domestic violence
survivors and advocates. We made several significant changes as a result. For example, the Kauai YWCA is now providing
free assistance in our Lihue courthouse to individuals who are seeking petitions for
temporary restraining orders. Turning to our civil courts, there have been
profound changes in the civil justice system nationwide. In 2008, a national survey of several thousand
lawyers concluded that America’s civil justice system “was in
serious need of repair– it takes too long and costs too much[.]” This report jump started interest in rethinking
how civil litigation is conducted. A number of states and the federal courts
explored ways to improve. Here in Hawaii, there has been much discussion
about this issue during our annual bench-bar meetings, which have become a valuable source
of feedback for the Judiciary. As a result of that input, in June of last
year, I created the Task Force on Civil Justice Improvements for Hawaii’s Circuit Courts,
chaired by retired Chief Judge Craig Nakamura. Seven current and retired judges and 17 attorneys
are also serving on the task force, and expect to submit their report later this year. In our district courts, we have a high percentage
of litigants who are representing themselves. To make the court more accessible to them,
we are revising our most commonly used forms to make them more understandable. Moreover, we are identifying opportunities
to use technology to help them. Deputy Chief Judge Lono Lee is leading a group
that is evaluating an online dispute resolution alternative for small claims cases. This project could enable civil litigants
to mediate certain types of claims online, and if online mediation is unsuccessful, the
parties could then, by agreement, have a judge quickly resolve the case, based on documents
and other materials submitted online. Online dispute resolution is not appropriate
for every litigant, such as those with limited English proficiency or without access to the
internet, but for some people, the possibility of being able to resolve their dispute without
having to come into a brick-and-mortar courthouse will be very appealing. Also, I am happy to share that the Judiciary’s
online electronic filing system is set to launch in our civil courtrooms this Fall. People will be able to file documents electronically
and access case information 24/7, much like what is available now for criminal and appellate
cases. I’d like to thank Judge Gary Chang and his
team for their hard work in developing this system. We are also making significant strides in
increasing access to our civil courtrooms for those who cannot afford an attorney. Last year marked the 10th anniversary of the
Hawai�i Access to Justice Commission, which is chaired by retired Justice Simeon Acoba. The Commission has championed many significant
initiatives, such as our self-help centers, where volunteer attorneys provide legal assistance
to self-represented litigants. More than 24,000 people have been helped so
far. The centers are a great example of what can
be accomplished when we work together, and I want to thank the Hawaii State Bar Association
and its President, Derek Kobayashi, and Executive Director Pat Mau-Shimizu, the Legal Aid Society
of Hawaii, and its Executive Director, Nalani Fujimori Kaina, the county bar associations,
and all the volunteer attorneys for making this resource available to our community. Often, people find themselves in court when
they are experiencing turmoil in their lives, and the experience can be daunting. The Judiciary launched a Volunteer Court Navigator
Program in the Second Circuit that helps those who do not have an attorney. Court navigators assist individuals when they
appear in district court civil cases, such as landlord-tenant disputes or debt collection
cases. Court navigators help in small, but important
ways, by helping to ensure that parties arrive at the proper courtroom, check-in, and respond
when called on, among other things. Thanks to the enthusiasm of the volunteer
navigators, and the leadership of 2018 Jurist of the Year Chief Judge Joseph Cardoza, more
than 200 people have been helped through the program, and it is now being piloted in the
First Circuit. All of our work on access to justice has helped
establish national recognition for Hawaii, which has opened doors to increased resources
for our efforts. One project championed by Majority Leader
Della Au Belatti is creating an interagency roundtable on access to justice. Another involves training for “community
navigators,” trusted leaders such as a respected teacher, church pastor, or kupuna. By providing them with the necessary tools
and information, they can then help members of the community access our civil legal system. Another project that is garnering national
attention is the “Legal Navigator” portal, which was made possible thanks to the contributions
of Microsoft, the Legal Services Corporation, ProBono Net, and the leadership of the Legal
Aid Society of Hawaii. Microsoft has dedicated close to $2 million
worth of resources to Hawaii and Alaska to develop an online legal services portal
that will use Artificial Intelligence to help people identify legal problems, and then access
critical resources. This transformative project will launch later
this year, and will empower those whose voices might not otherwise be heard. Although we have undertaken many of these
initiatives with existing resources, in some instances we need additional funding to address
new challenges. This session, we are respectfully requesting
funding for four new judges: a family court judge on Kauai, where we currently only
have one full-time family court judge, a family court judge on Oahu, where some judges
have calendars nearing 3,000 cases per year, a district court judge on Oahu to help
handle the increased number of DUI cases and expand Drug Court, and a district court judge
on Maui, where the population has more than doubled since the last position was added
in 1982. Additionally, we are asking for several staff
to support the Community Outreach Court, a permanent position for the Zero to Three Court,
maintenance staff and funds to operate the Keahuolu courthouse when it opens, and additional
funds for domestic violence services for Maui County, among other needs. Finally, our construction-related requests
are all focused on repairs, maintenance, and keeping our current buildings safe and secure. We appreciate your consideration of our requests
and stand ready to provide any information you may need. In conclusion, one of the most fundamental
challenges we face as an independent branch of government is building trust and understanding
of the Judiciary’s mission. We do this in many different ways. For example, it became apparent last year
that we needed to do more to ensure that the use of ‘olelo Hawaii was encouraged and
protected in our courts. We adopted a policy to ensure that parties
who want to express themselves to the court in the Hawaiian language are able to do so,
and we have actively recruited more interpreters for that purpose. Also, in response to House Resolution 110,
we have held Hawaiian language training for more than 400 judges and staff. And earlier this month, we began calling cases
in the Hawaii Supreme Court in both Hawaiian and English. In addition, we are engaging our young people
so they understand the role of the courts in our democracy. Under the Courts in the Community program,
the Supreme Court holds oral argument in schools across the state in real cases with volunteer
attorneys visiting classrooms to help the students understand the issues. This program has had an incredible impact. So far, we have held 13 oral arguments, with
more than 4,500 students from 61 schools participating. Many partners assist us with this program
— the volunteer attorneys who visit the classrooms; the Hawaii State Bar Foundation
which provides buses and lunches for the students; law students from the William S. Richardson
School of Law, which has been a great partner in so many initiatives; and the teachers who
work with the Judiciary History Center to incorporate our program in their lesson plans,
and who welcome the volunteer attorneys into their classrooms. Another important component of building public
trust is a judicial selection process that ensures that we have highly qualified judges
who reflect and understand our community. Although there are many reasons why people
become judges, our robust system of judicial selection and retention has attracted individuals
who are highly qualified and who reflect the diversity of our community. As Chief Justice, I appoint the judges who
serve in our district and family courts. I am pleased to report that we now have an
equal number of men and women serving on the bench in these courts. We can never forget that our diversity is
a great source of strength. The late Governor John A. Burns, stood before
this Legislature nearly fifty years ago, in February 1969, and delivered one of his most
famous speeches. Governor Burns spoke about the “tremendous
power of Hawaii as a source of inspiration” and reminded his listeners about how “It
is through an understanding of our backgrounds, our heritage, that we can best achieve amicable
accommodation of the diversity of views that is the hallmark of a truly democratic society. Let us clearly understand that diversity and
division are not the same. In diversity there can be unity.” The wisdom reflected in those words guides
us at the Judiciary. I thank our dedicated judges, staff, and volunteers
for treating everyone who comes before us with respect, fairness and compassion. By doing so, we provide a place where all
of Hawaii’s people can find justice. We thank the Legislature and our other partners
for supporting us in that cause, and look forward to working with each of you in the
years ahead. Mahalo and aloha. Thank you Chief Justice Recktenwald for your
eloquent and judicious message. I’m sure the Senate President will agree with
me that not many people realize how challenging it is to manage and administer a branch of
government, especially when you have to count the votes. Could we just please give the Chief Justice
another round of applause for his work. And with that, this joint legislative session
is adjourned.

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