[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
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
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
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
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
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.
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
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
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
C. Conflicts of Interest
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
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.
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.
• 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
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.]
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
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
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).