State of the Judiciary 1.26.11


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State of the Judiciary 1.26.11

  1. 1. Embargoed until January 26, 2011 at 10:30 a.m. Mark E. Recktenwald State of the Judiciary January 26, 2011 President Tsutsui, Speaker Say, Lt. Governor Schatz,members of the House and Senate, former Governor and Mrs.Waihee, former Governor Lingle, former Chief Justice Moon,fellow justices and judges, members of the Consular Corps,members of the Royal Order of Kamehameha, distinguishedguests and friends, good morning and aloha. On behalf of the Hawaii State Judiciary, I thank thelegislature for giving me this opportunity to speak withyou today. I am honored to deliver my first address to youas chief justice. We appreciate the support you have givenus over the years, and look forward to working with you tofurther the cause of justice in our community. We alsolook forward to working with Governor Abercrombie and hisadministration. There are many ways in which our three branches ofgovernment can collaborate to better serve the people ofHawaii. To that end, I will explain the challenges andopportunities we are facing, and our vision for the future,and respectfully ask for your support in making that visiona reality. The judiciary is a strong institution, and it owesthat strength to the contributions of many people. Thispast year, Hawaii lost two pre-eminent jurists, ChiefJustice William S. Richardson, and Judge Samuel P. King. 1
  2. 2. Judge King was a leader in the founding of our family courtin the 1960s, before going on to a distinguished career asa federal judge. CJ Richardson was the heart and soul ofthe Hawaii judiciary, and was instrumental in shaping themodern legal landscape in Hawaii. We are honored to havemembers of the King and Richardson families with us today.Could you please join me in acknowledging the contributionsof these two extraordinary men. Also, I wish to acknowledge the many contributions ofmy predecessor, Chief Justice Ronald Moon. Chief JusticeMoon provided us with strong leadership while guiding thejudiciary into the 21st century. We are honored to havehim here today. Could you please join me in recognizing CJMoon. Id like to address several issues with you thismorning: our mission, our caseload, our programs, and ourneeds that have been impacted by the economic downturn. Our core mission at the judiciary is to administerjustice. We do this, primarily, by adjudicating cases, anddoing so in a way that is fair, impartial, transparent,prompt, and respectful to the participants. But our roleis not confined to deciding cases. Over the years, we havebeen given additional duties as well. We now play a rolein addressing the problems that underlie those disputes,and in helping to alleviate their human impact. So whetherits supervising defendants on probation so they stay offdrugs, or providing support to children whose parents aregoing through a divorce, or giving litigants theopportunity to resolve their disputes through alternativedispute resolution, the judiciary is asked to do muchbeyond simply deciding cases. There is a common thread running through thesebroadened expectations. I believe it can be summed up asfollows: our citizens want to be treated fairly and theywant a justice system that works. They want a criminaljustice system that reduces the risk that defendants willcommit crimes again in the future. They want a family courtsystem that supports our families when they are confrontedwith problems such as divorce, domestic violence or child 2
  3. 3. abuse. And they want a civil justice system that resolvesdisputes in a timely and fair manner, and that is not socomplex, expensive and time consuming, that few can affordit. Our citizens want justice that works. Since I became chief justice just over four monthsago, I have visited each judicial circuit to meet with ourjudges, staff, attorneys and the public, to find out how weare doing in meeting those expectations. I haveencountered great excitement about the work we are doing,and many good ideas to pursue in the future. Even thoughour staff and judges have been asked to make manysacrifices in recent years, they remain dedicated to ourmission, and passionate about advancing the cause ofjustice in our community. I am deeply grateful for theirprofessionalism, loyalty and commitment. Nevertheless, there are substantial challenges facingus. These have been difficult economic times for all ofHawaii, and the judiciary has been no exception. In thelast two years, our general fund appropriation was reducedby $19.7 million, or more than 13%, while demand for ourservices has continued to increase. Two-day per monthfurloughs of judiciary employees, which were instituted inNovember 2009, have eliminated more than 600,000 availablestaff hours of work. These reductions in our resourceshave had substantial negative effects throughout thejudicial system. They have reduced, delayed, and in somecases, eliminated important services. Notably, Hawaiis families and most vulnerablecitizens have been significantly impacted. The time ittypically takes to process an uncontested divorce hasdoubled. The wait time for children to participate in theKids First program in Kapolei, which provides support forchildren whose parents are going through a divorce, hasmore than doubled. Justice has been delayed in civil cases as well. Thenumber of pending civil cases in our district courtsincreased by almost 100% from FY2008 through FY2010. Thenumber of civil cases filed in circuit court has increasedby almost 20% over the last two fiscal years, particularly 3
  4. 4. in those areas which are linked to the health of theeconomy, such as foreclosures. Not surprisingly, since theresources available to address that increased caseload havebeen reduced, the median age of pending civil cases incircuit court has increased by more than 40 percent. Byprolonging the time it takes to resolve civil disputes, thecost and uncertainty of litigation increases, and ourcommunitys efforts at economic recovery are hindered. The criminal justice system has also been adverselyimpacted. Twenty-four adult probation positions wereeliminated in the first circuit, including positions inhigh risk areas such as the sex offender unit, and thedomestic violence unit. This has left individual probationofficers supervising as many as 180 defendants, as opposedto the recommended national standard of not more than 120defendants per officer. By stretching our probationofficers too thin, we compromise their ability to protectthe public and help probationers gain control over theproblems, such as drug abuse, that landed them in troublewith the law. Having defendants successfully completeprobation saves money for taxpayers in the long run, sincethe average cost of supervising a probationer is less than$2 per day, while the cost of incarcerating an inmate isapproximately $137/day. It also helps to reduce the socialand economic impacts associated with incarcerating Hawaiiinmates on the mainland. Adequately funding the state court system is aninvestment in justice, and an investment in our community,that should not be compromised even during tough economictimes. Justice is not something that should be rationed. Thecosts of attempting to do so will be far higher in the longrun, than any savings that can be realized now. Thats whythe judiciarys proposed budget seeks funding to eliminatefurloughs, and get our employees back to work full timebeginning July 1st. We are also asking for funding to address long-standing construction needs in our facilities across thestate. 4
  5. 5. Here in Honolulu, we are asking for funds to help usaddress issues such as leaking roofs at circuit court,where this winters heavy rains damaged computers anddocuments, and destroyed ceiling fixtures. On the Big Island, we are asking for funding fordesign and land acquisition for a courthouse in Kona.Currently, we are holding court in three differentfacilities in Kona, none of which were designed ascourthouses, including part of the Old Kona Hospital, whereour law library is located in the former morgue. Moreover,the facilities we use to hold defendants in Kona areinadequate and raise safety concerns. For example, ourpretrial holding area for district court defendants lackstoilets or drinking water, and defendants in custody musttherefore use restrooms in the public areas of thecourthouse. We respectfully ask for your approval of ourfunding request so we can address these issues. The peopleof Kona deserve a courthouse that is secure, convenient andefficient. Although the challenges I have mentioned are daunting,there is much positive news to report. The opening of thenew Ronald T.Y. Moon Judiciary Complex in Kapolei, whichhouses the family court and our juvenile detentionfacility, has provided new focus to our efforts to servechildren and families. The family court touches thousandsof our families every year, often when they are at theirmost vulnerable. This new facility provides us with bettertools to reduce the stress of that process. Across the judiciary, there is a real commitment tofinding more efficient and effective ways to serve thepublic. The HOPE probation program, which is based on thesimple premise of holding probationers immediatelyaccountable when they use drugs or fail to report to theirprobation officer, has achieved remarkable results.Positive drug tests have been reduced by 83% amongparticipants in HOPE probation, while recidivism has beencut in half. 5
  6. 6. Hawaii has received widespread national recognitionfor these results, and other states have begun to adoptvariations of the program. We are increasing the number ofdefendants in the program here on Oahu, and expanding itsuse on the neighbor islands. We have also begundiscussions with Governor Abercrombies administrationabout the feasibility of expanding the program to thepretrial and parole stages of adjudication. While HOPE probation is an important tool in ourefforts to break the cycle of drug dependence and crime,there are other critical programs as well. For defendantswhose addictions are so deep-seated that the incentivesprovided by HOPE are not sufficient, the intensivetreatment and supervision provided by drug court offersanother important option. The combination of HOPE and drugcourt offers effective alternatives to incarceration at afraction of the cost. In recognition of these facts, thelegislature last year provided us with continued supportfor those programs. We deeply appreciate your support. Webelieve that the confidence shown by the legislature willbe repaid many times over through lower costs and increasedpublic safety. Our other specialty court programs--such as mentalhealth court, girls court, and juvenile drug court--continue to make great strides in addressing the needs ofthose specialized populations. Indeed, they can have life-changing effects on theparticipants and those around them. One example of theirsuccess is Nellie Shy Mamuad. Nellie Shy has been involvedin the family court system since she was 12 years old, andwas a ward of the state. When Nellie Shy entered juveniledrug court in 2005 at age 16, she was using crystalmethamphetamine and other drugs, and had been used by anolder boyfriend to carry drugs between the islands. Through juvenile drug court, Nellie Shy was able tocomplete her GED, and subsequently graduated with honorsfrom community college. She is currently enrolled at theUniversity of Hawaii - Hilo, where she is working toward a 6
  7. 7. bachelors degree in Social Work. Nellie Shy hopes to workwith young people who have substance abuse problems. She continues to remain clean and sober, and to strivefor a better future for herself and her two young children.Nellie Shy is here with us today. Could you please join mein acknowledging her for her success? In addition to programs such as HOPE probation and ourspecialty courts, the judiciary is looking for other waysto be more effective in our work. We are in the midst of atransformation in the way we conduct business, moving fromprimarily paper-based systems to electronic filing andprocessing. Our electronic case management system, calledJIMS for short, has enabled us to address some long-standing, and seemingly intractable problems, such asdelays in issuing bench warrants, and collecting trafficfines and assessments. The electronic bench warrantproject received two national awards last year, and we havecollected $15 million for the general fund through thetraffic collections system since it was implemented in2007. Just this fall, we expanded JIMS to include filings inour appellate courts. Attorneys and self-representedparties are now able to file appeals from their computers,at any time of day, and serve them on other parties whohave consented to electronic service. In the years aheadwe will bring electronic filing to the criminal courts,followed by the civil and then family courts. In our civil courtrooms, we are looking for ways tostreamline the litigation process without compromising therights of parties. It has become increasingly costly andtime consuming to take a case to trial. Indeed, in FY2010, more than 5,000 civil cases were filed statewide inthe circuit courts, but only 14 civil cases were tried to ajury verdict. Although the relatively small number of civil casesgoing to trial is something we should continue to monitor,nevertheless the reality is that the vast majority of civilcases are going to be resolved by settlement. The 7
  8. 8. judiciary has a long-standing commitment to providingopportunities for alternative dispute resolution, and Ishare in that commitment. While the judiciary must by necessity focus on makingthe delivery of our services more efficient, at the sametime we must remain true to the values reflected in thephrase "and justice for all." Many of Hawaiis low andmoderate income families are unable to obtain the legalservices that they need in the best of times, and the unmetneed has become greater in these difficult economicconditions. The Access to Justice Hui concluded in 2007that only about one in five low to moderate income Hawaiiresidents have their civil legal needs met. Things havegotten worse since then, with the downturn in our economy.There are many more people facing eviction, collectionsactions, foreclosure, loss of jobs or benefits, and relatedproblems such as divorce or domestic violence. At the sametime, state funding for legal service organizations hasbeen sharply reduced. As a result of the recommendations of the Hui, theHawaii Supreme Court formed the Access to JusticeCommission in 2008. The Commission has had a number ofsignificant accomplishments, including the establishment ofmodel pro bono policies, recommendations for ruleamendments and legislation, and the development of aforeclosure mediation pilot project on the Big Island.Perhaps equally important, the commission has significantlyincreased the level of interest in access to justice in ourcommunity. There is real momentum now, which we cannotafford to lose. The challenges posed by access to justice illustrate afundamental truth about the judiciary--in order to solvethe many challenges we face, we must work collaborativelywith other organizations and members of our community. Wehave a strong working relationship with the Hawaii StateBar Association, as well as the neighbor island barassociations, and with many other partners in ourcommunity, including the William S. Richardson School ofLaw, and the American Judicature Society. 8
  9. 9. We are blessed with a strong volunteer program, whichcontributed 39,000 hours to the judiciary in the pastfiscal year. With us today is Mike Maeda, who contributedwell over 12,000 volunteer hours during his 14 years ofservice to the judiciary, as well as Wayne Sakai and SusanArakaki, who each contributed over 600 volunteer hours inFY 2010 alone. Please join me in recognizing theseoutstanding individuals. In addition, the Judiciary would not be as effectiveas it is without our many other partners, who complementthe work we do in many different ways. One example of sucha partnership involves the program known as Lawakua.Lawakua uses martial arts training to teach discipline andteamwork to young people, and has chapters set up at KuhioPark Terrace and Halawa Housing. Since 2005, Lawakua hassponsored a chapter at the Kalihi YMCA for teenage boys andgirls who are participants in our juvenile drug court--aone-of-a-kind partnership anywhere in the nation. I haveattended Lawakuas promotion ceremonies for the past threeyears, and have watched these young people grow and mature,in some cases winning scholarships and going on to college.We are honored to have with us today Matt Levi, the founderof Lawakua, as well as several current participants,graduates and instructors. Could you please join me inacknowledging them? Although the judiciary must be completely independentand neutral when we decide cases, we must also engage thecommunity in as many ways as possible to promoteunderstanding of our constitution and our system of law.To further that goal, the supreme court has begun holdingoral argument at different locations in the community,starting with Kapolei in December, and at the RichardsonSchool of Law next month. The judiciary also supports many civics educationprograms which benefit students, ranging from the MockTrial and We The People competitions, to training forteachers in issues related to the constitution. Programssuch as these are critical to the future of our democracy. 9
  10. 10. During my remarks today, I have described the manychallenges and opportunities facing the judiciary. As wemove forward, we are fortunate to have the leadership ofthe extraordinarily talented and dedicated people who serveas judges here in Hawaii. Whatever the challenge--whethertaking on a rapidly increasing caseload, or developing newways to improve the justice system--our judges haveanswered the call. I thank them for their dedication, andtheir many contributions. In closing, the role of the judiciary has evolvedsubstantially over the years, from simply deciding cases tohelping, in many instances, to address the underlyingproblems, and alleviate the impacts of those problems. Wehave embraced that broader role, and believe that we havedone it well. But we need the resources to ensure that welive up to the publics high expectations for us, whetherit be deciding cases promptly, or helping children copewith the trauma of divorce, or helping a probationerovercome a drug problem and reconnect with his family andcommunity. We know that there are many competing demands for ourstates scarce resources, and that we cannot reasonablyseek a greater share of those resources without firstensuring that our own house is in order, and that we areusing the resources we do have in the most effective andefficient way possible. That is exactly what we have triedto do through initiatives such as HOPE probation and theJIMS system, and we will continue looking for more suchinitiatives in the years ahead. Once again, I would like to thank the members of thelegislature for inviting me here today, and for yourcontinued support of the judiciary. On behalf of thejudges and staff of the judiciary, and all of the people weserve, we look forward to working with you to further thecause of justice in Hawaii. Thank you and aloha. 10