 Think tech life in the law this morning in a given Wednesday and what a what an esteemed crowd we have here We have a judge Walter Kermit Sue and we have Dean Abbey Soyfer and we have Chuck Crumpton a practicing and activist kind of lawyer a lawyer who talks about national issues and So and we had we spent a little time negotiating what the sequence of discussion was and I think we came to a conclusion But I'm going to let Chuck tell you Exactly what that sequence is and the scope of discussion today about the independent judiciary Thanks, Jay one quick correction. I stopped doing civil litigation six years ago I only do out-of-court mediation arbitration Including by zoom I've done two in the last week and I love it You know I was not fully advised of this right so Walter's gonna start us off With his action plan and its components and how that's progressing I'll follow up in the Second batting spot and try and move him and the topic up and then hand it over to Abbey Who's going to talk to us about what's going on in The legal forum and the judiciary that should raise serious concerns and does Okay, and questions are permitted And we're gonna mix it up but Walter, why don't you start? I know you've been thinking about this since the last show All right. Thank you very much. Hey Let me just start with by saying that there is a paraphrase of Statement from a colleague of mine from University of Hawaii Which kind of appropriately? puts our endeavors in a in a in a proper context and She said something like this the real purpose of our advocacy is to serve as a catalyst for change Changing the landscape So we are no longer bystanders and gossipers about judicial independence but we are Taking action in that context With the Chuck and Abbey's advice and counsel we started an action plan and With the idea that we need to take action and the end goal is like obviously again to preserve and strengthen Judicial independence impartiality and integrity both at the state and federal levels and our call to action is initially To establish a task force a small task force and perhaps an advisory board to work on the Following points of emphasis and that would be one to express our voice and have Recognized institutions to express the voice of judicial independence We started that voice with contacting organizations We contacted the American Judicature Society the American Board of Trial Advocates the Hawaii State Bar Association We plan to contact the Hawaii Women Lawyers Association American College of Trial Lawyers and similar organizations who should be concerned and Who should be very active in preserving judicial independence. In fact Last week there was an article From the president of the American Board of Trial Advocates the national president A gentleman by the name of Luther Batiste And he's currently the president and he had a Statement to the membership membership of the American Board of Trial Advocates titled misplaced criticism of a judge in the wake of COVID-19 orders And that happened or rose out of a case in Texas in Dallas Basically where the judge upheld the governor's COVID restrictions And the governor overturned the judge's Sentence or decision and the attorney general of the state highly criticized the judge for enforcing What the judge what the governor initially ordered and so basically the national president said This kind of criticism of the judge Is out of order and that impedes On judicial independence and integrity So aboda has already stepped to the plate. We need to get the other organizations to join us And the other areas briefly are to educate the younger generation Of the importance of judicial integrity and independence and integrity and avi Has taken the lead with the University of Hawaii law school To make sure that in the constitutional law thought that we emphasize the importance and significance of judicial independence Third area is elections To advocate for the election of charismatic leaders of conscience character This is chuck Compton's three C's And the fourth area is to advocate for a selection of quality Judges both at the federal and state levels who respect the rule of law separation of powers and judicial President legal president and independence The final area is what Jay had previously emphasized that we need social media We need to establish a social media network To effectively pursue our goals That's basically our action plan jay and i'll have Chuck and abhi Hit me out of the ballpark So abhi how much of what walters said you agree with I Have the 8.6 I think we go to chuck now Okay, let's go to chuck Okay, so now that walter has established an action plan and direction and let's look at where There's customers concerned where there's need where we need to really jump in roll up our sleeves And start to get into the trenches and do the work and do the 60s struggle the fights For example in wisconsin the wisconsin supreme court struck down the governor's COVID restrictions stay at home order issued by his secretary of state And the very radical right justice who wrote a concurring opinion basically accused it of Overstepping on first amendment rights Why a justice who's supposed to be impartial and protective of the people and recognize the executive emergency powers of the governor who would come out with a very politicized polarized position that essentially instigates those same people that are out demonstrating against The measures the COVID restrictions that have proven successful not only in hawaii, but in many jurisdictions A rural judge in oregon struck down that governor's order They in wisconsin the response to the wisconsin supreme court ruling Was that the counties and cities have their own right to impose their own orders Immediately in madison dame county and 17 other counties. They impose those stay-at-home orders To step in and fill that gap for the protection of the citizens The oregon governor has already appealed that rural judge is ruling against the restrictions in oregon In north carolina a judge who's waiting to issue his ruling friday Has announced basically what it's going to be. He's going to do That same thing strike down covid restriction orders as Intruding on civil rights Why those civil rights of expression would Override health concerns in this pandemic Has not been explained by any of those courts Just the conclusion which is very political very polarized abhi What happens next? Well, what happens next is that I think we have to pay close attention To what is argued in these cases and what the judges decide And it is I think surprising as chuck just pointed out that some of these judges just take it upon themselves To say in very broad terms. Oh the governor can't do that. So I want to set the stage a little bit For what the emergency law is in constitutional terms and it may go too far But the fact is that the emergency powers of the executive are very broad And the united states supreme court has said that for over a century The leading early case in 1905 Was about a quarantine as a matter of fact, but also about smallpox vaccinations And in the case called Jacobson versus Massachusetts The united states supreme court said well, you can in fact require adults to have the vaccination And that's the police power of the state There are cases that say the war power Extends for years after the war is over in terms of rent control. For example, also in the u.s. Supreme Court That's not to say that there aren't first amendment counter arguments and there's a very interesting and I think Astute argue our article yesterday by floyd abrams and john langford in the new york times Saying hey governors don't just say you can't have any demonstrations. You can't do that Don't say you can't have any Gatherings you can't do that But you can say you have to stay six feet apart or whatever the health requirements are So there's a counter first amendment claim and there's an interesting federal district court decision about 10 days ago in california where the federal judge was faced with someone who's a gun rights activist who said The backup is so bad in terms of background checks that I have to go to the capital and protest with my folks And then there was a politician who said I want to go to the capital and protest Because I want to run i'm running for congress And they asked for a temporary restraining order and the judge said, you know get one you haven't shown that you're likely to win With a more precise challenge. They might have gotten somewhere. So the law is often some say always about Balance about arguments on both sides But what has been happening and then what chuck and and walter were talking about was people who are Making devils out of the judges and the judges have to sort it out and it's often very fact specific Uh as in the cases I think that I just talked about I can also say that it's very important I believe to criticize the court and a very Contemporary decision, which I find Really astonishingly bad Is by the united states supreme court in trump versus hawaii That was upholding the travel ban and the chief justice chief justice roberts wrote for the majority And he said all the government has to do is show that there's a rational basis For the ban. Well, it's not hard for the anybody to come up with a rational basis But that was a very important civil liberties and civil rights case Where oh, sure they can come up with a rational basis, but did not take seriously How much that case was like the internment case like kormatsu which upheld National security without looking into it and we now know Through the work of eric yamamoto and others that the solicitor general of the united states lied to the supreme court Because they already knew that there was no security threat and yet they made that argument and a subsequent Acting solicitor general actually apologized In more recent times. Nonetheless, just as sort of mayor says in dissent. This is kormatsu and basically robert says no, it isn't without really explaining why not so you have to be I think very careful about Granting that there are broad emergency powers. You have to say well, are they really needed and are they actually Focused as opposed to there can be no demonstrations on the other hand constitutional law says That emergency powers can go very far if there really is an emergency The jury has a question The question is, you know, we live in strange times and not only because of coven but because of trump Trump who criticizes judges the president who criticizes judges worse than that and criticizing judges he he actually He does command influence on them as he does in the military trying to control Judicial, you know officials all over the country that way federal judges, but also state judges And I think the the judge these days has new new new influences on him Because it's not only trump trump sets things in motion and other people follow some of those judges who were ruled badly um Are ruling not because trump called him on the phone at 11 o'clock one night But because you know, they want to please him they want to please his constituents They want to please, you know people in the red states They want to have more of a future politically or traditionally And so this is all politicized. Isn't it obvious? It sounds like you know everything that has happened here can be Tagged on some political process that is very special in our time. Isn't it? Well, I think your point about uh trump is a crucial point It has never been the case until now that a president would have the temerity the chutzpah To go after judges as he has and he's gone after them because of their backgrounds Uh in one case, of course, he thought someone was unamerican who was born in the united states Uh, but that was a minority person and so he went after that judge and he's constantly going after people And he does it of course in a bullying kind of way. No president has ever done that It's not to say the presidents have agreed and fdr was famous for uh, some of his Characterizations of the court when they were overruling new deal Uh legislation, but he did it in a very sophisticated way He didn't do it sort of judge by judge So we are in a time where people don't understand and this gets back to walters point the importance of the independence of judges And we want judges to sort out the facts to think about the law and not just say this is what the public wants And that apparently is what trump wants judges to do and it's absolutely not what should be done It's also striking these days that the attorney general of the united states Is so politicized and so willing to do unprecedented things Apparently because he thinks it is what the president wants or perhaps they've agreed it is what the president wants so Trying to get those guilty pleas overturned by a judge is really quite an amazing Thing now the judge may stand up to that And that is a good thing that's judicial independence, which isn't to say judges are always right But we have a system where the trial judge decides and there's usually a review of that And so we have a lot of people who actually think about it and write about it and there's something about writing about it That makes you think hard So there are opinions that don't write and justices famously change their views When they try to write a majority opinion to wind up dissenting So you think hard about something and now we have this system of review appellate review And I think that's a great value and it's one that's been recognized in hawaii from the start One of the best places to look for that source is in the second issue second law review Volume chief justice Richardson wrote an essay which was largely about the importance of judicial independence In part because he was very much involved with the conference of chief justices Around the country and he would bring them lay. He was a favorite Of those chief justices, but they talked about and they tried to follow judicial independence Well, you know Walter aren't there there two Parties to the transaction here one is the judge. He must have an ethic of independence He must be able to do the right thing according to everything that he knows and has learned and has experienced Um, and we want we want to encourage him your task force wants to encourage him to be independent On the other hand, there are people out there who would like to undermine that independence they would like to lobby judges and influence judges and bully judges and threaten judges and criticism on Criticize them on the basis of race color creed whatever because of a Decision they they've made or or they may make So your task force should look at both ends of it, right? Not only the judge Those people who inappropriately attempt to influence the judge. Am I right? It's exactly right because like I we said, you know, it's not It's not negative or it's not that we want to discourage any descent of any judicial opinions or decisions, but if the criticism goes overboard and starts to Go after the judge personally and the judge by ethics is not able to respond to any Reasons for his decision, etc. Etc. However The criticism has to have some limitation and restraint and that's where we come in that we have to have a At least define the limits of criticism and the limits of resistance and And that's where I think initially it's important to select quality judges The hawaii state has the system of recommending judges to the judicial selection commission and the new york university brennan school of Justice basically said hawaii has a very efficient sound selection process And we're the only state in the union that Selects and retains judges By the decision of the judicial commission and so From that selection process. We've been able to select quality judges who respects President who respects the law or the rule of law and however The citizens have a right to criticize decisions, but there must be some limitations posed on those criticisms they cannot go into the area of personal attacks like President trump in the case of judge courriel in southern california, you know accused him of being Wrong because he's a mexican. He's not a mexican. He's a u.s citizen of of mexican ancestry, but you know Trump just criticized on a personal attack level, which was false That kind of resistance we must strike down And so you're exactly right jay. We have to Provide boundaries. We have to make Define the limits of criticism so that we can preserve the judiciary independence. That's what we're all about Now, you know who benefits from all of this everybody all of the citizens because a lot of the people Impacted by this when they have a independent judiciary The public and the citizens can be assured of safety They can be assured of good health They can be assured of honesty and integrity in their Everyday life. So the beneficiaries of all what we are doing are going to be the actual people of our united states You know one thing you mentioned I think it's really pertinent is the judge by ethics is he can't come out and defend himself You're not going to see an op-ed piece by You know by a sitting judge saying I I've been inappropriately Criticized here by the president or I've been inappropriately Influenced or somebody has inappropriately attempted to influence me You know you're not going to see that op-ed piece. So it falls to somebody else To stand up and defend him. I hope your task force looks into that and and who would that be would it be a journalist? I think a lot of journalists don't really understand the issue we're talking about And I think they you know, they tend to report in the old journalistic style of just the facts They they don't necessarily some columnists do but they don't necessarily say this is an outrage and a violation of our system And it it tears at the fabric of our constitution for you to do this So the question really is who should speak here? Who should be the active one? Should it be the law schools having should the law review? include an article that directly you know argues against Some one individual attempting to influence or criticize the judge inappropriately Is that in the in the wheelhouse of the law schools? So Jay, how many pages do you think you need to write that? You don't even have to put in many footnotes Okay, if I may one thought The judges themselves Have access to people who can stand up for those values and principles federal judge Emmett Sullivan in the Michael Flynn case In a case in which the prosecution once attorney general Barr at president trump's direction Told his prosecutors to drop the case and most of them quit in response to that order But whoever was left Went ahead and filed the motion to dismiss the charges Of course the only other party the defendant Flynn is not going to oppose it. So you figure it slam dunk, right? Wrong buzz. Thank you for playing judge Emmett sulliman stepped up and he did two things. Number one He invited amicus curiae briefs and responses from the people who would protect judicial independence integrity and impartiality They and manipulation of the system and he appointed a former prosecutor former judge from Missouri to respond to that motion to dismiss So there are resources available within the legal system That we as people can support and encourage and judge sulliman's example I think is a brilliant one and one that should be taken and followed I'd love to see that happen and great to have that happen all over town. Yeah, that's a great mechanism By the way, you guys when when the judge sulliman asked for amicus briefs in that case from the from the bar from the public My brother immediately filed one Or in is in the process. I'm not sure if it's actually filed, but He prepared one. So it's a great. That's a great mechanism. And maybe that's the the mechanism of the future Or maybe you and he should publish That amicus brief with a few footnotes You mean in the law review Thank you So what does it look like for the task force now, Walter? Where are we going with this? What kind of feedback do you expect? What kind of action report? You know statements you expect Right now. I'm working on Uh starting off with a mission statement that would have clarity and purpose and effectiveness and then I'm trying to put together a small task force with an advisory board And the key point now is to find the appropriate people. Like you said, should we include a journalist or should we include Judge, you know, and so certain judges don't want to participate because they're not allowed by their code of ethics to voice any kind of resistance on their part So we have to speak for the judges. And so I'm working on getting the Task force set up now We've contacted a Bota American Bota trial advocates. They've disseminated all of our think tech Hawaii Programs to the membership. So we're waiting for a comment to feedback from them we have involved the American judicious society as well as the Hawaii bar, but also Jay we have also contacted the High schools of the public the department of education as well as the private schools because let us not forget Our audience is not only the law students But it's the younger generation of high school students Who are coming up the ranks? They should know the importance of judicial independence So we're waiting for feedback from the DOE as well as the association of private schools So we're working on this task force and once we get this together We're going to start moving ahead and that's where Avi and Chuck Are have are going to have to work very hard And and if you want to volunteer you'd be right there with us So Avi this is really a perfect opportunity for the law school in the in the way. Well, so the post-covid world A world where democracy has been You know offended Damaged maybe and we have to restore it. It doesn't restore automatically You have to take affirmative action to restore the damage and maybe the law school in the in the new post-covid world Could include this sort of thing as a regular matter. What do you think? Well, one of the things That I have to make clear is that the law school is not a unified Entity and I don't speak for the law school. I speak for myself But the law school is full of people who are involved with the community And speaking out. That's what our professors do and many of our students do as well and Very active and I would say quite important, of course, I would say it To the state of hawaii, but this is something that we are going to be talking about for a long time It is the essence in some ways of the law school to talk about what exists and what ought to exist And law as my late friend bob cover famously said is the bridge between is and ought So we're always worrying about what ought to be Not just looking back. It's telling Contemporary stories and then trying to improve things and I think our law school A bunch of individuals who have very different opinions often But committed to that committed to trying to improve the world You know, one of the things that we talked about not only with michael bruno But with That's so as sermons recently Is the notion that the university would now has the power to do greater outreach with zoom and remote, you know remote connection And so I think there are a lot of people out there Would like to be connected like to participate on an outreach basis using zoom. That's that's another thing in the post-covid world, you know Yeah, we have a proposal which I think we ought to brush off It's a couple years ago and we didn't get funding for it But the idea was that people in the doe the state doe Administrators and teachers are confronting law all the time on a daily basis, but they don't have much training in it So we ought to have a certificate of review perhaps or whatever online improvement on zoom and That would probably help them in their daily lives Maybe it would help them with their salaries and they have to wrestle with these issues Without understanding the legal context, which is everywhere Yeah, oh, that's that's a great idea We all have to spend more time at the law school whether in person or or by or by zoom So chuck, it's your turn since we're out of time To summarize this discussion tell us where we have gone since the last discussion and where we are going now I think Walter and avi put it really well In a sense, we're connecting the people who have that conscience courage and character on this issue To work together to speak together and to assert those values That's it And and turkey is going to be the term in on that Three C's Don't forget the three C's Oh, thank you chuck. Thank you for putting this together. Thank you Walter. Thank you for coming around and thank you for following through You know, I always say there's two kinds of people in the world One one kind of people is the follow-through people and the second kind is the others We are follow-throughs And that's what your fastball still has some mustard on it jay You follow through Mustard it must be the bolstered red socks Thank you, avi. Thank you for coming down. Thank you all been great discussion. I hope we can do it again soon Have a great day