 Aloha, welcome to Talk Story with John Wahey. I have an exciting guest with you. He is a visiting professor at the Richardson School of Law. He actually teaches, I guess, Hawaiian, legal Hawaiian history. And so he knows about how we got to the mess that we're now in. But more importantly, he is also being the host of a panel this coming Thursday, which will discuss threats to the independence of our judiciary. So this is Troy Andrade, and I'd like to welcome Troy. Oh, I should also mention that you also do some legal work with the McCorrist and Law You know, tell Bill McCorrist that he owes me one just for that, or at least he owes a contribution to think that Hawaii. Anyway, Troy, welcome. Thank you for having me. You know, and I wanted to begin sort of off the wall at first, but in the sense that, you know, it's really interesting to me that you're teaching Hawaiian legal history at the Richardson School of Law. I knew your grandfather. Yeah. Yeah. And he was a Hawaiian hero, actually, in terms of the Hawaiian rights movement and the sovereignty movement and all of it, Pai Galdera. In fact, Pai, for those people who want a little history lesson here, Pai was the leader of a group called the Hawaiians. And that started sometime around in the 1970s. And I joined. I was a member sitting in the back of the meetings, you know. And what's significant about Pai was the fact that the Hawaiians were the first group to actually take direct action on a strictly Hawaiian issue in the history of Hawaii. They were the first. And that was when they occupied Parker Ranch on the big island. Yeah, with Sonny Kaniho. They occupied with Sonny Kaniho and the rest of it. Your grandfather was the leader. Yeah. And so now you get to talk about it. You get to teach about it. You get to show how we went from Pai Galdera to others and eventually to the Con Con and to today, right? Yeah. It's a great position to be in at the Law School. I'm very thankful. And, you know, it's funny because my grandpa never told us any of those stories growing up. And it wasn't until I was in college that I started to learn about it. And when I talked to him and asked him, is this you? You know, I see all this stuff about Pai Galdera. Is this you? And he started crying. And he told us, yeah, that's me. And he started telling us all these stories about meeting with Governor Burns all the time. And I was thinking, no, this couldn't be the guy. And then I go to the archives, talk to you. And it's all true. It's all true. And you're in the back. So you get to talk about it. Yeah. And I get to talk about him and teach about what they did on the big island and how that affected the 78 Con Con. Yeah. The creation of Oha. Not only do you have a law degree, you also have a doctorate. You wrote your dissertation on the creation of Oha, I guess. Yeah. So my dissertation covers the spectrum. It starts from the cultural, political renaissance in the 60s and 70s, which led to the Con Con. And then goes all the way through all the ups and downs, turbulence. So tell me, do you understand how Oha actually works now? I have a close-up understanding of how it works, but I don't think anyone really knows exactly how Oha works. You think we ought to save that for a session? That's a new panel, I think. Yeah, that's a new discussion. Well, today's topic is the threat to judicial independence. Now, what's that all about? I mean, when people say there's a threat to judicial independence, what are they saying? What does it mean? So within the past few years, there's been an attempt by the state legislature to try to take authority back from the state judiciary. So a lot of commentators, scholars believe that it was the attempts by the state legislature to claw back on judicial appointments, judicial retention, results from decisions about particularly native Hawaiian issues that the courts have made within the past few years. So in terms of what the legislature has been doing, last year they introduced various measures, one of which was to have judicial elections be a part of our system. But there are judges elected all over the country, aren't there? For sure, right. And I think the threat to Hawaii is that that could allow politics to get involved. You mean like you're having judges standing on the highway waving signs? For sure, that's exactly what would happen. And that's what happens in a lot of states across the country, is that you have judges actively soliciting donations to run for campaigns. Let me ask you a question. But to get this into context, you know, we have in the American system of democracy, right? There are three branches of government supposedly co-equal, right? The legislature, the executive and the judiciary. Now, if these branches are co-equal, how can one branch threaten another? Well, I think it goes back to your high school intermediate social studies class and what you learn in civics about separation of powers, but more importantly about checks and balances. So you have different roles for each of the branches of government. And for the legislature and the executive right now, their role in the judicial process is to appoint someone. The governor gets to appoint someone from a list that's sent to him or other by the Judicial Selection Commission. So you've got a commission that looks for nominees. Correct. And what's the importance of this commission? So the commission sort of serves as an independent, non-partisan body that collects applications for judicial appointments. So the commission itself is made up of nine members. The nine members are appointed two from the governor, two from the state senate president, two from the House Speaker, one from the Chief Justice, and two from the White State Bar Association. So that commission is made up of mostly community members. And by law, you actually have to have no more than four attorneys on that nine-member commission. So the majority of the people on the commission are everyday citizens? The majority of the people on the commission are everyday citizens? With credentials, obviously. For sure, for sure. And the majority of the members on the commission are actually appointed by the political parties. So there is a way to, there is a kind of accountability in the sense that the political parties who are elected have a hand in putting together this commission with subsequently appoints the judges. Correct. So that's some of the checks and balances. They have two-thirds of that commission belongs to the political branches of government. And then when they pass back the nominees, the governor, I suppose, I know, gets to choose out of the list that they create. Which is what, six nominees? Usually six to ten, and then the governor would select, would nominate someone, and then that nominee would then go through a confirmation process with the state senate. And it seems to be working rather well. I know that that process that you just described was established in the 1970 Constitutional Convention. So that convention wasn't only about OHA, it was about judicial independence as well. Sure. And one thing to, one thing, and you know this about the convention is that it was really the people's convention. I mean, that was the time where grassroots organizers got back involved in politics and decided to make a change, I think for the better, in terms of creating all these different checks. Well, people should know that prior to the formation of the commission, the governor chose whoever he wanted. I mean, he just did it. So now we have this, I guess, a merit system. Yeah, and this merit system is actually known across the country as sort of the gold standard for selection systems. Okay, so what happens? The governor now appoints somebody, it goes before the state senate. To the state judiciary, Senate Judiciary Committee. So they sort of do the investigation and make their recommendation to then go to the full senate. The legislative branch has another crack at it in terms of the ratification process. For sure, yes. Right, but now with, and that's for circuit court judges and supreme court judges and court of appeal judge. Right. As well as for the district court judges. Oh, they also concerned district courts. So the chief justice, well, instead of the governor making the appointments for district court judges, it's the chief justice. And they still have to go through senate. So this system is set up. Seems to me like there's pretty good balancing and involvement because before a judge becomes a judge, he will have been screened by the executive branch, reviewed intensely by the legislative branch, and now I'm a judge. Okay, and I get appointed for... Ten-year term for justices and circuit court judges. And the issue is during this time of my appointment, am I free to make what I think are the right decisions regarding the law, right? Isn't that what this all comes back to? Yeah, so it's all about the retention process, this legislative session. So there's a bill currently moving through the process, senate bill 673, which attempts to take the retention process away from the judicial selection commission and put it in the hands of the state senate. So what happens normally? Normally, right now, how are people retained? So right now there's a six-month time frame before your term ends that you would have to petition for retention. You would petition the judicial selection commission. So that same commission that would have appointed you ten years earlier is, of course, a different composition of people. They would get the say as to, you know, you'd file your petition with them. They would solicit public comments. They'd publish your retention notice in newspapers so the public would get a chance to comment. They would get confidential information, evaluations from attorneys and jurors that appeared before that judge to ensure that all the information about the judge is presented in a way that is confidential. So what happens is, right now, the selection no longer involves the political branches, so to speak. What it does is it's a decision on the merit. And the merit's being, did this person have the qualities to be a good judge? What does his peers think or her peers think of her? Correct. What was the timeliness of their decision-making? How were their decisions viewed on appeal by other courts if they were overturned all the time or if they were affirmed all the time? So it's a process in which the Judicial Selection Commission gets all this really valuable information and they really make their decision based on the merit. So what is the change? So the change that the legislature is pushing now is to remove, well, to leave the Judicial Selection Commission to give their recommendation. But that recommendation would have to go before the State Senate for final approval. So that's for retention? Correct. So what this would add is that they would retain the ability to go and, I guess, ratify somebody again. Correct. Correct. And okay. So this is the change that we're... Now, when we get back, we're going to have a little word from our sponsors or somebody, you know, just flies in and these things, but we're going to come back and we need to understand how that change is a threat to judicial independence and, as you indicated earlier on, how that threat to judicial independence may involve, may, in fact, be a threat to the fairness or the functioning of the judiciary in the system. So, well, we'll be right back. I can't wait to tie all of this down in a neat package and show why it's important for us to maintain the independence of our judiciary. Aloha. This is Kelea Akina with the Weekly Ehana Kakao. Let's work together program on the ThinkTek Hawaii Broadcast Network Mondays at 2 o'clock PM. Movers and shakers and great ideas. Join us. We'll see you then. Aloha. I've got the Beagle Sisters here with a healthy tip. We encourage you to enjoy the food you eat this holiday season and keep it local and healthy. Yeah. Eat the rainbow. Eat the rainbow. And if you need any produce, come to the red barn on the north shore. Aloha. My name is Richard Emory, host of Condo Insider. More than a third of Hawaii's population live in some form of association. And our show is all about educating board members and owners about their responsibilities and obligations and providing solutions for a great association. You can watch me live on Thursdays, 3 p.m. to 4 p.m. each week. Aloha. Welcome back to Talk Story with John Wahee. By the way, if you want to call in and ask a question about distinguished guests, try Andrade this afternoon, the phone number is 415-871-2474. And I think there's a way to tweet us, too. It's something about at Tink Tech, Hawaii. At Tink Tech. So Donald Trump, Mr. President, if you are watching this by some stretch of the imagination and you want to learn a little bit about what judicial independence is and how important it is to our system, you might want to tweet in and ask this professor, try Andrade why this is an important issue. So meanwhile, welcome back. Thank you. We're back up. Okay. So now the legislature is trying to, I guess it has to be a constitutional amendment. Correct. So they're introducing a constitutional amendment which would change the system of appointment. What's so insidious about that? Well, I think one thing that makes it really problematic is the idea that the Senate, a political branch, would have the final say in... But don't they do that in the beginning? They do. They do. But the issue is that on retention, you have judges making decisions throughout their term. And what it does is it infuses this political aspect to it in which a judge may or may not... So if I'm a state senator and I don't like the decision that the judge came up with because I, for whatever reason, disagree with it, then by having the power of confirmation like I do, then I can actually threaten that judge. That's absolutely correct. And I mean, one example of that happened last year, 2015 to 2016 in the Nelson case, which is a big case filed by Native Hawaiian plaintiffs against the state of Hawaii and the Department of Hawaiian Homelands. And essentially the Hawaii Supreme Court said they're going to throw it back to the circuit court and decide what is substantial fees in order to compensate. Well, maybe just for our listeners, what that case was about was that there's another constitutional amendment in the Hawaii state constitution. There's another provision that requires that the state fund Hawaiian homes at least adequately enough to cover its administrative duties. Now, for most of the time, that has not happened. In fact, I don't know when it happened last. For sure, from the days of my grandfather. Yeah, you know, so those things are, but it's a requirement. It's a legal requirement. So the legislature and the executive branch were actually in violation and the court called them out on it. Is that what you said? For sure, yeah. So the court called them out on it and a judge who was appointed by Governor Lingle and who received unanimous confirmation from the Senate put out a sum that she believed the legislature and the governor needed to fund for the Department of Hawaiian Homelands and that created a huge uproar in the state legislature. And this, I think, is what led to... Through the idea that they wanted to confirm judges. Correct. So it's kind of a little clumsy. I mean, just on the level, before we even get to the threat to Hawaiian issues right now. So what we find is we find one branch of government trying to usurp or curtail the powers of another branch of government. Now, how does that work? I mean, I thought we had a tripartite system where everything ought to be balanced. We do, and that's what both the federal and state constitutions provide, is balance between the three branches of government and what the legislature is doing here is taking power away from the judiciary. But it's not direct, though. I mean, it's not saying that you as judges can't decide the issue. What it's really doing is it's very subtle. It's saying that you could lose your job if you don't decide the issue the way I think you ought to. Right, which I think is sort of the same thing. Well, I think it's worse. No, I mean, I think it's worse. I think there is a kind of a tradition of freedom of speech. I mean, if I don't like what a judge says, I can say, you know, I don't like it. And you and I, well, you're a graduate of the University of Hawaii Law School? Yep. Well, you and I as fellow graduates know that for every issue, legal issue, there's probably two sides to it at least, right? For sure. Otherwise, as a profession, we would start, you know? Right. Okay, so there are at least two sides. So I can say, if I don't like the judge's opinion, I'm going to appeal it. I don't like it. Do whatever you want. Or you could change the laws regarding that particular issue. But, yeah, except that that's what they might be trying to do, but not in the right way. I agree. What they're doing here is it's not me vocally expressing freedom of speech. It's my attempt to bully a judge, you know? And so, okay, so that's the implication. That's what we're talking about when we say there's a threat to our judiciary. Now, how does that affect Hawaiian issues? So back to the Nelson case, what happened after the judge said, here's a certain amount, $28 million, I think it was. Oh. The legislature needs to pay. Hello? Hello? Do we have a phone call here? Oh, great. Yeah. Oh, we got a call? We got a call. You got a question. Okay, but first, I want to be really clear that after the Nelson case, this is when this originated, this threat. So, okay, what's our question? Welcome to Talk Story with John White. Hey, we got an exciting young guest, a professor from the University of, visiting professor from the University of Hawaii Law School called the Richardson School of Law. Question, please. Awesome. It's awesome to see young Hawaiians involved. My question is when can we expect a run for governor? What can we expect a run for governor? Try. When can we expect a run for governor? I'm not running for governor. I like the idea of staying at the law school. Well, let me give you some political advice. If you were thinking of running for governor, you would probably want to save that and announce it in a much, you know, other form. But anyway, thank you so much for your comments. That's fine. We're going to pick his brains, not at these here. So, okay, so this is the threat, right? Yeah, and it actually materialized, because what happened with Judge Castignetti is that the state filed a motion for reconsideration of that decision. And after that decision, she made a new decision that said that didn't have a number associated with it. So it actually fell to the political whims. See, and that's not good for people. Well, it's not good for Native Hawaiians. It's not good for all. I mean, the courts are supposed to be for minority. It's not good for anybody, any minority, anybody with a minority opinion. The courts are that safeguard, right? They're the last safeguard for minority voices in the community. And that's the idea, isn't it? The idea of having this tripartite system of government was the idea that the majority ought to have their influence but the rights of the minority, those who dissent, need to be protected. They're still protected, yeah. Well, you know what's interesting to me? Okay, I know we're focusing in on this constitutional amendment. And that's very important. What a lot of people don't know is that constitutional amendments don't go to the governor, so they're not subject to a veto. See, so their bypass, the legislative branch, is actually using a little bit of political trickery here. Yeah. In a sense. Now, I do know that's the only way they could do this, but it is the one thing that they could do that would bypass at least the executive right. Now, I've been told though that this is not the only threat. In fact, there's other insidious threats that are coming out. There was some bill that was going to modify or change the retirement system. Retirement system. I'm not too familiar with that one, but I know last year there was, they didn't approve any of the judiciary's supplemental budget. So there's been several sides. So there is this contentiousness going on. And we, the University of the Richardson School of Law is going to be holding a panel discussion on... On Thursday at... That's Thursday, that's March 2nd. At 11.45 at the law school. 11.45 and it's going to be in the boot court room. The subject matter is going to be this subject matter. Who are your panelists? So our panelists, of course, is going to be Governor Waihe to give his thoughts. We have retired Hawaii Supreme Court Justice Steve Levinson, who was very influential in the 90s in being a justice and protecting the rights of minorities, which has had national, international implications to today. Yeah, this is not only about Hawaiians. This is about anybody with a descending point of view. For sure, for sure. And then our final panelist is Calvin Young, who is an attorney at Goodsill now, who was a former bar president, but has been very active and vocal about the importance of judicial independence. So we covered the... So I'm going to encourage... You want to encourage anyone who would have an interest in this to come to the University of Hawaii Richardson School of Law to attend this panel discussion, take the opportunity to ask questions, and deal with the issues about whether or not our judicial system is under a threat. Now, having discussed Hawaii, I cannot pass up the fact that we got a president of the United States now that, in some respects, are acting even worse than our local judiciary. Yeah. I mean, you got a president who calls judges out. So-called judges? So-called judges and the rest. And you think that some of this just is reinforcing each other? I think it's a sad day when we have a presidency that expressly openly attacks the judiciary, and then, not just the judiciary, but attacking a lot of minority perspectives. And when you have our state legislature, who's supposed to be there to help us, sort of making these moves, it's a little... It looks a little trumpish, don't you think? I wouldn't call my fellow politicians who I love and respect, they're all sitting on the hill up there, but they're acting a little trumpish. But anyway, for those of all of us that want to hear more about the threat to our judiciary, this coming Thursday, March 2nd, at 11.45 at the Richardson School of Law, we're going to have a discussion on this issue and we are inviting the public to attend. So, thank you so much for coming by. Glad to be here. And joining us and pointing out what's happening in our legislative and judicial system and the executive branch. Thanks.