STAND. COM. REP. NO. 41

Honolulu, Hawaii

, 2005

RE: GOV. MSG. NO. 77

 

 

Honorable Robert Bunda

President of the Senate

Twenty-Third State Legislature

Regular Session of 2005

State of Hawaii

Sir:

Your Committee on Judiciary and Hawaiian Affairs, to which was referred Governor's Message No. 77, submitting for study and consideration the nomination of:

Circuit Court of the Second Circuit, State of Hawaii

G.M. No. 77

Submitting for consideration and confirmation to the Circuit Court of the Second Circuit, State of Hawaii, Gubernatorial Nominee, RICHARD THOMAS BISSEN, JR., for a term of ten years,

begs leave to report as follows:

Upon review of the resume, application for judicial office, and testimony, your Committee finds that the nominee received a B.S. from the University of Santa Clara and a J.D. from the William S. Richardson School of Law. The nominee has been licensed to practice law in Hawaii since 1986. The nominee worked both as a Deputy Prosecuting Attorney and the Prosecuting Attorney for the County of Maui for fifteen years and was also briefly engaged in private practice. The nominee has also served as the First Deputy Attorney General for the Department of the Attorney General for the State of Hawaii for two years and currently serves as the interim Director of the Department of Public Safety for the State of Hawaii.

Testimony in support of the nominee was submitted by the Attorney General, the Department of Commerce and Consumer Affairs, the Hawaii Paroling Authority, the Office of Youth Services for the State of Hawaii, the Department of the Prosecuting Attorney for the City and County of Honolulu, the Office of the Prosecuting Attorney for the County of Kauai, the Maui County Bar Association, Mililani Neighborhood Board No. 25, the Chief of Police of the Maui County Police Department, the Vice-Chair of the Maui County Council, the Prosecuting Attorney for the County of Hawaii, the former Mayor of Maui County, the Royal Order of Kamehameha I for East Hawaii, the Hawaii Building and Construction Trades Council, Na`a`ahuhiwa, Hale Lokomaika`i, the Office of Hawaiian Affairs, the United Public Workers, and the Maui Economic Opportunity Inc., thirty five attorneys, and sixty five individuals. Your Committee received testimony in opposition to the nominee from two attorneys. Your Committee received comments on the nominee from one attorney.

The Board of Directors of the Hawaii State Bar Association (HSBA) found the nominee to be qualified to serve as a judge for the Circuit Court in the Second Circuit. As part of the HSBA Board's procedures for taking a position on judicial appointments, the candidate is asked to submit a resume, respond to a questionnaire, and appear before the Board to answer questions. The HSBA Board utilizes a modified version of the American Bar Association Guidelines for Reviewing Qualifications of Candidates for State Judicial Office. These Guidelines include the following criteria for judicial positions: integrity, legal knowledge and ability, professional experience, judicial temperament, diligence, financial responsibility, public service, collegiality, and writing ability.

Your Committee notes that during the course of the confirmation hearings, issues arose regarding the thoroughness and accuracy of the judicial candidate evaluation process performed by the HSBA on the nominee as the HSBA, by its own admission, was unaware of the case State v.Sanchez, 82 Hawai`i 517 (1996). In Sanchez, the nominee, acting as the Deputy Prosecuting Attorney for the County of Maui, prosecuted the defendant for commission of various criminal offenses. On appeal, the defendant claimed, among other things, that the comments of the nominee deprived him of a fair trial. The Intermediate Court of Appeals reversed the defendant's conviction, citing, as one of the grounds for the reversal, what it viewed as various instances of prosecutorial misconduct committed by the nominee. The Intermediate Court of Appeals concluded that, "the cumulative effect of the prosecutor's misconduct was to deny Defendant a fair trial." 82 Hawai`i at 534.

The Sanchez case was also the subject of an investigation by the Office of Disciplinary Counsel (ODC). In a letter dated April 21, 1997, the ODC concluded that there was insufficient evidence to clearly support a finding of a disciplinary violation by the nominee. However the ODC cautioned the nominee to conform his conduct in accordance with the ethical requirements embodied in the rules of professional responsibility.

When informed about the Sanchez case, the President of the HSBA informed your Committee that at the time the Board of Directors interviewed the nominee and voted to find the nominee qualified to serve as a circuit court judge for the Second Judicial Circuit, the Board of Directors of the HSBA was not aware of the Sanchez case. As a practice, your Committee postpones confirmation hearings as much as possible to accommodate the HSBA's judicial evaluation process. In keeping with this practice, your Committee postponed the confirmation hearing to allow the HSBA to conduct further investigation and, at the HSBA's discretion, to reevaluate the nominee. Upon further evaluation of the nominee, the HSBA reaffirmed its original finding that the nominee is qualified to serve as a circuit court judge. The HSBA also found that the nominee provided the HSBA Board of Governors with sufficient disclosure of all relevant issues.

The lack of information or knowledge on the part of the HSBA regarding the Sanchez case appears to be based upon answers contained in the nominee's 2004 Judicial Selection Commission application form which was forwarded to the HSBA as part of its review process. On this form, the nominee answered in the negative in response to two questions.

Question one, on page sixteen, asked if the nominee had been admonished or disciplined for a breach of the code of professional responsibility, professional misconduct, or professional negligence. The nominee answered in the negative based upon an ODC ruling dated July 30, 1998 that did not find a disciplinary violation against the nominee. The ODC investigation stemmed from the case of State v. Abraham Aki where the Hawaii Supreme Court issued an "Order to Show Cause" against the nominee, then the Acting Prosecuting Attorney for the County of Maui. The Order was based upon a failure of the Office of the Prosecuting Attorney for the County of Maui to file an Answering Brief with the Hawaii Supreme Court in the Aki case. The ODC investigation ultimately led the ODC to dismiss the matter "albeit with caution" and further "cautioned" the nominee, as Prosecuting Attorney, to act in conformity with the Hawaii Rules of Professional Conduct. The nominee's Judicial Selection Commission application, however, did not mention the Sanchez case or the ODC opinion issued in reference to the Sanchez case.

The second question asked the nominee if the nominee's behavior or conduct had been criticized or admonished in a written decision by any court. The nominee answered, "I do not recall."

The nominee submitted his application to the Judicial Selection Commission on October 15, 2004 without disclosing the Sanchez case to the Commission. When the nominee was interviewed by the Judicial Selection Commission on December 6, 2004 the nominee disclosed and discussed the Sanchez case with the Judicial Selection Commission, as evidenced by a letter dated February 10, 2005 from the Commission.

The issue confronting your Committee with respect to this nominee centers upon the lack of disclosure by the nominee with regard to the Sanchez case. The nominee's belief that disclosure was not required is premised upon the nominee's belief that the decision of the ODC dated April 21, 1997 not to discipline the nominee effectively ended the matter and did not require future disclosure. However, the ODC opinion in the Sanchez case "cautioned" the nominee to act in conformance with the rules of professional conduct.

The nominee agreed that the term "admonish" as used in question one on page sixteen of the Judicial Selection Commission application refers to a warning or caution issued to an individual. At the confirmation hearings, your Committee discussed the facts and ruling of Sanchez with the nominee to address concerns raised by your Committee. Nonetheless, your Committee remains concerned regarding the reasons the nominee failed to disclose the Sanchez case when the ODC appeared to "admonish" the nominee in its April 21, 1997 letter.

Your Committee is also troubled by the lack of disclosure by the nominee with respect to question five on page 16 of the Judicial Selection Commission on whether the nominee's behavior has been criticized in a written decision by any court. The Intermediate Court of Appeals reversed the conviction of the defendant in Sanchez based, in part, upon the prosecutorial misconduct committed by the nominee acting as the Deputy Prosecuting Attorney in the case. This reversal and the appellate court's accompanying comments regarding the nominee's "improper" conduct would appear to be criticisms by the court regarding the nominee's behavior.

Your Committee considered the number of Maui and outer island testifiers that were present in support of the nominee from attorneys, community leaders, community organizations, and individual residents who expressed strong sentiments in favor of the nominee. These testifiers spoke highly of the nominee's integrity and fairness and expressed confidence in the nominee's ability to transition from advocate to judge. Your Committee also received anonymous testimony about the nominee that was negative.

From all the testimony, questions and answers, and a review of the personal history, resume, and statements submitted by the nominee, your Committee finds the nominee to have the necessary qualifications to be appointed to the position of nomination.

As affirmed by the record of votes of the members of your Committee on Judiciary and Hawaiian Affairs that is attached to this report, your Committee, after full consideration of the background, experience, and qualifications of the nominee, has found the nominee to be qualified for the position to which nominated and recommends that the Senate advise and consent to the nomination.

Respectfully submitted on behalf of the members of the Committee on Judiciary and Hawaiian Affairs,

____________________________

COLLEEN HANABUSA, Chair