Are the actions and decisions of judges in Hawai’i influenced by their own personal interests and biases? Ask the judges themselves and most answer with a resounding ‘No.’

That’s just what the local chapter of American Judicature Society, a national organization that promotes independence and fairness in the justice system, recently found in a survey of island judges. The survey focused on how judges handle conflicts when they arise, such as cases involving friends, relatives or businesses they have personal or financial links to.

Both federal and state rules of judicial conduct require judges to disqualify themselves from any proceeding ‘in which the judge’s impartiality might reasonably be questioned … .’

Judges are expected to voluntarily recuse themselves when a conflict arises, and disclose information about any marginal situations that might be construed as conflicts. State law also requires judges to be disqualified if any party in the case raises allegations sufficient to legally demonstrate personal bias by the judge.

Based on the judges’ responses to the survey, the group, not surprisingly, concluded the current system works well and the relatively infrequent judicial conflicts are almost always handled appropriately.

Actual removal of a judge is ‘quite rare,’ the study found. While trial judges reported a median annual caseload of 600 cases, the median number of times a judge was removed from a case was just three. Judges on the Intermediate Court of Appeals and Hawai’i Supreme Court said they stepped aside at a higher rate, recusing themselves in an average of seven cases per year out of a typical caseload of about 200 cases.

The study was carried out by a special 15-member committee which included five sitting judges, seven attorneys including the head of the Office of the Disciplinary Counsel and the chair of the Commission on Judicial Conduct and three ‘community leaders.’ Surveys were sent to all 139 Hawai’i-based judges in December 2006, and 108, or 78 percent, responded.

The usefulness of the study’s findings are limited by its insular and rather self-serving methodology, which relied completely on the judges’ own answers without examining either court records that might reflect evidence of problems or soliciting the experiences of attorneys and others. Despite its shortcomings, however, the study provides one of the few empirical examinations of the internal workings of Hawai’i’s courts.

One important finding was that a significant minority of Hawai’i judges say judges themselves believe personal biases or interests can enter into court decisions or judicial actions.

AJS reported that 18 percent of the judges responding–nearly one in five–’agreed or strongly agreed there is a perception among judges that judges’ personal relationships and biases affect judicial decisions rendered.’

Ten out of the 108 judges who responded said they knew of at least one case in which an attorney’s attempt to disqualify a judge had a negative effect on the case, most often a significant delay or obvious irritation on the part of the judge. But 91 percent of the judges said they knew of no such cases during the last five years.

A majority of judges agreed that both attorneys and their clients ‘feel that a judge’s personal relationships and biases affect judicial decisions,’ the study found.

‘These results are significant, even though they involve a very small number of cases, because participants’ belief that they have a fair, unbiased judge is essential to public trust in the judicial system,’ it concluded.

It isn’t clear to what extent the relatively small conflict situations recognized by judges might reflect a reluctance on the part of attorneys to directly challenge judges for fear of harming their clients’ cases.

Lyn Flanigan, executive director of the Hawai’i State Bar Association, said she had not seen the study and it has not yet been discussed by the HSBA.

However, she said previous discussions of the Bar Association’s internal process for evaluating judges and commenting on judicial appointments revealed widespread worry on the part of attorneys.

‘It amazed me how adament members of the (HSBA) board were that the evaluation process has to be confidential because otherwise people would not speak out criticizing a judge or judicial candidate for fear of … retaliation may be too strong a word, maybe it’s even a subconscious response,’ Flanigan said. ‘Everybody’s human.’

‘The hope and the ideal is that judges rise above that. They say they do, but heaven only knows,’ Flanigan said.

One kind of potential bias may stem from judges’ perception that certain attorneys are incompetent or chronically unprepared.

Flanigan said HSBA has a committee made up of six trial judges and six litigation lawyers who meet four times a year to confidentially discuss and intervene in conflicts that arise between particular judges and lawyers.

For more by Ian Lind, visit [iLind.net].

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