STAND. COM. REP. 3067

Honolulu, Hawaii

, 2004

RE: JUD. COM. 3

 

 

Honorable Robert Bunda

President of the Senate

Twenty-Second State Legislature

Regular Session of 2004

State of Hawaii

Sir:

Your Committee on Judiciary and Hawaiian Affairs, to which was referred Judiciary Communication 3, submitting for study and consideration the nomination of:

District Court of the Second Circuit, State of Hawai`i Judicial Nominee Simone C. Polak

begs leave to report as follows:

Upon review of the résumé, application for judicial office, letter from the nominee dated March 22, 2004, and testimony, your Committee finds that Simone C. Polak graduated summa cum laude with a BA and MA degree in criminal justice from the John Jay College of Criminal Justice at the City University of New York (CUNY). The nominee also received a JD degree from the McGeorge School of Law at the University of the Pacific. Since 1989, the nominee has been a member of the Hawaii State Bar Association and employed by the Maui County Prosecuting Office. She has also clerked at the American Civil Liberties Union (ACLU), a private law firm in California, and the Legal Services of Northern California.

Your Committee received testimony in support of the nominee from the Judiciary, State of Hawaii Organization of Police Officers in Maui County, Department of the Prosecuting Attorney for the City and County of Honolulu, County of Maui Police Department, Hawaii Women Lawyers, twenty attorneys, and twenty-six individuals. Testimony in opposition to the nominee was submitted by the Hawaii State Bar Association (HSBA). Comments were also submitted by the Department of the Attorney General, Office of the Public Defender, and two attorneys.

The Board of Directors of the HSBA reviewed the nominee's qualifications and solicited comments via a mass email from the HSBA membership. As part of the HSBA Board's procedures for taking a position on judicial appointments, the candidate is asked to submit a résumé, respond to a questionnaire, and appears 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, and public service, collegiality, and writing ability.

In applying these guidelines to the nominee, the HSBA Board found the nominee not qualified for the position of judge in the District Court of the Second Circuit. In rating this nominee, the HSBA Board found that the District Court of the Second Circuit has broad jurisdiction, hearing criminal, civil, and family cases, and the HSBA Board found that the nominee lacked adequate experience in the areas of substantive civil litigation and family law.

However, your Committee noted testimony regarding numerous judges, including judges from the Second Circuit, who were exemplary family court jurists, despite no previous family law experience before becoming a judge. Further, your Committee heard testimony from the Judiciary explaining the family-court training process for judges in the First Circuit. Specifically, each judge, regardless of prior family court experience goes through training classes, is given reference material, and is reviewed by other judges prior to hearing any cases. It was also articulated that per diem (temporary) family court judges appointed by the Chief Justice sometimes do not have any family court experience prior to their appointments, and they typically do not have any competency problems. In fact, your Committee heard testimony that Hawaii has a very well-respected family court system.

Your Committee further notes that HSBA guidelines provide that the HSBA Board shall take the position of "not qualified" when the candidate does not meet one or more of the following criteria for: integrity, judicial temperament, or professional competence. HSBA testified that the nominee meets the criteria for integrity and judicial temperament. However, when your Committee questioned the HSBA on whether the nominee lacked professional competence, the response was that she lacked the sufficient experience in civil litigation and family law.

Your Committee finds that there is a significant difference between "professional competence" and "substantive experience," and your Committee believes that although the nominee may not have substantive experience in civil litigation and family law, she is nevertheless professionally competent.

As expressed in the past, you Committee finds that there may be some issues regarding the judicial candidate's evaluation process performed by the HSBA Board. As such, you Committee believes that the recommendation made by the HSBA Board should not be given its full weight. Rather, the HSBA Board recommendation should be considered as one piece within the totality of all the testimony and comments offered.

Your Committee has reviewed all of the testimony submitted and heard testimony from those who were present. With the exception of the HSBA Board's testimony and the testimony commenting on the HSBA Board's review process, all of the testimony was in support of the nominee.

Your Committee has reviewed the personal history, résumé, and statements submitted by the nominee, and 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 consent to the nomination.

 

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

____________________________

COLLEEN HANABUSA, Chair