March 12, 2014

HAWAII STATE BAR ASSOCIATION Relating to the Nomination of MICHAEL D. WILSON

Associate Justice for the Hawaii Supreme Court

To: Senate Committee on Judiciary and Labor

From: Gregory K. Markham, President-Elect, Hawaii State Bar Association

Chair Hee, Vice Chair Shimabukuro and Members of the Committee on Judiciary and Labor:

Additional testimony approved by the Board of Directors on Governor's Message 580 relating to the nomination of Judge Michael D. Wilson of the First Circuit as Associate Justice of the Hawaii Supreme Court is being submitted for your consideration.

After receipt of the Chair's inquiry received yesterday, prior to the Senate Floor session, by the HSBA Executive Director as to the testimony presented at the March 3rd Committee hearing and the relationship of a Star Advertiser news article posted on January 18, 2011, it is my understanding the Executive Director responded yesterday afternoon as follows:

A review of the HSBA Board minutes indicates a discussion of the policy as a whole was undertaken in the timeframe noted. However the Board minutes (unlike the legislative Floor Session discussions which are transcribed verbatim) do not reflect specific Board action specifically modifying that Board policy. I did reach out to a couple of Board members sitting at the time. Recollection from one Board member contacted indicated that there was discussion undertaken to allow the President to issue a statement if a nominee was deemed "unqualified." However from the minutes, that proposition was never put to a vote and incorporated in the Board policy.

After this response was transmitted further research was conducted. Noted in a Hawaii Bar Journal article was the following passage:

Since HSBA Board deliberations regarding the rating of judicial nominees and executive appointments take place in executive session, officers and/or directors may only reveal the position of the board (e.g. qualified or not qualified) but not the substance or specifics of any discussion or the vote of any individual director or the breakdown of the Board's vote. The HSBA President or his/her designee may present a prepared statement by the Board on the rating of the nominee and the President or his/her designee shall appear before the confirming authority to answer any questions but only as to the HSBA policy and procedures for its rating and not as to specific reasons or basis for the Board's rating of the nominee. (revisions in italics)

As an example, the Board, under the revised procedure, may authorize the bar president to disclose that a nominee deemed unqualified did not meet the criteria of judicial temperament and professional experience. The flexibility in providing more information to the confirming authority on a particular rating may alleviate the tension that could otherwise arise.

On March 5, 2014, the Board of Directors interviewed Judge Michael Wilson and voted on whether he is qualified to be an Associate Justice of the Hawaii Supreme Court. The Board's finding of "not qualified" was based on negative comments from a number of Bar members regarding work ethic concerns, lack of professionalism in the workplace, questions concerning the propriety of conduct toward women in professional contexts, and the ability to serve at the level of a Supreme Court Justice.

Thank you for the opportunity to submit these additional clarifying comments.

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Original Testimony: Hawaii Bar Association: Wilson 'Unqualified'

Gregory K. Markham, President-Elect, Hawaii State Bar Association

Hearing: Thursday, March 6, 2014, at 10:00 a.m., Conference Room 016, State Capitol

The Board of Directors of the Hawaii State Bar Association appreciates the opportunity to comment on the qualifications of Michael D. Wilson for the position of Associate Justice of the Hawaii Supreme Court.

The HSBA Board has established criteria for determining the qualifications of judicial appointments generally utilizing the American Bar Association Guidelines for Reviewing Qualifications of Candidates for State Judicial Office. The HSBA uses the following criteria in its deliberations: integrity and diligence, legal knowledge and ability, professional experience, judicial temperament, financial responsibility, public service, health, and responsibilities and duties required of the position for which the applicant has been nominated. The HSBA Board's rating system includes the categories of "qualified" and "unqualified."

As part of its procedures for evaluating and taking positions on judicial appointments, the HSBA Board utilizes a subcommittee of the HSBA Board to review materials presented by the nominee and input from members. The subcommittee is also tasked with checking references and contacting others who have knowledge of the nominee’s experience and qualifications. The full Board reviews the materials prepared by this subcommittee, the materials submitted by the nominee and members, and conducts an interview of the nominee.

Taking into consideration all of the information presented by and about the nominee and an interview with the nominee, the Board of Directors of the Hawaii State Bar Association finds Michael D. Wilson to be unqualified for the position of Associate Justice of the Hawaii Supreme Court.

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