Constitution of Hawaii — Article 6

ARTICLE VI

 

THE JUDICIARY

 

Note

 

  This article was renumbered from Article V to be Article VI by Const Con 1978 and election Nov 7, 1978.  The former Article VI now appears as Article VII.

 

JUDICIAL POWER

 

     Section 1.  The judicial power of the State shall be vested in one supreme court, one intermediate appellate court, circuit courts, district courts and in such other courts as the legislature may from time to time establish.  The several courts shall have original and appellate jurisdiction as provided by law and shall establish time limits for disposition of cases in accordance with their rules. [Ren and am Const Con 1978 and election Nov 7, 1978]

 

Law Journals and Reviews

 

  Judicial Independence:  The Hawaii Experience.  2 UH L. Rev. 1.

  The Price of Precedent:  Anastasoff v. United States.  23 UH L. Rev. 795.

  Hawai‘i's Justiciability Doctrine.  26 UH L. Rev. 537.

  The Development of Hawai‘i's Appellate Courts:  An Organizational Perspective.  33 UH L. Rev. 875 (2011).

 

Case Notes

 

  Where Congress has not expressly set out exclusive jurisdiction, state courts are competent to decide federal claims.  437 F. Supp. 368.

  Section 605-1, concerning bar examinations, does not invade judicial functions.  44 H. 27, 352 P.2d 607.

  Judicial power and venue requirements distinguished.  53 H. 398, 495 P.2d 585.

  Supreme court has jurisdiction over matter relating to incorporation of attorneys.  55 H. 121, 516 P.2d 1267.

  Article V, §6 and this section, neither separately nor together prohibit the establishment of the administrative driver’s license revocation office in the judiciary.  91 H. 212 (App.), 982 P.2d 346.

  Given the mandatory nature of the case-or-controversy requirement in federal courts, it would also be possible to perfect standing during the course of litigation in state courts where the state constitution does not contain case-or-controversy language; by perfecting its interest in appellants' mortgage prior to the order granting summary judgment and entry of the decree of foreclosure in bank's favor, bank effectively cured its lack of standing at the initiation of the lawsuit.  117 H. 506 (App.), 184 P.3d 821.

  As nothing in chapter 103F expressly precluded judicial review, it did not violate the separation of powers doctrine; judicial review was available in connection with chapter 103F by way of a declaratory action under §632-1.  127 H. 76, 276 P.3d 645 (2012).

 

 

SUPREME COURT; INTERMEDIATE APPELLATE COURT; CIRCUIT COURTS

 

     Section 2.  The supreme court shall consist of a chief justice and four associate justices.  The chief justice may assign a judge or judges of the intermediate appellate court or a circuit court to serve temporarily on the supreme court, a judge of the circuit court to serve temporarily on the intermediate appellate court and a judge of the district court to serve temporarily on the circuit court.  As provided by law, at the request of the chief justice, retired justices of the supreme court also may serve temporarily on the supreme court, and retired judges of the intermediate appellate court, the circuit courts, the district courts and the district family courts may serve temporarily on the intermediate appellate court, on any circuit court, on any district court and on any district family court, respectively.  In case of a vacancy in the office of chief justice, or if the chief justice is ill, absent or otherwise unable to serve, an associate justice designated in accordance with the rules of the supreme court shall serve temporarily in place of the chief justice. [Am Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978; am HB 355 (1985) and election Nov 4, 1986]

 

Cross References

 

  Statutory provisions, see §§602-1, 602-3, and 602-10.

 

Rules of Court

 

  Acting chief justice, see HRAP rule 49(c).

 

Law Journals and Reviews

 

  The Development of Hawai`i's Appellate Courts:  An Organizational Perspective.  33 UH L. Rev. 875 (2011).

 

Case Notes

 

Assignment of circuit judges.

  Request for appointment of circuit judges by drawing of lots denied; Constitution mandates appointment by the chief justice.  53 H. 174, 488 P.2d 1406.

 

 

APPOINTMENT OF JUSTICES AND JUDGES

 

     Section 3.  The governor, with the consent of the senate, shall fill a vacancy in the office of the chief justice, supreme court, intermediate appellate court and circuit courts by appointing a person from a list of not less than four, and not more than six nominees for the vacancy presented to the governor by the judicial selection commission.

     If the governor fails to make any appointment within thirty days of presentation, or within ten days of the senate's rejection of any previous appointment, the appointment shall be made by the judicial selection commission from the list with the consent of the senate.  If the senate fails to reject any appointment within thirty days thereof, the senate shall be deemed to have consented to that appointment.  If the senate rejects any appointment, the governor shall make another appointment from the list within ten days thereof.  The same appointment and consent procedure shall be followed until a valid appointment has been made, or failing this, the judicial selection commission shall make the appointment from the list, without senate consent.

     The chief justice, with the consent of the senate, shall fill a vacancy in the district courts by appointing a person from a list of not less than four and not more than six nominees for the vacancy presented to the chief justice by the judicial selection commission.  If the chief justice fails to make any appointment within thirty days of presentation, or within ten days of the senate's rejection of any previous appointment, the appointment shall be made by the judicial selection commission from the list with the consent of the senate.  If the senate fails to reject any appointment within thirty days thereof, the senate shall be deemed to have consented to that appointment.  If the senate rejects any appointment, the chief justice shall make another appointment from the list within ten days thereof.  The same appointment and consent procedure shall be followed until a valid appointment has been made, or failing this, the judicial selection commission shall make the appointment from the list, without senate consent.  The chief justice shall appoint per diem district court judges as provided by law.

     The judicial selection commission shall disclose to the public the list of nominees for each vacancy concurrently with the presentation of each list to the governor or the chief justice, as applicable.

 

QUALIFICATIONS FOR APPOINTMENT

 

     Justices and judges shall be residents and citizens of the State and of the United States, and licensed to practice law by the supreme court.  A justice of the supreme court, judge of the intermediate appellate court and judge of the circuit court shall have been so licensed for a period of not less than ten years preceding nomination.  A judge of the district court shall have been so licensed for a period of not less than five years preceding nomination.

     No justice or judge shall, during the term of office, engage in the practice of law, or run for or hold any other office or position of profit under the United States, the State or its political subdivisions.

 

TENURE; RETIREMENT

 

     The term of office of justices and judges of the supreme court, intermediate appellate court and circuit courts shall be ten years.  Judges of district courts shall hold office for the periods as provided by law.  At least six months before the expiration of a justice's or judge's term of office, every justice and judge shall petition the judicial selection commission to be retained in office or shall inform the commission of an intention to retire.  If the judicial selection commission determines that the justice or judge should be retained in office, the commission shall renew the term of office of the justice or judge for the period provided by this section or by law.

     Justices and judges shall be retired upon attaining the age of seventy years.  They shall be included in any retirement law of the State. [Am Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978; am SB 2182 (1994) and SB 2294 (1994) and election Nov 8, 1994; am HB 1917 (2006) and election Nov 7, 2006; am HB 420 (2014) and election Nov 4, 2014; am SB 2927 (2024) and election Nov 5, 2024]

 

Note

 

  For proposed constitutional amendment to this section, see SB 121, L 2025, pg. 1060.

 

Cross References

 

  Circuit courts, see chapter 603.

  Commission on salaries, see §26-56.

  Compensation, see §§602-2, 602-52, 603-5, and 604-2.5.

  Practice of law prohibited, see §601-8.

  Retirement allowance, see §88-74.

 

Attorney General Opinions

 

  A justice of the supreme court whose term has expired may hold over until the justice's successor has been appointed, even beyond the adjournment of the senate considering successors.  Att. Gen. Op. 67-6.

  A member of the legislature who has been appointed to the circuit court but who has not yet qualified for the office is not yet holding judicial office.  Att. Gen. Op. 80-2.

  Any duly appointed district court judge may be temporarily assigned to preside on the circuit court by the chief justice of the supreme court.  Att. Gen. Op. 88-8.

  Where the judicial selection commission presented the chief justice with two lists of nominees for two district court vacancies on March 1, 2007, and the chief justice made the selections on April 2, 2007, under the plain language of this section, the chief justice's nominations were untimely and, thus, the appointments must be made by the judicial selection commission.  Att. Gen. Op. 07-1.

 

Law Journals and Reviews

 

  Politics, Merit and the Selection of Judges.  10 HBJ No. 13, at pg. 61.

  Administering Justice or Just Administration:  The Hawaii Supreme Court and the Intermediate Court of Appeals.  14 UH L. Rev. 271.

  The Life of the Law is Perpetuated in Righteousness:  The Jurisprudence of William S. Richardson.  33 UH L. Rev. 99 (2010).

 

Case Notes

 

  A judge who has made a public announcement of intention to seek public office is a candidate.  53 H. 496, 497 P.2d 549.

  Exercise of testamentary power of appointment by justices not prohibited when there is no remuneration.  55 H. 104, 516 P.2d 1239.

  Appointment as a district family judge does not qualify as being "licensed to practice law by the supreme court".  61 H. 112, 595 P.2d 1080.

  1978 constitutional convention intended by implication that restrictive provision relating to practice of law applied only to full-time justices and judges, thereby excluding per diem judges from its proscription.  Section 604-2, authorizing per diem judges to practice law, was not in violation of Hawaii constitution's provision prohibiting full-time judges from practicing law during their term of office.  74 H. 394, 846 P.2d 894.

  No violation of section where circuit court judge assigned duties as administrative director of courts as newly-assigned duties were addition to existing responsibilities and not creation of additional office or position.  85 H. 258, 942 P.2d 522.

 

 

JUDICIAL SELECTION COMMISSION

 

     Section 4.  There shall be a judicial selection commission that shall consist of nine members.  The governor shall appoint two members to the commission.  No more than one of the two members shall be a licensed attorney.  The president of the senate and the speaker of the house of representatives shall each respectively appoint two members to the commission.  The chief justice of the supreme court shall appoint one member to the commission.  Members in good standing of the bar of the State shall elect two of their number to the commission in an election conducted by the supreme court or its delegate.  No more than four members of the commission shall be licensed attorneys.  At all times, at least one member of the commission shall be a resident of a county other than the City and County of Honolulu.

     The commission shall be selected and shall operate in a wholly nonpartisan manner.  After the initial formation of the commission, elections and appointments to the commission shall be for staggered terms of six years each.  Notwithstanding the foregoing, no member of the commission shall serve for more than six years on the commission.

     Each member of the judicial selection commission shall be a resident of the State and a citizen of the United States.  No member shall run for or hold any other elected office under the United States, the State or its political subdivisions.  No member shall take an active part in political management or in political campaigns.  No member shall be eligible for appointment to the judicial office of the State so long as the person is a member of the judicial commission and for a period of three years thereafter.

     No act of the judicial selection commission shall be valid except by concurrence of the majority of its voting members.

     The judicial selection commission shall select one of its members to serve as chairperson.  The commission shall adopt rules which shall have the force and effect of law.  The deliberations of the commission shall be confidential.

     The legislature shall provide for the staff and operating expenses of the judicial selection commission in a separate budget.  No member of the judicial selection commission shall receive any compensation for commission services, but shall be allowed necessary expenses for travel, board and lodging incurred in the performance of commission duties.

     The judicial selection commission shall be attached to the judiciary branch of the state government for purposes of administration. [Add Const Con 1978 and election Nov 7, 1978; am SB 2513 (1994) and SB 2515 (1994) and election Nov 8, 1994]

 

Rules of Court

 

  See Judicial Selection Commission Rules.

 

Attorney General Opinions

 

  Rule adopted by the commission, authorizing the commission to appoint its administrative assistant and such other staff as it believes necessary for its successful operation and exempting all staff positions it may from time to time create from the civil service and collective bargaining, was valid.  The commission was well within its authority to ask the judiciary to rescind the judiciary's selection of a civil service replacement for its current administrative assistant II, and furnish all administrative support necessary to reestablish its administrative assistant II position as an exempt position effective January 1, 2008, and assist the commission in advertising, interviewing, and selecting a replacement for its incumbent upon the incumbent's retirement.  Att. Gen. Op. 07-3.

 

Law Journals and Reviews

 

  Politics, Merit and the Selection of Judges.  10 HBJ No. 13, at pg. 61.

 

Case Notes

 

  Confidentiality requirement of rule 7 of the rules of the judicial selection commission does not apply to the governor or the chief justice after the judicial selection commission has submitted its lists of judicial nominees for consideration; it is within the sole discretion of appointing authorities whether to make public disclosure of the commission’s lists of judicial nominees.  75 H. 333, 861 P.2d 723.

  Section neither expressly mandates that lists containing the names of the judicial selection commission’s judicial nominees remain confidential nor that they be publicly disclosed.  Petitioner failed to meet burden of demonstrating beyond a reasonable doubt that rule 7 of the rules of the judicial selection commission was a plain, clear, manifest, and unmistakable violation of this section.  75 H. 333, 861 P.2d 723.

 

 

RETIREMENT; REMOVAL; DISCIPLINE

 

     Section 5.  The supreme court shall have the power to reprimand, discipline, suspend with or without salary, retire or remove from office any justice or judge for misconduct or disability, as provided by rules adopted by the supreme court.

     The supreme court shall create a commission on judicial discipline which shall have authority to investigate and conduct hearings concerning allegations of misconduct or disability and to make recommendations to the supreme court concerning reprimand, discipline, suspension, retirement or removal of any justice or judge. [Am Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978]

 

Rules of Court

 

  Misconduct, see Code of Judicial Conduct; judicial conduct commission, see RSC rule 8.

 

 

ADMINISTRATION

 

     Section 6.  The chief justice of the supreme court shall be the administrative head of the courts.  The chief justice may assign judges from one circuit court to another for temporary service.  With the approval of the supreme court, the chief justice shall appoint an administrative director to serve at the chief justice's pleasure. [Ren and am Const Con 1978 and election Nov 7, 1978]

 

Cross References

 

  Administrative director, see §601-3.

  Chief justice, see §601-2.

  Judicial council, see §601-4.

 

 

RULES

 

     Section 7.  The supreme court shall have power to promulgate rules and regulations in all civil and criminal cases for all courts relating to process, practice, procedure and appeals, which shall have the force and effect of law. [Ren Const Con 1978 and election Nov 7, 1978]

 

Rules of Court

 

  See Rules of the Supreme Court; Hawaii Rules of Professional Conduct; Code of Judicial Conduct; Hawaii Rules of Appellate Procedure; Rules of the Intermediate Court of Appeals; Hawaii Rules of Civil Procedure; Hawaii Rules of Penal Procedure; Rules of the Circuit Courts; Hawaii Arbitration Rules; Rules of the District Courts; District Court Rules of Civil Procedure; Rules of the Small Claims Division; Hawaii Family Court Rules; Rules of the Tax Appeal Court; Rules of the Land Court; Hawaii Civil Traffic Rules; Hawaii Probate Rules; Hawaii Rules for Certification of Spoken and Sign Language Interpreters; Rules Governing Court Reporting.

 

Attorney General Opinions

 

  This section does not vest exclusive rule making power in the supreme court so as to preclude legislative action on procedural matters.  Att. Gen. Op. 67-9.

 

Law Journals and Reviews

 

  Ke Kanawai Mamalahoe:  Equality in Our Splintered Profession.  33 UH L. Rev. 249 (2010).

 

Case Notes

 

  Procedural statutes in conflict with rules are ineffective.  48 H. 152, 159, 397 P.2d 593; 48 H. 290, 300, 401 P.2d 449.