Chief Of The Third Branch
Chief Justice of the Hawaii Supreme Court Mark Recktenwald just presented his fourth State of the Judiciary, in which he called for improved access to justice
The state Judiciary constitutes the third branch of Hawaii’s government. It employs approximately 1,900 people, 82 of whom are judges. Courts can be found on all the islands, from Kona to Lihue, and a couple of times a month on Lanai and Molokai.
The Judiciary may enjoy equal status with the executive and legislative branches, but like the governor and all of his department heads and deputies, its leader too must go dutifully to the Capitol to brag and beg for funds.
So Chief Justice of the Hawaii Supreme Court Mark Recktenwald crossed King Street last Wednesday to deliver his fourth State of the Judiciary (the third he’s done in person; in 2013, he spoke via the Internet.)
He began with the ritual recognition of dignitaries, a remembrance of departed Hawaii island Rep. Clift Tsuji, and thanks to both the Legislature and Gov. David Ige for their support.
Then came the oration. “(The Judiciary) plays a unique role in our democracy, by providing the forum where people can obtain a just and fair resolution to their problems when there is nowhere else to turn.
“It is our obligation and part of our unique mission to decide cases not based on who the parties are or whether the decision will be popular, but rather by impartially applying the law to facts of each case.
“In performing that mission of deciding cases, we affect and touch the lives of virtually everyone in our community. The broad range of matters that come to our courts for resolution include criminal prosecutions and disputes concerning family relationships and children, the environment, land use, civil rights, employment, personal injury, collective bargaining, and business relations, to name just a few. In resolving these disputes, we serve a critical role in our community.”
Orating almost over, Recktenwald then reached the place where he lives.
“If we expect the public to trust the judicial system, we must provide a level playing field in the courts. Nowhere is this need more acute than in our civil justice system, where thousands of people must represent themselves each year because they cannot afford a lawyer. Although there is a right to appointed counsel in criminal cases, there is, with only a few exceptions, no such right in civil cases.
“Yet some civil cases involve the most fundamental of human interests. Of the nearly 3,500 domestic violence survivors on Oahu each year who seek restraining orders, only 2 percent have an attorney. And of more than 5,000 divorce cases filed each year statewide, neither party had a lawyer in almost two-thirds, though many involve the critical issue of who gets custody of the children.
“Going into court is difficult even under the best of circumstances. Imagine how it feels for a 19-year-old domestic-violence survivor to stand alone before the court to confront the abuser and seek a restraining order.”
“Whenever Mark Recktenwald leaves the Supreme Court, the progress he’s made on access to justice will be his greatest legacy,” says retired Judge Daniel Foley, who served two years with Recktenwald on the Intermediate Court of Appeals. Central to that legacy are “self-help” centers in Lihue, Kona and Hilo, Honolulu District Court, and Family Court in Kapolei.
Some 250 volunteer lawyers at these centers provide self-litigants with advice.
“It’s really a national legacy,” Foley adds, “because Recktenwald has received national recognition for his leadership in promoting access to justice. Hawaii is now ranked No. 3 in the country in making access to justice a reality for all.”
Currently more than 15,000 have used the Judiciary’s self-help centers. Add to the centers online interactive workstations, courts in the community where Hawaii high school students have the opportunity to hear oral arguments in a real case, creation of the second environmental court in the nation, and a free Hawaii Courts Mobile App for users to access court records and pay traffic fines, among other things.
Politics brought Recktenwald to Hawaii. He came from a Republican family. His father Bill was a patent attorney, his mother Connie a high school English teacher. Although born in heavily Democratic Detroit, the Recktenwald family moved to the tiny Chicago suburb of Lake Forest, Illinois. He attended public schools there until his junior year, when he transferred to Deerfield Academy in Massachusetts, one of the most prestigious boarding schools in the country.
Thence to Harvard, where he remembers as a sophomore being transfixed listening presidential candidate Jimmy Carter speaking to a small group of undergraduates. Graduating with honors in 1978, Recktenwald headed for Washington, D.C., where he spent four months working for the government accounting office on a proposed national health insurance program.
As part of the merry-go-round of young Washington staffers, Recktenwald moved to the Senate Permanent Investigative Committee on Consumer and Dangerous Products.
“It was interesting work,” says Recktenwald. “It included energy issues at the moment of the Three Mile Island nuclear accident. I came to admire the staff lawyers and reporters covering the committees.”
It was interesting enough that Recktenwald shelved any thoughts of archeology, as 1980 was a presidential election year, and the young man from Chicago found himself in the national headquarters of John Anderson for President. Campaign officials hired him as an advance man.
Anderson was an unknown Republican congressman from Rockford, Illinois, the moderate Republican alternative to the heavily favored candidacy of former California Gov. Ronald Reagan.
“Anderson’s press conferences always were poorly attended,” says Recktenwald, “but then he ran a strong second in the Massachusetts primary election. The next stop was Kansas City, and the national press corps was all over his events.”
The Anderson boom didn’t last.
Reagan won the Republican nomination. But Anderson and his supporters were sufficiently heartened to run an independent candidacy. In the waning days of the campaign, Recktenwald was sent to Hawaii to advance a visit to Honolulu by Anderson’s vice-presidential running mate, Wisconsin Gov. Patrick Lucey.
Reagan beat Carter in the general election; the Independent Anderson-Lucey ticket lost badly, garnering just 6 percent of the popular vote.
Recktenwald did better. When he deplaned in Honolulu on Lucey’s behalf, he saw a short, winsome young woman wearing an Anderson for President button. She’d been sent to the airport to fetch him. Her name was Gailynn Mahoe Williamson, a philosophy professor at Leeward Community College.
“I had no picture of him. I was expecting a stodgy-looking old guy with a cigar in his mouth, the kind they smoke in smoke-filled rooms,” Williamson recalls. “He saw the button, introduced himself, and I dragged him off to our campaign headquarters.”
Says Recktenwald, “She was the most beautiful woman I’d ever met.”
The relationship took a while. Williamson was married and the mother of a son. Recktenwald didn’t know where he would light after the general election. A while would turn out to be five years. They were married in 1985.
With the end of Anderson’s quixotic presidential campaign, Recktenwald found him himself out of a job and pondering his future.
“I took a month off,” he says. “Hawaii had seemed like a nice place, so I thought I’d spend the time there. I enjoyed it: the place, the people, everything. So I looked around for something to do.”
In 1980, Hawaii legislative politics were in turmoil. A faction of Democrats found forging a coalition with the Republican minority more palatable than with their fellow Senate Democrats. “That opened up staff jobs,” says Recktenwald.
He found one with Manoa’s Republican state Sen. Ann Kobayashi. “That was it,” he says, “I fell in love with Hawaii and never looked back.”
At the end of the 1981 legislative session, Recktenwald took a job with the Honolulu office of United Press International. He found the daily grind of wire service journalism hard work and uninspiring. After two years of it, he opted to return to his hometown and study law at University of Chicago Law School.
UCLS was a hospitable place for Hawaii students. Two of its graduates, Patsy Mink and Ed Nakamura, took their UC law degrees back home to distinguished careers in public service. Mink became a member of Congress and one of the principal architects of Title IX, the ground-breaking legislation that banned discrimination on the basis of sex to any institution that received federal funds.
Nakamura served a decade as an associate justice on the Hawaii Supreme Court. “Their presence spoke of University of Chicago’s efforts to gather a diverse student body,” says Recktenwald.
The future Hawaii chief justice excelled at Chicago Law. He graduated with honors in the top 10 percent of his class, made Law Review, and published an article in law school’s journal.
In 1986 the newly minted lawyer returned to Hawaii to clerk for a year with Chief U.S. Judge Harold M. Fong — thence to private practice with the blue-ribbon Honolulu firm of Goodsill Anderson Quinn and Stifel.
It was a short stay.
In 1991, Recktenwald began a six-year stint as an assistant U.S. attorney. Then it was back to private practice with as a partner in the private firm of Marr Jones and Pang. His tenure there proved even shorter than at Goodsill.
How good a lawyer was he? “My strength was writing. I wasn’t the smoothest, most-polished courtroom lawyer, but I was sincere and straightforward in my explanations.
“I loved the firm, but I missed public service, and was offered an opportunity to go back to the U.S. Attorney’s office.”
Did he miss the money? “It was never about the money,” says Recktenwald.
Opportunity knocked again four years later. Former Maui Mayor and Hawaii Republican Party chairwoman Linda Lingle became the first female governor of the state of Hawaii and only the second Republican to hold the office.
The Republican Recktenwald supported Lingle’s candidacy. When Governor-elect Lingle put out a call for people to apply for her cabinet, Recktenwald submitted his resume: “I thought it would be exciting to work in a leadership position in state government.”
Lingle appointed him director of the state Department of Commerce and Consumer Affairs. With 370 employees and annual budget of $35 million, Recktenwald could add four years of management experience to his vita.
During his time at DCCA, he developed a deep vein of respect for his boss.
“Gov. Lingle proved brilliant and incredibly well-prepared,” he says. “She’s not a lawyer, but she asks very, very good questions.”
In 2007 Jim Burns, Chief Judge of the Intermediate Court of Appeals, celebrated his 70th birthday, thus mandating retirement from the ICA. Lingle appointed Recktenwald to fill the slot.
Burns had been a popular CJ, and many legislative Democrats had talked of changing the mandatory retirement age for judges in order to keep Burns in his job. The sentiment never made it beyond sentiment, and Recktenwald took the seat.
In the transition, Burns became one of Recktenwald’s mentors.
“I had applied for the job, but it was a big leap. Judge Burns could have turned his back on me, but he didn’t. He was gracious and supportive.” Recktenwald also found in Burns an admirable model of judicial leadership: “He was always practical, pragmatic and disciplined.”
Just two years later, Lingle turned to Recktenwald yet again: this time to fill seat on the state Supreme Court left vacant with the retirement of Associate Justice Steven Levin-son. Recktenwald hardly had settled in to his new job when Hawaii Supreme Court Chief Justice Ronald Moon also made 70. Recktenwald applied for the CJ job.
The Judicial Selection Commission winnowed through applicants’ names and sent a list of six to Gov. Lingle. Recktenwald, to this point Lingle’s go-to guy for judicial appointments, made the cut. But so did Katherine Leonard, a respected private attorney. If chosen, she would become two firsts: the first graduate of University of Hawaii’s Richardson Law School to become chief justice and the first woman to fill the post.
Lingle decided to make some history. Before announcing Leonard’s appointment, she called Recktenwald to inform him that this time he’d be passed over.
The Hawaii Bar Association did not concur with the Republican governor.
“In finding her unqualified for the job, they cited her lack of relevant experience,” says Ken Kobayashi, longtime court reporter for Honolulu Advertiser. “And Senate Democrats found her too conservative.” By a 14-8 vote, the Senate rejected Leonard.
Under law, Lingle had to select someone else from the list sent forward by the JCA. If appointing a woman was among her aim, the list stopped her. Only men were left. So, for the fourth time in seven years, Lingle named Recktenwald to high position: Chief Justice of the Hawaii Supreme Court.
“In Leonard’s case, many Democrats feared she would roll back the liberal and Hawaiian direction charted by Chief Justice Richardson and followed by his successors,” says Kobayashi. “But Recktenwald had no intention of rolling anything back.”
And he made that clear during his fourth journey through the rigors of legislative committee hearings and the stress of Senate votes.
On Sept. 14, 2010, Mark Recktenwald was sworn in as the fifth Chief Justice of the state Supreme Court.
He’s the second carrying Republican credentials. Hawaii’s first state governor, William Quinn, appointed Wilfred Tsukiyama to the post. Seven years later, Gov. John A. Burns turned to his lieutenant governor, William S. Richardson, for whom a law school has been named and statues cast. Mandatory retirement took Richardson off the bench; Gov. George Ariyoshi chose Herman T.F. Lum to succeed Richardson. Lum’s court proved far less activist than his predecessor’s.
Gov. John Waihee elevated Associate Justice Ronald Moon to the JC’s position.
Recktenwald inherited a court made up exclusively of Democratic appointees, among them Jim Duffy and Simeon Acoba. The latter made his mark as one of the most liberal justices since statehood. And Duffy provided the new Chief Justice with a second role model: “Like Burns, he was pragmatic. And he always saw and understood both sides of an argument before he came to a decision.”
Duffy and Recktenwald constitute a mutual-admiration society. Says Duffy: “Mark Recktenwald is among the most open, transparent people I’ve ever known. And he’s a very humble man. He attended big-time schools, but he’d never talked about them. He’s patient to a fault; he allows everyone their say, not just fellow judges, but staff as well.
“And he’s innovative. Look at all the courts he’s established. The Judiciary’s changed a lot over the last 40 years; it’s not just about adjudicating cases. Chief Justice Recktenwald’s not afraid to change with it.”
Few get to know a judge as intimately as his or her law clerks. Troy Andrade clerked with Recktenwald for two years, 2011 to 2013. Now a law professor at Richardson School of Law, Andrade characterizes Recktenwald as “a brilliant legal mind, a great mentor and a good friend. He works long hours, but he remembers everyone.
“When we had our first child, the CJ brought the whole staff to the hospital room to see the baby. For our second, he organized a baby shower for my wife. And he always had my back. When I indicated an interest in becoming a law professor, he pushed me and helped me with my writing. He’s a really great guy.”
Joshua Michaels concurs. He clerked with Recktenwald in 2015-2016. “He was an awesome boss, the nicest I’ve ever had. He expected a lot from his clerks, but his own workload was the biggest by far. We loved him, but we were often exhausted.
“He always reminded us that for an opinion to have the CJ’s signature on it, it had to be perfect before it goes on to the other justices. He wanted it to be right on the law rather than on any ideological position.
“And I suppose what I appreciated most was that he sees the institutional flaws in the judicial system, thus his emphasis on expanding access to justice. He’s a decent, dedicated, conscientious guy.”
Colleagues tend to gush about Chief Justice Mark Recktenwald: about his work ethic, his humility, his willingness to give generously of his time and — most of all — his commitment to expanding access to justice. Critics are hard to find.
But there are those with reservations. Bills have been introduced in the Legislature the past two sessions to reduce the judicial pensions and to give the Senate the power to advise and consent in the reappointment of judges.
Others note with a skeptical eye on the Supreme Court’s large number of 3-2 votes: Associate Justices Sabrina McKenna, Richard Pollock and Michael Wilson, all appointed by former Gov. Neil Abercrombie, the majority of three; Associate Justice Paula Nakayama, appointed by Gov. John Waihee, and Chief Justice Recktenwald the minority of two.
Recktenwald denies any strong antipathies, ideological or personal, on his court.
“I respect all of my colleagues,” he says. “I love working with all of them.”
He cites a comment by U.S. Supreme Court Justice Sonia Sotomayor: “We had lunch with her during her visit to Hawaii. She said that we were the most collegial court she’d ever encountered. We disagree, but we always respect one another.”
Recktenwald reaches into his inside jacket pocket and pulls out a crumpled picture of himself being sworn in. He beams. He’s surrounded by Gailynn, stepson Trevor, son Andrew, a practicing lawyer, and daughter Sara, a law student.
Call him a happy man. Loves his work, loves his wife and has two children in the family business.