The State of Aloha

It’s not every day when Article Six of our Hawaii Constitution makes it into the newspaper. The material is hardly riveting. But this week, the Judicial Selection Commission announced its list of six nominees in anticipation of the retirement of one of the most prolific and well-known justices on our state Supreme Court. It’s a strong list.

The candidates include three trial judges, the state’s head public defender, the chief judge of the Intermediate Court of Appeals, and a veteran trial lawyer. One of these candidates will join the Supreme Court once Associate Justice Simeon R. Acoba Jr. retires after his 70th birthday in March.

Every aspect of this story – from Justice Acoba’s retirement to the list of six – comes from the carefully organized procedure outlined in our state constitution.

First, there’s Justice Acoba’s retirement. All state judges have to step down and retire when they reach the age of 70. It does not matter if they are still interested in the job or not. It’s required.

Critics of this provision have argued that this provision is discriminatory. Age is just a number, they say. There is no real reason to require them to retire just because they reach a certain age. A few years ago, there was an attempt to amend the constitution to eliminate this mandate. Many speculated that it had a lot to do with the fact that both the chief judge of the Intermediate Court of Appeals and of the Hawaii Supreme Court were about to hit that crucial birthday. The attempts to amend the constitution failed and the provision remained in effect.

So once a judge or justice steps down, what happens next? How do we fill the vacancy? Enter the Judicial Selection Commission.

The commission was written into our constitution in 1978. It’s composed of nine members selected by various government agencies. The Senate president and the speaker of the House pick two each, the chief justice of the Supreme Court picks one, the Hawaii State Bar Association selects two members, and the governor gets to pick two. Only two commissioners can be lawyers.

The commission announces a call for applicants to fill an anticipated vacancy. The applicants apply in secret and they are reviewed in secret. The commission quietly investigates each applicant through interviews and other means. Once the applications and investigations are done, the commission narrows it down to a list of no more than six nominees.

The commission changed the old way judges were selected: through direct appointment by the governor. The establishment of the JSC was supposed to make the process more open by curbing the patronage power of the chief executive of the state.

But there has been criticism of this commission. The late Judge Samuel King often argued that the JSC hid from the public an inherent political process. The applications, the investigations and the formation of a list are all done in secret.

This is exactly what the commission was supposed to curb. University of Hawaii law professor Randall Roth has also criticized the commission. When he and others investigated and wrote their now-famous expose on the Bishop Estate Trust and its collusion with the Hawaii Supreme Court in the 1990s, professor Roth found circumstantial evidence that linked the selection of Supreme Court justices with its role in appointing trustees to the Bishop Estate. Those days are long gone.

It seems like the appointment of justices and judges has been a relatively smooth process. But not quite.

Sometimes things go awry. When the JSC issues its list, the governor has only 30 days to decide. Second Circuit Judge Peter Cahill learned this the hard way. Gov. Neil Abercrombie selected him two days after the deadline. His appointment had no legal effect.

The constitution states that if the governor fails to appoint within 30 days, the commission itself makes the appointment. In Judge Cahill’s case, the JSC took the hint and picked him.

From there, it’s on to the state Senate. The Senate can reject the nominee. It’s happened. Former Gov. Linda Lingle’s first choice as chief justice of the Supreme Court was Katherine G. Leonard, a member of the lower appellate court. The Senate rejected Judge Leonard, much to the chagrin of the governor. It was the second such rejection in recent history: The Senate rejected Gov. John Waihee’s selection of Sharon Himeno 19 years ago.

Pursuant to the constitution, Gov. Lingle went back to the list of six and appointed our current chief justice, Mark Recktenwald, whose leadership has been praised by just about everyone.

And so it begins again. The list of six that came out this week is the first step toward appointing a new member to our highest court. No matter what happens on the way to filling a vacancy, be certain that our constitution will guide us.

* Ben Lowenthal is a trial and appellate lawyer who grew up on Maui. His email is “The State of Aloha” alternates Fridays with Ilima Loomis’ “Neighbors.”

The State of Aloha

Part of growing up in Hawaii is learning about invasive species. My elementary school classes always had a lesson about the dangers associated with releasing goldfish into local streams and ponds. We learned about the mongoose and how it wreaked havoc on birds here.

But the latest invasive animal has got me really scared. I saw “Invasion” this week. No, it’s not a late-night sci-fi movie or cable television show. It’s a 30-minute short produced by the Maui Invasive Species Committee and is an attempt to raise awareness about the latest threat to our islands.

It’s scarier than any sci-fi movie, and it features real monsters. The creature, however, isn’t a big lizard or scaly monster from the deep. It’s an extremely small pest.

Beware of the little fire ant, folks. The ant itself is miniscule; just 1/16th of an inch – that’s about the width of a penny. Don’t be fooled though. This bug has wreaked havoc in just about every ecosystem it’s ever come across.

The little red fire ant is a real big problem. These bugs bite. Their victims suffer from a very painful burning all over the skin. Folks describe it as a burning like fire all over their body. The bites are extremely itchy and leave red welts resembling a rash or poison ivy. It takes days for the itching, sores and redness to stop.

They’re also really hard to eradicate. The ants form huge colonies with multiple queens. That means it’s tough to figure out when they’ve truly been rooted out. The ants have spread all over the Pacific. They swarm plants and trees but are poor climbers.

An unwary animal or hiker who bumps into a tree or the unfortunate person standing beneath an infested branch moving in the breeze may soon come under a shower of aggressive, stinging ants that are nearly microscopic.

Agricultural workers and farmers are scared. The ants have a foothold on the Big Island and are popping up in ferns, orchids and fruit trees. They came onboard a shipment of palms in 1999 and have never left. Now they have started to spread to Kauai, Oahu and over in Waihee.

The tourist industry is nervous too. Those who live with the ants are covered in thick clothing from head to toe. Nobody wants their vacation on the beach ruined by swarming fire ants.

They’ve taken over islands all over the Pacific. Islands in Tahiti are completely infested. Biologists have noticed that in places with a large ant population, other animals suffer. Many believe that once bitten by the fire ants, indigenous animals as well as pet dogs and cats will scratch themselves to the point of infection and even blindness.

The ants go with commercial goods. Palms, plants and flowers are the prime distributors of the ants. Places like California are getting hip to our little fire ant problem and have started to crack down on our orchid and exotic flower exports. Interisland shipping is also at risk.

They can easily hitch a ride with a newly potted plant from the hardware store. In fact, last week this paper reported little fire ants infesting Hawaiian ferns sold at Lowe’s and Home Depot.

The bad press and frightening possibilities that come with these ants have prompted the Legislature to consider bills that would fund inspectors and help build up defenses to head off an infestation.

The state Department of Agriculture is urging all of us to check our houseplants and yards. They say that the ant loves sweets – and peanut butter. To see if you have the little fire ant, set up a stick with some peanut butter near the suspected plant. In a few days, ants will swarm the stick. Then officials want us to put these sticks in the freezer and send them off to the Department of Agriculture for a positive identification that you’ve got little fire ants and not just, well, little ants. (You can call this hot line for more information: 643-PEST (7378) or visit

There are ways to get rid of them. Like any other kind of ant, they are not immune to poison, ant baits and barriers. But by that point, going outside may be a challenge. Don’t forget to call the authorities about these invaders if you think they’ve come to your neighborhood.

Given all the destruction and problems they’ve caused, this pest needs a better, scarier name. Nobody can get too worked up about an ant – let alone a “little ant.” (It’s almost redundant.). A little fire ant sounds like a toy or the title to a children’s book.

This pest needs something more fearful and ominous sounding. How about “the red menace?” Maybe “fire bugs?” Perhaps Cuba has a much more appropriate appellation for them: Satanica.

* Ben Lowenthal is a trial and appellate lawyer who grew up on Maui. His email is “The State of Aloha” alternates Fridays with Ilima Loomis’ “Neighbors.”

The State of Aloha

What image comes to mind when you picture a tourist? Sunburned Mainlanders driving too slowly in bright-colored convertibles? Maybe visitors from Asia snapping photos? It’s no accident that these are the first things that come to mind.

The first concerted efforts to attract tourists started just a few years after the islands became a territory. A group of local businesses pooled some funds together to hire a promoter to head to the Mainland. The promoter traveled for six months conducting lectures about Hawaii and had a slideshow depicting the scenery and people of the islands.

This group eventually formed the Hawaii Promotion Committee and started seeking funds from a variety of sources. The committee was headed by the infamous Lorrin Thurston – an ultraconservative kamaaina who was pivotal in the overthrow of the monarchy. In 1902, the territorial government gave $15,000 to the committee to advertise the islands in far-off places like California.

The government has had a hand in attracting visitors ever since. During the territorial days, most of the advertising was focused on bringing in Mainlanders. Tourists on their way to the West Coast would go a little farther west aboard a luxury liner. And you didn’t need a great volume of visitors either. If you could afford to board a luxury liner and stay at a hotel for months on end, you probably spent a great deal of money everywhere you went.

The Hawaii Promotion Committee evolved into the Hawaii Visitors and Convention Bureau, which now works alongside the state’s own agency, the Hawaii Tourism Authority. These organizations are constantly on the lookout for new places to bring in big-spending tourists.

They turned their focus to Asia sometime in the late 1970s. Since then, the Japanese tourist has become part of Waikiki’s landscape. It was no secret that our economy is inextricably linked to the strength of the spending habits of Asian vacationers.

The tourism industry is constantly on the lookout for lucrative places to attract visitors. The state regularly sends hula dancers and representatives to places like Australia, China and South Korea. Governors and mayors visit cities to personally promote our state.

By the 1990s, the backlash toward the tourism industry was everywhere. Critics time and time again lamented that Hawaii’s brand of tourism fostered low-skill jobs for the local population while executives and managers were shipped in from elsewhere. The industry turned the islands into a playground for the rich while the residents struggled in low-wage jobs just to stay above water.

The criticism stemmed from the kind of tourist we’ve cultivated for more than a century, which is only one kind of visitor. The industry and the government have always been focused on the big spender or the passive tourist that sips cocktails by a hotel pool.

There are other kinds of visitors out there. Hawaii manages to attract backpackers, sports enthusiasts and the nature lovers who either don’t have the money or desire to stay at a spa or lounge at a resort. The question is whether the industry does anything to cultivate these kinds of visitors.

When I was growing up, I remember meeting folks from all over the world at places like Kanaha Beach Park. They came from Italy, Argentina and Brazil for the waves and the windsurfing. Their money went more toward small businesses, grocery stores and smaller restaurants instead of big hotels, fancy eateries and tourist traps. They weren’t staying at resorts on the south or west sides of the island. Many even planted roots here and stopped becoming tourists altogether and have become part of our community.

It always struck me as odd that these visitors were ignored. It did not seem like the visitor industry or the government did anything to attract or promote windsurfers in the 1980s and ’90s. The attraction to the best beaches in the world came from the surf magazines and surf companies themselves.

Nowadays, cyclists come from all over the world to ride on our highways and enjoy the scenery from a bicycle seat rather than an air-conditioned bus. There are campers who would much rather stay in cabins than a hotel suite. They stay in hostels, small rental units or even local farms.

These visitors would rather see funds go toward improving roads, beach parks and places that residents enjoy too. Surely the locally owned bike shops and surf stores wouldn’t mind the kind of support that hotels and airline industries have enjoyed for more than a century.

And yet, it seems like nobody is all that interested in attracting these kinds of visitors in the same way we aggressively go after the more traditional visitor. Perhaps it’s time to change that and rethink what it means to be a tourist.

* Ben Lowenthal is a trial and appellate lawyer who grew up on Maui. His email is “The State of Aloha” alternates Fridays with Ilima Loomis’ “Neighbors.”