Thou Shalt Judge
U.S. District Court Chief Judge David Alan Ezra has ruled upon some of the most important cases in modern Hawaiian history

Chad Blair

November 15, 2000

Over the past few years, landmark rulings have been issued from the U.S. District Court in Hawai‘i on matters ranging from the Felix Consent Decree to Rice vs. Cayetano, from the 1996 Constitutional Convention vote to longline fishing, from monitoring of the Hawai‘i State Hospital to the growing of hemp. The rule maker at the center of it all is David Alan Ezra, 53, Chief Judge for the U.S. District Court in Hawai‘i, who has been quietly but firmly — some might say radically — interpreting federal law as it applies to Hawai‘i. Through his bold rulings, Ezra has changed the legal landscape of Hawai‘i.
     Ezra’s initial ruling on the longline fishing industry, effective this past summer, closed 6.5 million square miles of ocean located some 500 miles north of Hawai‘i to all but a relative few longliner outings. Ezra earlier had ordered that trained federal observers be on all longline boats to monitor sea turtles that get trapped in longline gear.
     The rulings attracted major media attention, including vocal protests from fishermen, grocery stores and restaurants who charged that, because of Ezra’s restrictions, low yields would lead to high costs, which in turn would force consumers to drop sashimi in favor of cheese and crackers. That hasn’t happened, but the power of Ezra’s decisions has not been lost on the public.
     "Judge Ezra and Earthjustice Legal Defense seem intent on destroying the Hawaiian fishing industry," fisherman Jeff Mareck wrote in an unpublished letter to Honolulu Weekly. "A large number of us sat in Judge Ezra’s courtroom and listened to him tell us we ... brought this upon ourselves because we are nonthinking, noncaring destroyers of the ocean. Well, his decision was poorly thought out and based on inaccurate information."
     "I think the judge did the job he thought was correct, but I disagreed with some parts of his decision," contends Jim Cook, president of Pacific Ocean Producers, the largest company in Honolulu supplying vessels for fishing. "I thought it was a mistake to shut down the whole industry, for example, because fishing for swordfish catches 10 times more turtles compared with fishing for tuna."
     In August, hearing arguments like Cook’s, Ezra modified his ruling to open new areas to tuna fishers but to limit swordfishing to two restricted areas, and for a shorter period of time than previously allowed. While that move was appreciated by fishermen, Cook notes that he has seen a significant impact on the Honolulu longline business since Ezra’s court action.
     "We already had 32 large vessels move to California out of about 120," he says. "They moved on to an area where they could legally fish." Cook adds that out of the annual $50 to $60 million dollars in vessel revenue — that is, the money paid to boats for their catch — there may be a drop as much as $18 million dollars.
     Environmentalists, of course, have more than monetary concerns in mind, and they praise Ezra for upholding the rule of law in critical issues that affect our islands.
     "Judge Ezra is an example of why we need a strong federal judiciary in Hawai‘i," argues Paul Achitoff, managing attorney for the Hawai‘i office of Earthjustice, the environmental watchdog group directly involved with a lawsuit that led to Ezra’s longline rulings. "Because Hawai‘i is a small community, it is very important that we can have someone to go to who is not concerned about local politics, or who the litigants are, when applying the law. Ezra’s court is a haven for the controversial litigant."
     Honolulu attorney Jeff Portnoy agrees. "Ezra doesn’t shy away from controversy. In fact, he takes on the most controversial cases, and every time you do that, one section of the community is happy, but another section is upset.
     Portnoy should know: He was appointed by Ezra as special master in the Felix case some seven years ago. The Felix consent decree orders Hawai‘i’s schools to be in compliance with federal requirements for disabled children.
     Judge Ezra is indeed a controversial man, but he is also one of the most influential people in Hawai‘i. In two interviews in September and October, Honolulu Weekly set out to discover what makes this man tick.
    
Court of Order
     The Federal Building is a tightly guarded facility. Although the Federal Marshalls are polite, they spend inordinate time screening the items that go through the building’s X-ray machine. They confiscate a reporter’s tape recorder, explaining that no recording devices are allowed upstairs.
     Exiting the elevator on the fourth floor, another security guard defends the doors to the four separate courtrooms of the District Court. Ezra presides over an eight-member court, which in addition to Ezra consists of jurists Helen Gillmor, Susan Oki Mollway, Samuel P. King and Alan C. Kay (Ezra replaced Kay as chief justice in December 1998), along with magistrates Francis Yamashita, Leslie Kobayashi and Barry Kurren.
     District Courts are courts of original jurisdiction where cases concerning federal matters — such as antitrust suits brought by the federal government or commercial and contractual disputes between citizens or businesses — are heard. Some cases are criminal, including bank robberies, interstate drug-trafficking and kidnapping.
     According to some observers, it is not inconceivable that Ezra, who calls himself a political moderate — he was appointed to the federal bench by President Ronald Reagan, yet has a framed photo in his office of himself greeting Hillary Clinton at the White House — might one day find his way to the next stop on our judicial ladder, the 9th Circuit Court of Appeals, which comprises most western states and Guam; from there it’s just a presidential tap onto the U.S. Supreme Court.
     Despite his boosters, Ezra says he expects to be working in the District Court 10 years from now. Though he has five years remaining as chief judge, all federal judges have lifetime appointments.
     Ezra is well-connected with the local legal community and in national circles as well. He was a law partner with John Moon, cousin of Chief Justice of the Hawai‘i Supreme Court Ronald Moon; and he counts among his friends several U.S. Supreme Court justices. Ezra downplays concerns that the next U.S. president will reshape that court, saying he doesn’t see any vacancies in the near future. "They are physically fit," he says of the justices. "None are mentally weak."
     Ezra’s in pretty good shape himself. In his official court photograph, the one reprinted countless times in our daily newspapers and on local television, Ezra appears confident, almost serene, his head tilted slightly upward toward the camera lens. In person, on the bench, he often wears reading glasses. As he listens to testimony or arguments from the bench, his chin rests in his left hand, elbow on desktop, his mustache twitching, eyebrows furrowed in concentration. Judge Ezra takes his job very seriously.
     "I was a strong supporter when he applied to become a federal judge," says attorney Portnoy, who passed the Hawai‘i bar along with Ezra in 1972. "I think he brings a lot of very important attributes to the bench. He’s very bright, very organized; he let’s people know exactly what he believes. He doesn’t obfuscate — you know where you stand in your cases with Judge Ezra."
     Portnoy observes that it is rare for a judge to take the time in court to make sure litigants and spectators alike understand the proceedings. "He’s very media-friendly," Portnoy says. "Most judges just talk to lawyers, but not him. He has an understanding of the courts’ mystique among the public, so he goes out of his way to explain things."
     That patience is no doubt influenced by Ezra’s respect for the media. "I absolutely believe in the First Amendment," he says. "Often, I notice that many reporters better understand the issues than some lawyers."
     What Ezra doesn’t care for much are unprepared lawyers, or ones who try to stretch their cases. "He will listen," Portnoy says. "He won’t cut people off. But he is not a fan of lawyers that he thinks are, in my view, trying to pull the wool over his eyes."
     But Ezra is also flexible. "Even with the longliners, he was willing to take a second look after his initial decision and to modify it," Portnoy states. "Good judges do this."
    
Throwing the Book
     The day this reporter observed the judge in court, Ezra’s impatience with ill-prepared lawyers was evident. Ezra was sentencing a bank robber who had violated the conditions of his supervised release by smoking crystal methamphetamine. The defendant’s attorney pleaded with Ezra to grant "downward departure" — a reduced penalty due to extraordinary circumstances, which would lead to the defendant returning to a supervised release. The defendant, a husband and father of four, claimed to be a "transformed man"; since robbing the bank he has held a steady job, and kicked his habit. He sincerely believes that what he did was wrong. He says he will never break the law again.
     "I’m really sorry for what I done in the past," the defendant says to Ezra in thick Pidgin. "But I feel in my heart that I learned. I believe in fate. I thank my family, my boss, everybody."
     Listening, Ezra brushes his mustache with his left hand while he takes notes. He shows irritation when the defense attorney speaks; he shuffles papers while he listens to arguments he has already heard. He wants facts. The defendant’s drug rehabilitation is not extraordinary and thus has no merit on downward departure, he points out. The defendant, who has had drug problems dating back to 1996, had a relapse.
     "I screwed up that one time; I just wanted to run away from everything," responds the defendant, who has used "ice" for 10 years, since the age of 14. "I was concentrating on my pipe, not my wife, my kids. But I got one good relationship with my wife and kids now. I’m sorry, but I cannot take ’em back already."
     Ezra is not persuaded. For one thing, he argues, there remains the question as to who drove the getaway car during the defendant’s bank heist; the evidence suggests it was the defendant’s spouse. Additionally, the defendant’s crime was traumatic to the bank employees and a danger to the police who arrested the defendant, who, though unarmed, eluded capture until he was turned in. The defendant’s personal background is not a "happy" one, either — it contains previous criminal activity, including domestic violence — and thus does not bode well for a crime-free future.
     "This is not a small-time misdemeanor," says Ezra. "This is a serious felony under federal law."
     The defense attorney is not pleased with the direction his case is taking, and he attempts to speak up. But Ezra shuts him down. "These circumstances are not different than what are seen in other cases here," Ezra continues. "The defendant failed a drug test during a supervised released. The court should not send the wrong signal. While the defendant has made some strides, there will be no downward departure."
     It’s over. The defendant is sentenced to three years in prison and is ordered to submit to a drug-abuse program once he is released as well as three years of supervision. He must pay restitution to the bank. He has the right to appeal. Tears flow, sniffles fill the air, family and friends hug each other in grief. Judge Ezra returns to his chambers.
     "He’s not afraid to make tough decisions or bring the authority of the federal court to bear when appropriate," says the U.S. Attorney for the District of Hawai‘i, Steve Alm, who contends that Ezra vigorously supports local authorities in the enforcement of drug statutes.
     Alm points to the local "weed and seed" operations in Kalihi and Waipahu as examples of Ezra’s interest in enforcing the law locally. Of 150 recent arrests for selling drugs within 1,000 feet of a school, playground or public-housing project — it’s a federal crime that carries a mandatory one-year prison term — some 80 cases have successfully been argued, many in Ezra’s court.
     "As chief judge, Ezra understands why it’s important to do these kinds of cases, to support this kind of effort," says Alm. "He has made very strong statements from the bench. In one occasion, he sent a person back to federal prison for coming back onto the weed- and-seed site and testing positive for crack cocaine. Ezra sentenced her to two additional years when she broke her supervised release."
     Alm believes Ezra is widely admired in the legal community.
     "He runs a no-nonsense courtroom," he explains. "We don’t agree with him on all rulings, but we know where he stands. He’s a tough judge, very direct, and we can respect this."
    
You Be the Judge
     Though born in Columbus, Ohio, Ezra grew up in Hawai‘i and graduated in 1965 from St. Louis High School. He attended Chaminade College and, briefly, UH-Mänoa, later receiving a bachelor’s in business administration magna cum laude from St. Mary’s University in Texas. He later graduated from St. Mary’s law school with high honors, and then joined the Army.
     Ezra’s court chambers are decorated with military memorabilia — WWII-era planes and ships, photos of soldiers, depictions of American eagles. "Freedom does not come cheaply," he intones. "It’s earned."
     Ezra’s father, Jack, was a business man who served in World War II. He was wounded during the Battle of the Bulge and for the rest of his life had to wrap his left leg in bandages and occasionally use crutches. "Having seen what my father went through, I have an understanding of what disabled people go through," he says.
     "He never complained," says Ezra of his father, who passed away in 1992. "He was never bitter."
     After finishing his own active duty, Ezra returned to Hawai‘i and joined the law firm of Anthony, Hoddick, Reinwald & O’Connor. By 1976 he had become a partner and focused on construction litigation. Then, in the early 1980s, he ran his own firm, Ezra, O’Connor, Moon & Tam, where he did financial-services litigation.
     "I always wanted to be a lawyer," he says today. "I have always been impressed by the profession. Most of the people that I work with are terrific. Like me, I think they see a chance to really help people."
     In 1988, Ezra was appointed to the U.S. District Court, becoming the youngest federal judge in Hawai‘i history. Ezra today often travels to the Mainland to deal with complex litigation, at the behest of the 9th Circuit Court and the U.S. Supreme Court, which is separate from his Hawai‘i duties.
     But Hawai‘i holds a warm spot for Ezra. He serves as an adjunct professor at the UH law school, and he is a trustee of his alma mater, St. Louis. A large landscape painting of the northern reaches of the Wai‘anae Range and Ka‘ena Point hangs behind his desk, while his computer screen-saver is decorated with palm trees.
     "Hawai‘i is a unique community that has very special legal issues," Ezra explains. "Land issues are very big —I’ve ruled on a few — as are sovereignty issues."
     Ezra is married with three grown daughters, but he declines to share much information about them. As a private citizen — "I go to the store, I go to ball games, just like everybody else" — he cherishes his privacy.
     Ezra also displays a certain modesty. "I can be short with people sometimes," he admits with a smile. "I have bad days — I’m sure my clerks could tell you that. I’m much less than perfect."
     Ezra acknowledges the criticism he has received, especially in light of the longline rulings. He believes that negative remarks invariably come from people who don’t fully understand the issues, and so he takes the name-calling in stride.
     "It happens to all of us," he says. "You have to learn to not pay attention."
     What Ezra pays most attention to is the law. At one point during the course of an interview, when asked about past court cases he has ruled on, his eyes light up and he moves forward in his chair to discuss the minutiae of his rulings.
     As much as he loves the law, Ezra does not believe that his rulings are examples of judicial activism.
     "Just the opposite," he protests. "I try to get out of the way. I don’t believe that a judge should do legislation — that’s up to the electorate. I acknowledge that I have a reputation of taking on tough cases, but that’s not judicial activism. Some accuse me of that, but they are usually people who are not happy with my decisions."
     Ezra says he’s not a strict interpreter of the Constitution, either, though he greatly respects Supreme Court Judge Antonin Scalia, a strict Constitutionalist.
     "What does concern me is when people misrepresent the judicial system," says Ezra. "I think that people should understand that judges can only react to the cases that are brought before them, and that they must operate within the context of that case. ... We can’t just go out and make new laws."
     This leads to a personal frustration for Ezra.
     "Ironically, judges must often suppress their own freedoms of speech on certain legal issues so as not to jeopardize a case. But the public has a right to expect a federal judge to be above the fray. It’s like being in the eye of a hurricane — you must stay calm and keep your own, personal opinions in check."
    

The Book of Ezra
Judge David Ezra has ruled on a wide range of issues, ranging from the profound to the mundane:

September 2000
     Former Honolulu developer Sukamto Sia is arrested at Restaurant Row after violating terms of his bail in a bankruptcy trial just a day after he had been released following a dressing-down from Ezra. "I have no intention of dilly-dallying around," Ezra says at the time, although he later allows the financier to stay confined to a luxury condo.

June 2000
     Ezra rules that Kaka‘ako Chevron gas station dealer Frank Young cannot have his lease and company contract terminated by Chevron, simply because Young has been an outspoken critic of Chevron, which had sued Young.

May 2000
     Ezra finds the state of Hawai‘i in contempt for not substantially improving special-education services as determined in the 1994 Felix Consent Decree. The state currently has until December 31, 2001, to come into compliance.

April 2000
     Ezra dismisses the Rice vs. Cayetano decision from any further federal jurisdiction, ending a three-and-a-half year lawsuit that opened up the Office of Hawaiian Affairs’ elections to all voters. In essence, Ezra agrees with the U.S. Supreme Court’s Feb. 23 ruling on Rice, though Ezra had ruled against Freddy Rice in 1997, a ruling that was affirmed by the 9th Circuit Court of Appeals in 1998 but was overturned by the U.S. Supreme Court earlier this year.

January 2000
     Ezra rules that Big Island hemp and marijuana advocate Aaron Anderson’s civil-rights lawsuit against Hawai‘i County may include evidence of profits lost in his hemp business when police arrested him for possession of marijuana and confiscated his plants. Anderson later wins his case.

December 1999
     Ezra orders the Hawai‘i State Hospital to comply with a court agreement governing the hospital, or face takeover by the federal court. A court-appointed monitor is named. "We owe it to the people of Hawai‘i, to our sense of humanity and to the law to do what is right," Ezra says at a hearing in the matter.

October 1999
     Ezra helps broker an agreement between International Longshore and Warehouse Union Local 142 and the Hawai‘i Employers Council to avoid a shutdown of the docks. "The children of Hawai‘i will be happy to receive their Christmas trees in time," says Ezra.

October 1997
     Ezra refuses to block the Cassini mission, a rocket fired from Cape Canaveral, Florida, bearing 72 pounds of plutonium, which will fly over the Hawaiian Islands. "Nothing is risk-free,"he argues.

September 1997
     Ezra agrees with seven companies that sued the state over a new law that requires private employers to extend health benefits to reciprocal beneficiaries, many of them gay couples, finding that the state law clashed with federal law.

July 1997
     Ezra determines that the 1996 vote on a Constitutional Convention was fundamentally flawed — voters could not have foreseen that blank votes would be counted as "no" votes — and orders a new election. The Con Con measure was defeated in 1998. Also rejects claims by Perfect Title Co. that challenged a land conveyance for a federal detention center. Ezra calls "reckless" and "ludicrous" the defendants’ argument that the issue had to do with Hawaiian sovereignty and 19th-century Hawaiian Kingdom law.

April 1991
     Ezra rules as unconstitutional a 20-year ban on fixed outdoor political signs. "It’s a restriction on freedom of speech," he says.