According to Andy Parx

[T]he County of Kaua`i has settled the sexual harassment lawsuit brought by Kristan C. Hirakawa[.]

This time, bar rates Chief Justice nominee qualified

According to the Bar's email to members received a few minutes ago:

Judicial Nominees: The HSBA Board has submitted testimony to the Hawaii Senate Judiciary Committee that Blaine Kobayashi, nominee for the District Court, Second Circuit (Maui), and Mark Recktenwald, nominee for Chief Justice, Hawaii Supreme Court, are qualified for the respective judicial positions. The Senate Judiciary Committee will hold confirmation hearings for these two nominees on Wednesday, August 25, 2010, at 10:00 a.m. at the State Capitol, Room 229. The deadline to submit testimony is 4:00 p.m. Tuesday.

Why didn't Gov. Lingle nominate Justice Recktenwald in the first place?

She was widely expected to. Maybe this piece in today's Star Advertiser contains a hint.

Perhaps his most significant came last month as Lingle was considering her first choice for chief justice.

In an 81-page opinion [County of Hawaii v. Ala Loop Homeowners, No. 27707, -Ed.], Recktenwald cited the state Constitution's environmental provisions in declaring a homeowners association had the "private right" to challenge a proposal to build a charter school on Big Island agricultural land.

Attorney General Mark Bennett's office criticized the ruling as intruding on the "exclusive province of the Legislature" and creating "new law"...

Earlier, the article had mentioned that

When Lingle announced her appointment of Leonard, she emphasized the importance of a chief justice who sets the "tone of jurisprudence" and respects the principle of "three co equal branches of government."

So, perhaps the governor's decision to go with another choice reflected disappointment and/or alarm at Justice Recktenwald's patently activist approach in the Ala Loop decision.

Meanwhile, the paper also provides this analysis of the nominee's published opinions as associate justice. (An aside: Note that Justice Acoba dissented or partially dissented in seven of the nine opinions).

Inversecondemnation.com provided this analysis a little more than a week ago which includes the nominee's dissenting opinions.

The Abercrombie-Mufie debate

...is reminding me of the Nixon-Kennedy debate. Except that Nixon won the non-visual version of his.

Womens eNews: Hawaii Passes on Chance of Female Chief Justice

Womens eNews:

When an all-male state Senate committee earlier this month rejected Hawaii's first female nominee for chief justice because she didn't have administrative experience or a 'judicial temperament,' many lawyers, male and female alike, were quick to call foul.
...

Two weeks later, state Public Defender John Tonaki, who along with the Acting Honolulu Prosecuting Attorney Douglas Chin testified in favor of Leonard's confirmation, was still disturbed about the failure to confirm Leonard. In a phone interview, he said that judicial temperament and administrative experience never came up as factors in the confirmation of the two prior chief justices and called the vote a "double standard."

"I would assert that the use of such vague criteria has traditionally been used in the construction of the proverbial 'glass ceiling' to keep qualified female candidates from high positions in government and corporations," he said.

Kauai Office of the Prosecuting Attorney news release in response to Garden Island ‘Battle Brewing’ article

Via Andy Parx.

Criminal defense lawyer pleads to using cocaine... in courthouse bathroom

I thought this - call it cautionary? - story deserved a tabloidesque title.

MinnLawyer Blog -

In January, Ramsay was defending Jack Nissalke on charges of terroristic threats in a murder investigation when police saw him leave a courthouse bathroom “sniffing profusely” and pinching and wiping his nose...Ramsay was charged with third- and fifth-degree possession of cocaine after sheriff’s deputies found five grams of cocaine in his pocket and belongings

Aside from being pathetically nineteen-eighties, does bursting out of a bathroom door shnurfing and wincing and pinching your nose (while - who knows - clamping the eyes shut then popping them wide open while exclaiming "Yowza mama!"?) provide probable cause for a search of ones pockets and belongings? I would argue not. But, as it turns out, he left behind a white powdery residue that "field-tested positive for a controlled substance, which police used as probable cause to arrest and search Ramsay’s belongings." Maybe it's the criminal defense lawyer in me, but I'm still not ready to concede probable cause under these facts. Nonetheless, aside from theoretical legal defenses, representing a client while impaired on drugs is inexcusable.

Lawyers, Guns and Money on Kauai

Warren Zevon claims he wrote Lawyers, Guns and Money on wet cocktail napkins after a long day of improbable and grotesque mischief while vacationing on Kauai:

Prosecutorial misconduct results in dismissal of incest charges

Garden Island -

Calling some statements county Prosecutor Shaylene Iseri-Carvalho made to a grand jury “irresponsible” and “sloppy,” 5th Circuit Judge Kathleen Watanabe on Wednesday dismissed 32 counts of incest against Kenneth Bray of Kapa‘a.
...
Craig De Costa, Bray’s attorney, argued that the improper instructions given to the grand jury by Iseri-Carvalho effectively denied Bray’s due-process rights that each count against him be considered separately.

Both Watanabe and De Costa called that “prosecutorial misconduct,” with De Costa making a motion to dismiss the incest charges based on such.
...

“I have to tell you that it’s a real struggle for this court to do this based on the seriousness of the charges,” Watanabe said of dismissing half the charges against Bray. But people have their rights, she added.

"The people have their rights."

True that.

Hawaii Supreme Court allows moot burial site challenge

Staradvertiser.com:

The case involves General Growth's development of the Ward Villages Shops in Kakaako, although yesterday's ruling isn't expected to disrupt construction, which resumed last month.

Paulette Kaleikini, a native Hawaiian cultural practitioner, earlier settled her lawsuit challenging the construction, which had been delayed after the discovery of burial sites on the property.

But the high court ruled that the case was not 'moot' because decisions relating to native Hawaiian burial sites are of 'great public importance.' It also said the issue will likely recur because native Hawaiian remains will probably be found in future construction projects.

As usual, always first with the land use news, Robert Thomas has a relevant post with links to the decision and concurring opinions.

The Role of The Hawaii Bar Association in Judicial Nominations

This looks interesting -

Honolulu Civil Beat - Beatups

We will be hosting our next Beatup to discuss the role of the bar association in the judicial nomination process. Key thought leaders on the topic will speak about what was learned from the Leonard nomination and how the bar association might consider changing its approach. As always, the audience will be active participants in the discussion.

This Beatup is free and open to the public but you must RSVP in advance so we can make sure there is adequate room for everyone. To attend, please e-mail beatup@civilbeat.com.

Date: Thursday, August 19th
Time: 5:30-7:00 p.m.
Location: Kaimuki Plaza, 3465 Waialae Ave #200, Honolulu, HI 96816
Speakers: Bar Association President - Hugh Jones, Former Attorney General - Michael A. Lilly, Reporter-Host - Chad Blair, Reporter-Host - Michael Levine

TVR bill is now law

Garden Island: Mayor signs TVR bill into law -

Applicants for single-family transient vacation rentals [outside the boundaries of the county’s Visitor Destination Areas] will need to complete a TVR application and provide a sworn affidavit attesting that the use of the residence as a TVR occurred prior to March 7, 2008.

The applicant will also need to provide proof of Transient Accommodation Tax and General Excise Tax licenses, proof of payment of taxes and evidence of use of single family transient vacation rental.

In addition, applicants will need to provide plans signed and stamped by a licensed engineer accurately representing the property as it exists today and a digital pdf format copy of their application.

Applicants for single-family transient vacation rentals within the State Land Use District Agriculture will need to provide a petition for a Special Permit. Applications, affidavits, sample petitions and special permit checklists are available [online here].

Why Leonard was rejected and Recktenwald will not be

inversecondemnation.com has interesting thoughts on the rejection of Judge Leonard and the predicted shoe in of her arguably more conservative replacement nominee, Justice Rechtenwald:

Was Judge Leonard also highly qualified? Again, certainly. However, it is highly unlikely that we will witness the same whisper campaign waged against Justice Recktenwald that was waged successfully against Judge Leonard. The knives sharpened in the dark and bared only behind the cover of the HSBA's confidential ratings process will remain sheathed for Justice Recktenwald.

Why? Read the rest. Hint: "It's because the takedown of Judge Leonard was never about her qualifications or lack thereof, it was only about whether Governor Lingle had an opportunity to fill three seats on the court."

"Judge throws out 2 cases"

Garden Island -

Some felony charges against Leo Vincent Chandler were dismissed Tuesday, and 5th Circuit Judge Kathleen Watanabe scolded county prosecutors for shoddy work.

“Obviously, the ball was dropped,” said Watanabe, admonishing county Deputy Prosecuting Attorney John Murphy for filing duplicate charges in two cases and not dropping charges sooner in one of the cases that has kept Chandler incarcerated at Kaua‘i Community Correctional Center for nearly all of this year.

Meanwhile, there was other drama last week involving the prosecutor's office, although it appears that some of the original report might not have been entirely accurate...

reconsidering the newly minted private right of action to enforce chapter 205

Via inversecondemnation.com - Motion For Reconsideration Of HAWSCT's Opinion In Ala Loop: Are Zoning Statutes "Environmental Laws?"

Meanwhile

Judiciary panel votes to recommend To'oto'o for Circuit Court bench - Staradvertiser.com:

The Senate Judiciary Committee today sent to the full Senate a recommendation to approve Gov. Linda Lingle’s appointment of Honolulu District Judge Faauuga To'oto'o to a 10-year term on the circuit court bench.

The appointment now goes to the full Senate for a vote tomorrow.

The Hawaii State Bar Association’s board of directors voted that To’oto’o was “unqualified” for the Circuit Court, but did not disclose the reasons.

Is it really the "leadership" thing, or does it just reek of politics?

Staradvertiser.com - Judiciary committee votes no to Leonard as next chief justice -

The Senate Judiciary Committee today voted 4-1 against recommending the appointment of appeals judge Katherine Leonard as Hawaii's chief justice.

Fw: HSBA Participation in Judicial Confirmation Process

Here's an email Hawaii State Bar Assoc members received yesterday:

Sent via BlackBerry by AT&T

---

Subject: HSBA Participation in Judicial Confirmation Process

Aloha Members: Undoubtedly you are aware of the controversy and media coverage surrounding the confirmation process now underway for several judicial positions.  In particular, the Board's assessment that ICA Associate Judge Katherine Leonard is "not qualified" for the position of Chief Justice has come under attack.  The Senate committee however has indicated that the Board's input has been helpful. Since 1990, the HSBA's constitution has required that the HSBA participate in this process and submit testimony to the confirming authority on a nominee's qualifications.  Over the last 20 years, the HSBA has evaluated and submitted testimony on every nominee except for one occasion, when the board did not take a position due to insufficient time to address its concerns.  The Board policy and procedure for evaluating nominees, developed over 20 years, provides opportunity for member comment and input in a confidential fashion.  For similar reasons, the Judicial Selection Commission's deliberations are confidential under Hawaii's constitution. The existing policy does provide that the nominee is apprised of any significant negative comments or concerns before they are interviewed by the full board so that they may respond to those comments. Your elected Board members take this responsibility seriously for each nominee.  I invite you to look at the HSBA website to review the policy/procedures, and the reprint of an article which appeared last year in the Hawaii Bar Journal about this process.  Please again familiarize yourself with this process and comment, if you feel appropriate. These resources will allow you to speak knowledgeably about the process to family, friends and associates. You can play an important role in helping the public better understand the balanced and impartial way the Board arrives at its recommendations based on input from its members and direct interviews with the nominees. Finally, the HSBA’s policy has been amended several times to make adjustments and improvements and the Board members welcome your comments and suggestions on the current policy and will consider additional changes if deemed warranted or appropriate, giving due consideration to all competing factors. Your opinions do matter and will be considered by the HSBA Board. Please direct inquiries from the press to me or the HSBA office. You could also direct people who are interested in learning more about the process to our website. Thank you. Hugh R. Jones President, HSBA

The Star Advertiser's piece on yesterdays judiciary hearing

Leonard's ability to lead is doubted

After several hours of hearings, the Senate Judiciary Committee chairman expressed concerns yesterday about whether appeals Judge Katherine Leonard possesses the leadership skills to be Hawaii's next chief justice.

Meanwhile, elsewhere

Concurring Opinions -

The U.S. Federal Bureau of Investigation has threatened Wikipedia with legal action if the online encyclopedia doesn’t remove the FBI’s seal from its site.

Recap of today's judiciary hearing liveblog

If there's any interest in seeing the attorney commentary during the Leonard hearing today, here's the thread. It says "replay" but it doesn't really replay anything. It just opens the thread. Thanks again to inversecondemnation.com for another most excellent liveblogging adventure. This one had more viewers (over 100) than the Superferry hearing liveblog (about 70).

Support for Judge Leonard seems broad

Native Hawaiians, women, prosecutors, public defenders, academics, paralegals...All the testimony but the HSBA's is in support.

Written testimony is here.

Judiciary hearing live on Olelo

Here

Leonard hearing update

From the liveblog - Tanaki from State Public Defender's office:

concerned about findings by HSBA. HE READS FROM YESTERDAY TESTIMONY. double standard, other CJs confirmed without concerns of lack of experience but used now against J Leonard. assert of such vague criteria used in construction of GLASS CEILING. agree with senate resolution quoted by AG. she is a fair justice and I support her

Tune in to the Leonard hearing

...at inversecondemnation.com's liveblog.

There's some commentary about the Haw Bar Association's puzzling unqualified ratings of Judge Leanord and Circuit Court nominee Fa'auuga To'oto'o.

Also, this morning in the Staradvertiser.com:

Attorney General Mark Bennett said the bar association voting process is an 'embarrassment' because it does not notify the nominee of the vote count or the reasons for it, unlike the American Bar Association, which gives the U.S. Senate a detailed written explanation for its unqualified rating for federal judicial nominees.

Tune in to tomorrow's live blog of HAWSC Chief Justice nominee Senate Judiciary hearing

The Hawaii State Bar Association's last second 'unqualified' rating today of Supreme Court Chief Justice nominee Katherine Leonard throws a little excitement into tomorrow's hearing. Inversecondemnation.com will be live blogging the event. I've been invited along with some other attorneys to participate in an ongoing comment panel. I'm reviewing Judge Leonard's criminal decisions tonight in case they become in any way at issue. I'll be in court and unable to participate for the beginning. With luck things will just be getting rocking when I pull up to the monitor and kick off my shoes and pull off my tie

Things kick off at 9:00 tomorrow. Click here to follow along.

Hawaii bar rates Supreme Court nominee "unqualified"

Staradvertiser.com: Bar association calls Leonard 'unqualified' -

The board of directors of the Hawaii State Bar Association has characterized Chief Justice-designate Katherine Leonard as 'unqualified' for the job.

There was no immediate explanation for the board's determination.

Not being any kind of HSBA insider, I was a little surprised by this. I'm guessing it will turn out to rest on the administrative experience (or lack thereof) criticism(?) It's not a total surprise, though. Dave Shapiro mentioned a couple of days ago "attempts by attorneys led by Eric Seitz to get the Hawai’i State Bar Association to oppose the nomination when it goes before the State Senate for confirmation."

State v. Rapozo: the bullet bra decision

Ben Lowenthal's Hawaii Legal News -

Bullet in Brassiere is no De Minimis Matter

AP has a piece on the Supreme Court's recent Miranda rulings

High court trims Miranda warning rights bit by bit - Yahoo! News -

The court placed limits on the so-called Miranda rights three times during the just-ended session.

inversecondemnation.com to live blog Hawaii Senate Judiciary Committee Katherine Leonard confirmation hearing

Go to the link below at 9:30 Tuesday morning. Better yet, go to inversecondemnation.com now and look at all the in depth pre-hearing coverage. I intend to participate in the live blog panel. Unfortunately, I'm in court in the morning. With luck things will go on long enough that I can get logged on before it winds down.

inversecondemnation.com: Live Blog Of Hawaii Senate Judicary Committee Hearing On Confirmation Of Katherine Leonard As Chief Justice (Tuesday August 3, at 9:30 a.m.)

See also Ken Kobayashi's piece this morning int the StarAdvertiser -

Leonard's description of herself as a "modest" and "moderate" judge is in line with Lingle's expressed view that she wants a Judiciary that follows the law rather than tries to make new laws.

Lingle made it clear when she announced her appointment that she wants a chief justice to head a court that respects the principle that "we rely on three co-equal branches of government."

LONG DOMINATED by appointees by Democratic governors, the Supreme Court has a history of interpreting the Hawaii Constitution in what critics decry as an overly expansive way, striking down state laws and intruding on the legislative and executive functions.

And this piece on some of Judge Leonard's legal opinions which is similar in approach to Robert Thomas's earlier analysis here and here .