Posted tagged ‘courts’

On the legal front … dubious priorities and values

May 5, 2011

USA Today and the Star-Advertiser report that Hawai‘i Attorney General David Louie might be interested in joining Utah in a lawsuit challenging the legality of the college football Bowl Championship Series.

Utah AG Mark Shurtleff argues the BCS violates antitrust law by depriving equal access to top bowl bids to schools like the University of Hawai‘i that don’t belong to BCS conferences.

It was a pet issue of Gov. Neil Abercrombie’s when he was in Congress, but I’m not seeing where Hawai‘i has enough of a beef for it to be worth the time and expense of getting involved in the lawsuit when we have more pressing concerns.

The only year UH played well enough to be worthy of a BCS appearance, in the undefeated season of 2007-2008, the Warriors received an invitation to the BCS Sugar Bowl. We didn’t exactly prove we belonged in the 41-10 loss to Georgia.

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A couple of court cases yesterday:

• Honolulu prosecutors threw the book at former beauty queen Susan Shaw in a $200,000 identity theft and credit card fraud case, refusing to negotiate the charges, and she was sentenced to 20 years in prison.

• Retired University of Hawaii math professor David Stegenga got a plea deal of five years probation with no jail time for sexually assaulting a neighbor girl from 1999 to 2005, when she was between the ages of 7 and 13, in a crime that often causes major long-term trauma for the victim.

How is this right? What are our values?

Senate plays bush league on Leonard

August 5, 2010

It’s really difficult to square the Senate Judiciary Committee’s rejection of Katherine Leonard for chief justice of the state Supreme Court with Senate Resolution 26 passed earlier this year criticizing Gov. Linda Lingle for not appointing enough women judges and urging her to appoint more.

Relevant passages of SR 26 that received unanimous support from the 23 Senate Democrats on April 7 after being approved by the Judiciary Committee:

WHEREAS, of the twenty-two judicial appointments made by Governor Lingle, only six have been women …

WHEREAS, the Legislature finds that the appointment of women judges is important, because of the benefit of their life experiences. Judges, and especially appellate judges, (emphasis mine) often have discretion in deciding cases. How this discretion is exercised is often a product of the judges’ life experiences and values; this is undeniably so for many decisions, and especially at the appellate level (emphasis mine) …

WHEREAS, bias, or even the appearance of bias, against women undermines the integrity of the judicial system …

WHEREAS, with more women as judges, the public at large would see the justice system as more representative of diversity and, presumably, more fair …

WHEREAS, the Legislature further finds that appointing women to the bench serves to provide male judges and attorneys with a different perspective, in the course of collegial discourse within community and bar interactions …

BE IT RESOLVED by the Senate of the Twenty-fifth Legislature of the State of Hawaii … that Governor Lingle is strongly urged to use and consider gender equality when appointing judges and justices (emphasis mine) in the future …

Leonard was the only woman on the list of carefully vetted and qualified candidates sent to Lingle by the Judicial Selection Commission, of which two of the nine members were appointed by Senate President Colleen Hanabusa and two more by the bar association.

Now some of the senators who so piously lectured Lingle on April 7 are touting any of the men on the list as more qualified than the woman she appointed in line with their clearly expressed wishes.

Critics have cited no objective standards by which Leonard is unqualified, just the usual subjective putdowns about “temperament,” “gravitas” and “leadership” that have always been hurled at women as they attempt to rise.

Senators ignored men and women attorneys of proven “gravitas” from across the legal spectrum who have vouched in specific ways for Leonard’s leadership, experience and legal mind, choosing to listen only to the politically convenient generalizations of a few — including anonymous bar association directors who won’t even disclose their reasons for recommending against Leonard.

Opponents have not cited a single specific thing of any significance that Leonard has done wrong other than being the appointee of the Republican governor whom Democratic senators love to hate.

First senators try to embarrass Lingle by criticizing her for not appointing enough women judges, then they try to embarrass her by rejecting the most prominent woman she does appoint.

Shame on them for polluting our Judiciary with their bush league politics.

Gay marriage gets a key ruling

August 5, 2010

A ruling by a federal judge in California striking down a state law that bars same-sex couples from marrying was a long time coming.

More important than the substance of the ruling, which must go through the appeals process before anything is final, is that it finally gets this incendiary issue on the road to resolution in the federal courts, where the ultimate settlement must come.

Gay activists have long claimed a civil right to marry, but the legal fact is that no marriage right is specifically spelled out in the Constitution, and marriage doesn’t become an established civil right until the U.S. Supreme Court or Congress says it is.

Given our national political divisions, the cleaner path is probably through the courts. Once the matter is settled at the federal level, state laws will start to fall into line.

The ruling by California U.S. District Judge Vaughn Walker striking down a voter initiative banning gay marriage was noteworthy for its strong language against discrimination and also for the fact that it came from a Reagan appointee who was initially opposed by gay rights groups.

The matter next goes to the 9th U.S. Circuit Court of Appeals, and the losing side will  certainly appeal to the Supreme Court. The high court could duck the issue, but hopefully the justices will see the value to our country of finally settling this.

The federal lawsuit in California is separate from a state lawsuit in Hawai’i seeking to have the court impose the terms of the civil unions bill that was passed by the Legislature but vetoed by Gov. Linda Lingle.

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Update: One of the the complainants in the dispute over House Speaker Calvin Say’s residency has received notice from state elections officer Scott Nago that a preliminary determination will be made by Aug. 9.

The complaint alleging that Say doesn’t live in the Palolo district he represents was filed by gay rights activists angry that Say didn’t call the House into special session to attempt an override of Lingle’s veto of HB 444.

The challenge of Say’s residency by backers of his Democratic opponent Dwight Synan isn’t universally supported in the local gay rights community and has exposed some deep divisions over personalities and tactics.

NOTE: For those interested in reading the full complaint against Say, I’ve posted it here.

Katherine Leonard: Judgment by character assassination

August 4, 2010

It’s too early to tell what will happen with Gov. Linda Lingle’s nomination of Katherine Leonard as Hawai’i’s first woman chief justice when the Senate votes on her confirmation later in the week.

But one thing that’s clear is that the last-minute anonymous hit on Leonard by the Hawai’i State Bar Association was a major act of wimpiness on the part of the lawyers.

The bar association’s 20-member executive committee voted Leonard “unqualified” Monday, but refused to say what the vote was, who voted how or what the reasons were for the negative finding.

In contrast, the American Bar Association provides a detailed written explanation of its ratings when it advises the U.S. Senate on federal judicial appointments.

HSBA President Hugh Jones said the secrecy is necessary to allow attorneys to speak freely and protect them from retaliation by judges.

Senate Judiciary Chairman Brian Taniguchi backed him up, saying, “They need to have kind of a safe haven place where attorneys can come and are free to say stuff that may be critical of a judge.”

This is nonsense. If lawyers want to play a role in judicial selection, they need to have the guts to publicly stand behind their recommendations. There is simply no place for anonymous character assassination in such important public policy decisions.

Why should these secretive deliberations be given more credence than the dozens of experienced and highly respected attorneys who have put their names behind enthusiastic endorsements of the nominee?

Who’s to say the vote didn’t reflect anonymous lawyers retaliating against a judge who ruled against them? Who’s to say the bar association’s process wasn’t politically manipulated by senators looking for cover to shoot down a key appointment of the governor from an opposing party?

The only way to silence such suspicions is to let the sunshine in.

A central rule of the courts in which these lawyers are officers is that people have a right to face their accusers. Any recommendation resulting from their spineless attempt to exempt themselves from this basic ethic lacks credibility and should be disregarded.

Leonard gets key endorsement

July 31, 2010

Former Supreme Court Associate Justice Robert Klein has thrown his enthusiastic support behind his former law clerk Katherine Leonard as Gov. Linda Lingle’s nominee to be Hawai’i’s first woman chief justice.

Klein, who was appointed to the court by former Gov. John Waihee and is now in private practice, issued a statement that he “completely and without reservation” supports her nomination and that Leonard “compares very favorably with past Chief Justices who have administered our court system.”

The statement by Klein, who presumably was interviewed as part of the administration’s vetting process, should help head off 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.

The Hawai’i Women Lawyers and Leonard’s former law partner have also jumped to her defense in advance of a hearing Tuesday by the Senate Judiciary Committee.

Here is Klein’s full statement:

Judge Katherine Leonard was the first law clerk I selected to assist me when I was elevated to the Hawai’i Supreme Court in 1992. She served with great distinction. I am well aware of her legal capabilities, her intellect, her demeanor, and her aloha for Hawai’i, and I completely and without reservation support her nomination as Chief Justice of the Hawaii Supreme Court. The Judicial Selection Commission has qualified Judge Leonard for the Chief Justice’s position, and by background and experience she compares very favorably with past Chief Justices who have administered our court system. I urge my fellow attorneys and citizens to support Judge Leonard’s nomination and I hope for her prompt confirmation.

CJ nominee Katherine Leonard faces the first blades

July 28, 2010

The knives are starting to come out on Gov. Linda Lingle’s nomination of Katherine Leonard to be new chief justice of the state Supreme Court, but so far the cuts have only been surface wounds.

Attorney Eric Seitz struck the first public blow with a letter to the Hawaii State Bar Association urging opposition when Leonard goes before the State Senate for confirmation. He said she’s ill-equipped for the job because of poor temperament, a lack of administrative experience and only two years of judicial experience on the Intermediate Court of Appeals.

The question is whether it’s just Seitz being Seitz or if there’s broad sentiment against Leonard in the legal community as he claims.

The 400-member Hawaii Women Lawyers jumped to her defense on all points raised by Seitz, as did one of her former law partners, Karl Kobayashi, who said she displayed a sharp legal mind and good administrative skills when he worked with her at Carlsmith Ball LLP.

The Bar Association found Leonard qualified when Lingle named her to the appeals court, and a key is whether the rating is repeated on the new appointment. A recommendation is expected before the Senate Judiciary Committee holds its hearing on the nomination next Tuesday.

Senators enjoy taking a scalp from a gubernatorial nominee now and then, but it will be difficult to do so on the first woman nominated for chief justice if the Bar Association rates her qualified and she presents herself well at the Senate hearing in answering critics such as Seitz.

I have further thoughts on Lingle and the Leonard nomination in my column in today’s Star-Advertiser, “Judicial appointments will define Lingle’s legacy.”

Calvin Say’s conflicting interests

June 4, 2010

To tie up a loose end, U.S. District Judge Susan Oki Mollway officially struck down a controversial law that effectively changed the terms of leases between a Mainland landlord and 180 businesses renting its properties in Mapunapuna and Kalihi Kai.

Mollway ruled in favor of the landlord, Massachusetts-based HRPT Properties Trust, that the 2009 legislation attempting to dictate terms of private business contracts violates the Contract Clause and equal protection requirements of the U.S. Constitution.

Mapunapuna Industrial Subdivision

I had raised the case earlier in relation to a conflict of interest on the part of House Speaker Calvin Say that was first reported by Pacific Business News.

One of the tenants benefiting from the legislation was Warabeya U.S.A. Inc., which rents from HRPT for its musubi-manufacturing subsidiary Tokyo Bento Nichiyo. Say is an officer of Warabeya and is paid $1,000 a month.

He didn’t disclose his conflict when he introduced the House version of the disputed bill or voted for a similar Senate version that eventually became Act 189.

It was never my purpose to defend HRPT’s rent increases, just to say it was an inappropriate remedy for lawmakers to pass special legislation interfering in a private business agreement — especially when a key legislator had a clear and undisclosed vested interest.

To be fair to Say, he wrote a letter to the editor disputing my original piece, which you can read here.


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