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Saturday, April 19, 2014         

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Lingle court choice also a matter of time

By Ken Kobayashi

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If Gov. Linda Lingle elevates Associate Justice Mark Recktenwald to chief justice of the Hawaii Supreme Court, it will be a race against time as to whether she can fill his vacancy before she leaves office in December.

That uncertainty has led to speculation that Lingle may choose one of the other candidates nominated by the state Judicial Selection Commission to help ensure that she will have appointed three of the five members of the state's highest court.

Lingle has already left her mark on the Hawaii Judiciary, appointing nearly half of the state's 31 circuit judges and five of the six appeals court judges.

APPOINTMENTS TIME LINE

» Wednesday: The Judicial Selection Commission submitted a list of six chief justice nominees to Lingle.
» July 12: Lingle's deadline for public comment on the nominees.
» Mid-July: Lingle likely makes her appointment. The state Senate has 30 days to consider the appointment.
» Mid-August: The new chief justice is approved or rejected by the Senate. If Recktenwald is the chosen, the Judicial Selection Commission will announce the vacancy and ask for applications to replace him.
» Sept. 4: Chief Justice Ronald Moon turns 70 and must step down by this date.
» September: The commission probably closes applications sometime this month and begins the screening process. The panel must submit four to six names, but it is uncertain how long that will take.
» Dec. 6: Lingle leaves office. The next governor is sworn in.
Among the five other nominees considered a strong contender for chief justice is former federal prosecutor Craig Nakamura, who the governor appointed to the Intermediate Court of Appeals in 2004 and elevated to chief judge of the appeals court last year.

But given her strong support for Recktenwald, many in the legal community still believe she'll tap her former cabinet member to be the state's fifth chief justice, and take her chances on whether she can name Recktenwald's replacement.

The governor is still seeking public comment on the six nominees. Her office indicated she won't discuss at this time who she will select and she isn't expected to make an announcement until after the July 12 public comment deadline.

The appointee would replace Chief Justice Ronald Moon, who must step down by Sept. 4 when he turns 70 because of the mandatory retirement law for state judges.

Recktenwald, 54, is considered to be Lingle's strong favorite for the post. He served as the governor's director of Department of Commerce and Consumer Affairs before she appointed him chief appeals court judge in 2007 and associate justice last year.

He also brings administrative experience to the job as the administrative head of the state's third branch of government.

Like Recktenwald, Nakamura, 53, has a prosecutorial background, which Lingle has leaned toward in past selections to the bench. Both men worked together at the U.S. Attorney's Office, and also on the appeals court.

Nakamura as chief appellate judge has also been the administrator for the state's second-highest court and his five fellow judges.

All six nominees were deemed qualified by the selection commission, but based on her previous judicial appointments, observers believe the other four don't rank as high as Recktenwald or Nakamura.

The four are:

» Appeals Judge Katherine Leonard, 50, a Lingle appointee, who would be the first woman to serve as the state's chief justice, but who doesn't have comparable judicial administrative experience or a background as a prosecutor.

» Appeals Judge Daniel Foley, 63, a former director of the American Ciivl Liberties Union here, an appointee of former Gov. Benjamin Cayetano. Lingle has not elevated any Cayetano appointees to either the appeals court or Supreme Court.

» Circuit Judge Richard Pollack, 59, a former state public defender and a Cayetano appointee.

» Circuit Judge Bert Ayabe, 54, a Lingle appointee who does not have comparable administrative judicial experience or a prosecutorial background.

Whether Lingle can fill Recktenwald's vacancy depends on the selection commission, the secretive nine-member panel that submits judicial nominees to the governor. At issue is whether it can send her a list in time for her to make the appointment before her term expires Dec. 6.

If the Senate were to reject her appointment, there would be even less time to advance another candidate from the list.

Assuming Lingle selects Recktenwald shortly after the public comment period and the Senate approves him, the commission would not be able to start searching for a replacement until August.

Sheri Sakamoto, the commission chairwoman, could not be reached for comment.

But based on the commission's past practice, the panel would first have to announce the vacancy, wait at least several weeks or more for applications, then screen and interview candidates before submitting names to the governor. The panel has only one paid staff member; commissioners work without pay.

Depending on the number of applicants, screening could take weeks or months, which might mean Lingle's successor would make the choice.

The commission, for example, announced the vacancy for the chief justice position in September last year, but didn't send Lingle a list of nominees until last week. On the other hand, the commission acted quickly enough so Lingle was able to appoint Recktenwald to replace Associate Justice Steven Levinson within seven weeks after Levinson left the bench in late 2008.

State Public Defender Jack Tonaki echoed the sentiments of others in the legal community who believe Recktenwald will still get the appointment, particularly because of his administrative skills.

"My guess is that the governor would approach it from that viewpoint rather than ideologically -- how can I say it? -- stacking the court, for lack of a better term," he said.






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