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Thursday, April 17, 2014         

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Nominee 'thoughtful, thorough and clear'

State Supreme Court pick Katherine Leonard has written more than 155 opinions

By Ken Kobayashi

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Appeals Judge Katherine Leonard is a self-described judicial "moderate" nominated to lead a state Supreme Court known for sweeping decisions that have altered Hawaii's legal and political landscapes.

Her approach to law, as seen from her legal opinions and her own words, indicates that if confirmed as chief justice she would try to steer a new course for a court that has sometimes stymied Gov. Linda Lingle.

Lingle, who nominated Leonard last month, has made it clear she wants a high court that does not try to legislate from the bench.

Leonard has declined to cite written decisions to illustrate her moderate philosophy as she awaits a hearing Tuesday before the Senate Judiciary Committee on her 10-year appointment to replace Chief Justice Ronald Moon, who must step down by Sept. 4.

Lawyers and other members of the legal community also say it's problematical to detect any trends or judicial leanings given the short time since the announcement of her appointment. During her 2 1/2 years on the Intermediate Court of Appeals, Leonard has written more than 155 opinions on behalf of three-judge panels.

"I think the only philosophical conclusions that you can draw from her work is that she is very careful, thoughtful, thorough and clear, and precedents, the facts and the law are what matter to her," said state Attorney General Mark Bennett, who was on Lingle's panel interviewing chief justice candidates.

Still, 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.

In 1993, for example, the high court declared unconstitutional the state's prohibition against same-sex marriages. More recently, the justices last year struck down a state law sought by the Lingle administration to exempt the Superferry from extensive environmental review.

One of Leonard's opinions that might underscore what she describes as a "moderate" approach the ruling in a Big Island case.

Leonard wrote last year that a homeowners association, Ala Loop Homeowners, could not pursue a lawsuit against a proposal to build the Waters of Life charter school on agricultural lands. The association maintained that the proposal should go through the public process of seeking permission from the state Land Use Commission, but Leonard wrote that the association did not have a "private right of action" to press its lawsuit.

The Native Hawaiian Legal Corp. urged the high court to review the ruling. If it stood, "native Hawaiians and other ordinary citizens would be unable to ensure that traditional and customary practices as well as the environment are protected," David Kimo Frankel, the group's lawyer, wrote.

On July 9, the high court by a 4-1 vote overturned the appeals court ruling. The 81-page opinion was written by Associate Justice Mark Recktenwald, one of six chief justice candidates sent to Lingle by the Judicial Selection Commission.

Recktenwald cited the state Constitution's environmental provisions in ruling the association indeed had the "private right" to press its claims.

Maui attorney Isaac Hall was not involved in the Big island lawsuit, but represented the Sierra Club and other groups that prevailed in the Superferry case.

"It took a lot of courage to write, especially for someone who is being considered for appointment as chief justice by the Lingle administration," he said of Recktenwald's opinion. "After I read it, I was immediately concerned about whether he still would be appointed."

In other civil cases, Leonard has written opinions on topics ranging from Family Court law to taxation to campaign spending issues.

In one high-profile case, Leonard wrote the opinion denying a request by Stop Rail Now to place an initiative on the 2008 general election ballot. In another, she affirmed the request by thousands of public school substitute teachers for a higher rate of pay, but limited the amount of recovery.

The Stop Rail Now request was considered a legal long shot, but the substitute teacher case was far more complicated.

Honolulu attorney Paul Alston, who represented the teachers, said Leonard wrote a "decent opinion."

He said he thought she erred on limiting what the teachers could recover, "but they were issues on which reasonable people could differ."

Leonard did not bring a background in handling criminal cases when she got to the bench. But she, like other appeals court judges, has written numerous opinions in criminal cases.

In two, Leonard wrote in favor of the prosecution to clear the way for evidence and confessions to be admitted at defendants' trials.

But Jack Tonaki, state public defender, said overall her opinions suggests she might be more in the middle, rather than either pro-prosecution or pro-defense. He applauds an opinion Leonard wrote overturning a judge's decision ordering restitution for a death even though the defendant's criminal act didn't cause it.

"It's important because it forces the judge to take a look at the cause of the losses," he said. "It results in a better dispensing of justice."

Tonaki also points to a decision last month by the appeals court that set aside a murder conviction in an Ewa stabbing case and ordered a new trial because improper remarks about "overkill" by a city deputy prosecutor during closing arguments. Leonard didn't write the opinion overturning the conviction for Tyler Condon, but was a member of the three-judge panel.

"That demonstrates courage in that the judge is willing to look not at the seriousness of the conviction, but whether justice was served," he said.

If confirmed by the Senate, Leonard is not assured of having an immediate impact on the court's jurisprudence.

Even though she is the administrative head, she has only one vote among the five justices and would have to persuade others to get at least a majority to make any sharp changes in the court's direction.






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