Recktenwald likely will not alter the high court's direction
POSTED: 01:30 a.m. HST, Aug 22, 2010
Gov. Linda Lingle's chief justice nominee would bring administrative skills and leadership as budget restrictions and furloughs challenge the state's high court.
But Hawaii Supreme Court Associate Justice Mark Recktenwald's judicial track record suggests he won't alter the jurisprudence of the state's third branch of government, known for rulings that sometimes rankled Lingle and her administration.
Senate President Colleen Hanabusa, a lawyer, said Recktenwald isn't known for dissenting from the high court's rulings since his appointment as an associate justice in May last year.
"I do not believe that he's going to be immediately seen as somebody who is going to move or change the direction of the court at all," she said.
Even the governor declined to predict whether her appointment might move the court "back to center."
"Definitely, time will tell something like that," she said at the press conference Aug. 13 announcing her appointment of Recktenwald to a 10-year term. "You all know the history of appointments. Sometimes what you think happens doesn't end up happening."
The Hawaii Supreme Court has long been dominated by appointees of previous Democratic governors, although departing Chief Justice Ronald Moon came from a Republican background. If Lingle won't be able to name Recktenwald's replacement before she leaves office in December, the next governor might be in a better position to either change or affirm the direction of the court.
The new governor would replace two justices who must leave the five-member high court during the next four years under the mandatory state retirement law. The next governor then would have a chance to name a majority of the court.
Recktenwald declined to describe his judicial philosophy when his appointment was announced, saying one cannot "pigeonhole" a judge. He later declined to comment "out of respect" of the pending review of his appointment by the Hawaii State Bar Association and state Senate.
The bar association's board is scheduled to meet with him tomorrow for a vote on whether he's qualified for the job. The Senate Judiciary Committee will hold a hearing on the appointment on Wednesday. The full Senate's vote is scheduled for Sept. 2.
Moon's last day in office is Aug. 31, timed to meet the retirement law before he turns 70 on Sept. 4.
Lingle announced Recktenwald as her nominee a week after the state Senate's stinging rejection of her selection of Judge Katherine Leonard of the Intermediate Court of Appeals.
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."
By contrast, she cited Recktenwald's "exceptional leadership ability," "strong administrative experience" and her relationship with her former Cabinet member, whom she's known for eight years.
"I know him better than I have known any of the judges I have appointed," she said.
Recktenwald, a fellow Republican, was director of the Department of Commerce and Consumer Affairs before being selected by Lingle as chief judge of the Intermediate Court of Appeals in 2007 and as associate justice on the high court last year.
He was considered by many in the legal community as Lingle's top choice for chief justice until she named Leonard. After the Senate's rejection, Lingle could have chosen four other candidates, but ended up with the man she has described as someone who enjoys "respect and admiration, while achieving results."
As an associate justice, Recktenwald has written nine published opinions.
Perhaps his most significant came last month as Lingle was considering her first choice for chief justice.
In an 81-page opinion, 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" that will affect the community, state and local governments, and pending court cases and administrative land use and environmental proceedings.
Bennett, one of Lingle's advisers on court appointments, declined to comment on the case because his office has a pending request that the high court reconsider the ruling.
He did say, however, he thinks Recktenwald will make "an excellent chief justice."
"He will decide the cases on the law and the facts and that's exactly what we want justices on the Supreme Court to do," he said.
One irony is that earlier concerns expressed about Lingle appointing too many jurists with prosecutorial backgrounds seemed to have evaporated in the furor over the failed appointment of Leonard, who never was a prosecutor and came to the bench from the Carlsmith Ball law firm.
Recktenwald served as a prosecutor during his tenure with the U.S. Attorney's Office from 1991 to 1997 and 1999 to 2003 before he was named to the Cabinet post.
"It's safe to say he's been a centralist and has ruled down the middle," said state Public Defender Jack Tonaki, who supported Leonard's appointment and will support Recktenwald.
Douglas Chin, acting city prosecutor, who testified in support of Leonard, said his office will support Recktenwald's appointment. Chin said he hasn't seen in Recktenwald's opinions either a pro-prosecution or pro-defense pattern.
Leonard would have been the state's first female chief justice and the first with a University of Hawaii law degree.
But Lingle will still have a significant impact on the state Judiciary if Recktenwald is confirmed. She will have appointed 17 of 33 circuit judges, five of six of the appeals court judges and two of five high court justices, including the chief justice she has described as a "good friend."
It's still unclear, but many observers say it is unlikely, whether the Judicial Selection Commission, with its nine unpaid members and one paid staff person, can sift through applicants and select four to six candidates in time for Lingle to appoint a replacement for Recktenwald -- and for the Senate to approve him -- before her term ends Dec. 6.
The two associate justices who must leave the bench when they turn 70 are James Duffy (June 4, 2012) and Simeon Acoba (March 11, 2014).