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Term on state high court saw 9 published opinions

By Star-Advertiser staff

LAST UPDATED: 2:20 a.m. HST, Aug 22, 2010

During his 15 months as a Hawaii Supreme Court associate justice, Mark Recktenwald wrote nine published opinions.

State v. Kalaola, Aug. 19

Ruled that Jason Kalaola could be retried on a charge of failing to disperse at the Aloha Tower Marketplace. Recktenwald wrote that evidence supported a retrial, which was not barred by double jeopardy. (In dissent, Associate Justice Simeon Acoba wrote Kalaola should not be retried and should be acquitted.)

State v. Behrendt, Aug. 19

Upheld a ruling by the appeals court affirming sexual assault convictions for Robert Behrendt in a Big Island case. Recktenwald wrote that evidence of prior sexual contact with the complainant was admissible in the trial. (In dissent, Acoba wrote the evidence should not have been admitted and defendant should be retried.)

State v. Rapozo, July 29

Upheld an appeals court ruling that reinstated a charge against Tanya Rapozo for illegally having ammunition. A live bullet was found in Rapozo's brassiere after her DUI arrest. The trial judge dismissed the charge after Rapozo said she wanted to use it to make a charm for a bracelet. The judge ruled the charge was de minimis, too trivial to warrant prosecution. Recktenwald wrote that it was not established why the charge was de minimis, but ruled Rapozo could have another chance to convince the judge that the charge should be dismissed. (In dissent, Acoba wrote he wouldn't second-guess the trial court's dismissal.)

County of Hawaii v. Ala Loop Homeowners and Waiaola Waters of Life Charter Schools, July 9

Ruled that under the state Constitution, a homeowners association had a "private right" to seek a review by the state Land Use Commission of a proposal to build a charter school on Big Island agricultural lands. Although the charter school no longer owned the land, the court ruled the issue was important enough to declare that a private party may pursue that type of review in the future. (In partial dissent, Acoba wrote he disagreed that the association had the "private right.")

In re RGB, April 1

Upheld appeals court ruling that denied a Big Island mother's request challenging a Family Court ruling that terminated her parental rights. Recktenwald noted that her child had been living with the same foster family for nearly five years and wanted to be adopted. (In dissent, Acoba wrote that the opinion denied "indigent persons access to justice in parental termination actions.")

Davis v. Four Seasons Hotel, March 29

Ruled that banquet servers fell under state law that allowed recovery from employers who did not disclose that service charges were used to pay expenses other than wages and tips to the workers, but that the servers did not have standing to press their claims -- which would lead to a dismissal of their class-action lawsuit. (In dissent, Acoba wrote the servers should be able to press their claims and their suit should not be thrown out.)

State v. Fitzwater, March 3

Ruled that the prosecution could not use a speed check performed five months earlier to verify the accuracy of a police speedometer used by an officer to charge Zachariah Fitzwater with going 70 mph in a 35 mph zone. Without that evidence, police could not establish the speedometer was accurate. The excessive speeding charge was dismissed, but Recktenwald found that evidence supported conviction for simple speeding. (In partial dissent, Acoba agreed only with the result of the majority opinion.)

State v. Wheeler, Nov. 17, 2009

Dismissed a DUI charge because the prosecution did not charge that the driver was on a "public way, street, road or highway," but allowed prosecution to refile the charge.

Dupree v. Hiraga, Oct. 20, 2009

Recktenwald's first published opinion upheld a decision by the Maui Board of Registration on Nov. 1, 2008, that Solomon Kahoohalahala was a resident of Lahaina, not a resident of Lanai. The board had overruled a decision by the Maui County clerk that he was a Lanai resident.

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