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Thursday, October 02, 2014         

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Judge secure with sexual orientation

State high court nominee Sabrina McKenna hopes her judicial experience will quell talk of sexuality

By Ken Kobayashi

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Associate Justice-nominee Sabrina McKenna would bring to the Hawaii Supreme Court the most varied trial court experience among the current justices.

Mckenna's rulings

Judge Sabrina McKenna ruled in hundreds of cases during her 17 years on the bench. Some notable decisions:
» Child support: Ruled in 2002 that the state Child Support Enforcement Agency had to account for more than $3.5 million in uncashed child support checks. The decision cleared the way for thousands of parents to receive payments. "It's a tremendous victory for people in this state who are entitled to child support," parents' lawyer Francis O'Brien said at the time.
» Ceded lands: Ruled in 2003 that the state could transfer ceded lands for affordable housing on Maui and Big Island. The Hawaii Supreme Court cited the 1993 federal Apology Resolution in reversing McKenna's decision and ordering a halt to the transfers. In 2009, the U.S. Supreme Court overturned the state Supreme Court's ruling.
» Kuilima resort: Ruled in 2007 that Kuilima's proposed expansion at Turtle Bay did not require a supplement to an 1985 environmental review of the proposal. The Intermediate Court of Appeals affirmed the ruling, but the Hawaii Supreme Court last year disagreed and ordered another environmental review.
The senior circuit judge of the Family Court at the Kapolei courthouse complex served 17 years on the judicial front lines as a trial judge in Honolulu's district, circuit and family courts.

During that time, McKenna issued rulings in hundreds of cases and issued some notable decisions, but she said she never had an issue related to her sexual orientation.

McKenna talked last week about being gay in the hopes that others will recognize that sexual orientation should not be a bar in achieving their goals.

But she said she hopes she will be evaluated on whether she is qualified for the job.

In her talks with state senators, the discussions focused on qualifications, she said in an interview Thursday.

"I don't think my honesty is seen as a negative," McKenna said.

McKenna, 53, was nominated Tuesday by Gov. Neil Abercrombie to a 10-year term on the five-member high court. Her appointment, subject to Senate confirmation, would fill the vacancy created when Associate Justice Mark Recktenwald became the chief justice in September.

McKenna would be the high court's first openly gay justice, but Donalyn Dela Cruz, Abercrombie's spokeswoman, said the nominee's sexual orientation was not a factor in the governor's decision.

Her judicial temperament, Dela Cruz said, was key for the governor.

Born in Tokyo and raised by her Japanese mother after her father died when she was 9, McKenna came to the University of Hawaii's Manoa campus after high school.

She was on the first Rainbow Wahine basketball team in the 1970s. She graduated with a degree in Japanese and attended the University of Hawaii's William S. Richardson law school, where she excelled as editor-in-chief of the law review.

McKenna worked for five years with Goodsill Anderson Quinn and Stifel, a major Honolulu law firm, then for Otaka Inc. for three years. In that job, she met prominent business and community leaders around the world, flew first class and on the Concorde and stayed at the best hotels.

"I learned the importance of a stable and legal environment," she said. "It's really important to have an independent judiciary (so) that business people can feel they can come in and get justice, and that it's not a payoff system."

But she knew her heart was in Hawaii and felt it was time to give back to the community that enabled her to get a college and law school education, she recalled.

"It was realizing that with a lot of people I saw, wealth was not bringing happiness, and the local people that I was hanging out with in Hawaii were a lot happier people, even if they didn't have a lot of money," she said.

She became an assistant professor at the UH law school for two years, organizing and supervising law students to provide legal services to people who could not afford it.

In 1993, she was then-Chief Justice Ronald Moon's first appointment to the district court and, in 1995, then-Gov. Ben Cayetano's first appointment to the circuit court. She is now Abercrombie's first judicial nomination.

McKenna, 53, said she believes she can make a contribution with her experience on the trial courts, the rulings of which are reviewed by the state appellate judges.

She would be the only current appellate judge with experience as a Family Court judge.

McKenna said that in an abundance of caution, she would check with the Judicial Conduct Commission whether she would have to withdraw from a case if it involved an issue such as civil unions.

Some suggest that McKenna should not have to step down just as a black judge is not automatically disqualified from hearing racial civil rights cases.

Randy Roth, a UH law professor who teaches legal ethics, said the mere fact that a judge is gay does not automatically require a withdrawal from a case involving gays or a gay issue. But if the judge or someone close has an economic interest in the case, it may require the judge to drop out, he said.

Avi Soifer, UH law school dean and a staunch McKenna supporter, agreed that sexual orientation alone would not require a withdrawal.

But he said the fact she would check reflects what a careful judge she has been and will be.

McKenna and her domestic partner, Denise Yamashiro, a public school teacher, have three children ranging in ages from 8 to 14.

McKenna recognized that her sexual orientation would become more widely known with her nomination.

"I look forward to the day that this is no longer something to talk about because nobody says 'heterosexual judge,'" she said.

"People sometimes say woman judge, or African-American president. I look forward to the day when people don't need to be qualified in such ways, that people could be judged on their qualifications only."






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