Gov. Linda Lingle appointed Associate Justice Mark E. Recktenwald yesterday to a 10-year term to become the fifth chief justice of the Hawaii Supreme Court.
The nomination came a week after the state Senate rejected Lingle’s previous choice, state appeals judge Katherine Leonard.
Lingle said she knows Recktenwald well — as a former Cabinet member when he was director of the Department of Consumer Affairs, as chief judge of the Intermediate Court of Appeals and as an associate justice on the high court.
"I have tremendous confidence that he will do an outstanding job as chief justice," the governor said.
Recktenwald, 54, would succeed Chief Justice Ronald Moon, who must retire when he turns 70 on Sept. 4 because of the state’s mandatory retirement law.
The appointment is subject to Senate confirmation, but Senate President Colleen Hanabusa said she does not expect the nomination will run into problems.
Recktenwald’s confirmation as chief justice would leave a vacancy on the five-member court, and it is unclear whether Lingle will be able to appoint a replacement before she leaves office in December.
Recktenwald was considered to be Lingle’s likely choice for the job until she nominated Leonard last month.
CHIEF JUSTICE NOMINEE
The Senate rejected Leonard by a 14-8 vote on Aug. 6 after the Hawaii State Bar Association found her to be "unqualified" to become the head of Hawaii’s third branch of government.
Hanabusa said she does not expect the bar association to find Recktenwald "unqualified" in view of the "highly qualified" and "qualified" ratings he previously received when nominated to the bench.
She also said relationships he developed with members of the Legislature as a department head and chief appeals judge will be a major factor in his role as chief justice.
"I think his chances (of getting confirmed) are very good," Hanabusa said. A hearing on Recktenwald’s appointment will probably take place the last week in August, she said.
Recktenwald, who was present for Lingle’s announcement at a news conference, said one of the challenges in heading the Judiciary and its 1,800 employees is dealing with an increasing civil caseload at a time when a reduction of resources has led to furloughs. He said it is critical to work with lawmakers, the community and the lawyers.
He shied away from describing any judicial philosophy, saying he does not think one can "pigeonhole" a judge.
"I don’t think any judge can come in with a preconceived notion with how he or she is going to go," he said.
Although he has a background as a federal prosecutor, he said he has tried to be "fair and impartial" as a judge and has ruled in favor of the prosecution and the defense.
"In any case, you just have to have as a judge an open mind and follow the law and be open and fair and reach the results dictated by those considerations," Recktenwald said.
Many in the legal community thought Recktenwald’s chances for the appointment was undermined when he wrote an 81-page opinion for the 4-1 ruling on July 9. The case involved whether a proposal for a charter school must undergo state Land Use Commission review before it could be built on agricultural land in Puna on the Big Island.
Recktenwald cited the state Constitution’s environmental provisions in ruling that a homeowners association had the standing and "private right" to press for the review.
In asking the high court to reconsider the ruling, Attorney General Mark Bennett’s office wrote that the court "made new law that will significantly affect multiple sectors of our community" and "countless" proceedings pending before the courts and county land use and environmental regulatory agencies.
Lingle appointed Leonard three days later.
Asked what effect that case had, Lingle said she did not discuss any specific case with Recktenwald before his nomination and did not want to force him into a position of talking about a case he might have to decide later.
Lingle said she talked with him about the "rule of law." "He certainly has a strong belief that it is the law that has to be followed rather than someone’s personal opinion," she said.
Hanabusa was among those who thought Recktenwald would be Lingle’s initial choice.
Hanabusa said his appointment shows that although Recktenwald may have written an opinion that either the governor or the attorney general or both did not like, Lingle still had a relationship with Recktenwald that dates back to his days as a member of her Cabinet.
"I think it just shows you have there a level of confidence on the part of the governor, albeit there is a disagreement on a specific decision," she said.
Others on the list of candidates included Chief Judge Craig Nakamura of the Intermediate Court of Appeals and Circuit Judge Bert Ayabe, two Lingle appointees. The remaining two were Appeals Judge Dan Foley, former legal director of the American Civil Liberties Union here, and Circuit Judge Richard Pollack, former state public defender, both former Gov. Ben Cayetano appointees.
Lingle said whether she will be able to nominate Recktenwald’s replacement before she leaves office will depend on how long the Judicial Selection Commission takes to submit a list of candidates.
"It’s their decision," she said. "It’s not in my hands at this time."
Hanabusa said there is a good chance Lingle can if the commission submits the names from a list of candidates given to the governor last year when Recktenwald was chosen for the high court.
Under the Hawaii Constitution, the commission must submit names of four to six candidates for the position.
Even if Lingle is not able to make a nomination, she will end her tenure leaving a deep imprint on the Judiciary, appointing two of five high court justices, five of six appeals court judges and 17 of 33 circuit judges.