Earlier, we posted a summary of the written opinions of Intermediate Court of Appeals Judge Katherine Leonard, focusing on her most recent work product (2010). An astute reader noted that we missed some earlier-produced opinions in cases that might be of interest, so here is our informal survey of Judge Leonard's 2009 opinions.
Note: we will be live blogging the Senate Judiciary committee hearings starting at 9:30 a.m. on Tuesday, August 3, 2010.
The issues addressed in these opinions include the Honolulu rail project and enacting ordinances by initiative, the rights of minors accused of crimes, medical malpractice, campaign finance, and various criminal law questions:
- Stop Rail Now v. De Costa, No. 29354 (Dec. 30, 2009). This was a side issue in the debate over the $4+ billion Honolulu rail project. Judge Leonard authored the opinion, holding that a petition to put the rail question to a vote via an initiative ordinance was defective, and the question would not be put placed on the ballot. Not enough signatures. Does this say anything about how a Justice Leonard might view the merits of the rail project? Probably not. This issue before the ICA was a technical election law question and did not deal with the rail itself, only how many signatures are required to get an initiative on the ballot.
- Earlier in the case, Judge Leonard signed an order denying an emergency motion to put the issue on the ballot. The ICA denied the motion, because "there is evidence before the court that [putting the issue on the ballot] engender unintended, serious, negative consequences for the upcoming general election, including potential disenfranchisement of absentee uniformed services voters and overseas voters, operational and logistical impact to the entire State election timetable, voter confusion, and/or jeopardy to the validity of the votes cast on the issue of rail transit in Honolulu." That harm, the court held, outweighed the harm of leaving the issue off the ballot.
- In re TC, No. 28295 (June 24, 2009). A criminal matter on appeal from Family Court. Judge Leonard's opinion for a unanimous panel concluded that there was insufficient evidence to prove the minor-defendant engaged in prohibited sexual conduct, and that minors must knowingly and voluntarily waive their rights to testify. The opinion also held that "there is no fundamental personal privacy right for minors under the age of fourteen to engage in sexual activities with other children under the age of fourteen." The Hawaii Supreme Court declined to review the decision.
- Lee v. Hawaii Pacific Health, No. 28459 (Sep. 29, 2009). The issue was whether Hawaii Pacific Health, the parent corporation of Kapiolani Medical Center, is a "health care provider" within the meaning of a statute that requires requires claims against such providers be brought before the Medical Claims Conciliation Panel before coming to court. Judge Leonard's opinion first clarified the nature of cross-appeals ("We hold that any notice of appeal filed within 14 days after the initial notice of appeal is served shall be construed as a timely notice of cross-appeal, however denominated."). Unless you are an appellate lawyer, probably not of interest. On the merits, the opinion concluded that HPH was a "health care provider" because "[w]hile HPH has the opportunity to deny that it in fact is engaged in such activities, for the purpose of deciding whether the MCCP is the appropriate forum for the initiation of [the plaintiff]'s claims against HPH, HPH must be considered to be a health care provider in the context of [the statute]."
- Kona Village Realty, Inc. v. Sunstone Realty Partners, XIV, LLC, No. 28440 (June 29, 2009). "Although argued on alternative grounds, there is only one issue on appeal in this case - whether the Circuit Court erred in affirming an arbitration award (Award) which included an award of $123,994.69 in attorneys' fees, nearly double the amount of the principal and interest components of the Award in favor of Plaintiffs-Appellees Kona Village Realty, Inc., Brenda Tschida, and Robert Tschida (collectively, Kona Village) and against Sunstone. For the reasons set forth herein, we answer this question in the negative."
- State v. Domingo, No. 29224 (Sep. 11, 2009). This case, like State v. Tuialii, No. 29239 (June 30, 2009) involved convicted criminals paying restitution. Unlike her opinion in Tuialii, Judge Leonard's opinion in this case concluded the trial court could not require a criminal defendant to pay. Here, the defendant was convicted of hit-and-run and argued that his fleeing the scene was not the cause of the victim's monetary losses. The court agreed because "[t]he plain language of HRS § 706-646(2) requires restitution in this case only upon evidence that Domingo's offense caused [the victim]'s losses. The car accident caused the losses, not his running away.
- State v. Anderson, No. 29337 (Sep. 4, 2009) (Summary Disposition Order). A drunk driving case in which Judge Leonard dissented in a short separate opinion, asserting the defendant was not properly charged.
- Loher v. State of Hawaii, No. 27884 (July 14, 2008). An ineffective assistance of counsel case for all you criminal law mavens. In an opinion authored by Judge Leonard, the ICA unanimously concluded that the record had not been fully developed regarding whether Loher's criminal defense lawyer was so ineffective that it denied him a fair trial. The opinion also addressed other criminal law-related issues. Check it out if you are interested.
- In re A.W., No. 29253 (May 8, 2009) (Summary Disposition Order). A family law case involving a father's custody rights in which Judge Leonard authored a separate concurring and dissenting opinion. The SDO held that the father's rights were not violated when he appeared at a hearing by telephone rather than in-person because he was in prison, and that the father did not show he could be a fit parent upon his release. Judge Leonard agreed with the holding regarding the telephone appearance, but concluded that the State should have done more to assist the father with reuniting with his child after the father's release from prison. The Supreme Court rejected cert review.
- Charmaine Tavares Campaign v. Wong, No. 28729 (June 25, 2009). A case involving campaign contribution limits. In a unanimous opinion authored by Judge Leonard, the ICA concluded that a corporation's contribution of $2000 to the campaign organization did not violate the $1000 contribution limitation to a "noncandidate committee." Hawaii election law limits contributions to a candidate or a "candidate's committee" to $4000. These statutes, the court held, "are quite clear." The terms "candidate," "candidate's committee," and "noncandidate committee" are not ambiguous. The Tavares campaign was not a "noncandidate committee." As Judge Leonard wrote: "It is undisputed that Quong made its $2,000 contribution to Tavares and that Tavares is a candidate committee, not a noncandidate committee. The term for the Office of Mayor for the County of Maui is four years. See Charter of the County of Maui § 7-2(5) (2003). Therefore, the Circuit Court did not err in concluding that, pursuant to HRS § 11-204(a)(1)(C), Quong was permitted to contribute, and Tavares was permitted to accept, Quong's contribution, as it did not exceed $4,000."
- Doe v. Doe, No. 28662 (Feb. 27, 2009). Another family court case involving child custody. Judge Leonard's opinion for a unanimous panel concluded: "Under the Hawai‘i Constitution, absent express findings of exigent or emergency circumstances, due process requires that a parent be given notice and an opportunity to be heard prior to a change in primary physical or legal custody in family court custody matters."
For more, visit our resource page on the Leonard nomination.
