by Robert Thomas www.InverseCondemnation.com

Yesterday, Governor Lingle appointed Intermediate Court of Appeals Judge Katherine Leonard as the next Chief Justice of the Hawaii Supreme Court. The term of appointment is ten years, with the possibility of reappointment by the Judicial Selection Commission, with service until the mandatory retirement age of 70. Thus, it is possible that Judge Leonard could serve two decades as Chief Justice since she is only 50. Appointing her may be the single most lasting legacy of the Lingle Administration, as it could outlast the terms of the next two governors, and half the term of a third.

Judge Leonard's statements at the press conference announcing the appointment were careful and judicious, quite naturally. We would not expect her or anyone else appointed to a judgeship to say anything but that she has "great respect for the rule of law," which means "upholding the United States Constitution, the Hawaii Constitution, following the laws that have been enacted by the Legislature, the rules of the court and putting aside any of my personal feelings or opinions." Asked to highlight which of her opinions are important, she was equally judicious, replying only with the truism that "every single case is important to the people in that case and who are affected by it."

So, are any of her opinions of import beyond the parties? We've done an informal survey of the 2010 output of the ICA (and the Supreme Court in reviewing the ICA's work) to pick out those cases in which Judge Leonard authored the opinion, or served on the panel in an interesting case. We tried to focus on published opinions, but there were several unpublished opinions which also caught our attention. Here are the results, in reverse chronological order:

• Miyashiro v. Roehrig, Roehrig, Wilson & Hara, No. 28395 (Mar. 23, 2010). Judge Leonard authored an opinion involving whether summary judgment was appropriate in a legal malpractice case on the issues of pro hac vice admission to practice law, and breach of contract. A lengthy opinion in an uncontroversial case. The Supreme Court rejected certiorari.

• County of Hawaii v. Ala Loop Homeowners, No. 27707 (Mar. 12, 2009) (summary disposition order). The ICA panel (Foley, Fujise, and Leonard) did not publish an opinion, so we don't know which judge authored the order. SDO's are not precedential. This case is only on this list because the Hawaii Supreme Court recently reversed the ICA's order, and held that under the Hawaii Constitution, zoning statutes are "environmental" laws and therefore may be enforced by private party lawsuits. The ICA had concluded otherwise.

• Mogilefsky v. County of Maui, No. 29538 (June 22, 2010) (summary disposition order). Another unsigned SDO in a land-related case, posted here since we like that subject. The panel concluded that the County's adoption of a zoning ordinance was not an "action" by an "agency" triggering environmental review under chapter 343, the Hawaii EA/EIS statute.

• Lum v. Zoning Board of Appeals, No. 29276 (June 21, 2010) (summary disposition order). An unsigned opinion in a case involving a setback and a Conditional Use Permit. The Planning Director's interpretation of the land use ordinance was reasonable, and the court deferred to it. Judge Leonard was on the panel with Judges Nakamura and Foley.

• State v. Burdett, No. 29557 (Mar. 9, 2010) (summary disposition order). SDO's are the equivalent of "nothing to see here folks, move along," but this one stands out since the Hawaii Supreme Court subsequently accepted certiorari and summarily affirmed in part and reversed in part the ICA's order. The case involved the standards for Judgments of Acquittal in criminal cases. The Supreme Court reversed that portion of the ICA's order for the state of mind requirement under the statute criminalizing the use of drug paraphernalia. The Court held that the statutory standard is "intentional," not "knowing" as the ICA held.

• State v. Strong, No. 29130 (Nov. 25, 2010). In a published opinion in a case involving Miranda warnings authored by Judge Leonard, the ICA held that the defendant voluntarily waived his Fifth Amendment rights and reversed the trial court's order suppressing the defendant's statements. Judge Leonard's opinion focused on Justice Acoba's concurring opinion in an earlier case, State v. Poaipuni, 98 Haw. 387, 49 P.3d 353 (2002). The Hawaii Supreme Court affirmed the judgment without opinion, but Justice Acoba (joined by Justice Duffy) dissented. The dissent is rather lengthy, and is written as if it was drafted as a majority opinion that ultimately failed to garner a third vote. The dissent would have reversed the ICA, and is significant since it takes issue with Judge Leonard's treatment of Poaipuni ("the [ICA] erred in concluding that the concurring opinion by Justice Acoba and in which Justice Levinson joined...is distinguishable from this case inasmuch as the concurrence in Poaipuni required that the interrogating officer advise Petitioner of the other offenses prior to the waiver of his Miranda rights and not prior to the time of questioning as the ICA states") (emphasis added).

• In re Tax Appeal of Reel Hooker Sportfishing, Inc., No. 29598 (May 28, 2010). A published opinion authored by Judge Leonard involving whether the imposition of Hawaii General Excise Tax on a vessel operating in navigable waters is preempted by federal law. The court concluded State has the power to impose the tax since it is a tax assessed for the privilege of doing business in Hawaii, and is not a tax on the vessel or its passengers. This opinion is a good example of clear and understandable legal writing, and a promising indication of the type of opinion we can expect from Chief Justice Leonard.

• Garner v. State of Hawaii Dep't of Education, No. 27912 (Oct. 30, 2009). A published opinion by Judge Leonard in an interlocutory appeal involving whether substitute teachers are entitled to back pay. The Hawaii Supreme Court declined to review the ICA's opinion.

• Hui Malama I Na Kupuna O Nei v. Wal-Mart, No. 28447 (Dec. 15, 2009). A case involving the discovery of human skeletal remains on a construction site. Judge Leonard was on the unanimous panel with Judges Watanabe and Foley, but did not author the opinion. Still, it's worth a read if only to try and glean some insight as to how she might view these issues. The Supreme Court rejected cert in May 2010.

• State v. Tuialii, No. 29239 (June 30, 2009). An opinion authored by Judge Leonard concluding that a criminal sentence was properly imposed requiring the defendant to provide restitution to his victim. The Supreme Court denied review, with Justices Acoba and Duffy dissenting in an opinion which begins, "[w]ith all due respect, although the Intermediate Court of Appeals (ICA) reached the correct conclusion with respect to the appeal...its analysis of the issues presented and discussion of relevant law, if left standing, would call into question the proper test our courts must apply with respect to plea colloquies."

• State v. Billam-Walker, No. 28670 (Aug. 11, 2009). A short published opinion in a case involving a criminal conviction for endangering the welfare of an incompetent person, authored by Judge Foley. Judge Leonard concurred in the result only, meaning that she did not agree with the panel's rationale. She did not, however, set out her rationale in a separate opinion.

What, if anything, can be taken away from this admittedly cursory review of Judge Leonard's recent judicial output, other than the fact that her opinions can be easily identified by their boldfacing of parentheticals (read them and you will see)?

First, if the Reel Hooker Sportfishing opinion is an indication, we can expect some clear writing and analysis in her work product. We should expect no less from a fellow veteran of the University of Hawaii Law Review. A very good sign.

Second, that Justice Acoba took the time to dissent from denials of certiorari review in Strong and Tuialii to point out his express differences with her opinions, might indicate a continuation of the often interesting splits of opinions between Justice Acoba and the other members of the Court. We could not find any cases in which Judge Leonard staked out a position different from her fellow panel members by filing a dissenting or concurring opinion, but that is not particularly unusual for the ICA. That may change if she becomes the Chief Justice, and if Justice Acoba continues his practice of filing separate opinions to set forth his differences with the Court, we could see an interesting dynamic develop between the two.

If we missed any of her significant opinions, feel free to add them in the comments.

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UPDATE: More On Chief Justice-Nominee Leonard's Opinions