from www.InverseCondemnation.com

Barista's note: This post is by our Damon Key colleague Rebecca A. Copeland. For those of you who have been following the process, Rebecca is familiar: she was present at the Judiciary Committee hearings when we live-blogged the Katherine Leonard confirmation. Her last post prior to joining Damon Key was as a Deputy Solicitor General for the State of Hawaii, where she argued important appeals for the State.

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On Friday, August, 13, 2010, Governor Lingle nominated Associate Justice Mark E. Recktenwald to be the next Chief Justice of the Hawaii Supreme Court.

Justice Recktenwald has served on the Hawaii Supreme Court since May 11, 2009. Prior to that he served as Chief Judge of the Intermediate Court of Appeal from April 30, 2007 until his confirmation to the Hawaii Supreme Court.

The following is a brief run down of the cases Justice Recktenwald authored during his time on the Hawaii Supreme Court (starting with the most recent). Disclaimer: Primarily, these are only opinions and/or memorandum opinions; orders are not included. However, I have attempted to note instances in which Justice Recktenwald dissented or concurred in a court order. 

• State v. Johnson, No. 28471, Aug. 2, 2010.  Dissenting opinion from rejection of writ of certiorari. Justice Recktenwald noted that although the Operating a Vehicle Under the Influence of an Intoxicant charge did not adequately allege the essential element of operating the vehicle on a "public way, street, road or highway," when viewing the complaint as a whole the charge was sufficient.

• State v. Rapazo, No. 29215, July 29, 2010. Justice Recktenwald authored the "bullet in the brassiere" opinion for a three-Justice majority in which the circuit court denied the defendant’s motion to dismiss on de minimis grounds her ownership of a ammunition by a person with certain statutory conviction charge. The defendant claimed de minimis and she intended to use the bullet as a charm bracelet. The court affirmed the conviction because the defendant did not meet her burden with only a declaration of counsel that failed to include relevant attendant circumstances but "we do not preclude the possibility [she] could carry that burden at a later stage of the proceedings in the event a more fully developed record supports dismissal." Justices Acoba and Duffy dissented.

• State v. Jackson, No. 29842, July 22, 2010. Dissenting opinion from rejection of writ of certiorari (for the reasons set forth in the ICA dissent of the same case authored by Associate Judge Nakamura).

• County of Hawaii v. Ala Loop Homeowners, No. 27707, July 9, 2010. Justice Recktenwald authored the opinion for four Justices, concluding that Article XI, Section 9 of the Hawaii Constitution creates a private right of action to enforce HRS ch. 205 and that the circuit court erred in declining to set aside the default against Wai’ola Waters of Life Charter School (all after deciding that the case was not moot and in any event review was appropriate under the pubic interest exception to the mootness doctrine).

• Henna v. Valdriz, No. 30545, June 24, 2010. Justice Recktenwald (with Chief Justice Moon joining) concurred in the order denying petition for mandamus relief.

• In re N.C., No. 28294, April 19, 2010. Justice Recktenwald and Justice Nakayama dissented because the effect of the deficiencies in the amended petition alleging four counts of sexual assault by the 8-9 year old offender against the 7 year old victim was to deprive the family court of jurisdiction to adjudicate N.C. as a person in need of supervision under HRS § 571-11(2)(B).

• In re RGB, No. 28582, April 1, 2010. Justice Recktenwald authored the court’s opinion in this child protective act case that terminated the Mother’s parental rights.  The termination was affirmed (1) because Mother had a United States Constitutional right to counsel, the court declined to address whether the Hawaii Constitution provides indigent parents a right to counsel in all termination proceedings; (2) Haw. Fam. Court Rule 60(b)(6) was an appropriate method to raise ineffective assistance of counsel claim; (3) there was no abuse of discretion in denying the motion, especially in light of the negative impact on RGB of the delay in resolving her custodial status; and (4) there was no abuse of discretion in precluding Mother from having access to records in the case generated more than a year after her parental rights were terminated even though she was allowed access to records prior to that time for purposes of appeal. Justices Acoba and Duffy dissented.

• Davis v. Four Seasons Hotel, Ltd, No. 29862, March 29, 2010. Justice Recktenwald authored the court’s opinion answering the certified question from the United States District Court: where Plaintiff banquet server employees allege that their employer violated notice provisions of HRS § 481B-14 by not clearly disclosing to purchasers that a portion of a service charge was used to pay expenses other than wages and tips of employees, and where the Plaintiffs do not plead the existence of competition or an effect thereon, do Plaintiffs have standing to bring a claim for damages against the employer. The court answered that in general, employees have standing but that these employees failed to sufficiently allege the nature of the competition to bring a claim for damages against the employer. Justice Acoba dissented.

• State v. Fitzwater, No. 28584, March 3, 2010. Justice Recktenwald authored an opinion that vacated an excessive speeding on a motorcycle conviction because the card admitted into evidence purporting to document the results of a speed check conducted 5 months before the incident to determine the accuracy of the speedometer qualified as a business record and there was an insufficient foundation laid to admit the card, and therefore, an insufficient foundation of the reliability of the speed check.  However, the court held that there was sufficient evidence of the lesser-included offense of non-criminal traffic violation. Justice Acoba concurred and dissented.

• State v. Wheeler, No. 29149, Nov. 17, 2009. In this operating a vehicle under the influence of an intoxicant case, Justice Recktenwald’s opinion for the court held that operating a vehicle "on a public way, street, road, or highway" is an essential element and that the oral charge did not adequately allege it. 

• Dupree v. Hiraga, No. 29464, Oct. 20, 2009. In a case concerning whether Solomon P. Kahoohalahala, the representative occupying the Lanai seat on the Maui County Council, was properly registered to vote in Lanai for purposes of the November 2008 general election, the Board of Registration had jurisdiction and did  not err in concluding that Kahoohalahala was not a Lanai resident. The court used a common law domiciliary standard to determine the question of residency under the voter registration statute. [Disclosure: Damon Key represented Dupree.]