SHOCKED, SHOCKED: There are predictable times when we news junkies just throw up our hands and go to the library for a bevy of books. It could be the coverage of anything from the trial of the century of the week or some other bleeder-leader that preempts the rest of what passes for news, both locally and nationally.
So we certainly didn't expect coverage of anything of interest when the APEC minions and sycophants marched into town, other than the obligatory protests and even then only the pictures of sign-carriers and super-sized puppets rather than an examination of why these free trade conferences are the scourge of the "developing world."
But lo an behold, some gun-toting g-man from the state department who's supposedly there to provide "protection" to dignitaries, goes out and gets into a 3 a.m. racially-charged altercation at the all-night McDonald’s in Waikiki and shoots and kills a local kid who's out on the town.
Now that would get our attention no matter what. But the mysterious circumstances regarding the charging and release of Christopher Deedy are even more bizarre than the incident itself.
Despite the "duh" headline- "Low bail, swift release suggest to some that suspect had help"- an otherwise extremely informative article by Honolulu Star-Advertiser investigative reporter par excellence Rob Perez reveals that everything from the relatively low bail and lightning fast release of Deedy, to the lack of release of any details by police, was anything but routine.
Perez asked a pack of attorneys who for the most part agreed that the quarter-million dollar bail would have been "highly unusual" even for an indigent suspect, not only for the low amount but the speed with which it was established, paid and the suspect released- all occurring hours before he was scheduled to appear before a judge for arraignment
Not only that but Deedy has apparently disappeared and could be anywhere, even back on the mainland awaiting a court appearance on Nov. 17 after the APEC conference ends.
The problem is that although many smell a rat due to apparent Washington, D.C. diplomatic intervention, what will undoubtedly not get local much less national press coverage is what it says about our judiciary in that they apparently knuckled under to pressure from above in record time- a record even for the notoriously corrupt Hawaii criminal justice system.
We can't help but wonder if Perez's article will be the beginning and end of any investigation of how a murder suspect could be processed and released in the manner Deedy was. But if the kid's gloves the with which the Honolulu media usually treats the Honolulu police, prosecutors and courts is any indication, we don't expect suspicions of something rotten in the state of Hawai`i to get much attention in the future.
Well, it's back to Carl Hiaasen and Lisa Lutz for us. Wake us when Deedy turns up.
Showing posts with label State Judiciary. Show all posts
Showing posts with label State Judiciary. Show all posts
Wednesday, November 9, 2011
Tuesday, October 25, 2011
ALL AROUND THE MULBERRY BUSH
ALL AROUND THE MULBERRY BUSH: Sometime you've gotta wonder what's up when it comes to our state judiciary.
No, we're not talking about the scandal plagued sheriff’s division or the "we be's" who populate the offices and act as if they own the process, if not the judges themselves. No, it's not the probation department that thinks that "field work" is going hunting and fishing on weekends.
If you want to know what plaguing our state's courts just look at the actual rulings of some of the men and women wearing the robes.
Today's decision by the newly reinvigorated Hawai`i Intermediate Court of Appeals (ICA) overturning 5th Circuit Court Judge Randall Valenciano's ruling that allowed the Republican party to "replace" a candidate for the 14th House District who intentionally filed and withdrew just before the deadline, is a case in point detailing how politics often rules the courthouse roost.
The problem is that rather than sort out what the law really is trying to say, they simply shirked that responsibility and disqualified the original candidate for not completing his application.
As Mina Morita- the one who then held the 14th district seat at the time and eventually won reelection- said at the time:
Simply put, Hamman did not file nomination papers for the District 14 House race by the close of the filing deadline because he withdrew on July 19. And, there was no way he could because he filed his nomination papers for the Senate race and a person cannot run in more than one race. The Republicans did not have a candidate qualified for the ballot for the District 14 House race at the close of the filing deadline, therefore, no candidate vacancy exists to allow Harry R. Williams to run as a legitimate candidate.
We went a little further in explaining the way the law leaves room for interpretation, citing Hawai`i Revised Statutes (HRS) 11-117 and 118 as well as Hawai`i Administrative Rule (HAR) Chapter 3-173-1 to explain the mess and in addition mentioned that it wasn't the first time the ambiguity in the law had caused a musical chairs brouhaha at the filing deadline. Two years previously, in the case of Kirk Caldwell, the same lack of clarity squeezed him out of candidacy in any election as the "resign to run" law did its dirty work.
We won't bore you by repeating the technical explanation here again, but we will say that in between the Caldwell and Morita fiascoes, the legislature sat around with their thumbs up their butts, kow-towing to the churches, who had their noses in proximate climes over civil unions.
And as if to reiterate that inaction isn't just a mistake at the Capitol but is a carefully planned result of the Hawai`i legislative committee system, remedial bills weren't even scheduled for a hearing during the session following the Morita-Hamman mess.
Now we haven't seen the decision yet, but if the press reports are correct, the ICA didn't bother to tell the legislature to get its act together and clarify the law - as the appellate courts are wont to do on occasion- so we don't have to go through this again in 2012. Instead they decided the case based on a lack of sufficiency in the application itself, virtually saying "we won't touch this political football" even to say the law is unclear on process thus leaving the matter flapping in the wind.
So when the legislature fails to act again this January and the filing deadline comes around next year, expect yet another debacle consisting of candidates waving competing sections of law at each other and the chief elections officer. And don't worry- we'll be here with the distinctly unsatisfying chance to once again say "we told you so."
No, we're not talking about the scandal plagued sheriff’s division or the "we be's" who populate the offices and act as if they own the process, if not the judges themselves. No, it's not the probation department that thinks that "field work" is going hunting and fishing on weekends.
If you want to know what plaguing our state's courts just look at the actual rulings of some of the men and women wearing the robes.
Today's decision by the newly reinvigorated Hawai`i Intermediate Court of Appeals (ICA) overturning 5th Circuit Court Judge Randall Valenciano's ruling that allowed the Republican party to "replace" a candidate for the 14th House District who intentionally filed and withdrew just before the deadline, is a case in point detailing how politics often rules the courthouse roost.
The problem is that rather than sort out what the law really is trying to say, they simply shirked that responsibility and disqualified the original candidate for not completing his application.
As Mina Morita- the one who then held the 14th district seat at the time and eventually won reelection- said at the time:
Simply put, Hamman did not file nomination papers for the District 14 House race by the close of the filing deadline because he withdrew on July 19. And, there was no way he could because he filed his nomination papers for the Senate race and a person cannot run in more than one race. The Republicans did not have a candidate qualified for the ballot for the District 14 House race at the close of the filing deadline, therefore, no candidate vacancy exists to allow Harry R. Williams to run as a legitimate candidate.
We went a little further in explaining the way the law leaves room for interpretation, citing Hawai`i Revised Statutes (HRS) 11-117 and 118 as well as Hawai`i Administrative Rule (HAR) Chapter 3-173-1 to explain the mess and in addition mentioned that it wasn't the first time the ambiguity in the law had caused a musical chairs brouhaha at the filing deadline. Two years previously, in the case of Kirk Caldwell, the same lack of clarity squeezed him out of candidacy in any election as the "resign to run" law did its dirty work.
We won't bore you by repeating the technical explanation here again, but we will say that in between the Caldwell and Morita fiascoes, the legislature sat around with their thumbs up their butts, kow-towing to the churches, who had their noses in proximate climes over civil unions.
And as if to reiterate that inaction isn't just a mistake at the Capitol but is a carefully planned result of the Hawai`i legislative committee system, remedial bills weren't even scheduled for a hearing during the session following the Morita-Hamman mess.
Now we haven't seen the decision yet, but if the press reports are correct, the ICA didn't bother to tell the legislature to get its act together and clarify the law - as the appellate courts are wont to do on occasion- so we don't have to go through this again in 2012. Instead they decided the case based on a lack of sufficiency in the application itself, virtually saying "we won't touch this political football" even to say the law is unclear on process thus leaving the matter flapping in the wind.
So when the legislature fails to act again this January and the filing deadline comes around next year, expect yet another debacle consisting of candidates waving competing sections of law at each other and the chief elections officer. And don't worry- we'll be here with the distinctly unsatisfying chance to once again say "we told you so."
Wednesday, August 24, 2011
OXYMORONICALLY SPEAKING
OXYMORONICALLY SPEAKING: Little kids and we old futs have something in common- we both refuse to fall for BS conundrums.
While sophomoric angst-ridden teens may obsess over questions like "if a tree falls in the forest and no one is there to hear it, does make a sound " any wise-ass seven year old will suggest using a tape recorder to show it does and the crotchety crowd will just say "of course it does- what are you an idiot?".
But today that very question- or an approximation thereof- presents itself by asking "if a newspaper that has a 'paywall' sues the the governor's for his refusal to release the list of judicial nominees, does anyone hear about it?".
The answer is only if you find out through "'Civil Beath'" which, though similarly paywalled, offers as many free one-month subscriptions as you have email addresses.
That's a long way to go to say that the news itself is certainly welcome in that the Honolulu Star-Advertiser (S-A) is dipping into it's monopolistically-engorged pockets to do what they should have done the first time Governor Neil Abercrombie decided to flout tradition- and an Office of Information Practices (OIP) opinion- by refusing to release the list (after state senate approval).
The suit itself- provided in copy-protected form by Civil Beat which has come under fire for copy-protecting other public documents- attempts to refute the governor's claim that to release the list would, as the law says, "frustrate a legitimate government function"- that of appointing judges from a list provided by a judicial selection committee.
But strangely enough the suit fails to try to refute Abercrombie's contention other than essentially saying "no it doesn't."
Are we to assume the hearing will feature ten year old attorneys alternately screaming "yes it does... no it doesn't... yes it does... no it doesn't." until one grabs the others hair and the other bites the first one on the leg?
Abercrombie claims is that attorneys will be less willing to submit their names to the selection committee because they risk the ire of their employers, partners or even clients- both current and future- by letting them know they might be leaving.
But the S-A suit simply ignores the argument itself by refusing to address either of the two issues- first, whether a public announcement will in fact cause problems for the applicant and two, if that's true- whether it rise to the level of "frustration of a legitimate government function."
Now we're normally an unqualified supporter of the preamble to the Sunshine Law which presumes that government documents are to be made public unless they are specifically exempted by law- and that the law should be "liberally applied."
But we've got to admit that, after talking about this with five different attorneys over the past few months, we have come around to the governor's thinking. All five said that the fact that their names would become public has colored their decisions as to whether or not to apply for a judgeship.
The five include lawyers, who both work with partners and without, are in the government's employ and in private practice and do both criminal and civil law. And all said that the release of their names is a consideration and some said that indeed it has influenced their decision not to apply.
That means that- our admittedly small sample notwithstanding- the only question is whether, assuming the "fact" that what Abercrombie claims is true, does it actually "frustrate a legitimate government function?".
Whenever we've seen these kinds of determinations the "function" is stated. In this case it would be "the appointment of judges by the governor."
But the problem for the governor is that the law does not state that his job is to appoint judges from the widest possible pool, just that he pick from a list provided by the selection committee.
Attorneys will make the decision as to whether to seek a judgeship for any number of reasons. Certainly the usual drop in pay is a consideration so should the law require the state to make up the difference to widen the pool? Suppose the appointment requires a move from a neighbor island to Honolulu and the attorney has children who are in an excellent public school? Should he or she be compensated for having to put them in a private school if there is no comparable public school available?
Of course not. The legitimate government function is to provide a list, not to insure that the list includes every attorney in the state who otherwise would consider a judicial appointment.
The governor's claim regarding the release of the names of attorneys who aren't selected may be true. But it is for all intent and purpose it is irrelevant because unless the attorney general comes up with a heretofore unspoken rationale to say that this actually frustrates a legitimate government function Abercrombie's claim doesn't really stand up to scrutiny.
While sophomoric angst-ridden teens may obsess over questions like "if a tree falls in the forest and no one is there to hear it, does make a sound " any wise-ass seven year old will suggest using a tape recorder to show it does and the crotchety crowd will just say "of course it does- what are you an idiot?".
But today that very question- or an approximation thereof- presents itself by asking "if a newspaper that has a 'paywall' sues the the governor's for his refusal to release the list of judicial nominees, does anyone hear about it?".
The answer is only if you find out through "'Civil Beath'" which, though similarly paywalled, offers as many free one-month subscriptions as you have email addresses.
That's a long way to go to say that the news itself is certainly welcome in that the Honolulu Star-Advertiser (S-A) is dipping into it's monopolistically-engorged pockets to do what they should have done the first time Governor Neil Abercrombie decided to flout tradition- and an Office of Information Practices (OIP) opinion- by refusing to release the list (after state senate approval).
The suit itself- provided in copy-protected form by Civil Beat which has come under fire for copy-protecting other public documents- attempts to refute the governor's claim that to release the list would, as the law says, "frustrate a legitimate government function"- that of appointing judges from a list provided by a judicial selection committee.
But strangely enough the suit fails to try to refute Abercrombie's contention other than essentially saying "no it doesn't."
Are we to assume the hearing will feature ten year old attorneys alternately screaming "yes it does... no it doesn't... yes it does... no it doesn't." until one grabs the others hair and the other bites the first one on the leg?
Abercrombie claims is that attorneys will be less willing to submit their names to the selection committee because they risk the ire of their employers, partners or even clients- both current and future- by letting them know they might be leaving.
But the S-A suit simply ignores the argument itself by refusing to address either of the two issues- first, whether a public announcement will in fact cause problems for the applicant and two, if that's true- whether it rise to the level of "frustration of a legitimate government function."
Now we're normally an unqualified supporter of the preamble to the Sunshine Law which presumes that government documents are to be made public unless they are specifically exempted by law- and that the law should be "liberally applied."
But we've got to admit that, after talking about this with five different attorneys over the past few months, we have come around to the governor's thinking. All five said that the fact that their names would become public has colored their decisions as to whether or not to apply for a judgeship.
The five include lawyers, who both work with partners and without, are in the government's employ and in private practice and do both criminal and civil law. And all said that the release of their names is a consideration and some said that indeed it has influenced their decision not to apply.
That means that- our admittedly small sample notwithstanding- the only question is whether, assuming the "fact" that what Abercrombie claims is true, does it actually "frustrate a legitimate government function?".
Whenever we've seen these kinds of determinations the "function" is stated. In this case it would be "the appointment of judges by the governor."
But the problem for the governor is that the law does not state that his job is to appoint judges from the widest possible pool, just that he pick from a list provided by the selection committee.
Attorneys will make the decision as to whether to seek a judgeship for any number of reasons. Certainly the usual drop in pay is a consideration so should the law require the state to make up the difference to widen the pool? Suppose the appointment requires a move from a neighbor island to Honolulu and the attorney has children who are in an excellent public school? Should he or she be compensated for having to put them in a private school if there is no comparable public school available?
Of course not. The legitimate government function is to provide a list, not to insure that the list includes every attorney in the state who otherwise would consider a judicial appointment.
The governor's claim regarding the release of the names of attorneys who aren't selected may be true. But it is for all intent and purpose it is irrelevant because unless the attorney general comes up with a heretofore unspoken rationale to say that this actually frustrates a legitimate government function Abercrombie's claim doesn't really stand up to scrutiny.
Thursday, March 10, 2011
DON'T IT ALWAYS SEEM TO GO
DON'T IT ALWAYS SEEM TO GO: Politics just may be the one place where one can become overwhelmed with crushing ambivalence.
The rule is that elective office- especially legislative- is so corrupt by nature that even the truly enlightened and dedicated novice is
swallowed whole and spit back out a crook. But every once in a while that rare individual with the stomach for the stench can swim the turd gauntlet and emerge smelling like lavender and lilacs.
And when that rare individual attains enough fragrance to attract attention they are often tempted to crawl out of the cesspool and look around for a more rarefied air.
So it is that in losing Representative Mina Morita to the Pubic Utilities Commission and Senator Gary Hooser to the Office of Environmental Control, while we mourn for the loss we are excited for the potential that their proven strengths and skills may be utilized to assure a sustainable future in energy and the environment respectively.
But we really in a tizzy over the possibility of losing, not a politician but, an individual that is so unique on Kaua`i that he may be, for all intents and purposes, irreplaceable.
In case you hadn't heard Attorney Daniel Hempey has made the list for judicial nominees to the District Family Court of the Fifth Circuit.
For those not familiar with Hempey's work and why it's unique you've got to take a look at the rest of the law community on Kaua`i.
Kaua`i is and always has been awash in land use attorneys, representing developers great and small to navigate the labyrinth. If you ever expect to get one of those lucrative cases you'd better not be taking any cases defending against them.
In addition to Hempey's work as a criminal defense attorney par excellance- another thing that doesn't earn you very high marks among Kaua`i based members of the bar- Hempey has dared to take cases representing those who defend the `aina from potential abuse by those who come here with intent to despoil.
On one hand Hempey's fearless pro bono work with Kanaka Maoli sovereignty movement has been magnificent and might just make him irreplaceable. But on the other, the need for someone of Hempey's fearless temperament on the bench is tremendous, especially in light of the plethora of government and prosecutorial judicial appointments that we usually see in Hawai`i and Kaua`i.
So it's with even greater level of profound ambivalence that we ask you to send comments on Hempey's qualifications and character to Hawaii Chief Justice Mark Recktenwald.
Submittals must be postmarked, e-mailed, faxed or hand-delivered by March 18.
Via Mail: Mark Recktenwald; chief justice, Hawaii Supreme Court; 417 S. King St., Honolulu, HI 96813
Via E-mail: chiefjustice@courts.state.hi.us
Via Fax: 539-4703
As with Morita and Hooser while we're apprehensive about the possible "loss" of Hempey in his current arena we have to think that they know where they can best serve the community. All three have earned enough of our respect and trust that we're sure that while we're of two minds they can make the best determination of where to use theirs.
The rule is that elective office- especially legislative- is so corrupt by nature that even the truly enlightened and dedicated novice is
swallowed whole and spit back out a crook. But every once in a while that rare individual with the stomach for the stench can swim the turd gauntlet and emerge smelling like lavender and lilacs.
And when that rare individual attains enough fragrance to attract attention they are often tempted to crawl out of the cesspool and look around for a more rarefied air.
So it is that in losing Representative Mina Morita to the Pubic Utilities Commission and Senator Gary Hooser to the Office of Environmental Control, while we mourn for the loss we are excited for the potential that their proven strengths and skills may be utilized to assure a sustainable future in energy and the environment respectively.
But we really in a tizzy over the possibility of losing, not a politician but, an individual that is so unique on Kaua`i that he may be, for all intents and purposes, irreplaceable.
In case you hadn't heard Attorney Daniel Hempey has made the list for judicial nominees to the District Family Court of the Fifth Circuit.
For those not familiar with Hempey's work and why it's unique you've got to take a look at the rest of the law community on Kaua`i.
Kaua`i is and always has been awash in land use attorneys, representing developers great and small to navigate the labyrinth. If you ever expect to get one of those lucrative cases you'd better not be taking any cases defending against them.
In addition to Hempey's work as a criminal defense attorney par excellance- another thing that doesn't earn you very high marks among Kaua`i based members of the bar- Hempey has dared to take cases representing those who defend the `aina from potential abuse by those who come here with intent to despoil.
On one hand Hempey's fearless pro bono work with Kanaka Maoli sovereignty movement has been magnificent and might just make him irreplaceable. But on the other, the need for someone of Hempey's fearless temperament on the bench is tremendous, especially in light of the plethora of government and prosecutorial judicial appointments that we usually see in Hawai`i and Kaua`i.
So it's with even greater level of profound ambivalence that we ask you to send comments on Hempey's qualifications and character to Hawaii Chief Justice Mark Recktenwald.
Submittals must be postmarked, e-mailed, faxed or hand-delivered by March 18.
Via Mail: Mark Recktenwald; chief justice, Hawaii Supreme Court; 417 S. King St., Honolulu, HI 96813
Via E-mail: chiefjustice@courts.state.hi.us
Via Fax: 539-4703
As with Morita and Hooser while we're apprehensive about the possible "loss" of Hempey in his current arena we have to think that they know where they can best serve the community. All three have earned enough of our respect and trust that we're sure that while we're of two minds they can make the best determination of where to use theirs.
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