MOTION TO RECUSE DISQUALIFY THE HONORABLE KATHERINE

MOTION TO RECUSE DISQUALIFY THE HONORABLE KATHERINE LEONARD FROM PRESIDING AS JUDGE IN THIS ACTION, OR IN THE ALTERNATIVE

MOTION TO RECUSE

This Motion is brought pursuant to Rule 7 of the Hawaii Rules ofCjyjJ Procedut:e and

Hawaii Revised Statutes (HRS) § 601-7 and is supported by the Memorandum in Support

of Motion.

MEMORANDUM IN SUPPORT OF MOTION

I. INTRODUCTION

Hawaii Intermediate Court of Appeals Judge Katherine Leonard was asked to replace

a Hawaii Supreme Court Justice to hear a "Certified Question" that has been conveyed by

the US District Court to the Hawaii Supreme Court for answer in the Marcos Human

Rights Litigation. Under the principles of Haw. Rev. Stat. § 601-7 and Rule 2.11 of the

Hawaii Revised Code of Judicial Conduct (CJC), Judge Leonard must recuse herself

from hearing the Certified Question. Judge Leonard's impartiality can reasonably be

questioned by an objective onlooker because she has previously ruled on the exact issue

presented in the Certified Question while sitting on the Estate of Roxas v. Marcos, 120

Haw. 123, 202 P.3d 584 (Haw. Ct. App. 2009) case, which will also be heard on appeal

by the Hawaii Supreme Court.

II. BACKGROUND

As a Judge on the Hawaii Intermediate Court of Appeals (lCA), Judge Katherine

Leonard sat on Estate of Roxas v. Marcos, 120 Haw. 123,202 P.3d 584 (Haw. Ct. App.

2009), which was granted a writ of certiorari by the Hawaii Supreme Court. Estate of

Roxas v. Marcos, 120 Haw. 123,202 P.3d 584 (Haw. Ct. App. 2009), cert. granted, Civ.

No. 88-0522, slip op. at 1,2009 WL 1220647 (Haw. 2009). The Hawaii Supreme Court

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MOTION TO RECUSE DISQUALIFY THE HONORABLE KATHERINE LEONARD FROM PRESIDING AS JUDGE IN THIS ACTION, OR IN THE ALTERNATIVE

MOTION TO RECUSE

This Motion is brought pursuant to Rule 7 of the Hawaii Rules ofCjyjJ Ptocedure and

Hawaii Revised Statutes (HRS) § 601-7 and is supported by the Memorandum in Support

of Motion.

MEMORANDUM IN SUPPORT OF MOTION

I. INTRODUCTION

Hawaii Intermediate Court of Appeals Judge Katherine Leonard was asked to replace

a Hawaii Supreme Court Justice to hear a "Certified Question" that has been conveyed by

the US District Court to the Hawaii Supreme Court for answer in the Marcos Human

Rights Litigation. Under the principles of Haw. Rev. Stat. § 601-7 and Rule 2.11 of the

Hawaii Revised Code of Judicial Conduct (CJC), Judge Leonard must recuse herself

from hearing the Certified Question. Judge Leonard's impartiality can reasonably be

questioned by an objective onlooker because she has previously ruled on the exact issue

presented in the Certified Question while sitting on the Estate of Roxas v. Marcos, 120

Haw. 123, 202 P.3d 584 (Haw. Ct. App. 2009) case, which will also be heard on appeal

by the Hawaii Supreme Court.

II. BACKGROUND

As a Judge on the Hawaii Intermediate Court of Appeals (lCA), Judge Katherine

Leonard sat on Estate of Roxas v. Marcos, 120 Haw. 123,202 P.3d 584 (Haw. Ct. App.

2009), which was granted a writ of certiorari by the Hawaii Supreme Court. Estate of

Roxas v. Marcos, 120 Haw. 123,202 P.3d 584 (Haw. Ct. App. 2009), cert. granted, Civ.

No. 88-0522, slip op. at 1,2009 WL 1220647 (Haw. 2009). The Hawaii Supreme Court

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University of Hawaii School of Law Library - Jon Van Dyke Archives Collection

will hear likely hear the appeal in the Estate of Roxas v. Marcos case along with the

Certified Question that has been conveyed by the US District Court. Judge Leonard was

asked to sit on the Supreme Court panel that will hear the Certified Question, which will

address the exact issue on appeal in the Estate of Roxas v. Marcos case.

III. ISSUE

Whether Haw. Rev. Stat. § 601-7 and Rule 2.11 of the Hawaii Revised Code of Judicial

Conduct prohibits Judge Leonard, an ICAjudge, from sitting on a Supreme Court panel

to decide a Certified Question conveyed by the US District Court when Judge Leonard

has recently decided the exact issue presented by the Certified Question as an ICA Judge.

IV. ARGUMENT

A. RECUSAL IS MANDATORY WHEN A JUDGE SITS ON AN APPEAL FROM ANY DECISION OR JUDGMENT RENDERED BY THE JUDGE.

This Court applies a two-part analysis when addressing a disqualification or

recusal case. State v. Ross, 89 Haw. 371,377,974 P.2d 11, 17 (1999). First, the Court

asks whether HRS § 601-7 covers the disqualifying bias or conflict of interest. Id. If

HRS § 601-7 does not cover the particular allegation the Court may then turn to notions

of due process in conducting the "broader inquiry of whether 'circumstances ... fairly

give rise to an appearance of impropriety and ... reasonably cast suspicion on the [the

judge's] impartiality. '" Id. (quoting State v. Brown, 70 Haw. 459, 467 n. 3, 776 P.2d

1182, 1188 n. 3 (1989».

HRS § 601-7(a)(2) states that a judge is prohibited from sitting "on an appeal

from any decision or judgment rendered by the judge." Haw. Rev. Stat. § 601-7(a)(2)

(Westlaw 2009). Judge Leonard would not technically violate Haw. Rev. Stat. § 601-

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will hear likely hear the appeal in the Estate of Roxas v. Marcos case along with the

Certified Question that has been conveyed by the US District Court. Judge Leonard was

asked to sit on the Supreme Court panel that will hear the Certified Question, which will

address the exact issue on appeal in the Estate of Roxas v. Marcos case.

III. ISSUE

Whether Haw. Rev. Stat. § 601-7 and Rule 2.11 of the Hawaii Revised Code of Judicial

Conduct prohibits Judge Leonard, an ICAjudge, from sitting on a Supreme Court panel

to decide a Certified Question conveyed by the US District Court when Judge Leonard

has recently decided the exact issue presented by the Certified Question as an ICA Judge.

IV. ARGUMENT

A. RECUSAL IS MANDATORY WHEN A JUDGE SITS ON AN APPEAL FROM ANY DECISION OR JUDGMENT RENDERED BY THE JUDGE.

This Court applies a two-part analysis when addressing a disqualification or

recusal case. State v. Ross, 89 Haw. 371,377,974 P.2d 11, 17 (1999). First, the Court

asks whether HRS § 601-7 covers the disqualifying bias or conflict of interest. Id. If

HRS § 601-7 does not cover the particular allegation the Court may then turn to notions

of due process in conducting the "broader inquiry of whether 'circumstances ... fairly

give rise to an appearance of impropriety and ... reasonably cast suspicion on the [the

judge's] impartiality. '" Id. (quoting State v. Brown, 70 Haw. 459, 467 n. 3, 776 P.2d

1182, 1188 n. 3 (1989».

HRS § 601-7(a)(2) states that a judge is prohibited from sitting "on an appeal

from any decision or judgment rendered by the judge." Haw. Rev. Stat. § 601-7(a)(2)

(Westlaw 2009). Judge Leonard would not technically violate Haw. Rev. Stat. § 601-

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7(a)(2) ifshe hears the Certified Questi on because the Certified Question is not

technicall y an appea l from a judgment she rendered as an ICA judge. The prin~

behind the statute requires .Judge Leonard to recuse herself.

The Fourth C ircuit I ourt of Appea ls addressed a similar situati on in Swann v.

Charl otte~eck l en~g B~. of Ed, 43 1 F.2d 135, 13 A.L.R. Fed. 850 (4th Cir. 1970) . In

Swan v. Charlotte-Mecklenburg Bd . of Ed., Circuit Judge James Baxton Crave n recused

himse lf from a case dealing with the exact issue he had decided as a Distri ct Court Judge.

lfL. Judge Baxton, interpreting a fede ral statute stating that "' no judge shall hear or

determine an appea l from the decision of a case or issue tried by him,'" stated that the

purpose of the statute was to requ ire the Circuit Courts " to be constituted of judges

uncommitted and uninfluenced by having expressed or formed an o Pinio~ court of

the first instance." lfL. at 137. The same principle that reql ; red Judge Baxton to recuse --himself requires Judge Leonard to recuse herse lf because she has prev ious ly expressed

and formed an opinion regarding the issue presented in the Certi fied Question.

B. RECUSA L IS MA DATORY IN ANY PROCEEDING IN WHI CH THE JUDGE'S IMPARTI ALITY MI GHT REASONA BLY BE QUESTIONED.

Part two of the di squalification or recusa l analysis looks to notions of due process

applying the principles o f the Cl C. State v. Ross, at 378,974 P.2d II , 18. The Court in

Ross recognized that "as ide from the technical absence o f bias or confl ict o f interes t,

certain situations may give rise to such uncertainty concerning the abil ity of the judge to

rule impartially that d isqualification becomes necessary." ld. at 379, 974 P.2d I I , 19.

Rule 2. 11 (a) of the Revised Code of Judicial Conduct Rule states that "subject to

the rule of necessity, a judge shall disqualify or recuse himself or herself in any

proceeding in which the judge's impartiality might reasonably be questioned, inc luding

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, . .--,'lJi rV f

but not limited to the following circumstances. ,f w. Rev. Code of Jud. Conduct, Rule

2.11 (a) (West, Westlaw through Jan. 2009 amendments). The comments to Rule 2.11

state that "under this rule, a judge is disqualifi ed or recused whenever the judge's

impartiality might reasonably be questioned, regardless of whether any of the specific

provisions of Rule 2.11 (a) through (6) app ly." CJC, Comment [I] to Rule 2. 11.

Impartiality is defined as "an absence of bias or prejudice in favor of, or against,

particular parties or classes of parties, as well as maintenance of an open mind in

considering issues that come or may come before ajudge." CJC, Terminology.

CJC, Rule 1.2 further states that "ajudge shall act at all times in a man ner that

promotes pub li c confidence in the independence, integrity, and impartiality of the

judiciary and shall avo id impropriety and the appearance of impropriety." CJC, Ru le 1.2.

The CJC defines "appearance of impropriety" as "conduct that reasonable minds, with

knowledge of all the relevant circumstances, would percei ve as materially impairing the

judges independence, integrity, impartiality, temperament, or fitness to fu lfill the duti es

of judicial office." The Court in Ross stated that "the test for disqualification due to the

'appearance of impropriety' is an objective one, based not on the beliefs of the petitioner

or the judge, but on the assessment of a reasonable impartial onlooker appri sed of all the

facts." Ross, at 380, 974 P.2d 11 ,20.

"The test assumes the viewpoint of a reasonable onlooker, rather than the subj ective

belief of the judge." Ross al378, 974 P.2d II , 17. An objective, reasonable onlooker

could not believe that Judge Leonard 's presence on the Certified Question panel does not

present the "appearance of impropriety." A reasonable onlooker would find it difficult to

believe that Judge Leonard does not harbor any bias towards the exact issue that she has

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already decided in the ICA and that will likely be heard in the Hawaii Supreme Court

along with the Certified Question.

V. CONCLUSION

This Court stated that "in the administration of justice by a court of law, no principle is

better recognized as absolutely essential than that ever case, be it criminal or civil, and

the parties involved therein are entitled to the 'cold neutrality of an impartial judge. '"

Peters v. Jamieson, 48 Haw. 247, 262, 397 P.2d 575, 585 (1964). Based upon the

foregoing arguments and authority, and the promise made in Jamieson, Judge Leonard

should be disqualified or should recuse herself from hearing the Certified Question on the

Marcos Human Rights Litigation.

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already decided in the ICA and that will likely be heard in the Hawaii Supreme Court

along with the Certified Question.

V. CONCLUSION

This Court stated that "in the administration of justice by a court of law, no principle is

better recognized as absolutely essential than that ever case, be it criminal or civil, and

the parties involved therein are entitled to the 'cold neutrality of an impartial judge. '"

Peters v. Jamieson, 48 Haw. 247, 262, 397 P.2d 575, 585 (1964). Based upon the

foregoing arguments and authority, and the promise made in Jamieson, Judge Leonard

should be disqualified or should recuse herself from hearing the Certified Question on the

Marcos Human Rights Litigation.

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Documents

MOTION TO RECUSE DISQUALIFY THE HONORABLE KATHERINE