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HomeMy WebLinkAboutCOM 0403.000 2014-2016 F 4 William P. Kenoi -- of N, Molly A. Stebbins Mayor 00..•1 Corporation Counsel d.. >� *i i`�.. ;,�/, William V. Brilhante, Jr. ''� Assistant Corporation w'' Counsel . 'TOF•,..�- COUNTY OF HAWAII OFFICE OF THE CORPORATION COUNSEL 101 Aupuni Street,Suite 325 • Hilo, Hawaii 96720 • (808)961-8251 • Fax(808)961-8622 d C") July 16, 2015 �+ o ,0,c3 p.. ; . Honorable Dru Kanuha, Chairman Hawaii County Council ) 25 Aupuni Street w ›,.� Hilo, Hawai`i 96720 `o Re: Brenda J. Ford v. Bobby Jean Leithead-Todd; S.P. No. 13-1-52K Request for agendizing payment of special counsel fees to Robert Kim, Esq., for services rendered to Department of Environmental Management Director Bobby Jean Leithead-Todd in defending against a lawsuit Dear Chairman Kanuha: The Office of the Corporation Counsel requests this communication be agendized for the purpose of the Hawaii County Council considering a request for payment of attorney fees to Robert Kim, Esq., for his representation of Department of Environmental Management Director Bobby Jean Leithead-Todd. Ms. Leithead-Todd was initially sued in S.P. No. 13-1-34K, and it was alleged she did not qualify to hold the position of Director of the Department of Environmental Management, despite a majority affirmative vote of the Council after significant deliberation. This case was dismissed by the Third Circuit Court on December 30, 2013. A second lawsuit, in S.P. No. 13-1-52K, was then filed against Ms. Leithead-Todd. On May 26, 2015, Judge Ibarra issued his Findings of Fact, Conclusions of Law, and Order Granting Respondent Bobby Jean Leithead-Todd's Motion for Summary Judgment. The Court ruled in favor of Bobby Jean Leithead-Todd and held she was qualified to hold the position of Director of the Department of Environmental Management. On July 8, 2015, Mr. Kim sent a letter to Corporation Counsel formally requesting payment for his services. If the Hawai`i County Council believes there was a"real necessity" for Mr. Kim's services, payment may be made.' Enclosed is a copy of Mr. Kim's letter dated July 8, 2015, with enclosures. Hawai`i County Charter Section 6-5.5. Special Counsel. The Council may,by two-thirds vote of its entire membership, authorize the employment of special counsel for any special matter presenting a real necessity for such employment. Any such authorization shall specify the compensation, if any, to be paid for said services. Comm. No. / O�i Ref. To: �O i� Hawaii County is an Equal Opportunity Employer and Provider JU [u Ref. Date _,,, Honorable Dru Kanuha, Chairman July 16, 2015 Page 2 of 2 The Hawai`i County Council has considered similar requests in the past. On February 19, 2014, the Council authorized payment of Mr. Kim's fees and costs relative to the first lawsuit, S.P. No. 13-1-34K. Also, on August 27, 2008, the Council authorized the payment of fees and costs incurred by Council Member Emily Naeole in defense of two ethics complaints which were dismissed. We ask that this matter be placed on the Council's August 5, 2015, agenda. Pursuant to Section 92-5(a)(4), Hawaii Revised Statutes, as amended, we request an attorney-client confidential discussion in executive session in order to consult with the County Council on questions and issues pertaining to its powers, duties, privileges, immunities and liabilities regarding the above-entitled matter. Thank you for your assistance and consideration. If you have any questions or concerns, please do not hesitate to contact me. Sincerely, i/ Laureen L. Martin Deputy Corporation Counsel Section Chief LLM:emc Enclosure ROBERT D . S . KIM , INC . A Hawaii Law Corporation 81 -6627 Maiimalahoa Hiy,hway, Ste. 1 (191P.O. Box 188 Kealakekua, HE 96750 Phonic: 808.329.ti61"l Fax: 808.32_9.6676 Erna ii: konalawl@hawaii.rr.com July 8, 2015 Molly A. Stebbins, Esq. Corporation Counsel County of Hawaii Hilo Lagoon Centre 101 Aupuni Street, Unit 325 Hilo, Hawaii 96720 RE: Brenda J. Ford v. Bobby Jean Leithead-Todd; S. P. No. 13-1-52K FORMAL REQUEST FOR REIMBURSEMENT OF ATTORNEY'S FEES AND COSTS Dear Ms. Stebbins: I am the retained counsel for Bobby Jean Leithead-Todd, Director of the Department of Environmental Management for the County of Hawaii. My law firm was privately retained by Bobby Jean Leithead-Todd to defend her in the above referenced civil action. Our law firm defended Ms. Leithead-Todd against the Petition Of Brenda J. Ford For An Order In The Nature Of Quo Warranto Directing The Respondent BOBBY JEAN LEITHEAD-TODD To Show The Authority Under Which She Purports To Hold The Office Of Director Of The Department Of Environmental Management For The County Of Hawaii Filed December 9, 2013 ("Petition"). The history in this matter reveals that, on or about June 3, 2013, the Mayor of the County of Hawaii, by Communication 326 and Communication 326.1, nominated Respondent Bobby Jean Leithead-Todd to serve as the Director of Environmental Management for the County of Hawaii. On July 10, 2013, at a duly noticed meeting of the County Council, six of the County Council's nine members voted to confirm the Respondent's nomination to serve as the Director of Environmental Management for the County of Hawaii, while three of the County Council's nine members, including Petitioner, voted against the nomination. At all times, Bobby Jean Leithead-Todd was acting in her official capacity, being duly qualified and confirmed by the Hawaii County Council. She had been sued to remove her from office, despite the foregoing procedural history. Molly A. Stebbins, Esq. Corporation Counsel Brenda J.Ford v. Bobby Jean Leithead-Todd S.P.No. 13-1-52K FORMAL REQUEST FOR REIMBURSEMENT OF ATTORNEY'S FEES AND COSTS July 8,2015 Page 2 Ford v. Leithead-Todd, S.P. 13-1-34K I had previously represented Bobby Jean Leithead-Todd in Ford v. Leithead- Todd, deemed S.P. 13-1-34K. In that action on September 6, 2013, the County of Hawaii filed a Motion To Intervene. In its Motion to Intervene, the County argued that it had a significant interest in assuring that the actions of the executive and legislative branches were not undermined or invalidated. The County argued further that it had a significant interest in having its Directors remain in their positions without interference or interruption. The County argued that the interests of Ms. Leithead-Todd and the County were likely aligned. On September 27, 2013, the circuit court issued an Order Denying County of Hawaii's Motion to Intervene. On September 9, 2013, I filed on Ms. Leithead-Todd's behalf, a Motion to Dismiss Petition. On October 23, 2013, a hearing was held on Ms. Leithead-Todd's Motion to Dismiss. The circuit court dismissed the Petition in S. P. No. 13-1-34K. The dismissal was without prejudice. I had submitted a letter seeking reimbursement of fees and costs my legal work provided in S.P. 13-1-34K, in a letter dated February 6, 2014, to then Corporation Counsel Lincoln Ashida. Mr. Ashida presented the reimbursement request to the Hawaii County Council, and said body graciously approved the application for reimbursement, and my firm was paid for the work undertaken in S.P. 13-1-34K. Ford v. Leithead-Todd, S.P. 13-1-52K On December 9, 2013, Petitioner Brenda J. Ford filed a second Petition for Quo Warranto in S.P. No. 13-1-052K. I continued to represent and defend Bobby Jean Leithead- Todd, Director of the Department of Environmental Management for the County of Hawaii. The County had not sought to intervene in this case. This second case involved a decision on the merits, and required significant work to obtain a judgment in favor of Bobby Jean Leithead-Todd. On May 26, 2015, the circuit court issued Findings of Fact, Conclusions of Law, and Order Granting Respondent Bobby Jean Leithead-Todd's Motion for Summary Judgment In Favor of Respondent On The Verified Petition Of Brenda J. Ford ("Petitioner") For An Order In The Nature Of Quo Warranto Directing The Respondent Bobby Jean Leithead-Todd To Show The Authority Under Which She Purports To Hold The Office Of Director Of The Department Of Environmental Management Molly A. Stebbins,Esq. Corporation Counsel Brenda J. Ford v.Bobby Jean Leithead-Todd S.P.No. 13-1-52K FORMAL REQUEST FOR REIMBURSEMENT OF ATTORNEY'S FEES AND COSTS July 8,2015 Page 3 For The County Of Hawaii ("Director") Filed December 9, 2013 ("Findings"). A copy of which is attached as Exhibit "1", and is incorporated by reference herein. The Findings expressly validated the decisions and actions of the Mayor, Corporation Counsel, and Hawaii County Council in appointing and confirming Respondent Bobby Jean Leithead-Todd to serve as the Director of Environmental Management for the County of Hawaii. This decision sets a valuable precedent regarding the actions and decisions of our Hawaii County government, and confirmed discretion afforded to this important institutions. Petitioner filed a Motion for Reconsideration, and I opposed said Motion. On July 6, 2015, the circuit court entered an Order Denying the Motion for Reconsideration, a copy of which is attached hereto as Exhibit "2" and is incorporated by reference herein. On same date, a Final Judgment in favor of Respondent Bobby Jean Leithead-Todd was entered by the circuit court. A copy of which is attached hereto as Exhibit "3", and is incorporated reference herein. The legal services billing is reasonable and involves time actually spent and expenses actually incurred in the dismissed case, S. P. No. 13-1-52K. I have submitted to the Clerk of the Circuit Court an application for taxation of costs against the Petitioner, and that matter is pending. If costs are awarded by the Clerk, I will send a supplemental letter to you requesting that costs not be reimbursed, as I will be seeking recovery of the costs directly from the Petitioner. Enclosed please find my personal history which details my experience in the legal profession. I respectfully request that you tender my formal claim for reimbursement to the executive and legislative branches of the County of Hawaii for formal review and reimbursement. Your attention on this matter is greatly appreciated. Very truly yours, Ro Enclosures cc: Bobby Jean Leithead-Todd, Director of the Department of Environmental Management for the County of Hawaii Robert D. S. Kim A Hawaii Law Corporation P.O. Box 188 Kealakekua, HI 96750 Invoice submitted to: Bobby Jean Leithead-Todd July 08, 2015 In Reference To: S.P. No. 13-1-052K Invoice#13698 Professional Services Hrs/Rate Amount 12/19/2013 Review Ho'oiki records; Review court records re new petition; Review 1.20 360.00 petition/citations; notify client 300.00/hr 1/14/2014 Review and/or respond to emails from client/corp counsel; Tel client; Tel corp 3.80 1,140.00 counsel re service/legal issues for dismissal; Review legal research re 300.00/hr separation of powers/statutory construction/nonjusticiable political question 1/15/2014 Review and/or respond to emails from corp counsel re political question; Review 3.90 1,170.00 research re political question/separation of powers/writ of prohibition 300.00/hr 1/16/2014 Review and/or respond to emails; Review 09/11/2009 Charter Minutes; Review 2.70 810.00 10/09/10 Charter Commission Minutes; Review Petition; Review legal research 300.00/hr re case law 1/17/2014 Review and/or respond to emails 0.40 120.00 300.00/hr 1/25/2014 Legal research; Start draft of Motion to Dismiss/Quash 8.60 2,580.00 300.00/hr 1/26/2014 Draft Motion to Dismiss; Review minutes; Review Charter provision; Review 4.90 1,470.00 research materials re political question doctrine 300.00/hr 1/29/2014 Legal research regarding quo warranto/subject matter jurisdiction; Draft factual 4.70 1,410.00 history/time line; Review pleadings 300.00/hr 1/30/2014 Review and/or respond to emails re amendments/corrections; Review federal 1.40 420.00 cases re political question doctrine 300.00/hr Bobby Jean Leithead-Todd Page 2 Hrs/Rate Amount 1/31/2014 Draft and revise Motion to Dismiss; Prepare for filing; Email 3.60 1,080.00 300.00/hr 2/6/2014 Draft letter to Corporate counsel 0.40 120.00 300.00/hr 2/28/2014 Draft email to client regarding status; Review documents regarding answer; 4.80 1,440.00 Preparation and assembly of answer; Review statute re sufficiency of 300.00/hr appointment/burden of proof; Review cases re quo warranto 3/12/2014 Review Memorandum in Opposition; Review cases cited; Draft arguments; 3.70 1,110.00 Review cases cited in Opposition Memorandum 300.00/hr 3/18/2014 Prepare for hearing; Conference with court; Court appearance re hearing on 4.10 1,230.00 Respondent's Motion To Dismiss; Email client 300.00/hr 6/4/2014 Review Order; Draft outline of issues; Email client and Corp Counsel; Review 2.50 750.00 cases cited by Court 300.00/hr 6/9/2014 Phone call with Corp Counsel re documents; Review minutes; Draft Answer 2.60 780.00 300.00/hr 6/11/2014 Review Petition; Legal research regarding quo warranto/defenses/cross-claim; 5.50 1,650.00 Draft answer; review Order; Draft email to client; Review Commission minutes 300.00/hr 6/12/2014 Review CD re 07-10-13 Hawaii County Council Meeting 1.10 330.00 300.00/hr 6/13/2014 Review and/or respond to emails; Revise and finalize Answer; Preparation and 1.30 390.00 assembly for filing/service 300.00/hr 10/2/2014 Review Petitioner's Motion to Extend Time to File Pretrial Statement 0.20 60.00 300.00/hr 10/10/2014 Draft No Position to Motion to Extend Pretrial Statement 0.40 120.00 300.00/hr 10/23/2014 Review order regarding pretrial statement; Calendar deadline 0.20 60.00 300.00/hr 10/31/2014 Review email; Review documents re Charter Commission Testimony 0.90 270.00 300.00/hr 11/3/2014 Review Pretrial statement; Review deadline; PDF to client 0.30 90.00 300.00/hr 12/10/2014 Draft Responsive Pretrial Statement; Prepare for filing; Draft transmittal; File 2.40 720.00 300.00/hr 12/22/2014 Review Court's Notice of Status Conference; Calendar 0.40 120.00 300.00/hr Bobby Jean Leithead-Todd Page 3 Hrs/Rate Amount 12/30/2014 Prepare brief for court/status conference; Email client/corp counsel 0.80 240.00 300.00/hr 12/31/2014 Review and/or respond to emails re conference call 0.20 60.00 300.00/hr 1/2/2015 Preparation and assembly of for conference call; Conference call with client; and 1.30 390.00 corp counsel; Review case files and orders 300.00/hr 1/6/2015 Prepare for status conference; Attend status conference; Draft email to client 1.10 330.00 300.00/hr 1/14/2015 Draft Motion for Summary Judgment; Legal research regarding quo warranto; 6.90 2,070.00 Review treatises regarding quo warranto; Legal research regarding statutory 300.00/hr constructions; Legal research regarding Hawaii County Charter; Review case file regarding Petitioner's claims 1/16/2015 Draft Motion to Dismiss for Indispensable parties; Legal research re joinder; 7.20 2,160.00 Draft Motion for Summary Judgment; Review exhibits/minutes; Review case law 300.00/hr re quo warranto/statutory construction 1/24/2015 Draft Motion for Summary Judgment/Motion to Dismiss; Review and organize 6.90 2,070.00 minutes/exhibits; Review case law re summary judgment/statutory 300.00/hr construction/quo warranto 1/27/2015 Draft Motions for summary judgment/dismiss; Review and revise motions; 5.50 1,650.00 Prepare Exhibits; Draft transmittals; Prepare for court filing; email client and corp 300.00/hr counsel 1/29/2015 Review Ho'ohiki; Review case file; Review Petitioner's Motion for summary 1.30 390.00 judgment; Email Petitioner's Motion to client 300.00/hr 2/5/2015 Phone call with client; Review Petitioner's motion; Legal research re cases cited 4.90 1,470.00 by Petitioner; Review cases; Draft arguments 300.00/hr 2/11/2015 Draft declaration of client; Draft Memorandum In Opposition to Petitioner's 3.40 1,020.00 Motion for Summary Judgment; draft revisions 300.00/hr 2/12/2015 Draft Memorandum In Opposition/Reply Memorandum; Draft Table of Contents 8.50 2,550.00 and Authorities; Preparation and assembly for filing 300.00/hr 2/13/2015 Draft Memorandum in Opposition; Prepare for filing; Draft transmittals; Prepare 4.40 1,320.00 exhibits; Review and revise 300.00/hr 2/17/2015 Review Petitioner's Response to Motion for Summary Judgment; Draft email to 2.80 840.00 client and corp counsel; Draft arguments; Draft Reply; Review Charter 300.00/hr Commission Minutes 2/19/2015 Draft Supplemental Declaration; Draft Replies; Prepare for hearing; Phone call 5.50 1,650.00 with Matsukawa 300.00/hr Bobby Jean Leithead-Todd Page 4 Hrs/Rate Amount 2/23/2015 Prepare for hearing; Review Motions/Responses; Draft arguments; Conference 4.90 1,470.00 with Matsukawa; Conference with reporter; Conference with L. Martin; Court 300.00/hr appearance re Motions for Summary Judgment/Dismissal 2/25/2015 Draft Request for Transcript; Draft Findings of Fact, Conclusions of Law 1.50 450.00 300.00/hr 3/4/2015 Review case file; Draft Findings of Fact, Conclusions of Law 2.80 840.00 300.00/hr 3/5/2015 Draft Proposed Findings of Fact and Conclusion of Law; Draft Notice of 4.50 1,350.00 Submission; Prepare for filing; Draft transmittals 300.00/hr 3/10/2015 Review and/or respond to emails re submission of Findings of Fact Conclusions 0.20 60.00 of Law 300.00/hr 3/13/2015 Review and/or respond to emails from Court law clerk re submission of findings 0.20 60.00 300.00/hr 5/27/2015 Review Court's decision re Findings of Fact and Conclusions of Law; email to 0.60 180.00 client and corp counsel 300.00/hr 5/28/2015 Review Findings of Fact and Conclusions of Law; Legal research re attorney's 2.30 690.00 fees; Tel client; Draft Judgment 300.00/hr 6/8/2015 Phone call with opposing counsel regarding appeal; Draft Motion regarding costs 0.90 270.00 300.00/hr 6/17/2015 Draft Memo in opposition to Motion for Reconsideration; Review case law 2.40 720.00 regarding Rule 59(e); Prepare for filing; Draft transmittals 300.00/hr 6/22/2015 Draft Request for Taxation of Costs; Legal research regarding costs; Draft 1.10 330.00 Judgment 300.00/hr 7/6/2015 Review order denying reconsideration; Judgment; email client and corporation 0.40 120.00 counsel 300.00/hr 7/8/2015 Preparation of Taxation of costs to clerk; Submit to clerk 0.60 180.00 300.00/hr For professional services rendered 149.10 $44,730.00 Additional Charges : 12/23/2013 Copying cost of case file from Circuit Court 15.50 1/31/2014 Postage to opposing counsel 1.61 Copying cost of Motion to Dismiss 17.00 Bobby Jean Leithead-Todd Page 5 Amount 2/12/2014 Postage to client 1.61 3/13/2014 Postage to client 1.61 4/9/2014 CD Transcript cost 25.00 6/13/2014 Postage to Matsukawa 0.90 Postage to client 0.90 Copying cost of Answer 10.00 10/6/2014 Postage to client 1.40 10/10/2014 Postage to opposing counsel 0.48 Copying cost of No Opposition 3.00 10/15/2014 Postage to client 0.48 10/31/2014 Postage to client 0.69 12/10/2014 Copying cost of Response to Pretrial Statement 10.00 12/11/2014 Postage to Matsukawa 0.69 Postage to client 0.69 12/23/2014 Postage to client 0.48 1/27/2015 Copying cost of Motion for Summary Judgment 314.00 Copying cost of Motion for Judgment 12.00 1/28/2015 Postage to client 7.55 2/3/2015 Postage to client 5.75 2/13/2015 Copying cost of Opposition to Petitioner's Summary Judgment 63.00 2/19/2015 Postage to opposing counsel 2.45 Postage to opposing counsel 1.61 Copying cost of Declaration Submitting 52.50 Copying cost of Reply to Objection on Motion for Judgment 4.00 Copying cost of Reply to Response on Motion for Summary Judgment 13.00 Bobby Jean Leithead-Todd Page 6 Amount 3/9/2015 Postage to Mr. Matsukawa 1.11 CD Transcript cost 25.00 Copying cost of Notice of Submission re FOFCOL 17.50 3/10/2015 Postage to client 1.61 3/16/2015 Postage to client 1.11 3/18/2015 Postage to opposing counsel 1.19 4/7/2015 Postage to client 0.48 6/17/2015 Postage to opposing counsel 1.86 6/18/2015 Postage to client 1.86 7/8/2015 Copying cost of Request for Taxation of Costs 17.50 70 pgs x .25 per page Total additional charges $637.12 HI $1,863.90 Total amount of this bill $47,231.02 Balance due $47,231.02 FILED cc: Robert D.S.Kim,Esq. Michael J.Matsukawa,Esq. 2015 MAY 26 PM _to OZ IN THE CIRCUIT COURT OF THE THIRD CIRCULTht.NRIETTA CHOUG.CLERK THIRD CIRCUIT COURT STATE OF HAWAI'I STATE OF HAWAII BRENDA J. FORD, S.P.NO. 13-1-52K (Kona)(Other Civil Action-Quo Warranto) Petitioner, vs. FINDINGS OF FACT, CONCLUSIONS OF LAW,AND ORDER GRANTING BOBBY JEAN LEITHEAD-TODD, RESPONDENT BOBBY JEAN LETTHEAD- TODD'S MOTION FOR SUMMARY Respondent. JUDGMENT IN FAVOR OF RESPONDENT ON THE VERIFIED PETITION OF BRENDA J. FORD FOR AN ORDER IN THE NATURE OF QUO WARRANTO DIRECTING THE RESPONDENT BOBBY JEAN LEITHEAD- TODD TO SHOW THE AUTHORITY UNDER WHICH SHE PURPORTS TO HOLD THE OFFICE OF DIRECTOR OF THE DEPARTMENT OF ENVIRONMENTAL MANAGEMENT FOR THE COUNTY OF HAWAI'I FILED DECEMBER 9, 2013 No trial date set HEARING: February 23, 2015 TIME: 4:00 p.m. JUDGE: Hon. Ronald Ibarra FINDINGS OF FACT,CONCLUSIONS OF LAW,AND ORDER GRANTING RESPONDENT BOBBY JEAN LEITHEAD-TODD'S MOTION FOR SUMMARY JUDGMENT IN FAVOR OF RESPONDENT ON THE VERIFIED PETITION OF BRENDA J. FORD FOR AN ORDER IN THE NATURE OF QUO WARRANTO DIRECTING THE RESPONDENT BOBBY JEAN LEITHEAD-TODD TO SHOW THE AUTHORITY UNDER WHICH SHE PURPORTS TO HOLD THE OFFICE OF DIRECTOR OF THE DEPARTMENT OF I herebyceTtify that this Isa fill,true and correct copyof the 1riginal on file in thisoffice. EXHIBIT " " ,,,s :, . ' Clark,Thlyd Chu'court tank.• Him A hearing was held before the Honorable Ronald Ibarra, Chief Judge,of the Circuit Court of the Third Circuit, on February 23,2015, at 4:00 p.m. Present at the hearing were Michael J. Matsukawa,Esq. for Petitioner and Robert D. S. Kim,Esq. for Respondent. The following motions, filed on January 27, 2015,were heard; i. Respondent BOBBY JEAN LEITHEAD-TODD'S Motion For Summary Judgment In Favor Of Respondent On The Verified Petition Of Brenda J. Ford For An Order In The Nature Of Quo Warranto Directing The Respondent Bobby Jean Leithead-Todd To Show The Authority Under Which She Purports To Hold The Office Of Director Of The Department Of Environmental Management For The County Of Hawai'i Filed December 9, 2013. ("Respondent's MSJ"); ii. Petitioner Brenda J. Ford's Motion For Summary Judgment On Petition Filed December 9, 2013. ("Petitioner's MSJ"). The Court has reviewed the following: A. On February 13, 2015, Counsel for Petitioner filed Petitioner Brenda J. Ford's Response To Respondent Bobby Jean Leithead-Todd's Motion For Summary Judgment In Favor Of Respondent On The Verified Petition Of Brenda J. Ford For An Order In The Nature Of Quo Warranto Directing The Respondent Bobby Jean Leithead-Todd To Show The Authority Under Which She Purports To Hold The Office Of Director Of The Department Of Environmental Management For The County Of Hawai'i Filed December 9, 2013; B. On February 13,2015,Counsel for Respondent filed Respondent Bobby Jean Leithead-Todd's Memorandum In Opposition To Petitioner Brenda J. Ford's Motion For Summary Judgment On Petition Filed December 9, 2013, Filed January 27, 2015 ("Respondent's Opposition"); C. On February 13,2015, Counsel for Petitioner filed Petitioner Brenda J. Ford's Objections To Respondent Bobby Jean Leithead-Todd's Motion For Judgment On The Pleadings And/Or For Summary Judgment On Verified Petition Of Brenda J. Ford For And Order In The Nature Of Quo Warranto Directing The Respondent Bobby Jean Leithead-Todd To Show The Authority Under Which She Purports To Hold The Office Of Director Of The Department Of Environmental Management For The County Of Hawai'i Filed December 9, 2013; D. On February 18,2015, Counsel for Petitioner filed Petitioner Brenda J. 2 ' r Ford's Reply To Respondent Bobby Jean Leithead-Todd's Memorandum In Opposition To Petitioner Brenda J. Ford's Motion For Summary Judgment On Petition Filed December 9, 2013, Filed January 27,2015, Filed February 13,2015; E. On February 19,2015, Counsel for Respondent filed a, Supplemental Declaration Of Robert D.S. Kim Submitting Certified Documents In Support Of Respondent Bobby Jean Leithead-Todd's Memorandum In Opposition To Petitioner Brenda J. Ford's Motion For Summary Judgment On Petition Filed December 9,2013, Filed Herein On February 13, 2015; F. On February 19, 2015, Counsel for Respondent filed,Respondent Bobby Jean Leithead-Todd's Reply To Petitioner Brenda J. Ford's Response To Respondent Bobby Jean Leithead-Todd's Motion For Summary Judgment In Favor Of Respondent On The Verified Petition Of Brenda J. Ford For An Order In The Nature Of Quo Warranto Directing The Respondent Bobby Jean Leithead-Todd To Show The Authority Under Which She Purports To Hold The Office Of Director Of The Department Of Environmental Management For The County Of Hawai'i Filed December 9, 2013, Filed February 13,2015; G. On March 09, 2015, the Court received Respondent's [Proposed] Findings of Facts, Conclusion of Law, and Order Granting Respondent Bobby Jean Leithead-Todd's Motion For Summary Judgment In Favor Of Respondent On The Verified Petition Of Brenda J. Ford For An Order In The Nature Of Quo Warranto Directing The Respondent Bobby Jean Leithead-Todd To Show The Authority Under Which She Purports To Hold The Office Of Director Of The Department Of Environmental Management For The County Of Hawai'i Filed December 9,2013; H. On March 09,2015, the Court received Petitioner's [Proposed] Findings of Facts, Conclusions of Law and Order; I. Supporting memoranda,including all subsequent filings relating to the motions, exhibits,file S.P.NO. 13-1-52K; In addition the Court has heard the arguments of counsel. 3 PROCEDURAL HISTORY 1. This action commenced on December 9, 2013,with the filing of The Verified Petition Of Brenda J. Ford("Petitioner") For An Order In The Nature Of Quo Warranto Directing The Respondent Bobby Jean Leithead-Todd("Respondent")To Show The Authority Under Which She Purports To Hold The Office Of Director Of The Department For Environmental Management("Director")For The County Of Hawai'i. ("Petition"). 2. The Petition was submitted to the Court for review pursuant to Haw. Rev. Stat. § 659-1 et seq. 3. On December 18,2013, the Court issued its Order In The Nature of Quo Warranto("Order"). The Order provided in part, "... [b]ased on the Verified Petition,having reviewed the file and record herein,for good cause shown ... Respondent shall have twenty (20) days after being served to Answer the Petition in writing and state the authority under which Respondent claims to act." Order,pp. 1-2. 4. Respondent thereafter filed a Motion to Dismiss and/or Quash the Petition pursuant to Rule 12(b)(1) and(6), HRCP on January 31,2014("Motion to Dismiss"). Respondent argued that the Order should not have been granted, as the four corners of the Petition did not establish a prima facie case for disqualification based on an alleged failure to meet the requirements of Article VI, Section 6-10.3 of the Hawai'i County Charter, and thereby failed to state claim upon which relief can be granted. Respondent also argued that the Court lacked subject matter jurisdiction,based on the political question, and abstention doctrines. 5. On May 23,2014, after first conducting a hearing on the Respondent's Motion to Dismiss and/or Quash the Petition,the Court Denied Respondent's Motion to Dismiss and/or Quash Petition("Order Denying"),the Respondent was directed to file an Answer not later than twenty-two (22) days from the filed date of the Order Denying which was filed May 23, 2014. Order Denying,p. 7,¶2. 6. On June 13,2014,Respondent filed her Answer to the Petition ("Answer"). Respondent's Answer stated the authority upon which Respondent purported to act and serve as the Director of Environmental Management for the County of Hawai'i. Answer. 7. On January 27,2015,the Petitioner and the Respondent filed concurrent Motions for Summary Judgement which are the subject of this Order. 4 • 0 8. On February 23, 2015 at 4:00 p.m.,Respondent and Petitioner's Motions for Summary Judgment were heard. The Court having considered the documents listed above,the exhibits and arguments of Counsel,hereby makes the following Findings of Facts,Conclusions of Law; FINDINGS OF FACTS 9. To the extent that any of the below stated findings of fact are conclusions of law, they shall be considered as such. 10. During oral arguments at the February 23,2015 hearing, Counsel for both parties agreed that the language"...or a degree in a related field..."in Article VI, Section 6-10.3 of the Hawai'i County Charter is ambiguous. 11. As explained in the [2010] County Charter, County of Hawai'i Forward, "In 1963,the legislature of the State of Hawai'i enacted Act 73 enabling the counties of the State of Hawai'i to establish charter commissions to study their existing governments and to recommend and draft charters upon determination that a charter form of government was fit and desirable.Accordingly, the County of Hawai'i created a charter commission whose study and work began in 1964. The most recent charter review, as conducted by the 2010 Charter Commission, resulted in nineteen proposed charter amendments. On November 2, 2010, the electorate approved eighteen of the nineteen proposed charter amendments." 12. During the above mentioned charter review by the 2009-2010 Hawai'i County Charter Commission, they discussed communication 27,which was the charter amendment that proposed to add a degree requirement to the existing qualifications for Director of the Department of Environmental Management. The following are excerpts from that meeting: CHR. HAITSUKE: "Is there any discussion on Mr.Tyson's request to amend the Charter to reflect that the Director of the Department of Environmental Management would be required to have some type of engineering degree?" 5 MS.JARMAN: "I'm not convinced it needs to be an Engineering degree...you want the person to be an engineer,but I'm not convinced it needs to be an engineer..." MR.UNGER: "The current language says, `...administrative experience in a related field.' So, are you suggesting maybe a degree in a related field as opposed to experience?" MS.JARMAN: "Experience and a degree,if that's what it is he is trying to get at. I can see somebody with some kind of other environmental background that could equally do a good job,without having to be an engineer." MR.UNGER: "Yes, there are all kinds of different degrees out there that could pertain to this type of situation..." (emphasis added). CHR. HAITSUKA: "We could say, `a...degree in engineering or a related field.' The related field would have to be related to something, so I think we have to have the word engineering in there, so it doesn't disqualify someone who has an engineering degree." (emphasis added). MS. JARMAN: "Related to what? Related to engineering,or related to the environment? That's why I don't see why we would have to say engineering. If we just say a related field, it would include engineering and any other field." (emphasis added). CHR. HAITSUKA: "The related field would be related to what?" MS. JARMAN: "To the duties of the Department of Environmental Management." MR.UNGER: "Are we going to keep the five years minimum[administrative] experience?" MS. OSBORNE: "It's probably more important than the degree." MS.JARMAN: "It helps to have administrative experience when managing a big department." MR. KAULUKUKUI: "...I also believe the check and balance is in place with regard to qualifications. That should be the Council's oversight in terms of ensuring the person that is appointed by the mayor is qualified for the position before they would approve the appointment. So,I'm reluctant to become any more specific than the Charter currently is with regards to qualifications." (emphasis added). Thereafter Mr. Unger moved to ask Commission Attorney Levi Hookano to 6 draft a proposed amendment to Article VI, Section[6-10.3]. Respondent's MSJ,Exhibit"1," certified copy of the minutes of the 2009-2010 Hawai'i County Charter Commission, 7111 Session, held on September 11, 2009,p. 9-11. 13. The 2009-2010 Charter Commission met again on January 21,2010, for their 11th session meeting. The amendment language was revisited. The following are excerpts from that meeting: MR. TYSON: "The Department of Environmental Management is responsible for the over sight of the county's solid waste and waste water divisions, and the recycling programs including the abandon vehicle disposal program. So, a related field could be anything ranging from environmental science to even geology to a certain extent. But a technical background that supports a lot of the very difficult decisions that the director has to make."(emphasis added). MS. KAWAUCHI: "I will withdraw what I started to say. I'll leave it alone. It is just hard for me to understand what a related field is."(emphasis added). Respondent's MSJ,Exhibit"3,"certified copy of the minutes of the 2009-2010 Hawai'i County Charter Commission, 1 la'Session,held on January 21, 2010,p. 49. 14. Thereafter the electorate approved the amendment to the Charter. Article VI, Section 6-10.3 of the Hawai'i County Charter was published, effective November 2,2010,to read as follows: Section 6-10.3 Director. "The director of environmental management shall be appointed by the mayor, confirmed by the council, and may be removed by the mayor. The director shall have had a minimum of five years of administrative experience in a related field and an engineering degree or a degree in a related field." 15. Communication 326, dated June 3, 2013,relating to the appointment of Bobby Jean Leithead-Todd as Director of Environmental Management for the County of Hawai'i was submitted by Mayor William P. Kenoi for County Council's confirmation. Respondent's MSJ,Exhibit"4,"certified copy of the 17th Session Order of Business,Hawai'i County Council, for July 10, 2013,p. 2. 16. Pursuant to Communication 326, on July 10,2013, the Hawai'i County Council held a confirmation hearing on the nomination of Bobby Jean Leithead-Todd as Director of Environmental Management for the County of Hawai'i. Respondent's MSJ, Exhibit"5," 7 certified copy of the(draft)' minutes for the 17th Session,Regular Session of the Hawai'i County Council held on July 10,2013,p. 15. 17. During the Hawai'i County Council confirmation hearing on July 10, 2013, the following exchange occurred: a. Respondent stated on record: "In 2007-and I sent each of you an email on this one-I was confirmed as the Director of the Department of Environmental Management. The language in the County Charter required five years of experience in an administrative-in"a related filed." And when I came before the Council in 2007,my experience was as a Deputy Corporation Counsel, and the position we had taken was that the administrative experience I had was as a Deputy Corporation Counsel." b. County Council Member Mr. Kern responded on record as follows: "With the controversy about this-the Charter-I feel that we can put that aside. It's been looked at. We have a legal review. We've had multiple attorneys look at it. I don't think any of them would put the County,the Department, or you [Ms. Leithead-Todd] into jeopardy. I think it was looked at objectively and seriously. So, I don't have an issue with that. I support it." c. County Council Member Ms. Poindexter stated: "...or in a `related field.' It doesn't say'a degree in an engineering related field.' It says 'or a related field.' To What? To being the Director of Environmental Management." d. Council Member Dru Kanuha asked Mr. Lincoln Ashida, Corporation Counsel, on record: "Is Lincoln, Corporation Counsel-? I just wanted to ask that main question. Are we-? Obviously,the Administration wouldn't have put up your nomination if it was violating the Charter,but I just want to ask. By approving Ms. Bobby Jean Leithead-Todd's nomination, are we going to be in violation of our County Charter?"(emphasis added). e. Mr. Ashida acknowledged that he sent Council a[legal] communication regarding how the Charter language was analyzed. Mr.Ashida responded on the record as follows: 1 Draft minutes for the 17th Session,Regular Session of the Hawai'i County Council held on July 10,2013 were submitted with Respondent's Motion for Summary Judgment,filed January 27,2015 as Exhibit"5." Respondent and Petitioner Counsel confirmed on record at the February 23,2014 hearing,the draft minutes were the same as the official minutes. The descriptive language of Exhibit 5 hereinafter stating"Draft"is for reference and continuity. 8 "...what was abundantly clear, and as we concluded,is they[the 2009- 2010 Charter Commission] really wanted to leave this to be a Council decision—Council and Mayor decision. They didn't want—they used the term `micromanage,' I think,at some point—they didn't want to micromanage either the Mayor or the Council to say that, 'This is a really strict mold that we want you to have to fit this person into. We're going to give you the latitude, so you decide. You, as a collective body, decide what is—whether this person has the necessary qualifications to do the jot., So, answering your question, I think the record—because really,that's what we look at the end of the day—the record supports that,that is exactly what the Charter Commission intended." (emphasis added). f. Council Member Dru Kanuha responded on record: "Okay,thank you. Because, I mean,when I first looked at this and the Charter language,I was-it-completely ambiguous. Like Mr.Rees stated earlier and Ms. Poindexter stated as well,it-I could argue both sides of it completely, and I'd be fine with the decision....I voted for this Charter when it came up before, and I thought it was ambiguous then. I still think its ambiguous now. What is a related field to that?" (emphasis added). g. Corporation Counsel Mr. Ashida stated: "So bottom line, those two bullets,what I'm saying, you decide to what degree that baccalaureate or that college degree has to be related to the technical engineering aspects. Or does it-can it be related to the management business-side aspects? And No. 2 bottom line says,"It's your call."(emphasis added). h. Council Member Mr. Kern stated: "This is funny. So,if she had a degree in mechanical engineering or electrical, as the Mayor said earlier today,or structural engineering,this would be a non-really a non-issue, even though those degrees really have nothing to do with the Department of Environmental management." (emphasis added). i. Corporation Counsel Mr. Ashida stated: "...you make that decision in terms of what a related degree-whether it's relevant to them to functioning or running that department. It is your call...Really, it's completely up to you." Respondent's MSJ,Exhibit"5,"certified copy of the(draft)minutes for the 17th Session, Regular Session of the Hawai'i County Council held on July 10,2013,p. 11-38. 9 18. On July 10, 2013 after discussion on the matter, a vote was taken; six of the County Council's nine members voted to confirm the Respondent's nomination to serve as Director of Environmental Management for the County of Hawai'i,three of the County Council's nine members,including Petitioner voted against the nomination. Respondent's MSJ, Exhibit"5,"certified copy of the(draft)minutes for the 17th Session,Regular Session of the Hawai'i County Council held on July 10,2013,pp. 46-47. 19. Respondent has since occupied the Office of Environmental Management for the County of Hawai'i as Director and has continued to do so as of the date of the Petition. Petition,p. 7,¶6q; Admitted in Answer,p. 6,¶23. CONCLUSIONS OF LAW Pursuant to the foregoing Findings of Fact,the Court concludes: 20. If it should be determined that any of these Conclusions of Law should have been set forth as Findings of Fact, then the Court so finds. 21. "Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file,together with the affidavits,if any, show that there'is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Pac. Int'1 Servs. Corp. v. Hurip, 76 Hawai'i 209, 213, 873 P.2d 88,92 (1994) quoting Kaapu v. Aloha Tower Dev. Corp., 74 Haw. 365,379, 846 P.2d 882, 888 (1993). 22. A trial court, as well as any appellate court,must determine whether, "viewing all the evidence in a light most favorable to the non-moving party,there is no genuine issue as to any material fact and the moving party has clearly demonstrated that it is entitled to judgment as a matter of law." Nielsen v.American Honda Motor Co., Inc., 92 Haw. 180, 184, 989 P.2d 264, 268 (App. 1999) (citing State v.Tradewinds Elec. Serv. and Contracting, Inc., 80 Haw. 218, 222, 908 P.2d 1204, 1208 (1995); HRCP Rule 56(c)). 23. "Under Rule 56(c), HRCP, once the movant satisfies the initial 10 • burden of showing the absence of a genuine issue of material fact, 'then the burden shifts to the opponent to come forward with specific facts showing that there remains a genuine issue for trial.'" Arimizu v. Financial Security Insurance Co., Inc., 5 Haw. App. 106, 110, 679 P.2d 627(ICA 1984). (citations omitted.) 24. On the issue of standing,"interested individuals have standing to petition for writs of quo warranto pursuant to Haw. Rev. Stat. § 659-4(1985),which provides: The order is obtained by petition addressed to a circuit court, setting out facts sufficient to show a right to the order, and sworn to if the application is made by a private individual,or is made by the attorney general as provided by Haw. Rev. Stat. § 659-6." In re Ferguson, 74 Hawai'i 394, 396, 846 P.2d 894, 896 (1993). 25. "Residents,taxpayers, and registered voters are interested persons and thus entitled, subject to the discretion of the court reviewing the petition,to bring actions in the nature of quo warranto against incumbent public officials. Any citizen and taxpayer of a community may challenge the qualifications of a public official to hold office in that community." Id. 26. The Court concludes the Petitioner had standing to bring an action in the nature of quo warranto. 27. A writ of quo warranto inquires into the authority by which a government official claims his/her office. Haw. Rev. Stat. § 659-1. 28. Petitioner, in submitting a petition for quo warranto bears the initial burden of proof to set out facts sufficient to show a right to the order that the Hawai'i County Charter had been violated. Haw.Rev. Stat. § 659-4. 29. This Court issued an Order to Respondent Bobby Jean Leithead-Todd to answer petition, the burden then shifted to Respondent, in effect, as an order to show cause, which was answered in the time allowed by the court. Haw. Rev. Stat. § 659-6;Application of Ferguson, 74 Haw. 394, 846 P.2d 894(1993); Procedural History¶5 &6. 30. The Court concludes Respondent's answer filed on June 13,2014,to be sufficient; thereby shifting the burden of proof back to the Petitioner. Haw. Rev. Stat. § 659-6; Application of Ferguson, 74 Haw. 394, 846 P.2d 894(1993). 31. The gravamen of the Petition states,that"[t]he Respondent Bobby Jean 11 Leithead-Todd does not possess an engineering degree or a degree in a related field and, therefore, is not qualified to occupy or to hold the office of Director of Environmental Management for the County of Hawai'i."Petition,p. 7,¶7. 32. The Court concludes that Petitioner is not alleging Respondent lacks the minimum requirement of five years administrative experience in a related field;this is not an issue before the court. Petition,p. 7,¶7. 33. The Council has legislative powers and functions which are established by Article 3, Section 3-1, of the Hawai'i County Charter which states,"the legislative powers of the county shall be vested in the county council. Its primary function shall be legislation and public policy formulation..." 34. Great weight should be given to legislative decisions made by the County Council. Dejetley v. Kaho'Ohalahala, 122 Hawai'i 251,263,226 P.3d 421,433 (2010) ("Furthermore,in construing [Maui,Haw. County Charter§ 3-3 (2003)],this court's rules of statutory construction should also give effect to legislative intent. State v.Wells, 78 Hawai'i 373, 376, 894 P.2d 70, 73 (1995)(stating that 'our foremost obligation is to ascertain and give effect to the intention of the legislature') (quoting Pac. Int'l Sews. Corp. v. Hurip,76 Hawai'i 209,216, 873 P.2d 88, 95 (1994)"). 35. Corporation Counsel is the legal advisor for the Mayor and Council of the County of Hawai'i. Article VI, Section 6-5.3,Hawai'i County Charter states the, "Powers, Duties and Functions [of the] corporation counsel shall be the chief legal advisor and legal representative of all county agencies,the council and all officers and employees in matters related to their official powers and duties." 36. Corporation Counsel, Lincoln Ashida wrote an opinion for County Council regarding the approval of Respondent's nomination as Director. Counsel stated the Charter Commission gave the Mayor and Council latitude to decide whether nominee has the necessary qualifications under Article VI, Section 6-10.3 for the position of Director. Findings of Facts¶ 17(e). 37. Here an opinion written by the chief legal officer for the County, Corporation Counsel,may be used for analyzing proper construction to be given the ambiguous language found in Article VI, Section 6-10.3 of the County Charter,this is analogous to the Court's decision in Wayne,where the opinion of the chief legal officer of the State,the Attorney 12 General,may be used to interpret ambiguous language in statutes. "An opinion written by the Attorney General may be used for analyzing the proper construction to be given ambiguous language in a statute." Wayne Cnty. Republican Comm.v.Wayne Cnty. Bd. of Comm'rs, 70 Mich.App. 620, 622,247 N.W.2d 571, 572 (1976). 38. The Court concludes the term". . . or a degree in a related field . . ."is ambiguous, as set forth in Article VI, Section 6-10.3. 39. The Hawai'i Revised Statutes § 1-15: Construction of ambiguous context. "Where the words of a law are ambiguous: (1) The meaning of the ambiguous words may be sought by examining the context,with which the ambiguous words,phrases, and sentences may be compared,in order to ascertain their true meaning. (2) The reason and spirit of the law, and the cause which induced the legislature to enact it,may be considered to discover its true meaning. (3) Every construction which leads to an absurdity shall be rejected." 40. Article VI, Section 6-10.3, as amended by the 2010 Charter Commission, sets forth qualifications for the position of Director of Environmental Management,including the requirement of an engineering degree, ". . . or a degree in a related field. . ." The Charter does not define "degree in a related field." There are many interpretations of"a degree in a related field,"including whether this degree is a two(2)year or four(4)year degree;bachelor or a graduate level degree; from a community or a technical college; or that such degree is conferred from an accredited or non-accredited college. The ambiguity is not limited; questions arise as to what type of engineering degrees qualify to be in a related field, and what types of engineering degrees may suffice; such as,but not limited to, geology,mechanical, structural, aerospace, audio, automotive,biomedical, electrical engineering or software engineering. Findings of Facts ¶12, 13, 17(g) & 17(h). 41. The burden is on the Petitioner to prove the allegations in the petition by a preponderance of the evidence. Lymer v.Kumalae, 29 Hawai'i 392, 399(1926). See also: McGroarty v. Ferretti, 56 R.I. 152, 152, 184 A. 508, 508 (1936). This includes proving,by a preponderance of the evidence,what degrees are in a related field. 13 42. Discretionary decisions of a governmental body are reviewed for abuse of discretion. "An appellant seeking to overturn an agency's determination made within the agency's sphere of expertise has a high burden to demonstrate that the agency abused its discretion. A "high burden," a"heavy burden," and"deference" are all ways of expressing this same concept: that a determination made by an administrative agency acting within the boundaries of its delegated authority will not be overturned unless "arbitrary, or capricious, or characterized by. . . [a] clearly unwarranted exercise of discretion."Paul's Elec. Serv.v. Befitel, 104 Hawaii 412,419,91 P.3d 494, 501 (2004) See Also: "discretionary decisions of a governmental body will not be reversed absent a showing that the decision was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law." Brown v. State, 172 Ind. App. 31, 34, 359 N.E.2d 608, 610(1977). 43. Petitioner presented no evidence that that the Council and Mayor abused their discretion nominating and confirming Respondent as Director of the Department of Environmental Management as defined by Article VI, Section 6-10.3. 44. Absent evidence to the contrary,the Court defers to Corporation Counsel's guidance as well as the Mayor and Council's authority to make the decision of what is a degree in a related field to meet the employment requirements for the Director of the Department of Environmental Management as defined by Article VI, Section 6-10.3. Wayne Cnty.Retublican Comm. v. Wayne Cnty. Bd. of Comm'rs, 70 Mich. App. 620, 622,247 N.W.2d 571, 572 (1976); See also:Article VI, Section 6-5.3, Hawai'i County Charter; See also: Article III, Section 3-1, Hawai'i County Charter. 45. The 2009-2010 Hawai'i County Charter Commission authorized the Mayor and the Council of the County of Hawai'i wide latitude to interpret the language,"degree in a related field." Findings of Facts¶ 12 & 17(e). 46. The Petitioner did not meet its burden of proof,by a preponderance of the evidence,that the Mayor and Council abused their discretion interpreting the"related field" language in Article VI, Section 6-10.3 of the Hawai'i County Charter. 47. In viewing the evidence in the light most favorable to the Petitioner,the Petitioner has not raised or presented any evidence that there exists a genuine issue of material fact relating to whether the County Council and Mayor abused their discretion in interpreting the Charter that prevents summary adjudication of the case in favor of Respondent. 14 ORDER For the reasons stated above,the Petitioner did not meet its burden of proof. Therefore the Court need not address whether a law degree is a"degree in a related field" as written in Article VI, Section 6-10.3,of the Hawai'i County Charter. IT IS HEREBY ORDERED,ADJUDGED AND DECREED,that Respondent BOBBY JEAN LEITHEAD-TODD'S Motion For Summary Judgment In Favor Of Respondent On The Verified Petition Of Brenda J. Ford For An Order In The Nature Of Quo Warranto Directing The Respondent Bobby Jean Leithead-Todd To Show The Authority Under Which She Purports To Hold The Office Of Director Of The Department Of Environmental Management For The County Of Hawai'i Filed December 9,2013,is GRANTED. IT IS FURTHER ORDERED The Petition for Quo Warranto filed December 9, 2013, is hereby dismissed with prejudice. DATED: Kealakekua,Hawai'i, NAY 2 6 7015 IbTsiFit FS-41 JUDGE OF THE ABOVE ENTITLED COURT 15 FILED cc: Robert D.S.Kim,Esq. Michael J.Matsukawa,Esq. 2015 JUL -6 PM 1,1 314 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT CHONG,CLERK THIRD CIRCUIT COURT STATE OF HAWAI'I STATE (*)F HAWAII BRENDA J.FORD, S.P.NO. 13-1-52K (Kona)(Other Civil Action-Quo Warranto) Petitioner, vs. ORDER DENYING PETITIONER BRENDA J. FORD'S MOTION FOR RECONSIDERATION BOBBY JEAN LEITHEAD-TODD, OF FINDINGS OF FACT,CONCLUSIONS OF LAW AND ORDER GRANTING Respondent. RESPONDENT BOBBY JEAN LEITHEAD- TODD'S MOTION FOR SUMMARY JUDGMENT IN FAVOR OF RESPONDENT ON THE VERIFIED PETITION OF BRENDA J. FORD FOR AN ORDER IN THE NATURE OF QUO WARRANTO DIRECTING THE RESPONDENT BOBBY JEAN LEITHEAD- TODD TO SHOW THE AUTHORITY UNDER WHICH SHE PURPORTS TO HOLD THE OFFICE OF DIRECTOR OF THE DEPARTMENT OF ENVIRONMENTAL MANAGEMENT FOR THE COUNTY OF HAWAI'I FILED DECEMBER 9,2013,FILED MAY 26, 2015 NON-HEARING MOTION JUDGE: Hon. Ronald Ibarra ORDER DENYING PETITIONER BRENDA J. FORD'S MOTION FOR RECONSIDERATION OF FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER GRANTING RESPONDENT BOBBY JEAN LEITHEAD-TODD'S MOTION FOR SUMMARY JUDGMENT IN FAVOR OF RESPONDENT ON THE VERIFIED PETITION OF BRENDA J. FORD FOR AN ORDER IN THE NATURE OF QUO WARRANTO DIRECTING THE RESPONDENT BOBBY JEAN LEITHEAD-TODD TO SHOW THE AUTHORITY UNDER WHICH SHE PURPORTS TO HOLD THE OFFICE OF DIRECTOR OF THE DEPARTMENT OF ENVIRONMENTAL MANAGEMENT FOR THE COUNTY OF HAWAI'I FILED DECEMBER 9,2013,FILED MAY 26,2015 Iherebyce tifythatthisisafull,trueandc orrect Z copyot�• na►o fr(einthisoffice. EXHIBIT Clerk, ird • , n '' The Court having reviewed the Non-Hearing Motion filed June 5, 2015 by Petitioner Brenda J. Ford for reconsideration of this Court's Order Granting Respondent Bobby Jean Leithead-Todd's Motion for Summary Judgment on the Verified Petition of Brenda J. Ford for an Order in the Nature of Quo Warranto Directing Respondent to Show the Authority Under Which She Purports to Hold the Office of Director of the Department of Environmental Management for the County of Hawaii, and Respondent Bobby Jean Leithead-Todd's Memorandum in Opposition to Petitioner's Motion, filed June 17, 2015; IT IS HEREBY ORDERED,ADJUDGED AND DECREED,that Petitioner Brenda J. Ford's Motion for Reconsideration of Findings of Fact,Conclusions of Law, and Order Granting Respondent Bobby Jean Leithead-Todd's Motion For Summary Judgment In Favor Of Respondent On The Verified Petition Of Brenda J. Ford For An Order In The Nature Of Quo Warranto Directing The Respondent Bobby Jean Leithead-Todd To Show The Authority Under Which She Purports To Hold The Office Of Director Of The Department Of Environmental Management For The County Of Hawai'i Filed December 9, 2013, Filed May 26, 2015 is DENIED. Petitioner did not present new evidence and/or arguments that could not have been presented during the earlier adjudicated motion. The Court considered all of the evidence presented and there is no new evidence to determine voters' intent that is contrary to this Court's ruling. DATED: Kealakekua,Hawai'i, JUL 6 2015 /s/ Ronald Ibarra(seal) JUDGE OF THE ABOVE ENTITLED COURT 2 FILED cc: Robert D.S.Kim,Esq. Michael J.Matsukawa,Esq. 2015 Il . -6 PM 1 35 IN THE CIRCUIT COURT OF THE THIRD CITTA CH ON G,CLERK THIRD CIRCUIT COURT STATE OF HAWAII STATE E Oi HAWAII BRENDA J. FORD, S.P.No. 13-1-52K (Kona) (Other Civil Action-Quo Warranto) Petitioner, vs. FINAL JUDGMENT BOBBY JEAN LEITHEAD-TODD, HEARING: February 23,2015 TIME: 4:00 p.m. Respondent. JUDGE: The Hon. Ronald Ibarra FINAL JUDGMENT In accordance with Rule 58 of the Hawaii Rules of Civil Procedure, and pursuant this Court's Findings Of Fact, Conclusions Of Law, and Order, Granting Respondent Bobby Jean Leithead-Todd's Motion For Summary Judgment In Favor Of Respondent On The Verified Petition Of Brenda J. Ford For An Order In The Nature Of Quo Warranto Directing The Respondent Bobby Jean Leithead-Todd To Show The Authority Under Which She Purports To Hold The Office Of Director Of The Department Of Environmental Management For The County Of Hawai'i Filed December 9,2013, filed on May 26, 2015 as well as the Order Denying Petitioner Brenda J. Ford's Non-Hearing Motion For Reconsideration Of Findings Of Fact, Conclusions Of Law and Order Granting Respondent Bobby Jean Leithead-Todd's Motion For Summary Judgment, filed July 6, 2015; FINAL JUDGMENT IS HEREBY ENTERED as follows: Judgment is entered in favor of Respondent Bobby Jean Leithead-Todd and against I hereby certify that this is a full,true and correct 1 copy of the tiginalontNiyilosoffice. EXHIBIT " Petitioner Brenda J. Ford. This judgment is entered as a Final Judgment and resolves all claims as to all parties pursuant to Rule 58 of the Hawaii Rules of Civil Procedure. DATED: Kealakekua,Hawaii JUL 6 2015. /s/ Ronald Ibarra (seal) JUDGE OF THE ABOVE ENTITLED COURT 2 ROBERT D. S. KIM, INC. P.O. Box 188 • Kealakekua, HI 96750 • (808) 323-2100 • konalawl@hawaii.rr.com LEGAL EDUCATION LEGAL EDUCATION • William S. Richardson School of Law, University of Hawaii; Awarded Juris Doctor, May 1986, Member, University of Hawaii Law Review, Who's Who in American Law Schools 1985, American Inn of Court 1985-86 UNDERGRADUATE EDUCATION • University of Hawaii at Hilo, Awarded Bachelor of Arts Degree, Political Science, December 1979. Dean's List, Selected Who's Who Among Students in American Colleges and Universities, 1975-76; President, Associated Students of the University of Hawaii at Hilo College, 1976-77 PROFESSIONAL ASSOCIATIONS AND ADMISSSIONS Member, West Hawaii Bar President, West Hawaii Bar Association State and Federal Courts of Association, 2014-2015; 2011-2012; 2008-2010; Hawaii - 1986 Member, Hawaii State Bar 1993-1995; 1992-1993; 1991-1992 Unites States Tax Court- 1986 Association Board of Directors, Hawaii State Bar (inactive) Association, West Hawaii, 1993-1995 Ninth Circuit Court of Appeals United States Supreme Court- 1989 PROFESSIONAL EXPERIENCE ROBERT D.S. KIM, INC., A HAWAII LAW CORPORATION President, 1999 to Present Civil Litigation, Commercial, Civil, Real Estate, Environmental, Family and Criminal Law (State and Federal Courts); Public Interest Litigation KIM & POWELL, ATTORNEYS AT LAW Partner, 1996 to 1998 Litigation Attorney, Commercial, Civil, Family and Criminal Law (State and Federal Courts) ROBERT D.S. KIM, ATTORNEY AT LAW Sole Practitioner, 1994 - 1996 Litigation Attorney, Commercial, Civil, Real Estate, Environmental, Family and Criminal Law (State and Federal Courts) CARLSMITH BALL WICHMAN MURRAY CASE MUKAI & ICHIIKI Associate, Kona Office, 1990 - 1994 Litigation Attorney, General Commercial, Civil, Family and Criminal Law , ROBERT D.S. KIM Phone: (808) 323-2100 • Page 2 PROFESSIONAL EXPERIENCE (CONTINUED) OFFICE OF THE CORPORATION COUNSEL, CITY AND COUNTY OF HONOLULU Deputy Corporation Counsel, 1990 Civil Litigation, assigned to trial litigation, flood litigation unit. Duties included representing the City and County in mass tort actions. Handled litigation arising out of the Kailua flood of December 31, 1987. Responsibilities included taking/defending approximately 90 depositions, interviewing, witnesses, arguing and opposing motions and all phases of pretrial work. EZRA O'CONNOR MOON & TAM Associate, 1987 to 1990 Civil Litigation, including construction, lender liability, commercial, personal injury defense, and collections law. Duties include all phases of pretrial activity, interviewing clients, planning and conducting discovery, preparing witnesses for deposition, deposing witnesses, researching issues, writing and arguing substantive and procedural motions, second-chairing a probable cause hearing in a 10 million dollar mechanic's lien action . Areas of focus: lender liability and construction actions. HONORABLE PHILIP T. CHUN, ADMINISTRATIVE JUDGE, 14TH DIVISION CIRCUIT COURT OF THE FIRST CIRCUIT Law Clerk, 1986-1987 Civil Motions and Probate Court. Duties include analyzing motions and petitions, researching issues, and briefing the Court. UNITED STATES DEPARTMENT OF TREASURY, OFFICE OF THE DISTRICT COUNSEL INTERNAL REVENUE SERVICE, DENVER, COLORADO Intern, 1986-1987 Duties included researching issues, drafting 90-day letters, and assisting attorneys in all aspects of tax litigation. JAMES A. WAGNER, A LAW CORPORATION Law Clerk, 1984-1985 Bankruptcy. Duties included researching and writing memoranda on various issues in the Ronald Rewald bankruptcy matter on behalf of the Trustee James A. Wagner. SCHUTTER PAVEY & CAYETANO Law Clerk, Summer 1984 Personal Injury, Litigation and Personal Injury. Duties included interviewing clients, conducting site inspections, and writing substantive and procedural motions in the personal injury and criminal law areas. SENATE COMMITTEE ON THE JUDICIARY, HAWAII STATE SENATE Committee Clerk, 1982-1983 Hawaii State Capitol, Legislative. Duties included managing the Senate Judiciary Committee and the legislative process and overseeing the administrative staff. ROBERT D.S. KIM Phone: (808) 323-2100 • Page 3 SENATE COMMITTEE ON THE HEALTH, HAWAII STATE SENATE Legislative Assistant, 1981 Hawaii State Capitol, Legislative. Duties included assisting the Chairman Dante K. Carpenter with legislative matters involving the Department of Health and the legislative process. ARTICLES AND PUBLICATION • Recent Development, Local Government Tort Liability: Common Law Application of the "Special Relationship" Doctrine - Cootey v. Sun Investment, published University of Hawaii Law Review, Vol. 7, No. 2, p. 575 • Hawaii State Senate, Co-Author: Report of the Senate Committee on Judiciary: "Special Investigation into Allegations of Brutality Against Inmates of the Oahu Community Correctional Center Arising From and of the Procedures Utilized in the Prison Shakedown," January 25, 1983. PUBLIC SERVICE • Member, Saddle Road Task Force (appointment by U.S. Senator Daniel Inouye) 1995-Present. The Task Force has worked with state, federal and military personnel to guide the development of the cross-island highway. • Arbitrator, Arbitration Program, Circuit Court of the Third Circuit, 1990-Present • Contract Counsel for Na Loio clients involved in domestic violence situations 2006-2010 (continue to assist Na Loio on a case by case analysis on a pro bono basis). This assignment involved assisting the most vulnerable members of our society, namely immigrants who are unable to converse in English, and are susceptible to domestic and financial abuse. Assistance for temporary restraining orders and divorces. Coordinate with local agencies and churches to seek out these individuals. Referrals and coordination with the domestic abuse shelters in Kona, to assist families. • Represent court appointed indigent clients in the criminal courts in the Third Circuit since 1994 to the present. • Provide indigent persons of Hawaiian decent, and organizations involving legal actions involving infringement of native Hawaiian rights, and religious rights • Provide free legal representation for environmental groups and organizations in West Hawaii involving protection of the natural environment • Participate in public interest litigation on a pro bono or reduced cost involving violation of Hawaii's Sunshine Law and voting, reapportionment issues and other public interest issues APPELLATE EXPERIENCE (Published Opinions) Gump v. Walmart, 93 Haw. 428, 5 P.3d 418 (Ct. App 1999) aff'd in part, rev'd in part sub nom, 93 Haw. 417, 5 P.3d 407 (2000) In Re Doe Ex Rel Doe, 91 Haw App. 166, 981 P.2d 723 (Ct. App. 1999) Kapa'akai 0 Ka'ina v. Land Use Comm'n, 94 Haw. 31, 7 P. 3rd 1068 (S. Ct. 2000) State v. Cummings, 101 Haw. 139, 63 P.3d 1109 (2003) Solomon et al. v. Abercrombie et al, 126 Haw. 283, 270 P.3d 1013 (2012)(reapportionment) TRIAL EXPERIENCE Extensive history of civil and felony criminal jury trials, district court trials, circuit court civil and criminal non-jury trials,juvenile criminal trials.