KEALAKEKUA— It seems recusal is in the air.
Every Big Island judge has recused, or removed, themselves in the felony theft case against Mayor Billy Kenoi, which led to the assignment of Oahu Circuit Court Judge Dexter Del Rosario.
That is also true in the case of where a man allegedly burned the Big Island Drug Court, which is being handled by Maui Circuit Court Judge Rhonda Loo.
“The sole goal is to ensure not only the reality of justice, but also the public perception of justice,” said law professor Randall W. Roth of the University of Hawaii law school on Oahu in an interview with West Hawaii Today on the subject of recusal.
A judge may be able to rule fairly in a case, but the public may not see it as so, he said.
“Recusal is not rare, especially in an island community,” Roth said.
However, he added, every judge on an island making that decision on one specific case is unusual.
“It’s perfectly natural that people would be wondering why they would all recuse themselves,” he said.
But it make sense to Roth, who is a past president of the Hawaii State Bar Association.
Kenoi’s personality, position and history makes it easy for other people to be connected with him, he said. This complicates the case, which alleges he used a county purchasing card, or pCard, to make personal purchases. Kenoi faces two counts of each of second- and third-degree theft, three counts of tampering with a government record, and a single count of making a false statement under oath after being indicted by a Hilo grand jury March 23.
Kenoi is an attorney who has been involved in government for decades, providing ample opportunity to meet with lawyers and judges, Roth said. He also has a very outgoing personality, the sort people remember, and is active in the legal community, said Roth.
“If I were a judge, I would recuse myself because I got to know Billy really well when he was a student here,” Roth said.
That’s despite the fact Roth feels he would be able to render a fair judgment.
It would make sense that someone would see the two of them together and assume any judgment would be tainted, Roth said.
As far as the arson, that seems clear, as well. Again, it can come down to public perception.
“If someone would try to set fire to a building I was in, I think I could be fair, but I would certainly understand why someone would doubt that,” Roth said.
Big Island Circuit Court Judge Melvin Fujino, who was in the courthouse when the fire started what day, took himself off the case almost immediately.
But as far as the Kenoi case, Fujino said the reasons for recusals in the case involving the mayor varied from judge to judge. Although there was no meeting about Kenoi’s case, Fujino said clerks advised judges they should consider if recusal was appropriate. In the end, every judge on the island decided recusal was appropriate and filed a certificate of disqualification on March 31, save vacationing Family Court Judge Aley K. Auna, who filed upon his return. The paperwork formally states the judge will not be hearing the case.
Both West Hawaii Today and the Hawaii Tribune-Herald attempted to contact the Big Island judges recently through emails and calls. Most were not returned or were directed to the communications office.
When asked about their reasons for removing themselves from the Kenoi case Circuit Court judges Glenn S. Hara and Greg K. Nakamura directed reporters to their certificate of disqualification.
In both instances, the certificates cite the Code of Judicial Conduct, specifically the section reading “a judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.”
Under that section are a number of specific reasons, such as serving previously as a lawyer in the matter, having personal knowledge about the facts or having a personal relation that may be substantially affected by the proceeding.
“(According to) the Code of Judicial Conduct, justices and judges are precluded from discussing their respective reasons for recusing themselves,” wrote Tammy S. Mori, the communications and community relations director for the state Judiciary.
A judge who believes there is a conflict may put it on the record, allowing the parties involved to decide if that potential conflict is enough to warrant the recusal of the judge.
Roth said that is not common, as that puts the judge in a sort of defensive situation. It also creates a separate story or controversy about the judge, he said.
The case against the county’s chief executive will largely be handled by outsiders.
The prosecution is being performed by the state Attorney General and Kenoi has retained attorneys. Unless the attorneys involved file a motion to move the trial and the judge grants it, the case will be heard in Hilo from a jury pulled from the island. Trial has been set for July 18.
As for the arson case, the prosecution remains with the county.
