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Judge rejects motion to dismiss Leithead Todd case

Environmental Management Director Bobby Jean Leithead Todd will have to justify in court her authority to lead the department, following a ruling by 3rd Circuit Court Judge Ronald Ibarra.

Ibarra, in a seven-page order filed May 23, rejected a motion by Leithead Todd’s attorney, Robert Kim, to dismiss the case brought by South Kona/Ka‘u Councilwoman Brenda Ford.

“Based on the alleged discrepancy between the respondent’s qualifications and the requirements found in the Hawaii County charter, this court is satisfied that sufficient allegations were presented to show a right to an order in the nature of quo warranto inquiring of the respondent by what authority she purports to hold office,” said Ibarra in his order.

Ford, represented by attorney Michael Matsukawa, cites the county charter’s requirement the Environmental Management director have “an engineering degree or a degree in a related field.” Leithead Todd, an attorney, has a bachelor’s degree in English.

Matsukawa on Tuesday declined comment on the ruling.

The order paves the way for more arguments and hearings, where, at some point, Kim said, the burden of proof that Leithead Todd is unqualified for the position will fall on Ford and her attorney.

Ford initially filed a petition against Leithead Todd in August, asking the court to compel Leithead Todd to justify her qualifications for the position. Leithead Todd could not be reached for comment Tuesday.

“In the nature of quo warranto” is most commonly used in Hawaii to challenge elected officials’ qualifications for office if, for example, they don’t live in their district. It also was tried unsuccessfully by the so-called “Birther” movement in challenging President Barack Obama’s birth certificate and citizenship and thus his qualification to be president.

Kim used the same argument that prevailed in the Obama Birther case.

“Courts should abstain from the political arena,” Kim characterized the argument Tuesday to Stephens Media Hawaii.

Ibarra, in his order, said previous courts reviewed the law and facts of the cases before rendering rulings. He left open opportunities for those arguments to continue at future hearings.

“Actions in the nature of quo warranto have been well established as the proper method to challenge the authority through which a public officer holds its position,” Ibarra said in the order. “At the present time, there is nothing requiring this court to abstain from the matter based on the political question doctrine, and therefore this court has jurisdiction over the subject matter.”

The judge gave Kim 22 days to file an answer to the order.

Ibarra previously denied a request by county attorneys to help defend the lawsuit. Corporation Counsel argued the county had an interest in the case after Leithead Todd was appointed by the mayor and confirmed by County Council for the position.

At issue is a 2010 charter amendment passed by voters by a vote of 34,209 to 9,787 requiring an engineering or related degree to serve as chief of the department.

The wording of the charter has been the subject of various interpretation by council members and attorneys.

Kenoi appointed Leithead Todd, who had the position under a previous mayor before the requirements were changed, back to the position during a Cabinet reshuffling last summer. County Council, by a 6-3 vote, confirmed the appointment in July.

Ford, North Kona Councilwoman Karen Eoff — who had served as staff for the Charter Commission that added the ballot language — and Kohala Councilwoman Margaret Wille voted no.

Email Nancy Cook Lauer at ncook-lauer@westhawaiitoday.com.


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