Woo vs. Harmon - Witness Mark Recktenwald

Hawaii Intermediate Court of Appeals
Kapuaiwa Building
426 Queen Street
Honolulu, Hawai`i 96813

Mark E. Recktenwald served as Director of the Hawai`i Department of Commerce and Consumer Affairs from 2003 to 2007. He was also an Assistant U.S. Attorney for the District of Hawai`i from 1991 to 1997 and from 1999 to 2003, serving as a prosecutor in the office's criminal division and handling civil fraud cases. He specialized in the prosecution of white collar fraud cases and environmental crimes.

Judge Recktenwald received his J.D., with honors, from the University of Chicago Law School and his A.B. from Harvard University, magna cum laude with highest honors in anthropology.

Mark Recktenwald was a prosecutor in the white-collar crime section of the U.S. attorney's office and was one of the lead prosecutors in the federal case against real estate developer Sukamto Sia.

Pay for the governor, state executives, judges and legislators will all increase, thanks to a little-noticed salary commission appointed last year.

By taking no action to stop the raises, the state Legislature gave tacit approval this year to the commission's recommendations.

The increases vary by position. For instance, by 2012, pay for the Supreme Court chief justice will rise to $213,840 from $144,900, while the governor's pay will rise to $143,748 from $112,000.

The Legislature cannot accept raises until after the next election, according to the state Constitution, but after 2009 the legislative salary will rise to $57,852 from the current $37,500 by 2014.

The report stated that "there were long periods during which other state employees received pay increases while elected and appointed officials and justices and judges did not receive pay increases."

Under the plan, all state executives, including the governor and lieutenant governor, chief of staff, department heads and deputies, will get a 5 percent raise on July 1.

Judges will get a 10 percent raise and then raises of either 3.5 percent or 10 percent every year through 2012.

By 2012, circuit judges will see their pay go to $185,736 from the current $125,856, and district judges' pay will rise to $175,032 from $118,611.

The commission was created by a state constitutional amendment approved by voters last year that called for the governor, Senate president, House speaker and chief justice to name members.

The commission chairman was Ben Kudo, while Paul Oshiro was vice chairman. The members were Barbara Annis, Doris Ching, Michael Irish, Stan Shiraki and Wayne Yamasaki.

The commission filed a report in March with the Legislature, which did not hold hearings or publicize the report. Under the constitutional amendment, the salary increases went into effect when the Legislature adjourned last week.

"The only way they can be stopped is if they are voted down, and the only way they can be voted down is if they are brought up. And these were not brought up," said Sen. Sam Slom, a critic of past salary commission reports.

This report surprised Slom (R, Hawaii Kai-Diamond Head), who said he had thought it was not yet completed.

"The public is being hoodwinked," he said. "They don't get tax relief, and they get a higher bill for this."

The price tag for the raises will be $20.5 million by 2014, according to the commission's report.

House Speaker Calvin Say said the legislative increases are needed because many office holders have no other job. "I am happy the Legislature is getting an increase," he said.

Legislators have difficulty finding an employer that allows them to leave work for the four-month legislative session, Say said. "This is why those who depend on their legislative salary, they are struggling. The Legislature is a full-time obligation."

Commission Chairman Kudo said the report was subject to a legislative veto, but because no action was taken, the raises go into effect automatically.

He said all the commission meetings were open, but they relied on the state administration to send out notifications. "We didn't issue a press release," Kudo said.

The commission held eight meetings starting Dec. 28. The final report was completed March 14, and then the Legislature was briefed.

The pay raises are needed, he said, because each branch of government is paid less than counterparts in other states.

"What we honestly found is that the pay scales were very much under what we would have expected," Kudo said.

Gov. Lingle will pick the next chief justice unless
the people alter the Constitution

Gov. Linda Lingle says she wants the next chief justice of the Hawaii Supreme Court to be a hard-working legal scholar who will not legislate from the bench.

Candidates would not be favored if they were prosecutors, "but it wouldn't hurt their chances, either," the Republican governor said in a recent interview with the Star-Bulletin.

Although Attorney General Mark Bennett has been mentioned in legal circles as a top contender, the governor said it is too early to mention any names.

But in explaining the qualities she would like to see in judges, Lingle made clear that she believes they should interpret laws and leave legislation to elected officials.

Her remarks suggest that her appointment of the state's next chief justice could be monumental for the five-member high court. Known for a long tradition of rendering "activist" decisions, the court has been hailed by civil rights advocates but criticized by others as going beyond reviewing and applying the laws.

Lingle's appointment would be the first time that a Republican governor would name a chief justice in more than 40 years. Democratic Gov. John Burns appointed William Richardson in 1966, and Democratic governors appointed the next two: Herman Lum and the current chief justice, Ronald Moon.

The only way Lingle would be prevented from making the appointment is if state lawmakers place on this fall's ballot -- and voters approve -- a proposed constitutional amendment to lift the mandatory retirement for judges who turn 70.

Unless the state Constitution is amended, Moon must retire when he turns 70 on Sept. 4, 2010, about three months before Lingle's term expires.

The state Senate approved a controversial measure last week that raises the mandatory retirement age to 80, and sent the proposal to the state House. But key senators acknowledge that it will be difficult for the amendment to pass because voters rejected a similar proposal in 2006 that eliminated the mandatory retirement provision. Voters rejected the amendment by 80,000 votes, 58 percent to 35 percent.

"It's an uphill battle," said Sen. Brian Taniguchi, Senate judiciary chairman. "I'm not going to die if the bill dies."

Senate President Colleen Hanabusa agreed with the prognosis. "I'm not sure it will make it out of the Legislature because we just put it on the ballot," she said.

Taniguchi maintained that he views the proposal as a civil rights issue against age discrimination and a "compromise" by retaining the retirement age but raising it to 80.

Opponents, including Lingle, contend the measure is aimed at preventing her from naming the next chief justice.

Bennett and City Prosecutor Peter Carlisle, who opposed the 2006 proposal, submitted testimony in opposition to the current measure before Taniguchi's committee last month.

The proposal's supporters include the Hawaii Government Employees Association and the Japanese American Citizens League.

Republican Sen. Fred Hemmings, who voted against the measure last week, said in an interview that the proposal was "petty politics at its worst."

"I think they (Democrats) will try to do whatever they can to put it on the ballot," he said.

Taniguchi said he believes Moon is doing an "all-right job," but said the motivation behind the measure is not to keep him as chief justice. The senator noted that Moon was a Republican before he got to the bench.

The speculation that Bennett will be Lingle's choice has been fueled by his role as a trusted adviser to the governor. In addition, his was one of three names Lingle submitted to the White House for a lifetime tenure as a U.S. district judge here. In 2005, President Bush chose Michael Seabright, now a federal judge, from the list.

The speculation prompted Taniguchi to ask Bennett at last month's hearing about the chief justice's job.

In an interview, Bennett gave the same answer he gave to the senator: If the job somehow opened up now, he would not apply for it.

"My plans right now are, when I'm done as attorney general, to return to private practice and/or teach," he said. "But I would not even begin to speculate about what my feelings might be in two years."

Lingle's appointment would be subject to Senate approval. The Democratic-dominated Senate has rejected some of her appointments, including Ted Hong to the Circuit Court and Randal Lee to the Intermediate Court of Appeals.

But if Lingle gets the names for Moon's replacement early in 2010 and her appointment is rejected, she would be able to name another person from a list of four to six names submitted by the Judicial Selection Commission.

If the Senate rejects all of her choices, the commission would chose the chief justice from its list, according to the state Constitution. The commission's selection would not be subject to Senate approval.

Hanabusa said "it's almost positive" that Bennett will be appointed by the governor. She said one of the criticisms is that he is sometimes almost "overzealous" in representing the administration over the legislative and judicial branches. Hanabusa cited his efforts against the mandatory retirement amendment that was placed before the voters by the Legislature in 2006.

Hemmings, however, said he is a "big fan" of Bennett and applauded him for his work with prosecutors and police in pushing for legislation. "It's hard to deny his success and record," Hemmings said.

Another name mentioned is Mark Recktenwald, a former assistant U.S. attorney who was Lingle's director of the Department of Commerce and Consumer Affairs before the governor named him chief judge of the Intermediate Court of Appeals last year.

Hanabusa said Recktenwald is considered a good administrator and would have support, but indicated senators might wait to see how he does as the chief appeals court judge.

Recktenwald said he has been chief judge for only about 10 months and is focused on doing a good job. "I haven't given consideration to anything else," he said.

Lingle's appointment would oversee a Hawaii Supreme Court whose history includes expanding the public's rights to beaches and surface waters; recognizing the rights of native Hawaiians go onto private property for traditional religious and food gathering practices; and striking down laws the court believed infringed on the rights of criminal defendants.

In its landmark and highly controversial case, the high court issued a 1993 decision that paved the way for same-sex marriages in Hawaii. That ruling prompted state lawmakers to complain that the court was creating new law, and it led to a constitutional amendment that essentially negated the ruling.

"I continue to try to reflect what the public would like to see in a judiciary, and that is a judiciary that really interprets the laws that elected people pass rather than try to make law as a judge from the bench," Lingle said.

Lingle notes that unlike the three previous Democratic governors, she is not a lawyer who might be familiar with judicial candidates. She suggests that helps bring a fresh prospective to her judicial appointments.

Because her appointments are for 10-year terms, the judges Lingle has selected -- and will select -- will remain on the bench for years after she leaves office.

Lingle said she wants her legacy to be that the courts will be a place where people "get a fair shake."

"I think the very highest achievement you can have for a judiciary is that the average citizen of a state or of a country will get fair treatment no matter who they are," she said.

The Judicial Selection Commission reviews and evaluates applications for all judicial vacancies, and vote, by secret ballot, to select qualified nominees. Established by a 1978 state constitutional amendment, the Commission is governed by the Judicial Selection Commission Rules.

The names of the nominees are then forwarded to the appropriate appointing authority. The governor is the appointing authority to nominate judges of the Supreme Court, Intermediate Court of Appeals, and Circuit Court for an initial ten-year term. The governor selects appointees from a list of not less than four and not more than six names submitted by the Judicial Selection Commission. The commission submits a list of at least six names to the chief justice who nominates judges for district and district family court to six-year terms. All nominations are subject to confirmation by the state senate.

The Commission also determines whether a justice or judge shall be retained in office. The Commission publicizes the fact that a justice or judge is seeking retention so that all persons who might have an interest in the matter be informed of the opportunity to comment.

Comments about justices and judges seeking appointment or retention should be submitted to:

Contact Information:
Judicial Selection Commission
417 South King Street
Honolulu, Hawai`i 96813-2902
Telephone: (808) 538-5200

The Commission is composed of nine members, no more than four of whom may be lawyers. The members, who serve staggered six-year terms, are selected or elected as follows:

Chairperson
Rosemary T. Fazio	Chairperson
Philip Hellreich	Vice-Chairperson
Shelton G.W. Jim On	Secretary

Member	Term	Appointing/Electing Authority
Susan Ichinose	04/02/07 - 04/01/13	(Bar)
Frederick Okumura	04/02/07 - 04/01/13	(CJ)
Melvin I.Chiba	04/02/02 - 04/01/08	(Senate)
Rosemary T. Fazio	04/02/03 - 04/01/09	(Bar)
Thomas Fujikawa	04/02/03 - 04/01/09	(House)
Philip Hellreich	04/02/03 - 04/01/09	(Governor)
Shelton G.W. Jim On	04/02/05 - 04/01/11	(Governor)
Ralph R. LaFountaine	04/02/05 - 04/01/11	(House)
Sheri N. Sakamoto	04/02/05 - 04/01/11	(Senate)
Frederick T. Okumura	04/02/07 - 04/01/13	(CJ)

The Judicial Accountability Initiative Law, J.A.I.L., is a single-issue national grassroots organization designed to end the rampant and pervasive judicial corruption in the legal system of the United States. J.A.I.L. recognizes this can be achieved only through making the Judicial Branch of government answerable and accountable to an entity other than itself. At this time it isn't, resulting in the judiciary's arbitrary abuse of the doctrine of judicial immunity, leaving the People without recourse when their inherent rights are violated by judges.

"Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men."

NEW DISCOVERY (12-18-07): Re: CHUBB INSURANCE GROUP and UNDISCLOSED PROFESSIONAL AND FINANCIAL RELATIONSHIPS BETWEEN WITNESSES DAVID FARMER, SIDNEY AYABE and JUDGE MARK RECKTENWALD

Defendant Harmon has just discovered (on 12-18-07) that DAVID C. FARMER was the attorney for Co-Receivers REBECCA S.P. YEE and BENJAMIN T. FUJIMOTO in CIVIL NO. 05-1-1356-07 SSM, STATE OF HAWAII, by its Office of Consumer Protection, Plaintiff vs. PACIFIC EDUCATIONAL SERVICES COMPANY (PES), a Nevada corporation dba Hawaii College of Pharmacy; DENICE A. CRISWELL...and DAVID CHAMPION MONROE...Defendants. At the time of this lawsuit, Mark Recktenwald, a witness in the instant case, was the Director of the Hawaii Department of Commerce and Consumer Affairs, and the attorney for the Co-Receivers Yee and Fujimoto was David C. Farmer. An attorney for the Defendants was SIDNEY AYABE, another witness in the instant case and the subject of my related professional liability claims of fraud, racketeering, obstruction of justice, bad faith, etc. against Sidney Ayabe, Jeffrey Sia, and their law firm, Ayabe, Chong, Nishimoto, Sia & Nakamura.

“Insurance Policies -Executive Risk Indemnity, Inc. (a member of the Chubb Group of Insurance Companies) issued a $1 million Directors and Officers Liability claims made policy to PES. The policy period was from December 21, 2004 to December 21, 2005. Under the terms of the policy, the limit of liability to pay damages or settlements will be reduced by defense costs. Legal counsel and OCP had filed a claim against the policy. However, the federal court issued a decision in favor of the insurer in August 2006. Consequently, we, along with OCP, are in settlement discussions with attorneys representing PES, Monroe and Criswell.”

As the court records in the instant case show, Federal Insurance Company, a member of the Chubb Group and the insurer of Kamehameha Schools/Bishop Estate and P&C Insurance Company in my wrongful termination and RICO lawsuits. Therefore, it is clearly evident that the Chubb Group, David Farmer, Sidney Ayabe, and Mark Recktenwald all had professional and financial relationships that David Farmer has failed to disclose in this case.

Gov. Linda Lingle has appointed two Honolulu attorneys to join her Cabinet as department directors.

Mark Recktenwald, an assistant U.S. attorney based in Honolulu for most of the last decade, was named director of the Department of Commerce and Consumer Affairs.

Nelson B. Befitel, a labor attorney and family friend to Lingle, was named director of the Department of Labor and Industrial Relations.

To date, Lingle has chosen five of 16 directors. Earlier, she announced her choice of Mark Bennett as attorney general, Georgina Kawamura as director of budget and finance, and Micah Kane as director of Hawaiian home lands.

Recktenwald, 47, is a prosecutor in the white-collar crime section of the U.S. attorney's office and was one of the lead prosecutors in the federal case against real estate developer Sukamto Sia. He also negotiated healthcare fraud settlements including a $3.4 million settlement with Kapi'olani Health, $1.5 million with Wilcox Memorial Hospital and $2.1 million with physician Dr. Sze Ming Suen.

"Gov. Lingle's election gives us a historic opportunity to encourage the growth and diversification of Hawai'i's economy," he said. "The eyes of the business community in the world will be on Hawai'i over the next few years to see if we can make the changes that we need to make in order to make Hawai'i a place where business can prosper and not just get by."

Recktenwald said he will ensure that the agency's enforcement actions are "firm, swift, but also fair."

Recktenwald also was a prosecutor in the criminal division, including the smuggling of illegal aliens via fishing boats to Hawai'i from China.

He is the only one of Lingle's Cabinet, to date, to have been chosen from an advisory transition team designed to make recommendations on leadership posts to the governor. Attorney Shelton Jim On, who headed a committee that reviewed applications for the commerce and consumer affairs post, said more than 100 people submitted resumés.

Befitel, 37, unlike Recktenwald, is a known entity to Lingle. The governor, as a new resident of Moloka'i 27 years ago, rented a room from Befitel's family for 10 years. He also served as her campaign's attorney.

A former deputy corporation counsel for Maui County, Befitel has spent the last few years as a litigation attorney with the law firm Damon Key Leong Kupchak Hastert practicing mainly in labor and employment law.

"We need to make Hawai'i more business-friendly, we need eliminate our antibusiness reputation," Befitel said. "And at the same time, we need to ensure that the rights and the interests of our working families are protected. I can assure you that both the labor unions and the business community will be heard in this administration. Both will have a voice."

Department of Commerce and Consumer Affairs Director Mark Recktenwald can expect a fair but thorough hearing on his nomination to become the next chief judge of the Intermediate Court of Appeals, a key state senator said.

Recktenwald was nominated to the post yesterday by Gov. Linda Lingle. Lingle also nominated Honolulu Deputy Prosecutor Glenn J. Kim as a judge to Oahu Circuit Court.

"They can expect a fair hearing -- a hearing that will go into great detail on their abilities to engage themselves as judges and (one that) will try to do as thorough a job as possible," said Senate Judiciary Chairman Clayton Hee (D, Kahuku-Kaneohe).

Hee said he expects to delve into the nominees' "experience as lawyers and their experience as administrators."

Recktenwald, 51, was nominated to replace Judge James Burns, who is approaching the mandatory retirement age of 70. Kim, 57, would succeed Judge Marcia Waldorf, who is retiring of her own accord.

"I'm deeply honored and grateful to the governor for her faith in me, selecting me for this position and for the chance to further serve the people of this community," Kim said.

Recktenwald has gone through the Senate confirmation process before, when appointed by Lingle four years ago to his current job.

"I respect the role the Senate has in reviewing the qualifications of judicial nominees and look forward to the confirmation process," he said...

Hee has already this year warned potential nominees that anything less than full disclosure could prompt a confirmation fight.

Hee said yesterday that he had heard some "bits and pieces" of complaints on Recktenwald's handling of the Department of Commerce and Consumer Affairs, but "I think he should be given the benefit of any doubt until something substantial might appear."

Recktenwald said he plans to work with Hee and the committee to "provide them with all the information they need to be able to make an informed decision about me."

The Lingle administration is exploring a possible remedy to soaring medical health coverage costs in Hawai'i — tax-exempt medical savings accounts, which give tax breaks to those who set aside money to pay for their own healthcare.

The plans would inject competition into a health insurance market dominated by two major players — the Hawaii Medical Services Association and Kaiser Permanente.

But state auditor Marion Higa says the proposal raises several legal, social and financial questions and likely would have little impact on healthcare costs.

If approved, Hawai'i residents would be able to establish savings accounts that would be used for routine medical costs, and would back up health-insurance policies with higher deductibles to cover catastrophic medical expenses.

Under a proposed state plan, and a federal model supported by President Bush and the Republican majority in Congress, the money put into the savings account is tax deductible and the interest tax-exempt if it is used for medical purposes.

In a recent report to the Legislature, Higa said that if Hawai'i's experience is similar to that of other states, "medical savings accounts should have little or no impact on healthcare costs or practices because of relatively low usage."

"We also found that, given the limited interest in medical savings accounts nationwide, and very likely in Hawai'i, the potential for any negative social and financial impacts ... appears to be minimal," she said.

However, proposed federal legislation that would broaden the scope and application of medical savings accounts (MSAs) "may result in substantial tax revenue loss to Hawai'i," Higa said.

Based on a federal projection, Hawai'i could lose $900,000 in tax revenue in 2004, with projected revenue losses rising to $5.5 million in 2005, $9.9 million in 2006, or a total of $208 million by 2013, her report said.

The state Senate earlier this year approved a bill that would allow private health insurers, mutual benefit societies and health maintenance organizations to offer the high-deductible policies in conjunction with MSAs already recognized in the state tax code but nowhere else in state law. That measure remains pending before the House.

Higa said the legislation allowing MSAs may face legal conflicts with the U.S. Employee Retirement Income Security Act because it may be considered as establishing employee benefit plans and therefore be superseded by the federal law.

Under the state's 1974 Hawai'i Prepaid Health Care Act, which guarantees employer-paid healthcare to employees who work 20 hours or more a week for four consecutive weeks, the MSAs may not meet the requirements for approval by the state's Department of Labor and Industrial Relations, Higa said.

"If passed, enabling legislation only begins the process by which medical savings account health care packages become a reality," Higa said. "These packages require scrutiny by and approval from the insurance commissioner and the Department of Labor and Industrial Relations, including review by the Prepaid Health Care Advisory Council."

The largely discretionary approval process may raise even more uncertainties, she said.

In response to Higa's findings, Mark Recktenwald, director of the Department of Commerce and Consumer Affairs, disagreed that there would be negative impacts.

"The availability of MSAs would increase the options consumers have in financing their healthcare expenditures," he said. "Currently, consumers are limited in their options with one large preferred provider organization and a major health maintenance organization dominating the market."