A 3rd Circuit Court judge dismissed a case against a Hawaii County official Wednesday because she had not been properly served notice.
Councilwoman Brenda Ford, South Kona/Ka‘u, filed a petition against Environmental Management Director Bobby Jean Leithead Todd in August, asking the court to compel Leithead Todd to justify her qualifications for the position.
“Since the respondent is being sued as an individual, not in her official capacity, serving an agent” is not allowed, unless Leithead Todd had appointed that person to accept papers on her behalf, Ibarra said. “The service was not proper and therefore the court does not have jurisdiction over it.”
The sheriff who served the paperwork did so at Leithead Todd’s county office, leaving the documents with her secretary.
Ibarra said the papers may be served to Leithead Todd at home.
Michael Matsukawa, Ford’s attorney, said he will refile the petition.
“There’s a statute that says you have to accept the sheriff’s return as being valid,” Matsukawa said, adding he thought the papers had been properly served.
Leithead Todd, who was off-island Wednesday morning and did not attend the hearing, said she was pleased with Ibarra’s ruling.
“I’m very grateful for my attorney’s work on my behalf,” she said. “At the moment, I’m savoring our victory.”
She said she is also waiting to see what comes next.
The petition, “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.
Ford challenged Leithead Todd’s appointment to Environmental Management director, a position Leithead Todd had also held under former Mayor Harry Kim.
Ford, and two other council members, voted against Leithead Todd’s appointment, citing a charter amendment that requires the Environmental Management director to be an engineer or hold an equivalent degree.
Leithead Todd’s law degree does not meet those qualifications, Ford said.
The charter amendment was adopted after Leithead Todd’s previous tenure as director.
Robert Kim, Leithead Todd’s attorney, said he was making a special appearance in court, despite his client not being properly served, because the case was well known to the public.
“This is a political case with grave consequences for all elected and appointed officials in Hawaii,” Kim said.
Leithead Todd was “properly nominated by the mayor, properly presented to the County Council and approved by a proper majority of the council,” he added.
Kim also presented arguments on several other items in his motion to dismiss.
Ibarra declined to rule on those, because he said he lacked the jurisdiction to do anything with the petition.