Judge: County cannot be a party in Leithead Todd case


Although the mayor appointed her and the County Council confirmed her to head the Department of Environmental Management, Bobby Jean Leithead Todd must go it alone defending her qualifications for the position before a 3rd Circuit Court judge.

Judge Ronald Ibarra on Sept. 26 denied Hawaii County’s motion to intervene in the challenge to Leithead Todd’s job that was filed by Councilwoman Brenda Ford, who represents South Kona and Ka‘u.

Ibarra’s terse, one-page order says only that the court found “no good cause” in the court filings to allow the county to participate in the legal proceedings. In addition, the order says, the county “failed to show a sufficient interest” in the matter to meet the standards set forth in a 1994 Hawaii Supreme Court ruling in Ing v. Acceptance Ins. Co.

That case, involving civil litigation over insurance claims after a fire, cites a four-part standard for an application to intervene: Whether the motion is timely, whether the intervenor claims an interest relating to the transaction, whether the outcome could interfere with the intervenor’s ability to protect that interest and whether the intervenor’s interest is adequately represented by the existing defendants.

Ibarra does not say in the order which of the standards applied to his ruling.

Ford’s petition, “in the nature of quo warranto,” asks the court to compel Leithead Todd to come forward and justify her qualifications for her position. 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.

In a petition filed Aug. 8, Ford’s attorney, Michael Matsukawa, cites the county charter’s requirement that the DEM director have “an engineering degree or a degree in a related field.”

Matsukawa declined to discuss the most recent development Wednesday.

“Since the respondent Bobby Jean Leithead Todd does not have an engineering degree or a degree in an engineering-related field, the respondent does not have the qualification required to hold the office of director of the Department of Environmental Management for the county of Hawaii,” the petition states.

Robert Kim, the attorney Leithead Todd hired to defend her, did not respond to a telephone call by press time. But Corporation Counsel Lincoln Ashida, while acknowledging the county’s disappointment in the ruling, praised Kim’s representation of Leithead Todd.

“I feel very fortunate that Leithead Todd has a very skilled and able attorney,” Ashida said. “To the extent that her interests are similar to some of the interests of the county, we will be well-served.”

Voters in 2010 passed the charter amendment requiring the engineering or related degree by a vote of 34,209 to 9,787.

Kenoi had reappointed Leithead Todd, who had held the position before the requirements were changed, back to the position during a Cabinet reshuffling in early summer. The County Council, by a 6-3 vote, confirmed the appointment in July. Ford, North Kona Councilwoman Karen Eoff and Kohala Councilwoman Margaret Wille voted no.