A suit against the county’s Environmental Management director should be dismissed because the type of action filed is not proper, a West Hawaii attorney says.
Environmental Management Director Bobby Jean Leithead Todd hired attorney Robert Kim to represent her in a legal action brought by South Kona/Ka‘u Councilwoman Brenda Ford. Ford is challenging Leithead Todd’s appointment to the top environmental management job, on the grounds that the county’s charter requires the director to hold an engineering or equivalent degree and Leithead Todd does not.
Kim’s motion to dismiss, filed Friday afternoon, outlines several arguments asking 3rd Circuit Court Judge Ronald Ibarra to dismiss Ford’s complaint.
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.
“I don’t believe quo warranto is proper,” Kim said.
The councilwoman also didn’t file a motion that included any request for relief, Kim said.
“What she’s asking for the court to do is make Bobby Jean show the legal authority on which she holds this office,” Kim said.
Ford’s attorney, Michael Matsukawa, should not have notarized Ford’s exhibits and other documents, on which Ibarra relied when issuing an order allowing the lawsuit to proceed, Kim said.
“A notary is supposed to be an independent witness,” he added.
His motion noted that Matsukawa is seeking legal fees to be paid if Ford’s motion prevails. That would create an ethical conflict for a notary, Kim said.
Kim also objected to the documents on which Ibarra relied in granting an order allowing Ford’s suit to proceed. Kim said that in a quo warranto suit, the respondent — Leithead Todd in this case — is not allowed to submit any documents following the initial filing. The judge, Kim said, relies on the evidence and documents the movant — Ford — files. Ford submitted a number of documents that were not addressed to her, but were other government records she cannot authenticate, Kim claimed.
Ford also failed to follow Ibarra’s order to serve Leithead Todd with the order Ibarra granted within 15 days, Kim said.
Kim noted Hawaii County officials, in filing a petition to intervene this week, are not doing so to defend Leithead Todd.
“The county has to defend its own procedures,” Kim said.
Matsukawa did not respond to a phone message seeking comment Friday afternoon.