In a highly unusual move, the Hawaiʻi Supreme Court’s new acting chief justice apologized and withdrew an opinion just days after issuing it.

The opinion, issued a week ago Tuesday by Sabrina McKenna one day before she took over as acting chief justice, dealt with the case of three former Honolulu officials who faced felony charges related to a $250,000 retirement payout quietly granted to disgraced police Chief Louis Kealoha.

In her opinion, McKenna called into question the bedrock premise of the criminal case — that the city officials allegedly evaded requisite approval from the City Council before granting the payout to Kealoha, who was subsequently indicted on corruption charges.

“City law did not require City Council approval of Kealoha’s retirement agreement in the first place,” she wrote in the opinion, which was joined by Associate Justice Todd Eddins.

But the opinion drew criticism from legal experts who said the matter of City Council approval was not before the court. The topic before the court last Tuesday was whether one of the city officials who pleaded guilty, former city attorney Donna Leong, should be able to keep her law license.

Leong and Honolulu Police Commission Chair Max Sword pleaded guilty to misdemeanor charges in the Kealoha payout case earlier this year. Managing director Roy Amemiya signed a deferred prosecution agreement in which he admitted to participating in a conspiracy but avoided a conviction. 

The opinion by McKenna and Eddins — which was concurrent to the majority court decision that Leong could keep her license — could have opened the door for the three to return to federal court and attempt to clear their records.

But McKenna walked her opinion back on Friday in a court filing and apologized.

“I apologize for misinterpreting the factual basis for the criminal offense underlying this disciplinary proceeding,” she wrote.

Brooks Baehr, spokesman for the Hawaiʻi State Judiciary, said McKenna would not comment beyond the filing.

An ‘Extremely Rare’ Move

Former federal public defender Ali Silvert, who helped crack open the Kealoha corruption case, said the justices overstepped in issuing the opinion, and withdrawing it was the right thing to do. 

“I want to give them a lot of credit for changing their mind, realizing after thinking about it some more that they should withdraw,” he said. “It takes a lot of courage to do that.” 

He also called the decision to withdraw “extremely rare.”

Justices “have a lot of time to write these opinions and think about it and discuss it with their colleagues,” he said. “They’re not just something issued out of the blue.”

Retired Judge Daniel Foley, who served on the Hawaiʻi Intermediate Court of Appeals from 2000 to 2016, said that while sometimes courts will take another look at an opinion after a party in a case files a motion to reconsider, he’s never seen a justice withdraw an opinion of their own volition. 

“It’s pretty bold to do that and to, on their own initiative, admit error and correct it,” he said. “So I think it’s admirable.” 

Even more unusual was the fact that McKenna included an apology and an explanation for the withdrawal, said Jeffrey Portnoy, a civil litigator based in Honolulu. 

“I think she recognized that it was probably something that the two of them wished they hadn’t done,” he said of the initial opinion.

The Kealoha Payout

Kealoha was convicted of conspiracy and obstruction of justice in 2019 and sentenced to seven years in federal prison.

Prosecutors say Leong, Sword and Amemiya arranged for Kealoha to receive a $250,000 retirement payout as he was on the cusp of being indicted on the conspiracy charges.

The retirement deal stipulated that he would return the money if he was convicted of a crime within a few years, but he has yet to pay the money back.

Leong, Sword and Amemiya have been ordered to pay a total of $250,000 in restitution back to the city.

After Leong pleaded guilty in March, the Hawaiʻi Office of Disciplinary Counsel, which investigates misconduct by lawyers, asked the Hawaiʻi Supreme Court to take away her law license because she had been convicted of a crime of dishonesty or making a false statement. 

Supreme Court justices last Tuesday issued a majority opinion rejecting the Office of Disciplinary Counsel’s recommendation. Leong’s license has been on voluntary inactive status for years, but the court’s ruling gives her the opportunity to practice again if she chooses.