The state Senate voted yesterday against confirming Randal Lee as a judge for the state Intermediate Court of Appeals after many senators said they were troubled by Lee's lack of civil experience and the Hawai'i State Bar Association's split decision over whether he was qualified.

The 16-9 vote means Gov. Linda Lingle will have to name another nominee within 10 days from a list submitted by the state Judicial Selection Commission or allow the commission to choose. The Senate would likely return for another special session for confirmation hearings and a vote on the new choice.

State Sen. Brian Taniguchi, D-10th (Manoa, McCully), chairman of the Senate Judiciary and Labor Committee, had voted with reservations last week in committee to recommend Lee's confirmation. He told senators yesterday he had regrettably decided to vote against Lee, citing the bar association's split decision, Lee's handling of a discrimination lawsuit, and his two years of experience as a judge on the O'ahu Circuit Court.

"While each of these factors, in and of themselves, do not constitute sufficient grounds to vote against confirmation, taken together, they seem to indicate that Judge Lee should probably acquire a little more experience as a trial judge, especially given the new significant role that the ICA will play in the judicial system," Taniguchi said.

Lee is a former Honolulu deputy prosecutor known for his work on complex white-collar fraud and public-corruption cases. He was described by state Attorney General Mark Bennett, Honolulu Prosecutor Peter Carlisle and several other attorneys as fair and dedicated.

Lingle, Bennett and Carlisle said they believed the opposition to Lee came from defense attorneys, who objected to another former prosecutor being named to the appeals court.

The bar association's board issued a rare split decision on Lee after discovering an uncounted ballot after taking its vote. While the bar association would not disclose what the original vote had been, several senators learned it was that Lee was not qualified.

HISTORY SWAYED VOTES

Several of the attorneys who opposed Lee's nomination asked senators to consider a 1991 state Supreme Court ruling that ordered a new trial in a securities fraud and money-laundering case Lee had prosecuted. The court found that the prosecution's failure to comply with discovery rules, while not malicious, deprived the defendants of the right to a fair trial.

Lee's critics also cited a 2006 decision, which Taniguchi mentioned yesterday, where Lee as a judge dismissed claims by a French national who had alleged discrimination after being fired from an auto dealer. Lee ordered the man to pay more than $150,000 in attorney's fees and costs. The attorney representing the man had asked that Lee recuse himself because they had been on opposing sides in the securities fraud and money-laundering case a decade earlier.

Other attorneys said Lee's lack of civil experience as a lawyer and judge make him unsuited for the workload of the appeals court, which now reviews nearly all appeals from trial courts before they reach the state Supreme Court.

Lingle, who spoke to reporters after the Senate vote, said it was ironic senators would cite Lee's lack of experience as a judge when last session they confirmed her nomination of Mark Recktenwald for chief judge on the appeals court. Recktenwald, a former assistant U.S. attorney who handled civil and criminal cases, had been the director of the state Department of Commerce and Consumer Affairs and lacked experience as a judge.

"I think it's clear that the majority party in the Senate simply doesn't want people with a prosecutor's background to be on the court," Lingle said. "And when I went around and talked with several people, that was the issue that they raised. And I think that was the reason the bar had a split vote. It had nothing to do with the judge's record."

Lee, who has another eight years in his term as judge on the Circuit Court, told reporters he was honored Lingle had nominated him. He said he was disappointed but declined to criticize the Senate's confirmation process.

SOME RESERVATIONS

The Senate Judiciary and Labor Committee voted unanimously last week to recommend Lee's confirmation, but four senators voted with reservations. Over the past several days, Lee's supporters and critics attempted to influence senators through letters and private conversations. Lingle herself met privately with Taniguchi yesterday morning before the vote.

State Sen. Sam Slom, R-8th (Kahala, Hawai'i Kai), told senators during floor debate that "Halloween has come a day early" and that he was appalled Lee would not have a chance to respond to the critical letters or statements. Slom did not mention that Lee's supporters had also been writing and contacting senators.

"I'm not going to degrade the process," Lee said. "I would like to believe that the process and the senators treated me fairly. I don't know what happened, if there was backdoor conversations, but I have faith in the system. I have faith that the senators, they know what's right and wrong, and they have to live with their decisions."

Reach Derrick DePledge at ddepledge@honoluluadvertiser.com.