Wednesday, November 25, 2009


LUCKY DOG: One advantage attorneys have over we poor mortals when looking at the “I can’t believe they just said that” Kaua`i county government machinations is that they spend most of their time with noses stuck in the archaic minutia of prior court decisions.

Through such tedium Kaua`i attorney Charley Foster has apparently found a Hawai`i Supreme Court precedent- Fasi v. City Council of City and County of Honolulu- that makes the county attorney’s opinion on charter section 20.02(D) the “lousy lawyering” asserted by Board of Ethics member Paul Weil in the letter to County Attorney Al Castillo we posted Monday.

In his post yesterday at his Planet Kaua`i blog Foster first provides an excellent brief synopsis of the "absurdities” of the “absurdity theory” in the opinion as well as the apparent rejection of the hierarchy of law doctrine saying:

Recall the recent county attorney opinion that asserted that the provision leads to results just too absurd to comply with, and must therefore be read in conjunction with more lenient county ordinances so that officers, employees, etc can in fact appear on behalf of private interests.

Leaving aside the point that an honest reading of the provision simply does not lead to absurd results, and that the ordinance in question doesn't actually apply to the controversial section, what troubles me about the County Attorney's assertion is that it appears to rest on a fundamental misapprehension of the hierarchy of law represented by charters and ordinances. It is axiomatic that a county charter is the fundamental law and that ordinances that fail to conform to charters are what in the federal context would be called "unconstitutional."

Then he drops the bombshell that should end any controversy.

However, it's one thing to assert a legal proposition, and another to back it up with legal authority. As luck would have it, the other day I ran across the case of Fasi v. City Council of City and County of Honolulu, 72 Haw. 513, 823 P.2d 742 (Haw. 1992), in which the Hawaii Supreme Court stated unequivocally that "[a] basic tenet of municipal corporation law is that an ordinance which conflicts with an express provision in a charter is invalid."

The proposition is self-evident that an ordinance must conform to, be subordinate to, not conflict with and not exceed the charter, and can no more change or limit the effect of the charter than a legislative act can modify or supersede a provision of the constitution of the state. Ordinances must not only conform with the express terms of the charter, but they must not conflict in any degree with its object or with the purposes for which the local corporation is organized.

this applies whether or not a charter provision led to "absurd results." The only remedy in such a case would be to amend the charter. It is certainly not permissible to alter a charter's clear requirements by resort to a contrary ordinance.

But one irony that Foster might have missed is that the attorney who argued and won the case for the Fasi administration was none other than then Deputy Corp. Council for Honolulu Jonathan Chun whose request for a BOE ruling on the applicability of 20.02(D) to his job of appearing on behalf of clients before the county council and whether it conflicted with his role on the charter commission, started the ball rolling on the series of events regarding the provision.

It would seem that the tight-lipped Chun should have been very familiar with this decisions but remained silent on the matter

It’s one thing to be accused of lousy lawyering. But matters of lazy lawyering are if anything worse and many times lead to incompetence and even misconduct complaints to the bar.

If Castillo and his deputy Mauna Kea Trask want to avoid such talk it might behoove them to reconsider their ill- or under-considered “opinion” as to whether any “officer or employee of the county shall appear in behalf of private interests before any county board, commission or agency” as stated in charter section 20.02(D).

We’ll be back Monday but in the meantime check out Kaua`i activist Ann Punohu’s new blog, lengthily titled “Punohu's Politics, Environment and Culture Blog - A blog to keep interested readers up on what Anne Punohu is doing in political, environmental and cultural issues and activities. Updated frequently. If you like Hawaiian culture, political or environmental issues you will love this blog”.

No comments: