Tuesday, November 15, 2011


TIME: Normally when Kaua`i Councilmember Mel Rapozo goes on a crusade it's like watching the proverbial broken clock that's right twice a day.

That's usually because of the babooze factor that addles Rapozo, making his penchant for political expediency obvious to all.

So when, according to the local newspaper, he decided to go to court to show that the word "shall" always means "must" when it appears in legislation no one expected him to be right.

For those who have missed the seemingly idiotic argument last month, the county charter specifies that that Salary Commission's resolutions setting administration salaries "shall be adopted by resolution of the commission and forwarded to the mayor and the council on or before March 15."

Although the charter doesn't say so in so many words, it's apparent that the provision is there is in order for the salaries to be set when the yearly budget process begins.

But when the commission tried to present a supplemental resolution to cut administrative salaries this past August Rapozo tried to nix the reso because, he said "shall means shall."

But County Attorney Al Castillo, always one to make sure Mayor Bernard Carvalho- at whose behest the Salary Commission submitted the resolution- gets his way, told the council that the word "shall" can mean "may" when it is used in a "directory" manner.

Now our first thought was that the whole matter was really stupid because the fact is that it's always before March 15- in this case March 15 of 2012. But we also suspected that Castillo, who shares a case of "broken clock syndrome" with Rapozo, might be pulling a fast one because with two broken clocks the odds are increased that something is going to be amiss.

Yesterday, upon the news that Rapozo was going to go to court, attorney-blogger Charley Foster sought to clarify the fact that yes indeed the word "shall" could be used in a discretionary manner, according to previous court rulings.

The problem for Castillo- who certainly has access to the same law books as Foster does- is that in order for "shall" to be used in a non-mandatory way it must meet a "three pronged test" according to the courts.

The term three (or any number really) pronged test means that the subject must meet all three conditions to be true. And apparently the passage in question doesn't meet any of them.

Citing State v. Shannon, 185 P.3d 200 (Haw. 2008), Forster noted that the Hawaii Supreme Court listed the three conditions, saying:

First, “shall” can be read in a non-mandatory sense when a statute’s purpose “confute[s] the probability of a compulsory statutory design.” [Id.] at 676, 619 P.2d at 102. Second, “shall” will not be read as mandatory when “unjust consequences” result. Id. Finally, “the word `shall’ may be held to be merely directory, when no advantage is lost, when no right is destroyed, when no benefit is sacrificed, either to the public or to the individual, by giving it that construction.

The word confute means "to prove to be false, invalid, or defective; disprove." So the first means that basically it would have to make the whole passage contradictory to interpret it as "must." That doesn't seem to be the case here because it is clear that the deadline anticipates the budget process when the salaries are to be appropriated.

So already it doesn't meet the three prong test.

The second certainly isn't true- there is no injustice in submitting the reso before March 15. It many thwart the mayor's political will but that's not part of the test here.

Finally there is certainly a "benefit sacrificed." The benefit of "salaries" is being altered so the last test isn't met either.

As happens on occasion, even though Rapozo is just playing political games here, he is baled out by an equally politically motivated Castillo who pulled the "directory" ploy out of his butt and thought Rapozo would just go away when he brought out the legal mumbo jumbo.

It's doubtful that Rapozo was aware of the three prong test and just lucked out in that, when he goes to court, he will now be armed with Foster's little side research project.

But then you never know who's gonna win out when the battle of the tiny-yet-devious brains pits two such evenly matched opponents.


KimoRosen said...

to add to your blog, I would like to quote Bill Clinton; "It all depend on what your definition of is, is?

Shall we just wait and see what is?

My money is on Mel! Aloha, Kimo

Blahblahblah said...

Kimo -- the reason your friends avoid you is you are tedious and an attention whore.