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.
Showing posts with label Charley Foster. Show all posts
Showing posts with label Charley Foster. Show all posts
Tuesday, November 15, 2011
Wednesday, December 15, 2010
THEFT, SCHMEFT
THEFT, SCHMEFT: The plagiarism- as we depicted it yesterday- of blogger Charley Foster’s summarization of a lawsuit over the Hapa Trail in Koloa by local newspaper reporter Paul Curtis, elicited a mysterious comment by prolific Big Island blogger Damon Tucker (who also uses the “P” word in a post today) which read “Tim Ryan?” and included this link.
It leads to a little know discussion page of the “go to” information repository Wikipedia and a January 2006 article entitled “Wikipedia editors expose journalist's plagiarism.”
Michael Snow writes:
Sleuthing Wikipedia editors have found several cases of apparent plagiarism over the past two years by Tim Ryan, a reporter for the Honolulu Star-Bulletin. It began with the discovery of an article last month containing language that closely matched a Wikipedia article, and more investigation found earlier articles that seemed to borrow from additional sources without attribution.
In response to these reports, the Star-Bulletin acknowledged the situation by adding corrections or editor's notes to some of the articles. Star-Bulletin Editor Frank Bridgewater took these actions after investigating the incident and also met with the newspaper's publisher, Dennis Francis, about the situation. However, Bridgewater said last week that he considered the issue of whether any action would be taken against Ryan "a confidential personnel matter."
Apparently Ryan was a serial plagiarist who not only lifted Wikipedia sections unattributed- that essentially being the difference between a “fair use” reference and plagiarism- but also passages from the Sacramento Bee newspaper and the NPR radio program All Things Considered, according to Snow.
But you’d think they’d have learned, especially Bridgewater who continued on at the new Star-Advertiser when the Star-Bulletin “bought out” the bigger and stronger Advertiser.
While we’ve reserved a special place in journalism purgatory for much of what’s presented by the current crop of people at our local newspaper they do one thing that Bridgewater’s Star(ved for real news) Advertiser apparently refuses to do- attribute their press release rewrites.
One of the staples of a daily “newspaper of record” is the rewritten press release, especially those emanating from local and state government public information offices.
Editors, usually those on the “night shift” of larger papers, avoid plopping the copy directly in their news hole- the place left for news when the predetermined advertising is laid out.
In order to avoid charges of plagiarism they re-write the releases shifting the sentence constructions and using other wordsmithing techniques.
But while you’ll always find the words “according to a county release” or another appropriate credit in our local Kaua`i newspaper, when the identical release is rewritten in the Honolulu paper that attribution is never to be found.
Plagiarism has become a serious problem at many publications of late. The NY Times Jason Blair case and other have spurred policies that are designed to eliminate not just the lack of attribution but much more serious lapses.
Are we really that far removed from the mainland that the Honolulu daily thinks it doesn’t have to join the 21st century when it comes to accuracy and full disclosure?
Apparently the answer is yes, as long as the notoriously thin-skinned throwback Bridgewater is in charge.
It leads to a little know discussion page of the “go to” information repository Wikipedia and a January 2006 article entitled “Wikipedia editors expose journalist's plagiarism.”
Michael Snow writes:
Sleuthing Wikipedia editors have found several cases of apparent plagiarism over the past two years by Tim Ryan, a reporter for the Honolulu Star-Bulletin. It began with the discovery of an article last month containing language that closely matched a Wikipedia article, and more investigation found earlier articles that seemed to borrow from additional sources without attribution.
In response to these reports, the Star-Bulletin acknowledged the situation by adding corrections or editor's notes to some of the articles. Star-Bulletin Editor Frank Bridgewater took these actions after investigating the incident and also met with the newspaper's publisher, Dennis Francis, about the situation. However, Bridgewater said last week that he considered the issue of whether any action would be taken against Ryan "a confidential personnel matter."
Apparently Ryan was a serial plagiarist who not only lifted Wikipedia sections unattributed- that essentially being the difference between a “fair use” reference and plagiarism- but also passages from the Sacramento Bee newspaper and the NPR radio program All Things Considered, according to Snow.
But you’d think they’d have learned, especially Bridgewater who continued on at the new Star-Advertiser when the Star-Bulletin “bought out” the bigger and stronger Advertiser.
While we’ve reserved a special place in journalism purgatory for much of what’s presented by the current crop of people at our local newspaper they do one thing that Bridgewater’s Star(ved for real news) Advertiser apparently refuses to do- attribute their press release rewrites.
One of the staples of a daily “newspaper of record” is the rewritten press release, especially those emanating from local and state government public information offices.
Editors, usually those on the “night shift” of larger papers, avoid plopping the copy directly in their news hole- the place left for news when the predetermined advertising is laid out.
In order to avoid charges of plagiarism they re-write the releases shifting the sentence constructions and using other wordsmithing techniques.
But while you’ll always find the words “according to a county release” or another appropriate credit in our local Kaua`i newspaper, when the identical release is rewritten in the Honolulu paper that attribution is never to be found.
Plagiarism has become a serious problem at many publications of late. The NY Times Jason Blair case and other have spurred policies that are designed to eliminate not just the lack of attribution but much more serious lapses.
Are we really that far removed from the mainland that the Honolulu daily thinks it doesn’t have to join the 21st century when it comes to accuracy and full disclosure?
Apparently the answer is yes, as long as the notoriously thin-skinned throwback Bridgewater is in charge.
Tuesday, December 14, 2010
JUST A LITTLE BIT, JUST A LITTLE BIT
JUST A LITTLE BIT, JUST A LITTLE BIT: In addition to the inability of the local newspaper to do things like get the story right and present it in an intelligible manner, other than the intrepid “photographer” Dennis Fujimoto- who is somehow able to be in both Wainiha and Waimea at the same moment- the others are among the laziest reporters in the world.
You can’t help but notice that the dispatches from courts and police beat “reporter” Paul Curtis seem to emanate solely from hanging around the courthouse and cop shop and recording and regurgitating whatever they dump in his lap.
But this Saturday might have been a new low according to a post from attorney-blogger Charley Foster.
Though Foster’s posts have been all too infrequent since he got his law license and stopped writing about local issues, something in Curtis’ article about the Hapa Trail controversy in Saturday’s newspaper forced him to feed the beast today.
Foster writes:
I'm informed some of my blogging appeared in Saturday's Garden Island. That's kind of exciting. It would be even more so if the paper had showed me some love by way of attribution.
He then posts a section of his April 2009 post listing six bullet points culled from a lawsuit, filed by Koloa activist Ted Blake, over “a case filed back in March of 2009 over the Knudsen Trust's planned Village at Poipu development.”
And lo and behold a look at Curtis’ article shows he plagiarized Forster’s bullet points word for word without attribution.
Foster is a bit more forgiving than to call it plagiarism saying:
Hey, I'm happy for the paper to reprint anything I've written on Planet Kauai. But I'd appreciate a little nod. Something along the lines of, "According to Kauai attorney and legal blogger Charley Foster..." would be nice.
We can accept the almost monthly article about an auto accident occurring within a hundred years of the local newspaper’s offices. They apparently cover all the news that happens between McDonald’s and the “76” gas station.
But when you lift a passage the difference between attribution and plagiarism IS that the latter is done without the former, as many authors of greater stature than Curtis have found out.
You can’t help but notice that the dispatches from courts and police beat “reporter” Paul Curtis seem to emanate solely from hanging around the courthouse and cop shop and recording and regurgitating whatever they dump in his lap.
But this Saturday might have been a new low according to a post from attorney-blogger Charley Foster.
Though Foster’s posts have been all too infrequent since he got his law license and stopped writing about local issues, something in Curtis’ article about the Hapa Trail controversy in Saturday’s newspaper forced him to feed the beast today.
Foster writes:
I'm informed some of my blogging appeared in Saturday's Garden Island. That's kind of exciting. It would be even more so if the paper had showed me some love by way of attribution.
He then posts a section of his April 2009 post listing six bullet points culled from a lawsuit, filed by Koloa activist Ted Blake, over “a case filed back in March of 2009 over the Knudsen Trust's planned Village at Poipu development.”
And lo and behold a look at Curtis’ article shows he plagiarized Forster’s bullet points word for word without attribution.
Foster is a bit more forgiving than to call it plagiarism saying:
Hey, I'm happy for the paper to reprint anything I've written on Planet Kauai. But I'd appreciate a little nod. Something along the lines of, "According to Kauai attorney and legal blogger Charley Foster..." would be nice.
We can accept the almost monthly article about an auto accident occurring within a hundred years of the local newspaper’s offices. They apparently cover all the news that happens between McDonald’s and the “76” gas station.
But when you lift a passage the difference between attribution and plagiarism IS that the latter is done without the former, as many authors of greater stature than Curtis have found out.
Wednesday, March 17, 2010
JAWS OF DEFEAT/SAY IT AIN’T SO
JAWS OF DEFEAT: About a week or so back we got a thus-far-unpublished letter to the editor from Horace Stoessel, the father of the 20.02(D) controversy- the man who first had the temerity to ask the Kaua`i Board of Ethics (BOE) to enforce the charter.
In it he surprisingly said he would compromise and support the “carve out” exemption for charitable organizations when county officials appear on behalf of private interests before county boards, commissions and agencies in order to get the rest of the provision enforced.
So today’s news that the Ethics Board has (had a) change of heart and voted to uphold the law after all the silliness of the past couple of years came as something of a shock.
Even Mark Hubbard who fought the hardest to make a mockery of the law voted for it although, according to reporter Mike Levine he still has remnant schizophrenic, double-talking tendencies in refusing to admit the past rulings clearing Hubbard and others were a mistake.
And of course, as the people’s champion former BOE member Rolf Bieber told Levine the proof will be in the pudding since, as we’ve seen, just because a clear statue exists it doesn’t mean people with conflicts will do what Hubbard suggested in saying exactly what we’ve written dozens of times:
(W)ith this interpretive rule, it’s now different than we’ve voted in the past, and I would have been in error in going before the County Council. I should not do that again, or I should quit my position on the Board of Ethics. I have a choice.”
It’s certainly a black eye for the gang of administration stooges at County Attorney Alfred “E. what me worry” Castillo’s office who didn’t even bother to do enough research to turn up the state ethics commission letter that convinced the BOE that they didn’t have any cover to continue to carve out exemptions or create “absurd result” excuses for their illegal activities.
Throughout the whole debacle people have asked basically “what the heck is the difference?.. it’s not as if this will magically clean up the corrupt, old boy network of the board and commission system”.
No it won’t. They will still try to make sure that if you wear the kings uniform you carry the kings sword. We’ve spoken to four people currently serving as a mayoral appointees who confirm that board and commission chief John Isobe made sure that they “support the mayor” before getting an appointment.
But it will shake out the most conflicted- those with an obvious reason to play the “one hand washes the other”, revolving-door game.
It also gives heart to those who still believe that a small, dedicated, persistent group- in this case Bieber, Stoessel, Rob Abrew and Glenn Mickens who did what most or can’t do... show up- can effect change even if it is incremental. Their success couldn’t have come about without Levine’s detailed news coverage and others like Charley Foster and Joan Conrow whose blog posts helped keep the issue before the public.
If they’re anything like us, these people do battle with the entrenched cronies not for the rare victory like this but for the fight itself because they have trouble living with themselves if they don’t.
As the Happy Camper might say, “hats off”, “kudos” and “three cheers” for them the real service-oriented citizens of Kaua`i.
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SAY IT AIN’T SO: Speaking of Levine it looks like the inevitable is about to come to pass. According to John Temple, the editor of “Peer News”, the nascent online Hawai`i news venture (thanks to Ian Lind for the heads up):
I’m happy to report that we’ve now hired the editorial team that will launch our new news service for Honolulu and Hawaii...
(T)he reporter hosts at Peer News will include:
Mike Levine, currently a reporter and assistant news editor at The Garden Island newspaper on Kauai. Mike has worked as a journalist on Kauai for a couple of years, after picking lettuce and acting as a tour guide there. He also worked for Fodor’s to update the Kauai section of the 2010 Hawaii Guidebook and Kauai Guidebook 3rd Edition. Mike worked as a news desk editor and writer at NBA.com before moving to Kauai. He’s a graduate of Lehigh University and the rare reporter to have majored in journalism and minored in material science and engineering.
We’re not sure if this means Mike will be leaving the local newspaper and apparently he will still be covering Kaua`i even if he does. But a statewide news services is unlikely to cover the detail of local Kaua`i news that his reporting has provided.
---------
We’ve off for the weekend tracking how soon we’re eliminated from the basketball pool. We’ll be back with a tear-stained entry Monday.
In it he surprisingly said he would compromise and support the “carve out” exemption for charitable organizations when county officials appear on behalf of private interests before county boards, commissions and agencies in order to get the rest of the provision enforced.
So today’s news that the Ethics Board has (had a) change of heart and voted to uphold the law after all the silliness of the past couple of years came as something of a shock.
Even Mark Hubbard who fought the hardest to make a mockery of the law voted for it although, according to reporter Mike Levine he still has remnant schizophrenic, double-talking tendencies in refusing to admit the past rulings clearing Hubbard and others were a mistake.
And of course, as the people’s champion former BOE member Rolf Bieber told Levine the proof will be in the pudding since, as we’ve seen, just because a clear statue exists it doesn’t mean people with conflicts will do what Hubbard suggested in saying exactly what we’ve written dozens of times:
(W)ith this interpretive rule, it’s now different than we’ve voted in the past, and I would have been in error in going before the County Council. I should not do that again, or I should quit my position on the Board of Ethics. I have a choice.”
It’s certainly a black eye for the gang of administration stooges at County Attorney Alfred “E. what me worry” Castillo’s office who didn’t even bother to do enough research to turn up the state ethics commission letter that convinced the BOE that they didn’t have any cover to continue to carve out exemptions or create “absurd result” excuses for their illegal activities.
Throughout the whole debacle people have asked basically “what the heck is the difference?.. it’s not as if this will magically clean up the corrupt, old boy network of the board and commission system”.
No it won’t. They will still try to make sure that if you wear the kings uniform you carry the kings sword. We’ve spoken to four people currently serving as a mayoral appointees who confirm that board and commission chief John Isobe made sure that they “support the mayor” before getting an appointment.
But it will shake out the most conflicted- those with an obvious reason to play the “one hand washes the other”, revolving-door game.
It also gives heart to those who still believe that a small, dedicated, persistent group- in this case Bieber, Stoessel, Rob Abrew and Glenn Mickens who did what most or can’t do... show up- can effect change even if it is incremental. Their success couldn’t have come about without Levine’s detailed news coverage and others like Charley Foster and Joan Conrow whose blog posts helped keep the issue before the public.
If they’re anything like us, these people do battle with the entrenched cronies not for the rare victory like this but for the fight itself because they have trouble living with themselves if they don’t.
As the Happy Camper might say, “hats off”, “kudos” and “three cheers” for them the real service-oriented citizens of Kaua`i.
----------
SAY IT AIN’T SO: Speaking of Levine it looks like the inevitable is about to come to pass. According to John Temple, the editor of “Peer News”, the nascent online Hawai`i news venture (thanks to Ian Lind for the heads up):
I’m happy to report that we’ve now hired the editorial team that will launch our new news service for Honolulu and Hawaii...
(T)he reporter hosts at Peer News will include:
Mike Levine, currently a reporter and assistant news editor at The Garden Island newspaper on Kauai. Mike has worked as a journalist on Kauai for a couple of years, after picking lettuce and acting as a tour guide there. He also worked for Fodor’s to update the Kauai section of the 2010 Hawaii Guidebook and Kauai Guidebook 3rd Edition. Mike worked as a news desk editor and writer at NBA.com before moving to Kauai. He’s a graduate of Lehigh University and the rare reporter to have majored in journalism and minored in material science and engineering.
We’re not sure if this means Mike will be leaving the local newspaper and apparently he will still be covering Kaua`i even if he does. But a statewide news services is unlikely to cover the detail of local Kaua`i news that his reporting has provided.
---------
We’ve off for the weekend tracking how soon we’re eliminated from the basketball pool. We’ll be back with a tear-stained entry Monday.
Thursday, February 25, 2010
NOW YOU SEE IT...
NOW YOU SEE IT...: It’s always worth a chuckle whenever malihini- even ones who’s been around for a few years- try to navigate the Minotaur’s labyrinth.
So it was this morning as attorney-blogger Charley Foster wrote
Copies of ordinances are available at the County Clerk's Office for purchase by the public. For further information, please call"
That's what one finds under the "County Ordinances" tab on the County web site. 'If you want to know what the law says, you can purchase it from us.' Does that strike anyone else as potentially unconstitutional? I think I feel another non-billable research project coming on.
Charley doesn’t say what he thinks is worse, the fact that the “county code”- the place where ordinances are compiled- isn’t available on-line like it is in just about every other local jurisdiction in the country and all in the states - or the fact that you have to pay for it and then get it piecemeal, ordinance by ordinance... and travel downtown to get it to boot.
But while that’s an old story you’d expect that once we’re assured that information and documents will be posted on-line- especially after a brouhaha- it would be there.
But a trip to the “Council Documents” page at the county’s web site shows the last time the minutes and the recap memos were posted was early January.
As many will remember, after Councilmembers Tim Bynum and Lani Kawahara tried to bring some sanity to the way county government operates and especially the way they make (or more accurately don’t make) documents available, they were assured by the chair and administration that from then on the council’s minutes and "recap memos"- a document which lists the actions taken at each council meeting that’s very existence was thentofore a secret- would be posted on the council’s web site.
So it was this morning as attorney-blogger Charley Foster wrote
Copies of ordinances are available at the County Clerk's Office for purchase by the public. For further information, please call"
That's what one finds under the "County Ordinances" tab on the County web site. 'If you want to know what the law says, you can purchase it from us.' Does that strike anyone else as potentially unconstitutional? I think I feel another non-billable research project coming on.
Charley doesn’t say what he thinks is worse, the fact that the “county code”- the place where ordinances are compiled- isn’t available on-line like it is in just about every other local jurisdiction in the country and all in the states - or the fact that you have to pay for it and then get it piecemeal, ordinance by ordinance... and travel downtown to get it to boot.
But while that’s an old story you’d expect that once we’re assured that information and documents will be posted on-line- especially after a brouhaha- it would be there.
But a trip to the “Council Documents” page at the county’s web site shows the last time the minutes and the recap memos were posted was early January.
As many will remember, after Councilmembers Tim Bynum and Lani Kawahara tried to bring some sanity to the way county government operates and especially the way they make (or more accurately don’t make) documents available, they were assured by the chair and administration that from then on the council’s minutes and "recap memos"- a document which lists the actions taken at each council meeting that’s very existence was thentofore a secret- would be posted on the council’s web site.
Wednesday, November 25, 2009
LUCKY DOG
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).
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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”.
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).
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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”.
Friday, November 20, 2009
POLITICAL WON’T
POLITICAL WON’T: Our post Wednesday on the flakey “opinion” given to the charter commission regarding the county manager issue drew a couple of comments that deserve exposition, on an issue we kind of glossed over because it seemed to be self-apparent to us- but obviously not to everybody.
Doug White, who’s left a huge hole in the blogosphere since June when he last posted to his Poinography blog, asked
...under a manager system, who or what would lead the Executive Branch? If that leader is chosen by the Legislative Branch, then in effect there would be no autonomous Executive Branch, and thus no separation of powers. That's how I interpret the CA opinion.
Attorney blogger Charley Foster was of course more to the legal point saying
I think a better way for the county attorney to have argued it would have been to point out that plain text of HRS §46-1.5(1) requires counties to "establish the county executive, administrative, and legislative structure and organization," and that the proposed manager system would establish only an "administrative and legislative structure" in violation of the plain language of the statute. As Doug points out, a "mayor" who is chosen by and serves at the pleasure of the council is not really an "executive." It is true that separation of powers is at the heart of the issue and of the three-branches requirement. But it's possible to argue that the plain meaning of the statute requires an independent executive department without having to invoke that other doctrine.
So let’s look at the words in the relevant constitution and statue passages.
In Deputy County Attorney Mauna Kea Trask opinion he cites the fact that:
Art. VIII, section 2, Hawaii State Constitution states: Each political subdivision shall have the power to frame and adopt a charter for its own self-government within such limits and under such procedures as may be provided by general law. Such procedures, however, shall not require the approval of a charter by a legislative body.
Charter provisions with respect to a political subdivision's executive, legislative and administrative structure and organization shall be superior to statutory provisions, subject to the authority of the legislature to enact general laws allocating and reallocating powers and functions...
HRS section 46-1.5(1) states: Each county shall have the power to frame and adopt a charter for its own self-government, which shall establish the county executive, administrative, and legislative structure and organization, including but not limited to, the method of appointment or election of officials, their duties, responsibilities, and compensation, and the terms of their office.
Nothing there mentions any “autonomous” executive or an executive “branch”, certainly nothing about “separation of powers.” and as a matter of fact the law allows for the “county... to frame and adopt a charter” and determine “the method of appointment OR election of officials” (emphasis added).
Clearly the county may do whatever it pleases as far as not just the method of selecting or electing it’s executive officer but need not make any of them autonomous or adhere to any separation of powers doctrine. As a matter of fact, currently the executive and the administrative entities are indeed part of the same organizational structure with the mayor appointing and overseeing the department heads without any autonomy or separation of powers.
As matter of fact. unless you use an adjective to describe the word “executive”- one that isn’t in the law- no one can argue a county manager (CM) would not be an executive
All a county manager system would do is switch the executive to legislative oversight and make that position appointed rather than elected.
And, it would seem that by saying “appointment or election” the statue leaves room for a county manager type system. Any argument against an unelected executive is clearly a political rather than a legal one.
It should also be pointed out that currently the charter provides for an administrative assistant (AA) whose duties are very close to what a county manager’s would be. That position- who serves solely at the pleasure of the mayor- is one that has routinely overseen department heads on a day to day basis leaving the mayor free to look at the “big picture”, concentrate on “the vision thing” by delegating the nuts and bolts to the AA.
We also mentioned Wednesday that Trask included a section that makes it clear that no more than what is stated in the constitution and statute should be read into it- despite the fact that after saying that he proceeds to read into it separation of powers, checks and balances, autonomy and the lack of an election of the executive.
Trask writes:
According to the law, "The fundamental principle in construing a constitutional provision is to give effect to the intention of the framers and the people adopting it. This intent is to be found in the instrument itself. When the text of a constitutional provision is not ambiguous, the court, in construing it, is not at liberty to search for its meaning beyond the instrument." State ex rel. Anzai v. City & County of Honolulu, 99 Haw. 508, 519, 57 P.3d 433, 444 (2002).
Moreover, a constitutional provision must be construed in connection with other provisions of the instrument, and also in the light of the circumstances under which it was adopted and the history preceding it." Blair v. Harris, 98 Haw. 179, 45 P.3d 798, 801 (2002).
So let’s look at Trask’s arguments one by one:
The phrase included in both Art. VIII, section 2 and HRS section 46-1.5(1) requiring that each county "shall establish the county executive, administrative, and legislative structure and organization", is interpreted by the County Attorney's office to require each county within the state to have specific separation of powers between the executive and legislative branches, which the proposed council-county manager form would not have.
Given that the words “separation of powers” aren’t in the law and the fact that there is currently no separation of powers between the executive and administrative entitles- note also the lack of the word “branches” in law- this argument is clearly erroneous especially since “intent is to be found in the instrument itself” and that one “is not at liberty to search for its meaning beyond the instrument”.
Trask continues:
Furthermore, so as to not render either the, "legislative, executive, or administrative structure and organization," of the county superfluous, void or insignificant said branches need to be substantive and not merely formal.
We’re not quite sure what that means and whether it is a differentiation without a difference but assuming it isn’t, well, the current attachment of the administration to the executive belies irrelevance.
He then seeks to establish what may be called a four prong test.
The proposed amendment would be contrary to both the text and the intent of the State Constitution and the general laws of Hawaii, and therefore illegal, for the following reasons:
1. The State Constitution and the general laws on the subject clearly and unambiguously call for the counties to establish a legislative, executive, and administrative structure and organization of government.
True- and clearly that “structure and organization” is up to the county to determine as long as all three exist- which they would as we established under a county manager executive, certainly to the extent that they exist now.
2. Passage of the proposed amendment would deprive the public of their constitutional and statutory right to a democratically elected executive.
It’s hard to say where he found a “constitutional and statutory right to a democratically elected executive” since the words “democratically elected” not only do not appear but the statute specifically allows for an appointed executive.
And as to any national constitutional or statutory prohibition, how many hundreds of county manager systems exist and have presumably passed legal muster around the country?
3. The proposed council-county manager form of government would deprive the public of a democratic governmental structure that employs checks and balances that would ensure that no particular branch would get too powerful and abuse the representative system of democracy. This is clearly illustrated by the fact that the proposed amendment seeks to delete section 4.03 of the charter thus extinguishing the executive veto power.
We’re not quite sure what the relevance of this is but again the words “checks and balances” do not appear anywhere. Clearly this is a political argument and not a legal one.
4. Under the proposed amendment the council chair would be given
the title of "mayor” but would not exercise any executive authority. Such a titular mayor would not satisfy the mandate of either the constitution or the general laws on the subject.
Ceremonial mayors are common under county manager systems, where the executive is the county manager not the mayor if we’re looking for the “substantive” executive. As a matter of fact some mayors are even appointed by the legislative entity, some on a rotating basis from among the legislative members.
Trask implies that only a title of mayor bestows executive status- clearly an erroneous and presumptuous assertion.
The preconceived notions, the use of the straw man of the specific Lewis proposal to condemn all CM systems- illogically generalizing from the specific argument- and the outright interpretation based on additional language not found in law- especially when the law bans that- and causes Trask’s analysis to fall on it’s fallacious face.
-------
Also on Wednesday, we cited the inability of the council to compel administrative testimony without a formal investigation under the current charter as one of the good arguments for a CM system.
Doug also asked
... has the Council ever actually went the official investigation and subpoena route? If not, then they are fools for not at least trying to exhaust their existing powers before seeking a Charter change, aren't they?
That’s somewhat of a complicated question.- one that has roots in the political, statutory and fiscal realms.
Calling for and authorizing an investigation to obtain subpoena power every time an administrative person doesn’t show up when requested is pretty cumbersome and impractical.
For the last 10 years the council has at times sought to launch investigations. The first obstacle was the lack of any set method of doing so. After dickering around for a year or so they finally passed a resolution that defined a process. But then it became a political football as to which department to investigate first.
Originally it was to be the massive Department of Public Works but the word “massive” was the operative obstacle. Which division to investigate became a problem because so many of them were problematic. Finally a half a million dollars was appropriated to investigate one division but no one could decide which one to investigate.
But then a new council took office and with the departure of a majority of members- including the three main proponents, now-State Senator Gary Hooser, now 5th Circuit Judge Randall Valenciano and then-Chair Ron Kouchi, the newbies decided to investigate the police department instead- a subject well covered in KPD Blue.
The next decision was to, instead of spending lots of money to look at a tree amidst the forest, appropriate salaries for a county auditor position and staff to be able to essentially conduct investigations without having to deal with the cost and limitations of each investigation.
But again after procrastinating over the hiring, the County Attorney stepped in and said this would violate the prohibition of council interference with the administration.
Finally last November the voters passed a charter amendment establishing a county auditor under council services that was specifically exempt from the prohibitions on interference. A month or so back one was appointed by the council.
But really this has been an exercise in lack of political will all along with a majority of the council member eyeing the mayor’s job and not wanting to tie his or her own hands once they took office.
Clear as mud?
--------
With the holiday and resultant “so much basketball, so little time” next week we’ll be a little lite in posting- here’s a little lite reading regarding the whole Board of Ethics 20.02D business which we’ll try to address during half times and between games.
Doug White, who’s left a huge hole in the blogosphere since June when he last posted to his Poinography blog, asked
...under a manager system, who or what would lead the Executive Branch? If that leader is chosen by the Legislative Branch, then in effect there would be no autonomous Executive Branch, and thus no separation of powers. That's how I interpret the CA opinion.
Attorney blogger Charley Foster was of course more to the legal point saying
I think a better way for the county attorney to have argued it would have been to point out that plain text of HRS §46-1.5(1) requires counties to "establish the county executive, administrative, and legislative structure and organization," and that the proposed manager system would establish only an "administrative and legislative structure" in violation of the plain language of the statute. As Doug points out, a "mayor" who is chosen by and serves at the pleasure of the council is not really an "executive." It is true that separation of powers is at the heart of the issue and of the three-branches requirement. But it's possible to argue that the plain meaning of the statute requires an independent executive department without having to invoke that other doctrine.
So let’s look at the words in the relevant constitution and statue passages.
In Deputy County Attorney Mauna Kea Trask opinion he cites the fact that:
Art. VIII, section 2, Hawaii State Constitution states: Each political subdivision shall have the power to frame and adopt a charter for its own self-government within such limits and under such procedures as may be provided by general law. Such procedures, however, shall not require the approval of a charter by a legislative body.
Charter provisions with respect to a political subdivision's executive, legislative and administrative structure and organization shall be superior to statutory provisions, subject to the authority of the legislature to enact general laws allocating and reallocating powers and functions...
HRS section 46-1.5(1) states: Each county shall have the power to frame and adopt a charter for its own self-government, which shall establish the county executive, administrative, and legislative structure and organization, including but not limited to, the method of appointment or election of officials, their duties, responsibilities, and compensation, and the terms of their office.
Nothing there mentions any “autonomous” executive or an executive “branch”, certainly nothing about “separation of powers.” and as a matter of fact the law allows for the “county... to frame and adopt a charter” and determine “the method of appointment OR election of officials” (emphasis added).
Clearly the county may do whatever it pleases as far as not just the method of selecting or electing it’s executive officer but need not make any of them autonomous or adhere to any separation of powers doctrine. As a matter of fact, currently the executive and the administrative entities are indeed part of the same organizational structure with the mayor appointing and overseeing the department heads without any autonomy or separation of powers.
As matter of fact. unless you use an adjective to describe the word “executive”- one that isn’t in the law- no one can argue a county manager (CM) would not be an executive
All a county manager system would do is switch the executive to legislative oversight and make that position appointed rather than elected.
And, it would seem that by saying “appointment or election” the statue leaves room for a county manager type system. Any argument against an unelected executive is clearly a political rather than a legal one.
It should also be pointed out that currently the charter provides for an administrative assistant (AA) whose duties are very close to what a county manager’s would be. That position- who serves solely at the pleasure of the mayor- is one that has routinely overseen department heads on a day to day basis leaving the mayor free to look at the “big picture”, concentrate on “the vision thing” by delegating the nuts and bolts to the AA.
We also mentioned Wednesday that Trask included a section that makes it clear that no more than what is stated in the constitution and statute should be read into it- despite the fact that after saying that he proceeds to read into it separation of powers, checks and balances, autonomy and the lack of an election of the executive.
Trask writes:
According to the law, "The fundamental principle in construing a constitutional provision is to give effect to the intention of the framers and the people adopting it. This intent is to be found in the instrument itself. When the text of a constitutional provision is not ambiguous, the court, in construing it, is not at liberty to search for its meaning beyond the instrument." State ex rel. Anzai v. City & County of Honolulu, 99 Haw. 508, 519, 57 P.3d 433, 444 (2002).
Moreover, a constitutional provision must be construed in connection with other provisions of the instrument, and also in the light of the circumstances under which it was adopted and the history preceding it." Blair v. Harris, 98 Haw. 179, 45 P.3d 798, 801 (2002).
So let’s look at Trask’s arguments one by one:
The phrase included in both Art. VIII, section 2 and HRS section 46-1.5(1) requiring that each county "shall establish the county executive, administrative, and legislative structure and organization", is interpreted by the County Attorney's office to require each county within the state to have specific separation of powers between the executive and legislative branches, which the proposed council-county manager form would not have.
Given that the words “separation of powers” aren’t in the law and the fact that there is currently no separation of powers between the executive and administrative entitles- note also the lack of the word “branches” in law- this argument is clearly erroneous especially since “intent is to be found in the instrument itself” and that one “is not at liberty to search for its meaning beyond the instrument”.
Trask continues:
Furthermore, so as to not render either the, "legislative, executive, or administrative structure and organization," of the county superfluous, void or insignificant said branches need to be substantive and not merely formal.
We’re not quite sure what that means and whether it is a differentiation without a difference but assuming it isn’t, well, the current attachment of the administration to the executive belies irrelevance.
He then seeks to establish what may be called a four prong test.
The proposed amendment would be contrary to both the text and the intent of the State Constitution and the general laws of Hawaii, and therefore illegal, for the following reasons:
1. The State Constitution and the general laws on the subject clearly and unambiguously call for the counties to establish a legislative, executive, and administrative structure and organization of government.
True- and clearly that “structure and organization” is up to the county to determine as long as all three exist- which they would as we established under a county manager executive, certainly to the extent that they exist now.
2. Passage of the proposed amendment would deprive the public of their constitutional and statutory right to a democratically elected executive.
It’s hard to say where he found a “constitutional and statutory right to a democratically elected executive” since the words “democratically elected” not only do not appear but the statute specifically allows for an appointed executive.
And as to any national constitutional or statutory prohibition, how many hundreds of county manager systems exist and have presumably passed legal muster around the country?
3. The proposed council-county manager form of government would deprive the public of a democratic governmental structure that employs checks and balances that would ensure that no particular branch would get too powerful and abuse the representative system of democracy. This is clearly illustrated by the fact that the proposed amendment seeks to delete section 4.03 of the charter thus extinguishing the executive veto power.
We’re not quite sure what the relevance of this is but again the words “checks and balances” do not appear anywhere. Clearly this is a political argument and not a legal one.
4. Under the proposed amendment the council chair would be given
the title of "mayor” but would not exercise any executive authority. Such a titular mayor would not satisfy the mandate of either the constitution or the general laws on the subject.
Ceremonial mayors are common under county manager systems, where the executive is the county manager not the mayor if we’re looking for the “substantive” executive. As a matter of fact some mayors are even appointed by the legislative entity, some on a rotating basis from among the legislative members.
Trask implies that only a title of mayor bestows executive status- clearly an erroneous and presumptuous assertion.
The preconceived notions, the use of the straw man of the specific Lewis proposal to condemn all CM systems- illogically generalizing from the specific argument- and the outright interpretation based on additional language not found in law- especially when the law bans that- and causes Trask’s analysis to fall on it’s fallacious face.
-------
Also on Wednesday, we cited the inability of the council to compel administrative testimony without a formal investigation under the current charter as one of the good arguments for a CM system.
Doug also asked
... has the Council ever actually went the official investigation and subpoena route? If not, then they are fools for not at least trying to exhaust their existing powers before seeking a Charter change, aren't they?
That’s somewhat of a complicated question.- one that has roots in the political, statutory and fiscal realms.
Calling for and authorizing an investigation to obtain subpoena power every time an administrative person doesn’t show up when requested is pretty cumbersome and impractical.
For the last 10 years the council has at times sought to launch investigations. The first obstacle was the lack of any set method of doing so. After dickering around for a year or so they finally passed a resolution that defined a process. But then it became a political football as to which department to investigate first.
Originally it was to be the massive Department of Public Works but the word “massive” was the operative obstacle. Which division to investigate became a problem because so many of them were problematic. Finally a half a million dollars was appropriated to investigate one division but no one could decide which one to investigate.
But then a new council took office and with the departure of a majority of members- including the three main proponents, now-State Senator Gary Hooser, now 5th Circuit Judge Randall Valenciano and then-Chair Ron Kouchi, the newbies decided to investigate the police department instead- a subject well covered in KPD Blue.
The next decision was to, instead of spending lots of money to look at a tree amidst the forest, appropriate salaries for a county auditor position and staff to be able to essentially conduct investigations without having to deal with the cost and limitations of each investigation.
But again after procrastinating over the hiring, the County Attorney stepped in and said this would violate the prohibition of council interference with the administration.
Finally last November the voters passed a charter amendment establishing a county auditor under council services that was specifically exempt from the prohibitions on interference. A month or so back one was appointed by the council.
But really this has been an exercise in lack of political will all along with a majority of the council member eyeing the mayor’s job and not wanting to tie his or her own hands once they took office.
Clear as mud?
--------
With the holiday and resultant “so much basketball, so little time” next week we’ll be a little lite in posting- here’s a little lite reading regarding the whole Board of Ethics 20.02D business which we’ll try to address during half times and between games.
Wednesday, March 25, 2009
GETTIN’ TERRITORIAL
GETTIN’ TERRITORIAL: We had an email exchange this week with a self-proclaimed “don’t tread on me” style anti-government type who is seemingly new to the islands. But unlike many right wingers his hatred of the federal government didn’t get clouded when it comes to the rightful ownership of the lands of the kanaka maoli.
Though he was pretty well read on the subject he asked us for some more source material and we were glad to help... ya know, strange bedfellows and all that.
And it make us all the more repulsed by the type that makes some kind of statement and then in arguing their point, runs away from it in one of those smarmy “I ain’t sayin’, I’m just sayin’...” responses to “but you just said...”.
And speaking of weasels we went over to lawyer-blogger Charley Foster’s Planet Kaua`i, today to see what kind of anti-kanaka rights opinion he was running away from now.
And Charley rarely disappoints
In a post today Charley first reminds us that
It is well settled as far as Hawaii courts are concerned that the state has jurisdiction to enforce its criminal and traffic laws within the boundaries of the state, regardless of whether the defendant in question is Native Hawaiian and claims immunity from such jurisdiction.
Of course if, if past is prologue when questioned he would probably point to his having said “as far as Hawaii courts are concerned” so he can run away from it being a position with which he so apparently agrees.
Then he reprinted part of an essay from Kai Landow in Indian Country Today, depicting a trial in a Hilo courtroom where “Rocky” Awai was “pleading sovereign” to a dozen traffic tickets and he somehow beat the rap when the ticketing officers unfathomably- at least for the judge- couldn’t remember anything about giving the tickets.
But the essay in whole is a must read because Landow goes on to juxtapose that judicial procedure with the one he next attended- the “ceded lands” case before the US Supreme Court.
To refresh people’s memory, even though many thought that the issue before the court was who actually owned the stolen crown lands taken in the illegal overthrow, that not only wasn’t an issue that the justices thought needed settling by them but those supposedly representing the kanaka’s claim – the Office of Hawaiian Affairs- seemed to agree with the state in saying that the state had “perfect title”.
Unlike a lot of those who have either looked at the transcript or listened to the tape of the hearing and answered the questions “what just happened there?”, Landow provides the most insightful of interpretations we’ve seem.
Here’s an excerpt:
I was one of the few people who got a seat to hear oral arguments in the Supreme Court. The question before the court was whether or not the Apology clouded the title the State held on the “Ceded lands.” The argument between OHA and the State of Hawaii were essentially the same. So what were they arguing before the court? And that is exactly what the Justices asked. Justice Souter interjected “This whole case seems murky to me. Am I missing something?” I looked over at Haunani Apoliona, chair of the OHA Trustees. Her face was pensive. I could see their greatest fears were materializing. The parties did not want the court to address the issue of title and for one hour most of the court’s discussion centered on just that, title, ownership of the land.
Well hasn’t the ownership of the land in Hawaii long been settled?
It was surreal to hear the State’s Attorneys General Mark Bennett argue, “Yes we illegally overthrew the Hawaiian Government,” and then to go on to argue the State had “Perfect Title.” Am I missing something, too?
I left the court to a cold sunny Washington DC February day. Liko Martin [A well known Sovereignty activist, musician, composer- “Waimanalu blues”] was outside the court after the case was accepted. He was wearing a cowboy hat, a clean pressed suit and freshly shaven. I was taken aback; he looked very different from our last meeting on the beach at KaWa, in Ka’u Hawaii. Liko had been bearded and mud covered, spending much of his time working in the lo’i [Taro patch]. We had been living rough with Abel Simeona Lui, a real champion of the sovereignty movement. A Kanaka Ma’oli who moved back to the land and despite repeated arrest for trespass managed to solidify his land claim.
“Liko cleans up good!” My friend Hanalei points out with the same surprise as mine as Liko maneuvers around the Supreme Court plaza with a film crew in tow.
Hey brah, Howzit? We wen file an intervention with the court, kay?” Liko said to me. I asked him on what basis did he file?
“That we are the true owners and that we need to enter into direct and immediate negotiations, kay!” I could see the OHA people seemed devastated and I saw Haunani Apoliona scowl at Liko’s show of force from across the plaza.
“OHA just hurt itself by arguing the Hawaiian’s had no legal claim to the land and only a moral one in State Law” I told him
“The State is dead brah, its dead” Liko answered.
I thought to myself what just happened. It had felt like we were in the court case and the justices were arguing our position. It struck me that the Office of Hawaiian Affairs changed their position to bolster the State of Hawaii’s claim to “Perfect Title”. I realized that if the State doesn’t have title; then OHA has nothing. So who represent the Hawaiian’s interests? I have no false hope that the court will rule in our favor. But it was nice to hear some of our own questions posed to people who have refused to respond to us.
The Apology bill is a sorry thing.
Have you read it? Liko Martin calls it a confession, I call it a stipulation of facts and our Attorney General for the Hawaiian Kingdom Tom Anthony calls it “Crap”. He is right of course, it is crap. If it had been anything else but crap the Hawaiians would now be living on their own land in their own jurisdiction.
From the Apology bill 103-150: “Whereas, the indigenous Hawaiian people never directly relinquished their claims to their inherent sovereignty as a people or over their national lands to the United States, either through their monarchy or through a plebiscite or referendum.”
It is because of statements like this that Hawaiians wave this bill as proof. It also may be why our friend Rocky got all those tickets dismissed. Judge De Frietus may also believe if he let the attorney Gary Zamber bring this Apology bill into the case he might slip up and create a federal question. And what is that federal Question?
Rocky said it to the court “You don’t have any jurisdiction over me. I am not an American citizen.”
So why is a traffic case in a small Hawaiian town connected to a Supreme Court case between the State and a State agency? My Uncle Moses He’anu would say “Do your homework!”
I’ll tell you anyway. It is because the United States of America has never been able to substantiate any lawful claim in Hawaii, period.
The Americans admit they stole the land and barred us from seeking relief in the courts and yet argue their title is “Perfect.” Everyone knows this is unjust yet they expect us to accept it. Would you?
I spoke to a pro bono legal agency this morning who told me our case is seen as frivolous. I spoke to an Indian lawyer who told me to be practical and that you can’t win on the law. Do we go to the courts as a legal fiction? I look at the law and we win. That is if we are before an impartial jurist and we note the US courts have an interest in the outcome.
Malama Pono
That’s us, do things right, Malama Pono. We can’t find any statute of limitations to file against the US occupation. We can’t build on facts that are “Murky” to file a brief that hopes the Americans will finally do the right thing. We should not have to go to court for America to do the right thing.
Something stinks!
That “something” that stinks is- as we pointed out to those whose like Foster whose lawyerly dialectic on the case concludes that somehow the “rule of law” enabled confessed theft to stand- “American Justice” is an oxymoron.
We who seek justice for the kanaka can laugh at the absurdity of those who have their noses buried in a law book in an attempt to obscure reality, as they lead us though the looking glass into a Carrollian Wonderland.
But in justice in Amerikan courts is the real joke, especially if your skin is of a darker shade.
To those who seek justice for Hawaiians through the judiciary, I’m sure we speak for many when we say “that’s mighty white of ya”.
Though he was pretty well read on the subject he asked us for some more source material and we were glad to help... ya know, strange bedfellows and all that.
And it make us all the more repulsed by the type that makes some kind of statement and then in arguing their point, runs away from it in one of those smarmy “I ain’t sayin’, I’m just sayin’...” responses to “but you just said...”.
And speaking of weasels we went over to lawyer-blogger Charley Foster’s Planet Kaua`i, today to see what kind of anti-kanaka rights opinion he was running away from now.
And Charley rarely disappoints
In a post today Charley first reminds us that
It is well settled as far as Hawaii courts are concerned that the state has jurisdiction to enforce its criminal and traffic laws within the boundaries of the state, regardless of whether the defendant in question is Native Hawaiian and claims immunity from such jurisdiction.
Of course if, if past is prologue when questioned he would probably point to his having said “as far as Hawaii courts are concerned” so he can run away from it being a position with which he so apparently agrees.
Then he reprinted part of an essay from Kai Landow in Indian Country Today, depicting a trial in a Hilo courtroom where “Rocky” Awai was “pleading sovereign” to a dozen traffic tickets and he somehow beat the rap when the ticketing officers unfathomably- at least for the judge- couldn’t remember anything about giving the tickets.
But the essay in whole is a must read because Landow goes on to juxtapose that judicial procedure with the one he next attended- the “ceded lands” case before the US Supreme Court.
To refresh people’s memory, even though many thought that the issue before the court was who actually owned the stolen crown lands taken in the illegal overthrow, that not only wasn’t an issue that the justices thought needed settling by them but those supposedly representing the kanaka’s claim – the Office of Hawaiian Affairs- seemed to agree with the state in saying that the state had “perfect title”.
Unlike a lot of those who have either looked at the transcript or listened to the tape of the hearing and answered the questions “what just happened there?”, Landow provides the most insightful of interpretations we’ve seem.
Here’s an excerpt:
I was one of the few people who got a seat to hear oral arguments in the Supreme Court. The question before the court was whether or not the Apology clouded the title the State held on the “Ceded lands.” The argument between OHA and the State of Hawaii were essentially the same. So what were they arguing before the court? And that is exactly what the Justices asked. Justice Souter interjected “This whole case seems murky to me. Am I missing something?” I looked over at Haunani Apoliona, chair of the OHA Trustees. Her face was pensive. I could see their greatest fears were materializing. The parties did not want the court to address the issue of title and for one hour most of the court’s discussion centered on just that, title, ownership of the land.
Well hasn’t the ownership of the land in Hawaii long been settled?
It was surreal to hear the State’s Attorneys General Mark Bennett argue, “Yes we illegally overthrew the Hawaiian Government,” and then to go on to argue the State had “Perfect Title.” Am I missing something, too?
I left the court to a cold sunny Washington DC February day. Liko Martin [A well known Sovereignty activist, musician, composer- “Waimanalu blues”] was outside the court after the case was accepted. He was wearing a cowboy hat, a clean pressed suit and freshly shaven. I was taken aback; he looked very different from our last meeting on the beach at KaWa, in Ka’u Hawaii. Liko had been bearded and mud covered, spending much of his time working in the lo’i [Taro patch]. We had been living rough with Abel Simeona Lui, a real champion of the sovereignty movement. A Kanaka Ma’oli who moved back to the land and despite repeated arrest for trespass managed to solidify his land claim.
“Liko cleans up good!” My friend Hanalei points out with the same surprise as mine as Liko maneuvers around the Supreme Court plaza with a film crew in tow.
Hey brah, Howzit? We wen file an intervention with the court, kay?” Liko said to me. I asked him on what basis did he file?
“That we are the true owners and that we need to enter into direct and immediate negotiations, kay!” I could see the OHA people seemed devastated and I saw Haunani Apoliona scowl at Liko’s show of force from across the plaza.
“OHA just hurt itself by arguing the Hawaiian’s had no legal claim to the land and only a moral one in State Law” I told him
“The State is dead brah, its dead” Liko answered.
I thought to myself what just happened. It had felt like we were in the court case and the justices were arguing our position. It struck me that the Office of Hawaiian Affairs changed their position to bolster the State of Hawaii’s claim to “Perfect Title”. I realized that if the State doesn’t have title; then OHA has nothing. So who represent the Hawaiian’s interests? I have no false hope that the court will rule in our favor. But it was nice to hear some of our own questions posed to people who have refused to respond to us.
The Apology bill is a sorry thing.
Have you read it? Liko Martin calls it a confession, I call it a stipulation of facts and our Attorney General for the Hawaiian Kingdom Tom Anthony calls it “Crap”. He is right of course, it is crap. If it had been anything else but crap the Hawaiians would now be living on their own land in their own jurisdiction.
From the Apology bill 103-150: “Whereas, the indigenous Hawaiian people never directly relinquished their claims to their inherent sovereignty as a people or over their national lands to the United States, either through their monarchy or through a plebiscite or referendum.”
It is because of statements like this that Hawaiians wave this bill as proof. It also may be why our friend Rocky got all those tickets dismissed. Judge De Frietus may also believe if he let the attorney Gary Zamber bring this Apology bill into the case he might slip up and create a federal question. And what is that federal Question?
Rocky said it to the court “You don’t have any jurisdiction over me. I am not an American citizen.”
So why is a traffic case in a small Hawaiian town connected to a Supreme Court case between the State and a State agency? My Uncle Moses He’anu would say “Do your homework!”
I’ll tell you anyway. It is because the United States of America has never been able to substantiate any lawful claim in Hawaii, period.
The Americans admit they stole the land and barred us from seeking relief in the courts and yet argue their title is “Perfect.” Everyone knows this is unjust yet they expect us to accept it. Would you?
I spoke to a pro bono legal agency this morning who told me our case is seen as frivolous. I spoke to an Indian lawyer who told me to be practical and that you can’t win on the law. Do we go to the courts as a legal fiction? I look at the law and we win. That is if we are before an impartial jurist and we note the US courts have an interest in the outcome.
Malama Pono
That’s us, do things right, Malama Pono. We can’t find any statute of limitations to file against the US occupation. We can’t build on facts that are “Murky” to file a brief that hopes the Americans will finally do the right thing. We should not have to go to court for America to do the right thing.
Something stinks!
That “something” that stinks is- as we pointed out to those whose like Foster whose lawyerly dialectic on the case concludes that somehow the “rule of law” enabled confessed theft to stand- “American Justice” is an oxymoron.
We who seek justice for the kanaka can laugh at the absurdity of those who have their noses buried in a law book in an attempt to obscure reality, as they lead us though the looking glass into a Carrollian Wonderland.
But in justice in Amerikan courts is the real joke, especially if your skin is of a darker shade.
To those who seek justice for Hawaiians through the judiciary, I’m sure we speak for many when we say “that’s mighty white of ya”.
Tuesday, December 16, 2008
TO LIVE INSIDE THE LAW YOU MUST BE DISHONEST
TO LIVE INSIDE THE LAW YOU MUST BE DISHONEST: There will be changes to the Kaua`i County Council committee memberships proposed at Wednesday’s council meeting.
If passed, Tim Bynum will replace Lani Kawahara on the new Economic Development/Housing Committee and Kawahara will replace Dickie Chang on the Planning Committee.
The change will give the three supporters of Jay Furfaro a voting majority on the all important planning panels after complaints that they were shut out of a majority on any of the seven committees by the four members who supported Chair Kaipo Asing.
Although all council members are technically members of all committees, voting members are limited to five each according to council rules. The other two sit ex-officio.
And while there are five bills on the council’s agenda tomorrow, despite reports to the contrary, there is no bill to allow vacation rentals on agricultural lands.
The blogs are all a twitter after a post at Realtor Ronnie Margolis’ blog, saying that
In a letter from Nov. 28th, Councilman Jay Furfaro introduced legislation that was drafted by Joanne Yukimura, former council person who lost her bid for Kauai mayor. The legislation provides for the continuing of vacation rentals in ag land.
That set off a chain of postings and phone calls beginning with a pointer-post by property rights lawyer Charley Foster to ballyhooing the claim on his Planet Kaua`i blog, That spurred Joan Conrow to send out an Eclectic alarm which seems to have caused Councilpersons Lani Kawahara and Tim Bynum to contact “farmer Jerry” of KauaiEclectic fame (who in real life is Wailua farmer Jerry Ornalles) to ask his mana`o about the various ag bills that are “floating around”.
But despite all the panty-bunching there is in fact no such bill on the agenda nor was one “introduced” by the previous council on November 28, when a special council meeting was held with only two executive sessions regarding two different lawsuits on the agenda.
Margolis does his best to make believe there is one though and claims to have a letter from Council Vice Chair Jay Furfaro
Margolis wrote
In the letter Furfaro notes,"since Ordinance No. 864 regulating single family vacation rentals was signed into law by Mayor Bryan Baptiste on March 7, 2008, the financial system of our country has been thrown into major upheaval, with far reaching consequences for our hard-hit visitor industry in Hawai`i. In a recent briefing of the County Council, Kaua`i Visitor Bureau Executive Director Sue Kanoho said that the Kaua`i Visitors Bureau and the Hawai`i Tourism Authority are now focusing on visitors who CAN come to Kaua`i, as opposed to those who WANT to come."
Whether there is such a “letter” is anyone’s guess but Margolis actually posted the make-believe bill which contains almost identical language the purported letter from Furfaro.
The “Findings and Purpose” in the official looking but undated and unnumbered ” bill”- which lacks both the county seal and the required tabulation of votes for “first reading” that would indicate legitimacy- as posted by Margolis says:
The Council of the County of Kaua‘i hereby finds that recent unprecedented events have caused major upheaval in the national and world economy, producing a significant eduction (sic) in visitor arrivals to Kaua‘i and a negative impact on Kaua‘i’s economy, small businesses and families. These events include volatile oil prices and the financial disaster caused by the subprime mortgage crisis and failure of long standing financial institutions. In a briefing of the County Council on October 1, 2008, Kaua‘i Visitor Bureau Executive Director Sue Kanoho reported that Kaua‘i Visitors Bureau and the Hawai‘i Tourism Authority are now focusing on visitors who CAN come to Kaua‘i, as opposed to those who WANT to come. Some of the visitors who can come to Kaua‘i want to stay in single family transient vacation rentals in rural settings.
Margolis ends by saying what you’d expect to hear from a realtor seeking to do some kind- anykine- business these days, what with the non-existent market:
This legislation is also meant to help farmers who need to provide housing to their farm workers by renting the housing that is on the land they are working. Hopefully, this will relieve some stress for those who work the land and provide local-grown food, and help their cash flow in these recessionary times.
The fact is that vacation rentals on ag land are specifically banned by state law (HRS Section 205) and there’s not thing-one Kaua`i can legally do about that despite the search for loopholes by real estate lobbyist attorney Jonathan Chun during the discussion of the recently passed Transient Vacation Rentals (TVR) bill that grandfathered existing TVR’s in non-Visitor Destination areas as designated in the General Plan.
So what does this “bill” seek to do? Ah those devilish details.
It actually calls for existing owners of TVR’s on ag land to come to “non-enforcement agreements” with the planning director.
That right folks. In the proud Kaua`i tradition of “if you don’t like the law just ignore it” they want to go one step further and actually pass a bill instructing the planning department to ignore the law.
Preambles (purposes and findings) aside, the actual language the Margolis’ “law” would change with this monstrosity is:
(e) In cases in which a single-family transient vacation rental located on land designated “Agricultural” by State law does not qualify for a nonconforming use certificate under Sec. 8-17.10(d), the following shall apply: upon a finding by the Planning Director that the applicant has met the requirements of Sec. 8-17.10(c), except for the requirement of a “farm dwelling” under HRS, Chapter 205-4.5, the Planning Department may enter into an enforcement agreement with applicant agreeing not to enforce this ordinance’s prohibition against single-family transient vacation rentals without nonconforming use certificates in non-VDA areas, provided that the enforcement agreement contains, at a minimum, provisions to which all parties agree that:
(1) no rights existing at time of enactment of this ordinance will be extinguished or diminished during the non-enforcement period, nor shall new rights be created during this non-enforcement period, and neither the applicant nor the County shall be deemed to have waived existing rights or made any admissions as to existing rights by entering into said enforcement agreement; and
(2) the enforcement agreement shall terminate upon identification of Kaua‘i’s agricultural lands of importance to the State pursuant to HRS Chapter 205 or identification of agricultural lands of importance to the County and adoption of ordinance(s) regulating said lands, or the owner has D:2008-1427A/lki obtained a special permit under HRS Section 205-6 or March 15, 2011, whichever comes first; and
(3) upon expiration of the enforcement agreement, if the subject dwelling unit is located on lands designated “Agricultural” by State or county law, the applicant, owner, successor, or permitted assigns shall abide by the laws that apply to said lands, or if the subject dwelling unit is located on lands designated other than “Agricultural” by State and County law, or has received a special permit under HRS 205-6, a nonconforming use certificate shall be issued therefor by the Planning Department.
What is really going on of course is that this is happening with a background of the developer’s best friend- the “identification of important agricultural lands” study now being conducted on Kaua`i at the state’s behest.
And, although it was originally passed to identify “important” lands, in a developer’s and realtor’s wet dream the study has morphed into identifying unimportant ag lands so they can be taken out of ag and developed.
But despite the fact that it’s been 30 years since the original mandate to “identify important ag lands” and that no one knows what will happen when and if they are ever identified, this would allow what the state law doesn’t allow by telling our planning director to just ignore their illegality until such time.
Anyone can write a “bill” and given the right software can make it appear official. We suspect that IF this bill is “floating around at the council” (where any expressed commitment to support it by council members would be illegal according to the Sunshine Law) and is being considered at the behest of Yukimura, the odds are that Chun’s fingerprints are all over it.
Chun’s testimony was constantly greeted with breathlessness acquiesced by Yukimura who, during the debacle. sought his counsel. It was instrumental in formulating a bill that resulted in allowing the “grandfathering” of illegal TVR’s in non VDA areas, instead of enforcing the state law against them
Incidentally Chun did all this lobbying by breaking the law himself by not consistently identifying himself before the council as a paid lobbyist for the Board of Realtors, as provided for in HRS Chapter 97 and Council Resolution 2007-2 on council rules.
Another bill (#2294) is up for a 1:30 p.m. public hearing (and has passed first reading) on the agenda tomorrow and does deal with TVR’s. It is one that tightens up and defines some permitting requirements for those seeking to have their illegal yet somehow grandfathered TVR’s in non-VDA areas.
It deals with signs and inspections and comes after the planning department failed to even start the process to create HRS Chapter 91 administrative rules for permitting since the bill passed.
Also on the public hearing agenda is a bill (#2292) that a lot of home owners will greet with enthusiasm and is probably long over due. It would make it so that those appealing their assessments for property tax purposes would only need to show the assessor was off by 10% instead of the current 20% in order to appeal the assessment amount.
There are also bills for first reading,
-one extending the deadline to apply for the new Kuleana Land Exemption from Dec. 31 to Feb. 13,
-one to rezone some residential (R-1) land in Po`ipu to Neighborhood Commercial (the land is adjacent to other Neighborhood Commercial land) and
-one to appropriate $85,000 hire a professional recruitment firm for $65,000 and pay $20,000 for advertising to recruit new police officers.
The meeting starts at 9 a.m. in the council chambers at the Historic county Building on Rice St. in Lihu`e.
If passed, Tim Bynum will replace Lani Kawahara on the new Economic Development/Housing Committee and Kawahara will replace Dickie Chang on the Planning Committee.
The change will give the three supporters of Jay Furfaro a voting majority on the all important planning panels after complaints that they were shut out of a majority on any of the seven committees by the four members who supported Chair Kaipo Asing.
Although all council members are technically members of all committees, voting members are limited to five each according to council rules. The other two sit ex-officio.
And while there are five bills on the council’s agenda tomorrow, despite reports to the contrary, there is no bill to allow vacation rentals on agricultural lands.
The blogs are all a twitter after a post at Realtor Ronnie Margolis’ blog, saying that
In a letter from Nov. 28th, Councilman Jay Furfaro introduced legislation that was drafted by Joanne Yukimura, former council person who lost her bid for Kauai mayor. The legislation provides for the continuing of vacation rentals in ag land.
That set off a chain of postings and phone calls beginning with a pointer-post by property rights lawyer Charley Foster to ballyhooing the claim on his Planet Kaua`i blog, That spurred Joan Conrow to send out an Eclectic alarm which seems to have caused Councilpersons Lani Kawahara and Tim Bynum to contact “farmer Jerry” of KauaiEclectic fame (who in real life is Wailua farmer Jerry Ornalles) to ask his mana`o about the various ag bills that are “floating around”.
But despite all the panty-bunching there is in fact no such bill on the agenda nor was one “introduced” by the previous council on November 28, when a special council meeting was held with only two executive sessions regarding two different lawsuits on the agenda.
Margolis does his best to make believe there is one though and claims to have a letter from Council Vice Chair Jay Furfaro
Margolis wrote
In the letter Furfaro notes,"since Ordinance No. 864 regulating single family vacation rentals was signed into law by Mayor Bryan Baptiste on March 7, 2008, the financial system of our country has been thrown into major upheaval, with far reaching consequences for our hard-hit visitor industry in Hawai`i. In a recent briefing of the County Council, Kaua`i Visitor Bureau Executive Director Sue Kanoho said that the Kaua`i Visitors Bureau and the Hawai`i Tourism Authority are now focusing on visitors who CAN come to Kaua`i, as opposed to those who WANT to come."
Whether there is such a “letter” is anyone’s guess but Margolis actually posted the make-believe bill which contains almost identical language the purported letter from Furfaro.
The “Findings and Purpose” in the official looking but undated and unnumbered ” bill”- which lacks both the county seal and the required tabulation of votes for “first reading” that would indicate legitimacy- as posted by Margolis says:
The Council of the County of Kaua‘i hereby finds that recent unprecedented events have caused major upheaval in the national and world economy, producing a significant eduction (sic) in visitor arrivals to Kaua‘i and a negative impact on Kaua‘i’s economy, small businesses and families. These events include volatile oil prices and the financial disaster caused by the subprime mortgage crisis and failure of long standing financial institutions. In a briefing of the County Council on October 1, 2008, Kaua‘i Visitor Bureau Executive Director Sue Kanoho reported that Kaua‘i Visitors Bureau and the Hawai‘i Tourism Authority are now focusing on visitors who CAN come to Kaua‘i, as opposed to those who WANT to come. Some of the visitors who can come to Kaua‘i want to stay in single family transient vacation rentals in rural settings.
Margolis ends by saying what you’d expect to hear from a realtor seeking to do some kind- anykine- business these days, what with the non-existent market:
This legislation is also meant to help farmers who need to provide housing to their farm workers by renting the housing that is on the land they are working. Hopefully, this will relieve some stress for those who work the land and provide local-grown food, and help their cash flow in these recessionary times.
The fact is that vacation rentals on ag land are specifically banned by state law (HRS Section 205) and there’s not thing-one Kaua`i can legally do about that despite the search for loopholes by real estate lobbyist attorney Jonathan Chun during the discussion of the recently passed Transient Vacation Rentals (TVR) bill that grandfathered existing TVR’s in non-Visitor Destination areas as designated in the General Plan.
So what does this “bill” seek to do? Ah those devilish details.
It actually calls for existing owners of TVR’s on ag land to come to “non-enforcement agreements” with the planning director.
That right folks. In the proud Kaua`i tradition of “if you don’t like the law just ignore it” they want to go one step further and actually pass a bill instructing the planning department to ignore the law.
Preambles (purposes and findings) aside, the actual language the Margolis’ “law” would change with this monstrosity is:
(e) In cases in which a single-family transient vacation rental located on land designated “Agricultural” by State law does not qualify for a nonconforming use certificate under Sec. 8-17.10(d), the following shall apply: upon a finding by the Planning Director that the applicant has met the requirements of Sec. 8-17.10(c), except for the requirement of a “farm dwelling” under HRS, Chapter 205-4.5, the Planning Department may enter into an enforcement agreement with applicant agreeing not to enforce this ordinance’s prohibition against single-family transient vacation rentals without nonconforming use certificates in non-VDA areas, provided that the enforcement agreement contains, at a minimum, provisions to which all parties agree that:
(1) no rights existing at time of enactment of this ordinance will be extinguished or diminished during the non-enforcement period, nor shall new rights be created during this non-enforcement period, and neither the applicant nor the County shall be deemed to have waived existing rights or made any admissions as to existing rights by entering into said enforcement agreement; and
(2) the enforcement agreement shall terminate upon identification of Kaua‘i’s agricultural lands of importance to the State pursuant to HRS Chapter 205 or identification of agricultural lands of importance to the County and adoption of ordinance(s) regulating said lands, or the owner has D:2008-1427A/lki obtained a special permit under HRS Section 205-6 or March 15, 2011, whichever comes first; and
(3) upon expiration of the enforcement agreement, if the subject dwelling unit is located on lands designated “Agricultural” by State or county law, the applicant, owner, successor, or permitted assigns shall abide by the laws that apply to said lands, or if the subject dwelling unit is located on lands designated other than “Agricultural” by State and County law, or has received a special permit under HRS 205-6, a nonconforming use certificate shall be issued therefor by the Planning Department.
What is really going on of course is that this is happening with a background of the developer’s best friend- the “identification of important agricultural lands” study now being conducted on Kaua`i at the state’s behest.
And, although it was originally passed to identify “important” lands, in a developer’s and realtor’s wet dream the study has morphed into identifying unimportant ag lands so they can be taken out of ag and developed.
But despite the fact that it’s been 30 years since the original mandate to “identify important ag lands” and that no one knows what will happen when and if they are ever identified, this would allow what the state law doesn’t allow by telling our planning director to just ignore their illegality until such time.
Anyone can write a “bill” and given the right software can make it appear official. We suspect that IF this bill is “floating around at the council” (where any expressed commitment to support it by council members would be illegal according to the Sunshine Law) and is being considered at the behest of Yukimura, the odds are that Chun’s fingerprints are all over it.
Chun’s testimony was constantly greeted with breathlessness acquiesced by Yukimura who, during the debacle. sought his counsel. It was instrumental in formulating a bill that resulted in allowing the “grandfathering” of illegal TVR’s in non VDA areas, instead of enforcing the state law against them
Incidentally Chun did all this lobbying by breaking the law himself by not consistently identifying himself before the council as a paid lobbyist for the Board of Realtors, as provided for in HRS Chapter 97 and Council Resolution 2007-2 on council rules.
Another bill (#2294) is up for a 1:30 p.m. public hearing (and has passed first reading) on the agenda tomorrow and does deal with TVR’s. It is one that tightens up and defines some permitting requirements for those seeking to have their illegal yet somehow grandfathered TVR’s in non-VDA areas.
It deals with signs and inspections and comes after the planning department failed to even start the process to create HRS Chapter 91 administrative rules for permitting since the bill passed.
Also on the public hearing agenda is a bill (#2292) that a lot of home owners will greet with enthusiasm and is probably long over due. It would make it so that those appealing their assessments for property tax purposes would only need to show the assessor was off by 10% instead of the current 20% in order to appeal the assessment amount.
There are also bills for first reading,
-one extending the deadline to apply for the new Kuleana Land Exemption from Dec. 31 to Feb. 13,
-one to rezone some residential (R-1) land in Po`ipu to Neighborhood Commercial (the land is adjacent to other Neighborhood Commercial land) and
-one to appropriate $85,000 hire a professional recruitment firm for $65,000 and pay $20,000 for advertising to recruit new police officers.
The meeting starts at 9 a.m. in the council chambers at the Historic county Building on Rice St. in Lihu`e.
Tuesday, September 16, 2008
HARDENED BONEHEADS
HARDENED BONEHEADS: It’s nani-nani-boo-boo time for us today as the Naue cemetery desecration case came to fruition in court yesterday.
As we reported first by delineating a letter from OHA on July 10, the shenanigans of developer Joe Brescia and his henchwoman Nancy “Igor” McMahon violated various provisions of rules and laws.
As Joan Conrow said this morning in referring to the property rights nutsos who have been defending and singing the praises of Brescia and McMahon::
“OK, get out your chili pepper water, your A-1 sauce or your other favorite condiment. Because it’s time to eat some crow — and not the Alala kine, since it’s almost extinct.
Although the ruling was vintage, archetypical Judge Kathleen Wantanabe in it’s equivocations in favor of bureaucratic deference, the ruling confirmed that the desecration of the cemetery at Naue was never legal even according to the administrative procedures much less the state law and constitution.
Because she was a typical gutless government attorney throughout her career, by predilection it seems it never occurred to Judge Wantanabe that she could strike down the “ad rules” that she instead said should be changed legislatively in part because they violate the laws and constitutional provisions.
The ruling is well reported by others today so we won’t detail it here but we can’t wait for the spectacle of next Kaua`i Burial Council meeting, which if they’re smart they’ll hold at the convention hall or stadium.
And of course we anticipate quite the crowd at the planning commission whose discussion of the legitimacy of the construction permits has been on hold pending the ruling that invalidates an essential component- a valid burial plan..
And we’re pretty sure there are prohibitive odds against State Archeologist Nancy McMahon coming in anywhere but last in this Saturday’s council election after the full blame for the mess was deposited at her doorstep.
The only question left is whether her negligence and malfeasance rose to a level that she doesn’t have any immunity against a lawsuit by all sides.
Perhaps we’ll see a civil case with plaintiffs Jeff Chandler and Joe Brescia vs. respondent Nancy McMahon in the near future. Only a complete twit like McMahon could bring those two together on something.
But even though the desecration and destruction is essentially halted for now- though in a typical Wantanabe-istic non-ruling ruling- what strikes us through all of this is the antiseptic way the press, even our friend Joan (although just quoting Wantanabe), has fallen into a pattern of describing the actual desecratory construction last month.
Here’s some snippets from Joan’s post.
Wantanbe also said that doesn’t mean he was authorized to start pouring his foundation, effectively capping some seven iwi in concrete so he could erect pilings for his house...
“While the burials were preserved, they were not authorized according to law and it could be argued that construction of jackets constitutes alteration,” Watanabe said...
The Council could take any number of steps, she said, such as having the jackets taken off the iwi and removing the seven burials that are now under the house and reinterring them elsewhere.
Blogger Charley Foster, who despite his protestations has decidedly sided with the developer, used the words “after jackets and footings were already poured” in a comment although that can be expected.
But here’s a description from the article in the local paper today:
...a Burial Treatment Plan featuring vertical buffers for the house and protective concrete jackets for the iwi.
“Capping some seven iwi in concrete”? “Construction of jackets”? “Having the jackets taken off the iwi”? “Vertical buffers for the house and protective concrete jackets for the iwi”.?
What is with these antiseptic descriptions?. What Brescia apparently did was dig a freakin’ hole and pour concrete all over the bones- “coincidentally” right where they were pouring the concrete for the concrete foundation poles.
They all make it sound like anything but what it is.
There are no stupid “jackets”. Nothing was “capped”. And there were no “preservation measures”.
If we were to suggest the Arizona Memorial be “preserved” by slathering it in concrete we’d be strung up by the short and curlies.
At least malahini Advertiser reporter Diana Leong put the words "concrete jackets" and "buffer" in quotes in her piece this morning.
The news stories made clear that there was no order to stop but the proviso was that construction could continue only as long as there’s “no irreparable damage to the burials”
No one is pointing out the obvious- there was already irreparable harm because the way it’s described with “caps” and “jackets” and “buffers” and “pilings” it doesn’t let people know that they just poured cement over the bones.
This is a certainly a new idea in physical anthropology. Why we could “preserve” all artifacts forever by throwing them in a pit and sealing them in cement. Mayan ruins? Dinosaur bones? George Washington’s wooden teeth? Seal ‘um all in concrete. .
Since McMahon is going to be out of a job we may well be looking forward to the new Joe Brescia Memorial School of Wacko Anthropology... built of concrete.
And as for Brescia, well no one can say he hasn’t cemented relations between north shore developers and Kanaka community.
As we reported first by delineating a letter from OHA on July 10, the shenanigans of developer Joe Brescia and his henchwoman Nancy “Igor” McMahon violated various provisions of rules and laws.
As Joan Conrow said this morning in referring to the property rights nutsos who have been defending and singing the praises of Brescia and McMahon::
“OK, get out your chili pepper water, your A-1 sauce or your other favorite condiment. Because it’s time to eat some crow — and not the Alala kine, since it’s almost extinct.
Although the ruling was vintage, archetypical Judge Kathleen Wantanabe in it’s equivocations in favor of bureaucratic deference, the ruling confirmed that the desecration of the cemetery at Naue was never legal even according to the administrative procedures much less the state law and constitution.
Because she was a typical gutless government attorney throughout her career, by predilection it seems it never occurred to Judge Wantanabe that she could strike down the “ad rules” that she instead said should be changed legislatively in part because they violate the laws and constitutional provisions.
The ruling is well reported by others today so we won’t detail it here but we can’t wait for the spectacle of next Kaua`i Burial Council meeting, which if they’re smart they’ll hold at the convention hall or stadium.
And of course we anticipate quite the crowd at the planning commission whose discussion of the legitimacy of the construction permits has been on hold pending the ruling that invalidates an essential component- a valid burial plan..
And we’re pretty sure there are prohibitive odds against State Archeologist Nancy McMahon coming in anywhere but last in this Saturday’s council election after the full blame for the mess was deposited at her doorstep.
The only question left is whether her negligence and malfeasance rose to a level that she doesn’t have any immunity against a lawsuit by all sides.
Perhaps we’ll see a civil case with plaintiffs Jeff Chandler and Joe Brescia vs. respondent Nancy McMahon in the near future. Only a complete twit like McMahon could bring those two together on something.
But even though the desecration and destruction is essentially halted for now- though in a typical Wantanabe-istic non-ruling ruling- what strikes us through all of this is the antiseptic way the press, even our friend Joan (although just quoting Wantanabe), has fallen into a pattern of describing the actual desecratory construction last month.
Here’s some snippets from Joan’s post.
Wantanbe also said that doesn’t mean he was authorized to start pouring his foundation, effectively capping some seven iwi in concrete so he could erect pilings for his house...
“While the burials were preserved, they were not authorized according to law and it could be argued that construction of jackets constitutes alteration,” Watanabe said...
The Council could take any number of steps, she said, such as having the jackets taken off the iwi and removing the seven burials that are now under the house and reinterring them elsewhere.
Blogger Charley Foster, who despite his protestations has decidedly sided with the developer, used the words “after jackets and footings were already poured” in a comment although that can be expected.
But here’s a description from the article in the local paper today:
...a Burial Treatment Plan featuring vertical buffers for the house and protective concrete jackets for the iwi.
“Capping some seven iwi in concrete”? “Construction of jackets”? “Having the jackets taken off the iwi”? “Vertical buffers for the house and protective concrete jackets for the iwi”.?
What is with these antiseptic descriptions?. What Brescia apparently did was dig a freakin’ hole and pour concrete all over the bones- “coincidentally” right where they were pouring the concrete for the concrete foundation poles.
They all make it sound like anything but what it is.
There are no stupid “jackets”. Nothing was “capped”. And there were no “preservation measures”.
If we were to suggest the Arizona Memorial be “preserved” by slathering it in concrete we’d be strung up by the short and curlies.
At least malahini Advertiser reporter Diana Leong put the words "concrete jackets" and "buffer" in quotes in her piece this morning.
The news stories made clear that there was no order to stop but the proviso was that construction could continue only as long as there’s “no irreparable damage to the burials”
No one is pointing out the obvious- there was already irreparable harm because the way it’s described with “caps” and “jackets” and “buffers” and “pilings” it doesn’t let people know that they just poured cement over the bones.
This is a certainly a new idea in physical anthropology. Why we could “preserve” all artifacts forever by throwing them in a pit and sealing them in cement. Mayan ruins? Dinosaur bones? George Washington’s wooden teeth? Seal ‘um all in concrete. .
Since McMahon is going to be out of a job we may well be looking forward to the new Joe Brescia Memorial School of Wacko Anthropology... built of concrete.
And as for Brescia, well no one can say he hasn’t cemented relations between north shore developers and Kanaka community.
Thursday, September 11, 2008
INCIDENTALLY INHUMANE
INCIDENTALLY INHUMANE: The arrest and interrogation of journalist Joan Conrow which she detailed and we analyzed this week has spurred a slew of comments at her web site from various and sundry right-wing trolls as well as some sincere defender.
Most, in all disingenuity, pooh-pooh any allegations of police misconduct and especially the blatant violations of the new Reporters’ Shield Law passed by the Hawai`i legislature this year
And today even libertarian, property rights lawyer-blogger Charley Foster has declared:
There's quite a bit of search and seizure discussion in the 70-plus comments as well as an abortive run at the shield law.
Abortive? Sorry Charley, ‘fraid not.
It’s quite obvious that none of the gut-less anonymous posters nor the owner of the bridge they live under have read and don’t understand what the Hawai`i shield law protects against.
The Hawai`i Shield law reads:
A journalist or newscaster presently or previously employed by or otherwise professionally associated with any newspaper or magazine or any digital version thereof operated by the same organization, news agency, press association, wire service, or radio or television transmission station or network, shall not be required by a legislative, executive, or judicial officer or body, or any other authority having the power to compel testimony or the production of evidence, to disclose, by subpoena or otherwise:
and then it goes on to describe exactly the information Conrow was asked for- essentially information gathered while engaging in gathering news and reporting upon it.
When you take out the non-pertinent words it reads, in context:
A journalist ...shall not be required by.. any... authority having the power to compel the production of evidence, to disclose, by subpoena or otherwise:
Note it says “any authority” which undoubtedly includes police officers. And note the “compelling” of the “evidence” is not, as in many states, necessarily in the realm of only “judges” and “subpoenas” but can be “otherwise”. And note of course it doesn’t just cover court “testimony” but “production of evidence”
While merely calling and politely asking a reporter if they will share their newsgathering with police would be far from ”compelling” the reporter to produce what the police consider “evidence”, by all legal definitions the “seizure” of Conrow makes the incident one where a reasonable person would feel compelled to provide that ”evidence”.
When someone is brought into the station house- whether physically “brought in” or whether they came of their own volition when asked doesn’t really matter. For all intent and purpose- and technically according to an ex -KPD officer we spoke to as well as a prominent Kaua`i attorney- Conrow was under arrest whether she was charged or not.
The dictionary defines “compel” as “To make one yield or submit”. "Making” Conrow “yield or submit” to questioning was the whole intent of the interrogation.
When a police officer tells you to do something, you are usually compelled to do so.
The Fourth Amendment of the U.S. constitution bans unreasonable searches and seizures.
One of the most famous cases of Fourth Amendment law is the Warren Supreme Court case of Terry v Ohio. It hold that:
It must be recognized that, whenever a police officer accosts an individual and restrains his freedom to walk away, he has "seized" that person.
Some have made much of the fact that Conrow may not have asked to be released but that is irrelevant as the standard in Terry and subsequent decisions state only that a reasonable person must have felt they were free to leave.
When an officer tells a person to “stay there” that constitutes “seizure” of that person- and of course that requires probable cause which was totally absent in this case.
There is little doubt that Conrow’s rights as a reporter under the newly enacted shield law were violated.
While some states’ shield laws refer to only subpoenas or court orders the Hawai`i law- said to be one of if not the most progressive- applies to all authorities and covers all methods of compelling information.
And of course it covers bloggers who engage in traditional newsgathering, even though Conrow is and has been a working professional journalist for 30 years.
While the law is new in Hawai`i that’s certainly no excuse for the behavior of the three officers this case. PNN is still awaiting comment from the county as to the status of any investigation.
Most, in all disingenuity, pooh-pooh any allegations of police misconduct and especially the blatant violations of the new Reporters’ Shield Law passed by the Hawai`i legislature this year
And today even libertarian, property rights lawyer-blogger Charley Foster has declared:
There's quite a bit of search and seizure discussion in the 70-plus comments as well as an abortive run at the shield law.
Abortive? Sorry Charley, ‘fraid not.
It’s quite obvious that none of the gut-less anonymous posters nor the owner of the bridge they live under have read and don’t understand what the Hawai`i shield law protects against.
The Hawai`i Shield law reads:
A journalist or newscaster presently or previously employed by or otherwise professionally associated with any newspaper or magazine or any digital version thereof operated by the same organization, news agency, press association, wire service, or radio or television transmission station or network, shall not be required by a legislative, executive, or judicial officer or body, or any other authority having the power to compel testimony or the production of evidence, to disclose, by subpoena or otherwise:
and then it goes on to describe exactly the information Conrow was asked for- essentially information gathered while engaging in gathering news and reporting upon it.
When you take out the non-pertinent words it reads, in context:
A journalist ...shall not be required by.. any... authority having the power to compel the production of evidence, to disclose, by subpoena or otherwise:
Note it says “any authority” which undoubtedly includes police officers. And note the “compelling” of the “evidence” is not, as in many states, necessarily in the realm of only “judges” and “subpoenas” but can be “otherwise”. And note of course it doesn’t just cover court “testimony” but “production of evidence”
While merely calling and politely asking a reporter if they will share their newsgathering with police would be far from ”compelling” the reporter to produce what the police consider “evidence”, by all legal definitions the “seizure” of Conrow makes the incident one where a reasonable person would feel compelled to provide that ”evidence”.
When someone is brought into the station house- whether physically “brought in” or whether they came of their own volition when asked doesn’t really matter. For all intent and purpose- and technically according to an ex -KPD officer we spoke to as well as a prominent Kaua`i attorney- Conrow was under arrest whether she was charged or not.
The dictionary defines “compel” as “To make one yield or submit”. "Making” Conrow “yield or submit” to questioning was the whole intent of the interrogation.
When a police officer tells you to do something, you are usually compelled to do so.
The Fourth Amendment of the U.S. constitution bans unreasonable searches and seizures.
One of the most famous cases of Fourth Amendment law is the Warren Supreme Court case of Terry v Ohio. It hold that:
It must be recognized that, whenever a police officer accosts an individual and restrains his freedom to walk away, he has "seized" that person.
Some have made much of the fact that Conrow may not have asked to be released but that is irrelevant as the standard in Terry and subsequent decisions state only that a reasonable person must have felt they were free to leave.
When an officer tells a person to “stay there” that constitutes “seizure” of that person- and of course that requires probable cause which was totally absent in this case.
There is little doubt that Conrow’s rights as a reporter under the newly enacted shield law were violated.
While some states’ shield laws refer to only subpoenas or court orders the Hawai`i law- said to be one of if not the most progressive- applies to all authorities and covers all methods of compelling information.
And of course it covers bloggers who engage in traditional newsgathering, even though Conrow is and has been a working professional journalist for 30 years.
While the law is new in Hawai`i that’s certainly no excuse for the behavior of the three officers this case. PNN is still awaiting comment from the county as to the status of any investigation.
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