ALL AROUND THE MULBERRY BUSH

ALL AROUND THE MULBERRY BUSH: Sometime you've gotta wonder what's up when it comes to our state judiciary.

No, we're not talking about the scandal plagued sheriff’s division or the "we be's" who populate the offices and act as if they own the process, if not the judges themselves. No, it's not the probation department that thinks that "field work" is going hunting and fishing on weekends.

If you want to know what plaguing our state's courts just look at the actual rulings of some of the men and women wearing the robes.

Today's decision by the newly reinvigorated Hawai`i Intermediate Court of Appeals (ICA) overturning 5th Circuit Court Judge Randall Valenciano's ruling that allowed the Republican party to "replace" a candidate for the 14th House District who intentionally filed and withdrew just before the deadline, is a case in point detailing how politics often rules the courthouse roost.

The problem is that rather than sort out what the law really is trying to say, they simply shirked that responsibility and disqualified the original candidate for not completing his application.

As Mina Morita- the one who then held the 14th district seat at the time and eventually won reelection- said at the time:

Simply put, Hamman did not file nomination papers for the District 14 House race by the close of the filing deadline because he withdrew on July 19. And, there was no way he could because he filed his nomination papers for the Senate race and a person cannot run in more than one race. The Republicans did not have a candidate qualified for the ballot for the District 14 House race at the close of the filing deadline, therefore, no candidate vacancy exists to allow Harry R. Williams to run as a legitimate candidate.

We went a little further in explaining the way the law leaves room for interpretation, citing Hawai`i Revised Statutes (HRS) 11-117 and 118 as well as Hawai`i Administrative Rule (HAR) Chapter 3-173-1 to explain the mess and in addition mentioned that it wasn't the first time the ambiguity in the law had caused a musical chairs brouhaha at the filing deadline. Two years previously, in the case of Kirk Caldwell, the same lack of clarity squeezed him out of candidacy in any election as the "resign to run" law did its dirty work.

We won't bore you by repeating the technical explanation here again, but we will say that in between the Caldwell and Morita fiascoes, the legislature sat around with their thumbs up their butts, kow-towing to the churches, who had their noses in proximate climes over civil unions.

And as if to reiterate that inaction isn't just a mistake at the Capitol but is a carefully planned result of the Hawai`i legislative committee system, remedial bills weren't even scheduled for a hearing during the session following the Morita-Hamman mess.

Now we haven't seen the decision yet, but if the press reports are correct, the ICA didn't bother to tell the legislature to get its act together and clarify the law - as the appellate courts are wont to do on occasion- so we don't have to go through this again in 2012. Instead they decided the case based on a lack of sufficiency in the application itself, virtually saying "we won't touch this political football" even to say the law is unclear on process thus leaving the matter flapping in the wind.

So when the legislature fails to act again this January and the filing deadline comes around next year, expect yet another debacle consisting of candidates waving competing sections of law at each other and the chief elections officer. And don't worry- we'll be here with the distinctly unsatisfying chance to once again say "we told you so."

BADGERING THE BADGES

BADGERING THE BADGES: State Auditor Marion Higa’s audit of the much maligned Sheriff’s Division the State Department of Public Safety confirms the dysfunctionality that has been apparent for years.

She rightly criticizes the lack of focus and ever expanding role set for state sheriffs with her prime critique centering around what was summed up in the title of Chapter 2- “Lack of Guidance and Leadership Has Resulted in Defective Law Enforcement”.

That’s the understatement of the year according to our many sources in the judiciary who regularly call us with complaints of abuse of power.

As Higa points out:

(T)he Sheriff Division, saddled with an ill-defined role and a lack of mission clarity, has struggled to uphold its expanded law enforcement duties and responsibilities. As the State’s law enforcement needs have expanded, confusion over the extent of the State’s law enforcement responsibilities has grown. This confusion and uncertainty is the result of vague constitutional language, a broad interpretation of statutory authority, and the consolidation of functions previously deemed incompatible.

As a result, the law enforcement responsibilities of the Sheriff Division have expanded beyond the service of process and the security of state buildings to now include drug enforcement, illegal immigration, homeland security, fugitive arrests, criminal investigations, eviction proceedings, and traffic enforcement.

But what has really evolved since it’s 1989 inception is a secret police department that operates purely at the beck and call of leaders of the judiciary without any oversight.

Judges may order them to do anything they please even if they have questionable motives and with no one to answer to but themselves the division has been all too eager to please. Some higher-ups in the sheriff’s division have even evolved so much power that often it is they, rather than the judges, that have ultimate sway over the division according to judiciary employees past and present.

According to the summery of recommendations:

We recommend that the Department of Public Safety perform a risk assessment of each section of the Sheriff Division in the course of developing a comprehensive strategic plan for the division that, at a minimum, meets the requirements of Act 100, SLH 1999. The department should also consider proposing statutory amendments to align with the division’s duties and functions as indicated by the risk assessment. We also suggest that the department pursue accreditation for the Sheriff Division from the Commission on Accreditation for Law Enforcement Agencies, Inc. (CALEA), to ensure that proper law enforcement policies and procedures are enacted and followed.

It’s not really shocking that there are apparently no administrative rules for their activities- that’s a common denominator of many out of control state departments and apparently without the filing of a lawsuit- in this case to be heard by the very judges that take advantage of the system- it remains up to those in charge to pass Chapter 91 procedures.

But even more important is what is hidden in the last sentence- again to no one’s surprise the Sheriff’s Division is not an accredited law enforcement agency.

One of the main tenets of accreditation is the idea of civilian control of our paramilitary forces- i.e. police- whether local, state or federal.

The Sheriff’s Division joins another out of control secret state police department. the Department of Land and Natural Recourses’ (DLNR) Division of Conservation and Recourse Enforcement (DOCARE) which answers solely to the director of the DLNR with no civilian oversight board or commission.

Unless people demand civilian control of those that carry weapons and have the power to detain and arrest citizens, conditions like those described in this audit will continue to plague law enforcement.