SEPARATING THE WHITE FROM THE RICE:
It can't be a surprise to anyone who has followed our coverage of
"Rice-Cooker-Gate"- going back to
November of 2010 - that
Councilmember Tim Bynum has finally filed a malicious prosecution
suit against Kaua`i Prosecuting Attorney Shaylene Iseri-Carvalho.
The content of the suit- the "Facts"
section of which are presented below, interspersed with background
material and comments- won't shock our readers very much either. But
for anyone who hasn't been able or attempted to put our real-time
exposure of Iseri's blatant abuses of power into an even more
horrific narrative, Bynum's attorneys- including local lawyer Dan
Hempey and former State Attorney General Marjorie Bronster- have
served up for Iseri what many hope will be some measure of the
proverbial "dish best served cold"
The barely-scratching-the-surface
coverage in the
local and
Honolulu papers failed to go into any
depth, as could be expected. And that left former Kaua`i Council
Chair Kaipo Asing- the mastermind behind the political hatchet job
against Bynum- pretty much unidentified.
While his role is central to the plot
and he is identified in the narrative of the suit as a driving force
behind the farce, he isn't named as a defendant, so his role has yet
to be widely exposed.
For the underpinnings of the whole
story you can use the search box at the top of this page to go back
and read how much of the basis for the suit began with Bynum's
challenges of the paternalistic power exercised by the once beloved
and eventually corrupt and reviled "Uncle Chair," as Bynum
and others had taken to calling Asing.
In brief, toward the end of his career,
Asing, the one time "voice of the people," began to abuse
his evolving power until the wheels of Kaua`i government meshed
solely at his whim.
Bynum, along with now-retired
Councilperson Lani Kawahara, dared to challenge Asing's power grab
simply by asking for things like adherence to the state's sunshine
and open records laws, general transparency and public access to
documents. They even had to do battle to place items on the agenda,
something that Asing had come to deny councilmembers on matters which
Asing didn't want publicly addressed.
When she was a councilmember, Iseri,
along with fellow Councilperson Mel Rapozo, had become the chief
minions of the Minotaur, owing much of their political careers to
Asing's benevolence.
Nothing was too much for Asing to ask.
Going deeper though, much of this whole
debacle has roots- as does everything seemingly on Kaua`i- in the
infamous "Lap Dancer" episode, as described in the book KPD
Blue by Tony Sommer which is serialized at this site (see left rail).
That led to the infamous Executive Session (ES) 177 where Rapozo, a
former Kaua`i Police Department (KPD) officer who was present in the
room at police headquarters that night she was fondled by officers,
went into a rant about the incident and other potentially explosive
internal KPD matters.
Despite orders from the Office of
Information Practices (OIP) that the potentially explosive minutes be
released publicly, Asing successfully went all the way to the Hawai`i
Supreme Court (HSC) to protect Rapozo from exposure, leaving Rapozo-
and his ally Iseri of course- forever politically indebted to Asing.
In addition to everything else, Iseri
had her own personal feud going with Bynum, much of it seemingly a
part of Iseri's well known "anti-haole (Caucasian)"
attitude- a mindset finally manifesting itself in the recent
settlement of an EEOC racial harassment case.
Another factor in Iseri's enmity for
Bynum was her opposition to Bynum's measure which ended Transient
Vacation Rentals (TVRs) on Agriculturally zoned land but allowed
existing ones to be grandfathered in. It was a major issue on Kaua`i
and passage of the resulting ordinance left Iseri, Rapozo and Asing
seething and licking their wounds.
So Iseri needed very little prodding to
join Rapozo in doing the dirty work for "team Asing"
during the well-documented good governance "Battle Royale"
between Bynum and Asing.
That set up the "set up," so
to speak, and Iseri set on a path to "get" Bynum after she
successfully ran for Prosecuting Attorney in 2008.
The "Facts" section of the
lawsuit lays out a chilling tale of how Planning Department
Supervising Inspector Sheila Miyake trumped up charges against Bynum
at the behest of Iseri and ultimately Asing, both of whom are
identified by Miyake as apparent co-initiators of the scheme to issue
the notice of a building violation.
Missing is the back story of Asing's
years-long quest to silence Bynum who had been a thorn in Asing's
side on the council as we briefly touched on above. Those seeking to
read the whole sordid tale can make good use of the search box at the
top of this page, inserting names and terms we've used here in order
to follow the blow-by-blow accounts we've presented over the past
almost three years.
The detailed "facts," as
presented in suit itself (in italics), are a worth a look too. So,
interspersed with a little background, here they are.
------
Beginning in 2008, BYNUM, following
legal guidance offered by the Kaua'i County Attorney's Office, voted
for certain amendments to Kaua'i zoning laws with which Defendants
MIYAKE and ISERI-CARVALHO disagreed.
BYNUM's right to vote as he did was
protected by the First Amendment to the United States Constitution
and his votes related to matters of public concern.
Defendant ISERI-CARVALHO left
employment with the Kaua'i County Council after she began her term as
Kaua'i County Prosecuting Attorney in 2008.
Defendant ISERI-CARVALHO has a
history of animosity toward Plaintiff. She harbors personal animosity
toward the Plaintiff. She vehemently disagreed with Plaintiffs vote
for certain amendments to Kaua'i zoning laws beginning in 2008.
Defendant MIYAKE has a history of
animosity toward Plaintiff. She harbors personal animosity toward the
Plaintiff.
The "amendment" was a
successful effort by Bynum to "grandfather" existing
Transient Vacation Rentals (TVRs) on agriculturally zoned land but
ban new ones.
From there Bynum's suit sets up some of
the events that led Iseri to go after Bynum
2010 was an election year for the
Kaua'i County Council. After the election, it was known that Deputy
County Attorney Michael Dahilig would replace the sitting Director of
the Kaua'i Planning Department, Ian Costa as of December 1,2010.
Prior to the 2010 election,
Attorneys Michael Dahilig and Ian Jung were employed as deputy county
attorneys for the Defendant COUNTY OF KAUAI. These two attorneys were
tasked with, among other things, advising the various employees of
the PLANNING DEPARTMENT, including but not limited to Defendant MIYAKE,
as to the proper interpretation and enforcement of the COUNTY OF
KAUAI'S Comprehensive Zoning Ordinance ("CZO") as well as
regarding the ability and/or constraints on Planning Officials to
enter private property for the purpose of conducting inspections
related to zoning compliance.
At all times pertinent to this
matter, and to this day, Plaintiff was the owner of a single family
home in Kapaa, Hawai'i.
Pursuant to the Kaua'i CZO, it is
illegal to convert a single-family dwelling unit into a multi-family
dwelling unit without an appropriate permit.
In 2005, BYNUM built an addition
onto his home to accommodate the four (4) generations of family
members living there at the time. The drawings for the addition went
through informal and formal review by the Planning Department. Prior
to permitting, a representative of the Planning Department informed
BYNUM that the addition, as designed, was legal as long as no stove
was installed. The plans for the addition were approved by the
Planning Department, after being circulated to and approved by
various departments including the Planning Department and a valid
building permit was issued. The County sent inspectors during
construction, and conducted a final inspection, after construction,
after which the Plaintiff was issued a certificate of occupancy.
A laundry room separated the
original home from the permitted addition. The door between the
original home and the addition had a lock at the time the addition
was approved and permitted. The permitted addition also contained a
counter top/bar and a sink, as well as several electrical
receptacles.
In March and April 2010, plaintiff
BYNUM allowed his daughter's friend, Victory Yokotake, to occupy a
room in and reside in the BYNUM family home.
While residing at the BYNUM home,
Ms. Yokotake had access to the family kitchen.
In early 2010 a female came to the
BYNUM residence and allegedly assaulted Victory Yokotake. A police
officer came to the house to investigate. The police officer
generated a report that incorrectly characterized the addition to the
BYNUM home as a separate apartment.
At the time it was generated, this
police report regarding the assault of Ms. Yokotake was a protected
and confidential document, only to be lawfully viewed by members of
the police department and the Office of the Prosecuting Attorney.
But even though
there was nothing illegal in what Bynum was doing, Iseri was
determined to bend the facts and the law- to the point of breaking-
in order to put an end to Bynum's political career and, she hoped, to
convict him of a supposed crime... one that didn't exist.
In early 2010 an unknown person who
had lawful access to the police report informed Defendants MIYAKE and
ISERI-CARVALHO that s/he believed that BYNUM was "renting out a
portion of his residence" illegally.
Defendants MIYAKE and ISERI-CARVALHO
each knew or should have known at the time of the report that there
was nothing illegal about plaintiff renting out a portion of his home
to his daughter's friend.
Upon receiving the allegation that
BYNUM was renting out a portion of his residence, Defendant MIYAKE
wrote down the reporting person's name as "Kalani Martin"
although, upon information and belief, she knew that not to be true.
MIYAKE also claimed on the report form that she generated that the
reporting person "wants to remain anonymous." Upon
information and belief, "Kalani Martin" never made the
subject report to MIYAKE, but his name was used falsely by MIYAKE as
cover for the true reporting person. MIYAKE knew the true identity of
the reporting person. Nonetheless, she treated the report as an
anonymous complaint.
Defendant MIYAKE has stated that she
acted on the subject report because, inter alia, the Kaua'i County
Council Chair, "Kaipo Asing, was asking."
Government Inspectors at the
Defendant PLANNING DEPARTMENT are not legally authorized, absent a
warrant or an exception to the warrant requirement, to enter onto
private property to investigate an anonymous complaint that someone
is renting out a portion of his or her home, especially where renting
out a portion of one's home is not illegal.
Next is the smoking gun which we
reported on years ago- an email from Iseri showing her to be the one
who contemplated and initiated action in the matter before it was
ever on Miyake's radar screen- or for that matter anyone in the
planning department.
(http://parxnewsdaily.blogspot.com/2010/11/pnn-bynum-denies-report-of-illegal-unit.html)
Iseri has repeatedly denied she was in
anyway involved in the matter until the planning department came to
her with the supposed "violation" which the email
disproves.
On or about April 7, 2010, before
the Planning Department had instigated any investigation of the
"anonymous" complaint, defendant Prosecuting Attorney
ISERI-CARVALHO emailed then-Director Ian Costa of the PLANNING
DEPARTMENT, stating: "Aloha Ian, We received information to
corroborate an anonymous complaint dated March 26,2010 that was sent
to the Planning Department and our office, that Councilmember Tim
BYNUM was renting out his house, or a portion thereof. Can you let me
know if renting out a portion of his residence is illegal given his
land status, and what ordinance/statute would he be violating by
doing so? Please advise. Much Mahalo, Shay."
Mr. Costa responded to Ms.
ISERI-CARVALHO's email, advising her in relevant part: "The CZO
really doesn't prohibit renting portions of structures. Even the
issue of "lock-outs" is not addressed. The CZO does not
dictate where locks are permitted and not permitted (thank
goodness!). The issue would be whether the area, in question creates
a "multi-family" dwelling. What was permitted is a
"single-family" dwelling based on "one kitchen".
If a second kitchen (area used for the preparation of food) is
present, then a violation would exist for an illegal "multi-family"
dwelling unit. I understand Sheila has been assisting and monitoring. Let me know if we can be of farther assistance."
Next is a
description of Miyake's tangled web of illegal activity- activity
which, she had been repeatedly informed, was anything but lawful.
Despite the Planning Director's
correct interpretation of the CZO, i.e. that the allegedly anonymous
compliant did not allege any illegal activity, Defendant MIYAKE
nonetheless instructed her subordinate, Planning Inspector Patrick
Henriques, to enter the BYNUM property and search for potential
zoning violations. MIYAKE made no attempt to obtain a search warrant,
or even consult with anyone about the necessity of a warrant before
entering private property for the purpose of conducting a search for
zoning violations.
Prior to searching Plaintiffs
property without a warrant, MIYAKE made no attempt to contact BYNUM
or anyone else in his household to schedule an inspection or offer
him a chance to consent to or refuse the search.
In early April 2010 Defendant MIYAKE
and Inspector Henriques entered BYNUM's private property without a
warrant, without notice and without permission, went through a gate,
walked up a wheelchair ramp in the rear of BYNUM's home, looked in
his windows and took photographs of the inside of his
home.
While conducting the warrantless
search of BYNUM's home, Defendant MIYAKE allegedly observed a
portable rice cooker and a refrigerator in the addition/family room
in the family home.
Defendant MIYAKE specifically timed
her entry on to Plaintiffs private property to a time and date when
she knew Plaintiff would not be home - MIYAKE knew BYNUM would be
attending a Kaua'i County Council Meeting at the time.
But later when it
was apparent Miyake was in a deep hole she did what most criminals
tend to do... keep digging... and digging... and digging...
During a subsequent investigation
into the allegations of zoning violations of BYNUM's property by the
State Attorney General, Defendant MIYAKE claimed to a Special Deputy
Attorney General, Richard Minatoya, that the previous Kaua'i County
Attorney, Matthew Pyun had trained her that she could lawfully search
a private home without the need for a search warrant and without
notice or consent of the property owner, as long as the private home
was associated with a use permit.
Upon information and belief, County
Attorney Pyun never actually taught MIYAKE that she could conduct a
warrantless search of a private residence, without notice to the
property owner based solely on the existence of a use permit on the
property.
After MIYAKE searched Plaintiffs
house and allegedly observed the rice cooker, she consulted with
deputy County Attorneys Jung and Dahilig about what she had seen.
Each of those deputy County Attorneys advised MIYAKE that she had
trespassed onto the BYNUM property, thereby engaging in an illegal
warrantless search. One or both of the two deputy County Attorneys
also advised MIYAKE that the presence of a rice cooker and a
refrigerator in the lawfully permitted family room did not constitute
a second "kitchen" within the meaning of the CZO.
Despite having been clearly informed
by COUNTY lawyers that BYNUM had not committed a crime by allowing a
tenant who allegedly put a rice cooker and a refrigerator in BYNUM's
lawfully permitted addition, and despite having been informed by
County lawyers that she had illegally trespassed onto the BYNUM
property and engaged in an illegal warrantless search, Defendant
MIYAKE nonetheless caused an Zoning Notice Violation to be issued to
Plaintiff by the COUNTY OF KAUAI.
Now as anyone who has even deal with
the planning department on this knows, what constitutes a kitchen
often depends on what the planner had for breakfast as much as
anything else and Miyake took full advantage of that. But one thing
was always clear- to be a separate apartment there has to be a stove
installed. The suit goes on to tell the sordid tale.
At all times relevant to this
Complaint, the KAUAI PLANNING DEPARTMENT maintained an official
policy or custom of inadequate training and supervision of its
planning inspectors, with respect to what constitutes a "kitchen,"
the legal standards and requirements for searching private property,
and Kaua'i planning inspectors have no uniform or written standards
other than the CZO to as to what is or is not a kitchen.
Defendant MIYAKE has stated that
"each inspector has his own kingdom" with respect to such
determinations. There are no written guidelines for inspectors to
follow when interpreting the Kaua'i CZO with respect to the
definition of "kitchen" and such determinations are made ad
hoc, arbitrarily and, in this case, capriciously and maliciously.
52. On or about April 15, 2010,
MIYAKE directed Inspector Henriques to prepare a Zoning Violation
Notice ("ZVN") to be issued against BYNUM, using a standard
PLANNING DEPARTMENT template.
So, determined to pound the square peg
into the round hole, Miyake kept digging, bringing Chair Asing's
henchman, County clerk Peter Nakamura, up-to-date.
On or about April 15,2010, MIYAKE
emailed the County Clerk, Peter Nakamura, with the subject line that
read "4 your eyes only" and attached a copy of the April
15, 2010 ZVN. BYNUM was not informed of the ZVN for nearly one month
later on May 12, 2010.
Defendant MIYAKE sent the email copy
of the ZVN to the County Clerk, with the intent that it would later
be made public and used against BYNUM in the coming 2010 election.
The Planning Department's April 15,
2010 ZVN form, alleged that a zoning violation had been found to
"exist" on the Plaintiffs property. Such language, alleging
the actual existence of a violation of the CZO, is necessary for such
a Zoning Violation Notice to have legal effect — as due process
requires the existence of an actual violation before civil or
criminal prosecution for a violation of the CZO.
However, in BYNUM's case, the
PLANNING DEPARTMENT caused the standard ZVN form originally issued in
April 2010 to be altered on or about November 10, 2010 to change the
sentence "we have found that a zoning 13 violation exists"
to "we have found that a zoning violation may exist."
(emphasis added).
At the time of the November 10, 2010
ZVN, there was no probable cause to believe that an actual zoning
violation existed on BYNUM's property.
Upon information and belief, the
Zoning Notice Violation prepared against BYNUM was the only such
notice ever issued by the County of Kaua'i that had alleged a
violation based on what "may" exist - instead of what
actually did exist.
On or about November 10, 2010,
then-Planning Director Ian Costa sent BYNUM a letter stating, "This
notice shall supersede our letter dated April 15, 2010," and
stating that "we believe ... violations of Chapter 8, Kaua'i
County Code may exist."
The November 10, 2010 ZVN did not
allege probable cause to believe that either a civil or a criminal
zoning violation had occurred.
Defendant MIYAKE then sent the
uniquely modified November 10, 2010 Zoning Violation Notice, which
claimed only that the Planning Department "believed" that a
violation "may" exist to the Office of the Prosecuting
Attorney.
Prior to the uniquely altered ZVN,
the PLANNING DEPARTMENT routinely cc'd ZVN's to the Office of the
Prosecuting Attorney. However, until the BYNUM ZVN, the Office of the
Prosecuting Attorney has never filed criminal 14 charges until and
unless the Planning Department had made a specific request for such
criminal charges to be filed.
So Miyake had created quite the legal
mess for those around her. And Iseri's First Deputy PA Jake Delaplane
was taking no chances on letting himself or his boss be the fall guy,
even though Iseri was key in pushing Miyake into the hole in the
first place.
In November 2010, Jacob Delaplane,
Esq. worked under the supervision and direction of defendant
ISERI-CARVALHO at the Kaua'i Office of the Prosecuting Attorney, as a
deputy prosecuting attorney. 64. In November 2010, Defendant MIYAKE
met with deputy prosecuting Attorney Delaplane to discuss the BYNUM
zoning matter, in depth.
Delaplane was an attorney licensed
to practice law in Hawai'i at the time he met with MIYAKE.
Delaplane secretly recorded the
approximately two-hour long conversation with Defendant MIYAKE.
During the November 2010 meeting
with deputy prosecuting attorney Delaplane, MIYAKE informed Delaplane
that deputy county attorneys Jung and Dahilig had previously advised
MIYAKE that she had illegally trespassed on the BYNUM property, and
engaged in an illegal search when she entered Plaintiffs property
without a warrant in April 2010 and allegedly saw the portable
ricecooker inside the BYNUM family home.
A portable rice-cooker is not an
"installed appliance" within the meaning of the Kaua'i CZO.
Miyake, unaware she was being set up by
being taped of course, spoke freely with Delaplane who wasn't about to
do jail time for anyone- Miyake, or even apparently Iseri, if it came
to that.
During the November 2010 meeting
with Delaplane, MIYAKE informed Delaplane that deputy county
attorneys Jung and Dahilig had previously advised her that the
evidence that she had allegedly observed during her warrantless
search (a refrigerator and a rice-cooker in the family room addition)
did not constitute a second kitchen with "installed appliances"
as contemplated by the Kaua'i CZO.
During the surreptitiously recorded
meeting between MIYAKE and Delaplane, MIYAKE told Deputy Prosecuting
Attorney Delaplane: "It is all political but I will never say on
stand that it is political. It will be my demise." The
prosecution of BYNUM was indeed for political reasons. MIYAKE also
opined on the secretly-recorded tape that "the good guys lost"
in the 2010 election. Knowing that a new Planning Director was taking
over the Planning Department as a result of the 2010 election, MIYAKE
and DOE defendants then arbitrarily and capriciously issued the
second ZVN against Plaintiff so that she could "cc" it to
the Prosecuting Attorney just before the new Planning Director (i.e.,
Dahilig - the former County Attorney who had concluded that MIYAKE
had trespassed, engaged in an illegal search, and who had questioned
whether Plaintiffs home had a second kitchen within the meaning of
the Kaua'i CZO) took office.
Finally Miyake fingered "the
Godfather" naming the then Council Chair as the one at whose
behest she was acting when she issued the violation notice- an action
on Asing's part that, if true, would be a violation of the County
Code of Ethics and punishable by fines and even jail time described
in the county charter.
Mr. Kaipo Asing was the Chair or the
County Council at the time the revised ZVN was issued to BYNUM.
After MIYAKE told Delaplane about
the advice she had received from deputy county attorneys JUNG and
DAHILIG, (regarding trespass, illegal search and the definition of
kitchen) and in response to further taped questioning by Delaplane,
MIYAKE stated that she and PLANNING director Ian Costa issued the ZCN
in November 2010: "Because Kaipo wanted it. Kaipo was asking.
And I gotta answer to the Council Chair."
In fact, Defendant MIYAKE had no
obligation as a Planning Inspector to "answer" to the
Council Chair as to who was charged with zoning violations by the
Planning Department. To the extent that MIYAKE based her
decision-making as a Planning Inspector on the malicious political
wishes of the Kaua'i County Council Chair at the time, her decision
to issue the ZVN was arbitrary, capricious and malicious.
The November 2010 ZVN was not a
valid ZVN based on admissible evidence of an actual zoning violation,
but rather was a uniquely altered document that had no legal effect,
did not state probable cause, and simply alleged a "belief' that
a violation "may" have existed.
The November 2010 ZVN was issued
against legal advice of at least one deputy County Attorney and was
instead issued for political reasons at the urging of then Kaua'i
County Council chair - as established by MIYAKE's taped admissions to
Delaplane.
Meanwhile, back at
the OPA ranch Iseri was drunk with, among other things, power. And,
she was just getting started. Her dominoes were set up, and it was
finally time to knock them over
76. Despite having learned that the
two deputy county attorneys who were tasked with advising the
PLANNING DEPARTMENT had already advised that there was no probable
cause to believe that BYNUM had violated any zoning ordinance, and
despite knowing that the alleged rice cooker and refrigerator were
only discovered as a result of an illegal warrantless search, and
although the November 10, 2010 ZVN did not allege probable cause to
believe that either a civil or a criminal zoning violation had
occurred - Defendant ISERI-CARVALHO waited approximately one year
(until the next election-year cycle) and then filed four criminal
zoning charges against BYNUM in the District Court for the 5th
Judicial Circuit.
Two of the four alleged criminal
acts were based on the alleged presence of a rice-cooker and a
refrigerator approximately one year and a half years earlier, and the
other two charges were based on the alleged presence of a lock on the
door between the addition and the original house - even though
Planning Director Costa had already informed Defendant ISERI-CARVALHO
that there was no law governing which doors inside a private home
could or could not have locks, and even though the subject lock was
the same lock that existed at the time the addition was permitted and
the certificate of occupancy issued, years earlier.
Oblivious to
everything but getting Bynum, Iseri had set the seeds of her own
demise because there was "no there there." No matter how
hard they squint, when rational people look at a rice cooker none of
them are going to see an installed stove.
There was no probable cause for
Kaua'i Prosecuting Attorney ISERI-CARVALHO to charge BYNUM with any
crimes based on the alleged presence of a rice cooker and
refrigerator in his lawfully permitted addition.
ISERI-CARVALHO would not have
charged BYNUM with a crime had the Planning Department and MIYAKE not
sent an unsolicited copy of the November 2010 ZVN to the Office of
the Prosecuting Attorney.
Prior to charging BYNUM with four
zoning crimes, ISERI-CARVALHO, or Delaplane, acting under her
authority, had an investigator interview Victory YOKOTAKE about the
BYNUM home. Although YOKOTAKE told the investigator that BYNUM was
unaware of the rice-cooker in the addition and that she was welcome
to use the BYNUM kitchen (such that she did not need a second
kitchen) neither Delaplane nor ISERI-CARVALHO provided that
investigator's report to BYNUM or his attorney while ISERI-CARVALHO
was prosecuting him, despite written requests for exculpatory
information and the constitutional requirement that such material
must be provided to a criminal defendant.
During ISERI-CARVALHO' s
investigation into whether BYNUM had committed misdemeanors in
connection with the rice-cooker and door lock, deputy prosecuting
attorney Jake Delaplane ordered Lucas Burns, another deputy
prosecuting attorney, to interview Victory Yokotake, the pretext of
the interview being that the interview was to assist with the
prosecution of the earlier alleged assault against her, but with the
real purpose of bolstering ISERI-CARVALHO'S case against BYNUM. The
deputy prosecuting attorney was instructed to surreptitiously tape
record the interview.
In April 2012, Lucas Burns testified
about the unusually aggressive investigation technique involving
misleading and surreptitiously recording a victim of an assault with
the real intent of extracting from the assault victim, evidence
against BYNUM's alleged zoning violations - having no real intent to
bolster the assault case in any way.
Iseri had created
quite the mess with "Rice Cooker Gate" stories circulating
in "the blogs," as this and Joan Conrow's "KauaiEclectic"
site are often cumulatively referred to in government circles.
But Iseri had other
things to hide and when the budget for the 2012-2013 fiscal year came
around things blew up publicly despite her attempts to keep aspects
of her department's budget under wraps... not to mention her almost
wacky attempts to keep Bynum from questioning her during the yearly
departmental budget review hearings.
From January 2012 until
approximately May 2012, while the criminal zoning charges were
pending against Plaintiff BYNUM, the Kaua'i County Council was
simultaneously considering various matters related to the operations
and budget of the Office of the Prosecuting Attorney.
BYNUM had previously been a critic
of many of Prosecuting Attorney ISERI-CARVALHO's decisions and he had
planned to question ISERI-CARVALHO about her operations and budget as
was relevant to the matters pending on the Kaua'i Council's agenda
during these council meetings in early 2012.
Plaintiff BYNUM had constitutional
rights under the First Amendment to the U.S. Constitution and the
Hawai'i State Constitution to speak about and debate, as an elected
member of the Kaua'i County Council, the operations and budget of the
Office of the Prosecuting Attorney at official Kaua'i
County Council meetings.
However, on January 19, 2012, while
the false criminal charges were pending against BYNUM, prosecuting
attorney ISERI-CARVALHO wrote a letter to the entire Kaua'i County
Council, on Office of the Prosecuting Attorney letterhead, demanding
that BYNUM be recused from County Council meetings involving
legislative oversight of the prosecutor's office, while the BYNUM's
criminal case was pending.
ISERI-CARVALHO initially stamped
this January 19, 2012 letter as "confidential" but later
released it to the public and to the mass media and press, with some
names redacted.
The January 19, 2012 letter to the
Council contained various erroneous statements of law to support
ISERI-CARVALHO's demand that BYNUM should be recused from legislative
matters concerning the OPA.
Iseri had reached the point where she
had lost all contact with reality, living in her own self-constructed
World of Shay- aka the Office of the Prosecuting Attorney. The letter
read like the rantings of a lunatic. The only problem is that the
lunatic in this case had- and still has, until at least December 1-
the discretionary power to imprison people.
The January 19, 2012 letter also
contained numerous statements that are disparaging of Mr. BYNUM's
integrity including that "[Councilman BYNUM] has a clear
financial interest in the operations of the OPA, as he would directly
benefit if the OPA's operations were negatively impacted by any
action of the Council. By virtue of being a criminal defendant, he
has a vested interest in ensuring that the OPA not operate at peak
efficiency" and "BYNUM's paranoid belief that the actions
taken by our office were calculated personal attacks against him is
without any merit and is completely baseless." ISERI-CARVALHO
intentionally withheld from the public or the Council that the
Director of the Planning Department had already "cleared"
BYNUM of any violation or that BYNUM was innocent unless proven
guilty.
90. When ISERI-CARVALHO demanded BYNUM's recusal on the basis
that ISERI-CARVALHO had charged BYNUM in a criminal case that was
premised on an illegal warrantless search, without probable cause,
and on an interpretation of the CZO that was contrary to that stated
by then Planning Director Costa and contrary to the advice of deputy
county attorneys Jung and Dahilig, she was acting under the color of
state law.
BYNUM had a clearly established
constitutional and statutory right to fulfill his responsibilities as
an elected councilman and to fully participate in 2012 Council
hearings related to the operations and budget of the Office of the
Prosecuting Attorney.
ISERI-CARVALHO wrote the January 19,
2012 with the intent of denying BYNUM his rights guaranteed statutes
and under the U.S. Constitution and the Hawai'i State Constitution.
ISERI-CARVALHO wrote the January
19,2012 under the color of her authority under state law as an
elected public prosecutor.
94. ISERI-CARVALHO wrote the January 19,
2012 with the intent of silencing BYNUM in his capacity as an elected
official with respect to the operations and budget of the Office of
the Prosecuting Attorney.
ISERI-CARVALHO's conduct, in writing
and publishing the January 19, 2012 letter and her making her
comments derogatory comments about BYNUM on the Council floor would
have chilled or silenced a person of ordinary firmness from future
First Amendment activities.
Fearful of the Prosecutor's
unprincipled ire, and not wanting to risk violating the law related
to recusal as it was presented to the Kaua'i County Council by the
Prosecuting Attorney, BYMJM ceded to ISERI-CARVALHO's demand for his
recusal from the January, 2012 County Council Meeting. Thereafter
BYNUM solicited an opinion from the County of Kaua'i Board of Ethics,
which later concluded, contrary to the legal assertions made by
ISERICARVALHO to the Kaua'i County Council, that BYNUM did not have a
conflict of interest such that he should not be recused from
fulfilling his duties as an elected councilman with respect to
questioning ISERI-CARVALHO, as would any other elected member of the
Kaua'i County Council, with respect to the OPA operations and budget.
But it wasn't like Iseri didn't have a
couple of loyal supporters on the council: members Mel Rapozo and
Kipukai Kuali`i did their best to throw up smoke screens and throw
down oil slicks to obscure, slow down and, they hoped, eliminate
challenges to Iseri.
On March 14, 2012 and again on March
21, 2012 there was a Special Council meeting item involving the
Prosecuting Attorney's request for Council permission to hire a Law
Office Assistant. At the opening of the latter meeting ISERI-CARVALHO
notified the Council, through counsel, that she would be asking
questions of BYNUM before she would agree to testify before the
Council. The proposed questions to councilman BYNUM included whether
he would "waive [his] rights" and if [he was] aware that
"statements that you make can be used against you in the
criminal proceeding."
This March 14, 2012 questioning of
BYNUM on behalf of ISERI-CARVALHO would have chilled or silenced a
person of ordinary firmness from future First Amendment activities.
During these 2012 County Council
meetings ISERI-CARVALHO repeatedly referred to the charges that her
Office had filed against BYNUM as the primary basis for removing him
from any legislative oversight of the Office of the Prosecuting
Attorney. In none of these references did ISERI-CARVALHO reference
any presumption of innocence or acknowledge the fact of Plaintiff s
innocence as established by the legal opinions of deputy County
Attorney's Jung and Dahilig.
In addition to the
pressures Iseri was maliciously causing in Bynum's public life her
actions made a mess of his personal financial affairs when he put his
home up for sale.
While all of these matters were
happening, BYNUM had listed his home for sale. In the spring of 2012,
he entered into a contract for the sale of his home. The sale went
into escrow. The buyers, however, became concerned that the house may
not have been properly permitted after reading about the prosecution
of BYNUM in the local newspaper. In response, the buyers went to the
PLANNING DEPARTMENT and inquired whether there were problems with the
permitting of the BYNUM property. The representative of the PLANNING
DEPARTMENT wrongly and maliciously informed the buyers that the
alleged zoning violations would run with the land and transfer to any
new owners. The PLANNING DEPARTMENT employee then falsely informed
the buyers that they would not be permitted to rent out any rooms in
the residence if they bought the home. In response to these, and
other false representations from the PLANNING DEPARTMENT, the buyers
cancelled (sic) escrow. The house remains unsold. The loss of the
sale of the home caused BYNUM to suffer significant financial damages
to be proven at trial.
Finally Bynum had his day in court so a
judge could ostensibly say to Iseri "what are you, nuckin futz?"
So Oye, Oye. All rise for the courtroom
scene- Take One:
On April 5, 2012 a hearing was held
in the Fifth Circuit Court, State of Hawai'i, after which the
Honorable Kathleen N.A. Watanabe ordered that the Office of the
Prosecuting Attorney was disqualified from further involvement in the
criminal zoning case against BYNUM.
Thereafter, the State of Hawai'i
Office of the Attorney General appointed a Special Deputy Attorney
General to take over the case from the disqualified Office of the
Prosecuting Attorney. The Special Deputy re-investigated the facts
and circumstances related to the alleged zoning crimes and very
rapidly concluded that there was no provable case against BYNUM.
The Circuit Court, with the
agreement and written consent of the Special Deputy Attorney General,
dismissed the entire criminal case against BYNUM with prejudice.
Thereafter, First Deputy Prosecuting
Attorney Delaplane, working under the authority of ISERI-CARVALHO
told the local newspaper reporter that the dismissal did not equate
to innocence.
Iseri is opposed by Deputy County
Attorney Justin Kollar in the November 6 election.
