Friday, August 15, 2008


MOTHER HUBBARD’S LAMENT: Government bureaucrats have never been known for their competence or honesty.

But with the way some are being ridiculed by judges lately you’d think people like Honolulu County clerk Denise Decosta and Chief Elections officer Kevin Cronin would show some integrity or at least shame- and resign.

Cronin’s penchant for making it up as he goes along- as pilloried by an administrative judge last week was- surpassed by Decosta in her convoluted attempt to keep a citizen initiative against rail in Honolulu off the ballot because even though it was legally submitted to qualify for the general election the petitioners mentioned a special election in their preface.

Judge Karl Sakamoto’s now “instant classic” ruling yesterday that “(t)he voice of the people should not be suffocated by the erroneous readings of the law by its own government" was apparently part of a new spate of recent rulings by judges asking government officials “what am I an idiot?” in light of their intentional administrative twistings of the law.

The actual Honlulu City Charter provisions- which trumps the confusing special ordinance and administrative rules- says:

Any petition for proposed ordinance which has been filed with the council at least ninety days prior to a general election and which has been certified by the clerk, shall be submitted to electors for the aforementioned general election."

So how old is Decosta? Six? When they read her the actual prevailing rules of the game she apparently pointed to an out of context phrase, showed us what her mommy said, put her fingers in her ears and yelled “You said it- nyah-nyah-nyah-nyah- I can’t hear you- nyah-nyah-nyah-nyah.”

But on Kaua`i we’ve apparently got a new judge for whom the answer to what am I an idiot? is an unqualified “yes” when it comes to abuses of administrative a-holes

But what do you expect? Firth Circuit Court judge Kathleen Wantanbe came straight from the government bureaucracy to her perch on the bench and seemingly her rulings don’t just give the benefit of the doubt to government officials but they consider complaints about it to be a nuisance- just like her bureaucratic brethren .

Yesterday’s hearing in Joe Brescia’s genocide and desecration case was punctuated by a distinct flavor of telling the government that they can do no wrong if press reports are accurate.

First she ruled that only the reportedly allegedly corrupt Kaua`i State Archeologist Nancy McMahon could testify but not archeologist Dr. Michael “No Pun Intended” Graves who represented the aggrieved iwi and their descendents.

Independent reporter Joan Conrow described it this way this morning

Before the proceedings got to that place, Watanabe refused to qualify Dr. Michael Graves, a witness called by the Native Hawaiian Legal Corp., as an expert in Hawaiian archaeology. Never mind that he spent 21 years at UH teaching undergraduate and graduate students in archaeology and served as head of the department.

Since that prohibited Graves from discussing whether the State Historic Preservation Division (SHPD) acted properly in its treatment of the Naue burials, much of the hearing was devoted to Kauai state archaeologist Nancy McMahon defending her decisions regarding the burials there.

What a surprise- a career government lawyer deciding that self-serving government officials’ testimony is expert- even one whose job is in jeopardy, being under fire for not knowing what the heck she is doing, what the law really says and lying to both the Kaua`i Burial Council and Planning Commission- and denying a private sector university professor with no bone to pick, so to speak.

And what they were arguing about puts the meter on Wantanabe’s “what am I an idiot?” rating in the red zone.

As Star-Bulletin reporter Tom Finnegan said today

The Native Hawaiian Legal Corp.. argued that the state archaeologist reversed the decision of the Kauai Ni`ihau Burial Council when she allowed Brescia's contractors to build the home and cap seven grave sites with concrete.

Chandler's lawyers blame state Historic Preservation Division archaeologist and Kauai County Council candidate Nancy McMahon for pushing through both the permits at the county level and the burial council's plan to keep the burials in place. Then, the lawyers argued, she approved the contractor's plan without returning to the burial council for its input.

McMahon, who testified yesterday, said that... no evidence has been found that would make anyone believe the area was a cemetery, rather than 30 individual graves. (emphasis added)

However, Alan Murakami, Chandler's lawyer, said that the burial council wanted to preserve the burials as a unit, and McMahon took it on her own to interpret its ruling.

By allowing the house to be built atop the graves, rather than preserving them, "the state has disemboweled the burial council," Murakami added.

Oh- well, that explains it all- it’s just a coincidence. Those stupid Hawaiians just threw their dead all over the place and randomly and independently decided to inter their dead there in a concentration that exponentially outstrips most other nearby locations of “iwi kupuna”

Apparently there was no actual plan to screw poor Joe Brescia 500 years in the future by burying all the bodes in one place bodies there.

Well, we’d better pull our tongue out of our cheek long enough to ask if McMahon’s contention exposes anything but the depth of depravity of the administrative scope of genocide that continues to percolate through the Hawai`i State apparatus.

If she contends that despite the concentration of 30 full sets of remains in an 18,000-square-foot beachfront property it was not purposefully done as what westerners would call a cemetery she obviously presumes that the pre-western contact Hawaiians were too dumb to coordinate a place to inter their dead.

After all those brown skinned people are akin to a bunch of animals who have no capacity to concentrate their burials in a certain area with any intent..

Because as we all know a concentration of trees is not forest- unless you look at a dictionary.

The significance of this is that McMahon has used this as the premise- in addition to using tortured readings the law- to take away authority from the burial council to preserve the area.

And so Wantanbe acceded to this shibai by accepting the “30 burials do not a cemetery make” postulate in allowing construction to continue at least until the hearing continues weeks from now, saying essentially the only reason she wasn’t dismissing the case was that "I understand the community is split... I understand the need for finality and ... some closure." according to Finnegan.

This is the same judge that, for example, refused to allow public examination of the minutes of a Kaua`i County Council Executive session minutes as the OIP called for because it was “impossibly intertwined” with the material OIP had suggested be redacted when the rest was released.

What is it with Kaua`i judges? Well maybe it’s that “once a bureaucrat, always a bureaucrat”.

With Wantanbe and ex-politician Randall Valenciano- he of the famous refusal to hear the challenges to the Superferry after the Supreme Court remanding to a similar court on Maui- filling the bench over here we can expect any tortured reading of the law that allows political manipulation of people’s rights to be upheld.

If Decosta and Cronin finally do get canned we have a feeling that they’d always have a job on Kaua`i where our government functionaries can just make up the law as they go along and get their former cronies, now on the bench, to uphold them.


Anonymous said...

Burial councils don't have the authority to "preserve the area." They can have things left where they are, or they can have things moved to someplace else. But they can't tell somebody whether they get to build a house or a WalMart or a resort anything else.

Andy Parx said...

I think that’s what the case is about- whether the only thing they can determine is that limited to that. The ad rules violate the HRS and both violate the constitution..

McMahon misrepresents the BC’s options with the “two choices” interpretation too- and so does SHPDA according to the suit apparently. . .

Have you read OHA’s letter to the DNLR asking for a cease and desist letter? It lays out the basics of the legal case in some detail and in an easy to understand manner.. I don’t have the flings and the media coverage- or a link- of the details has been absent

Anonymous said...

"Yesterday’s hearing in Joe Brescia’s genocide and desecration case..."

Genocide ???

Anonymous said...

It was Jeff Chandler's NHLC attorney who called McMahon as a witness. She was called not as an expert but rather as a fact witness for her role in and first person knowledge of the events in question. The judge was never called upon to qualify her expertise one way or the other.

Katy said...

By gleefully prospering at the expense of Native people's cultural and physical survival, Brescia is particpating in a genocidal process.

In fact, to some degree all of us settlers are.

Some of us have simply made the choice to resist it however we can, because we are sickened by the idea that we were unwittingly handed at birth an arsenal of privileges founded on slavery, genocide and exploitation.

Anonymous said...

"prospering at the expense of Native people's cultural and physical survival?"

you people make no sense at all.

Anonymous said...

Do I hear violins playing? I think the song is Bad Religion's Destined For Nothing:

"Headed for eternity and destined for nothing

The future isn't difficult to see

It's easy to confuse grand design
with life's repercussions

Lament not your vanquished fantasy

It's only destiny"

Anonymous said...

"Genocide" is the left's version of Godwin's law. But then the left routinely trades in inflammatory rhetoric and exaggerated comparisons.

Anonymous said...

"By gleefully prospering at the expense of Native people's cultural and physical survival, Brescia is particpating in a genocidal process."

A prime example of baseless and petty surmising which makes no point other than to show the author’s inability to make a mature argument.

Anonymous said...

She always talks like an undergrad with a crush on her Postmodern Politics and Literature T.A.

Anonymous said...

Andy, I think you got corrupt judges here on Kauai, probably on the take...gotta pay for the high cost of living somehow...