Tuesday, November 24, 2009


PREROGATIVE BY PAVLOV: The Hawai`i Supreme Court’s recent refusal to overturn 5th Circuit Judge Kathleen Watenabe’s “irretrievably intertwined” ruling specifically dealing with the Kaua`i County Council’s Executive Session (ES) 177 was, though disappointing for both open governance advocates and the Office of Information Practices (OIP), not surprising given the deference given to lower court decisions.

But after reading a letter to the editor from former 5th circuit Judge Alfred “let ’em go” Laureta, it’s more apparent then ever that Kaua`i judges give the same or greater deference to the machinations of local administrative and legislative operatives, no matter how bizarre or even corrupt.

Laureta’s un-blanching support of the council- even to the point of misrepresenting the suit’s derivation- isn’t that different from the actual ruling in it’s use of overgeneralization and even misrepresentation.

He writes:

The council had been criticized for its perceived lack of complete transparency by some members of the council and criticized as well by members of the public for expending taxpayer funds to legally defend its position on the issue...

Disclosure of the minutes as demanded would be equivalent to the elimination of the need for executive sessions. All council deliberations will be open to the public. Discussions involving the legal rights of the county — to sue or not to sue, to settle or not to settle, how much to pay or not to pay, legal strategies, etc. With the public being privy to all this, expediency of council action will be highly questionable.
But of course the reality is that there’s no one who doesn’t recognize the need to executive sessions for matters under litigation, settlement conferences and other similar circumstances.

What people object to is the use of one specific exemption under HRS 95-5(a)4 that is used and abused to discuss and “deliberate toward a decision” on public policy matters and pending legislation under the guise of “consult(ing) with the board's attorney on questions and issues pertaining to the board's powers, duties, privileges, immunities, and liabilities”.

But while Laureta- whose middle moniker came from his penchant for releasing dangerous criminals due to local family connections- and his deference to allowing “any kine” from his cronies in local government rose from the close knit plantation connections prevalent in government in his day, in some ways little has changed... especially when it comes to appointing local judges.

It has become more and more apparent that going to current 5th Circuit Judges Watenabe and Randall Valenciano for enforcement of the constitutional and state legislative restrictions on government is an exercise in futility most likely because that’s the arena in which they were engaged prior to appointment to the bench.

Watenabe, a former county attorney and career-long government lawyer and Valenciano, a former councilperson, naturally have a bias toward the case presented by their former colleagues unlike in other jurisdiction where appointments are often made from among those with either a private criminal and/or civil background or the prosecutorial realm.

Anyone who thinks that the courts have progressed since Laureta’s days and perhaps they will enforce the charter’s ethics provisions in sections 20.02(D) plain language prohibition on “(a)ppear(ing) in behalf of private interests before any county board, commission or agency” ought to look long and hard at whether they can get a fair and unbiased hearing before either of the Kaua`i circuit court judges.

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