Wednesday, May 28, 2014


(PNN)-- Deputy County Attorney Mona Clark told the Kaua`i County Council today (Wed 5/28) that the county clerk does not have to put a proposed charter amendment on the ballot even if it has sufficient signatures if it is determined that the "substance" of the amendment really makes it an initiative.

The amendment, being submitted by the group "Kaua`i Rising" seeks to "Protect From Hazards of GMO Agriculture, Toxins and Testing (and) Establish an Administrator of Environmental Health, and Provide for Enforcement"

Though the Kaua`i County Charter (Article XXIV) apparently denies the council the power to refuse access to the ballot if sufficient signatures are obtained for a charter amendment, a count ruling on the last petition-submitted charter amendment, Nakazawa v Baptiste, said that even if a petition claims to be a charter amendment the county should look at the substance, not the form, in determining if indeed it is a charter amendment or an initiative.

An initiative puts an ordinance or law into effect as opposed to a charter amendment which changes the overall governing document of the county, similar to changing a state or federal constitution.

Clark said she will formally address the matter in writing and the council will meet again next Wednesday to review her opinion and determine where to go from here after the council voted to receive the matter.

The number of signatures for a charter amendment is 5% of the number of registered voters while the amount for an initiative is 20%- a four-fold discrepancy the current charter commission is considering addressing with a charter amendment of their own to either raise one threshold or lower the other.

If it is determined the Kaua`i Rising petition is an initiative it would change the number of signatures required from a little over 2,000 to over 8,000.

The attorney for the petitioners submitting the charter amendment petition told the council that certainly at least some of the document qualifies as a charter amendment such as the creation of a new Department of the Environmental Health but that he wanted to wait until the signatures so far are verified so he knows how many more he might need for an intuitive or whether to modify the petition.

On the matter of sufficiency of and any changes to the petition, the charter says:

"Upon filing of such petition with the council, the county clerk shall examine it to see whether it contains a sufficient number of valid signatures of registered voters...

By petition presented to the council, signed by registered voters comprising not less than five percent (5%) of the number of voters registered in the last general election, setting forth the proposed amendments. Such petitions shall designate and authorize not less than three nor more than five of the signers thereto to approve any alteration or change in the form or language or any restatement of the text of the proposed amendments which may be made by the county attorney."

The provision does not give the county attorney, the county clerk or the council the right to unilaterally change or determine anything about the petition, notwithstanding the count ruling in Nakazawa.

The case was originally infamous because it had the county suing the county with the County Attorney, Lani Nakazawa, suing then-Mayor, Bryan Baptiste.

The amendment "is to be filed "(b)y petition presented to the council" though it does not define what that means, if anything, beyond having the county clerk verify that it has a sufficient number of signatures. The court ruling does not say how to determine what to do if the the content is that of an initiative nor who should determine that.

The attorney for the group said he is not representing the group as far as election law, just for purposes of drawing up the petition. He did say that based on today's proceedings "there will be" an attorney to represent the group. He said he welcomes advice from CA Clark as to how to address the matter in the interim between now and a special council meeting tentatively scheduled for June 4. At that time the council will meet in executive session and consider the opinion and what to do with it.

Clark said that it is up to the council to determine sufficiency but Councilmember JoAnn Yukimura, an attorney, disagreed saying all the council can do is accept it and send it to the clerk- where it should go no matter what the council says, as has been done in the past.

Council Chair Jay Furfaro repeatedly told the council that they had to determine "if it's a cat or a dog" referring to whether it's a charter amendment or an initiative. Clark says that determination should be made by the county attorney.

If it is determined that it is an initiative the matter of "sufficiency" would be referred to Charter Article XXII on Initiative and Referendum which envisions a much more complex scheme for determining content with a back and forth between the petitioners and the county's attorneys.

Councilmember Gary Hooser questioned whether the opinion would be made public to which Clark responded that it is the decision of the council what to do with it.

County Clerk Rick Watenabe said he has been meeting with the petitioners thus far solely to work on the sufficiency of the signatures as the charter commands. He said he never held up the petition for any other reason. He said that a delay today would delay the process of verifying signature.

Hooser said he would prefer the signature verification process for a charter amendment proceed while the CA opinion is drawn up. He said it could always be changed to an initiative at a later date.

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