(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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