(PNN) -- "Is it a cat or a dog," Kaua`i County Council Chair Jay Furfaro has infamously asked regarding the "Kaua`i Rising (KR)" charter amendment ballot petition- one which the county attorney claims is really an "initiative" disguised as a "charter amendment."
Well, legally the answer is essentially, it's none of their business.
The council will meet Wednesday to figure out whether to "receive" the petition so that the county clerk can verify and count the signatures for what KR says is a charter amendment. But Deputy Attorney Mona Clark issued an opinion at the last meeting claiming that "(t)he substance of the petition determines the required procedure."
That second sentence of her written opinion is actually a false premise. And, as is usual with any postulate, as the late great Johnny Carson used to say of his comedy pieces, "if you buy the premise you buy the bit."
But it's hard- make that impossible- to find any justification for that premise in the actual words in the county charter, the overriding document that governs the county like a state or federal constitution.
What difference does it make? Well the charter calls for 5% of the number of voters in the last election to sign a charter amendment petition while an "initiative" requires 20%.
Two court decisions regarding the two past Kaua`i citizen-petition charter amendments have struck them down saying, at least in the case of the first one, that it had elements of an "initiative," defined as a ballot measure which creates an ordinance or a "law," something otherwise passed by the council.
But, in the more-than-a-decade since the original ruling the county has failed to act to clarify the plain words in the charter regarding the process for certifying charter amendment petition.
In those two petitions the "cat or dog" question never came up until they were already enacted by the electorate with the council in both cases simply doing what the charter requires of them- be the body with which the petition is filed before the county clerk processes it.
The charter simply says of charter amendment petitions that as long as a few technical requirements are met:
"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."
That's it. No ifs, ands or buts. The
council has
no part in the process but to receive the filing. And the clerks role
is simply to determine sufficiency of form and if there are enough
valid signatures.
An
initiative has a completely different process that includes giving
the county attorney the power to essentially make changes to the
petition whereas with a charter amendment the county attorney can
only suggest changes.
The
reality is that nowhere- not in the charter, not in any ordinance and
not in any rule- is there any provision that gives the
Kaua`i County Council any legal authority whatsoever to reject- or
even consider rejecting- any citizen-initiated charter amendment
petition for any reason.
And certainly nowhere does it say, as the county attorney did in her opinion, that
"The County can refuse to process a petition for a Charter amendment based on noncompliance with the Charter. The substance of the petition determines the required procedure. If a petition for an ordinance is labeled a charter amendment, it still remains an initiative and must comply with the procedures for an initiative. Both the County Council and the County Clerk have authority to refuse to process an initiative as a charter amendment."
While the opinion is allegedly based on the Hawai`i Supreme Court ruling a decade ago as to what distinguishes a charter provision from an initiative- in a case where essentially the county sued the county (yes indeedy, you read that right- the county attorney sued the mayor)- nowhere does the ruling instruct the county on what to do or how to do it or give the council or the clerk the power to reject a citizen petition based on which kind of animal they think it is.
That part came solely from the mind and pen of Clark.
While the county council and the charter review commission have discussed what to do about this potential "constitutional crisis" as presented by the rulings they have essentially sat on their duffs and the law remains the same as it was before the two petitions went to the ballot.
That means that the law is very clear- the only thing that separates an initiative from a charter amendment is what the petitioners call it.
And in this case that is a charter amendment, not an initiative.
And we may be mistaken but we don't believe there have been any court rulings saying if the county doesn't like the law they can ignore it and do as they please. The U.S. Supreme Court decided in 1803 in Marbury v Madison that we are "a government of laws and not of men"... and certainly not of autonomous Kaua`i County Councilmembers or their attorneys.
The Hawai`i Supreme Court in fact is also very clear as to what to do in interpreting laws. According to Awakuni v. Awana (2007), before getting into any interpretive gymnastics you must look at "the language of the statute itself," saying:
"First, the fundamental starting point for statutory interpretation is the language of the statute itself. Second, where the statutory language is plain and unambiguous, our sole duty is to give effect to its plain and obvious meaning." (emphasis added)
As we said, the law is plain- "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..." It doesn't say "oh, but the council can reject it if they feel like it or if their attorney comes up with some convoluted reason to do so." And it certainly doesn't allow their clerk- yes, a clerk- to do so either.
At the July 9 council meeting when a tie vote caused the matter to come up as the Special Order of the Day at the very beginning of this Wednesday’s (July 23) meeting, Councilmember Tim Bynum detailed it well.
After Councilmember Gary Hooser pointed out that the process has always been to receive the petition and pass it on to the clerk and to do otherwise this time would be at best unfair, at worst unlawful, Bynum detailed the history of the past decade plus.
That included revealing his own emails from a few years back predicatively pointing out the potential for the current "crisis" and the existence of a resultant still-secret county attorney opinion issued on the heels of the second successful charter amendment petition and subsequent court ruling.
The emails demonstrate how the county had every opportunity to introduce and pass it's own charter amendment clarifying things and instead sat and figuratively twiddled their thumbs.
And of course the charter review commission has been debating this year whether to "equalize" the two by either lowering the number of signatures for an initiative or raising the number for a charter amendment. But they couldn't agree on which to do and neither will appear on the ballot this November.
Not only that but the very charter section cited above was altered in a technical amendment in the 2012 election without addressing the "cat or a dog" question.
At the last council meeting Councilmember JoAnn Yukimura went on at length with lawyerly questioning of Clark with an eye toward how the council could go about rejecting the KR petition but never questioning whether they had that power based on the law to begin with.
She eventually cast a "silent" vote which, according to council rules, goes "with the motion" meaning it is essentially a yes vote. That left the seven member body in a 3-3 tie with the excused absence of Councilmember Mel Rapozo.
He is seen a sure "no" vote this week due to his presumed opposition to the substance of the petition regarding further regulation of the chemical "biotech" industry's pesticide/GMO (genetically modified organism) experiments on the island in the wake of the passage of Ordinance 960 (Bill 2491) last year.
The problematic "no" votes were those of Councilmember Mason Chock and Chair Furfaro who were swayed by the complexities presented by Clark and Yukimura, feeling that Clark's opinion was some kind of edict based on a court ruling rather than just an "opinion" and so leaving the question of process and following the law obscured.
It was easy to see why. For one thing no one had any time to read much less analyze the opinion because it was handed out only minutes before the meeting.
Few but the introducers and their attorneys would disagree that the past two charter amendment petitions were submitted as such because of the four-fold number of signatures required for an initiative. And with both being struck down by the courts KR's effort is no doubt destined to end up in court too no matter what anyone does on Wednesday.
If the council rejects it, KR will no doubt sue. And if the council accepts it the county will no doubt go to court for a declaratory ruling or wait for passage and then get a definitive ruling on it from the courts. If they don't you can be sure the chemical cartel will.
The simplest thing to do would be to accept the petition and "count the votes- er, signatures" as councilmembers kept saying during the last meeting, apparently having the 2000 presidential election in Florida on the brain after Bynum mistakenly said it in passing.
Then the county can go to court for a "quick" declaratory ruling. It would not only be the most efficient but the most economical path.
But mostly it would follow the plain words of the Kaua`i County Charter.
Many if not most in movement to regulate the use of pesticides and GMOs on Kaua`i have been, shall we say, less than enthused at the petition effort. The document extraordinarily long, contradictory, at times impossibly and bafflingly confusing and probably illegal for many more reasons than the "cat or dog" question. And it was foisted on the community by a rich north shore developer, Joan Porter, and organized by the brusk, always incommunicado leader of KR, Michael Shooltz, and prepared by a mainland attorney who had apparently had little or no idea what Hawai`i and Kaua`i law says.
It usurped much of the energy that could have been used to pass the real "next step" if they had simply consulted with the grassroots members of the community that rallied to pass Bill 2491. Most think KR's idea of having a Department of the Environment is a good one- one that Maui has already adopted.
But instead they not only ignored the concerns of those on Kaua`i with a little political savvy but refused all help and in fact would not even return emails containing suggestions- including suggestions that would have corrected technical errors on the petition that led to the rejection of the first round of signatures and caused KR to have to go out and collect them over again from scratch.
As a matter of fact KR's link to the the new "purple petition" containing supposedly new text is broken and doesn't work.
Going into the July 9 meeting we were among those who had had it up to here with the effort and were willing to listen and even agreed with those who argued that the courts had said that, since substance determined whether a measure is a charter amendment or an initiative, the county council should reject it if it "smelled like an initiative." And after much testimony, first from Clark and then from Shooltz, Potter and their mainland attorney, we were ready to declare the substance of the measure to be a "cat."
But Bynum's and Hooser's comments made us see that the real "process" in question is whether a group of citizens followed the rules and, just as importantly, based their efforts on past actions by the county. They and they alone are the ones who, according to the charter, have the right to say "it's a dog."
And we say "woof."
We don't expect Councilmembers Ross Kagawa or Mel Rapozo to vote yes to receiving the petition, counting the signatures and allowing the petition to go to the November ballot. But we expect more nuanced thinking from Chock and, we can only hope, Furfaro... and maybe even a recognition on the part of Yukimura that the legal basis for the a council determination is nowhere to be found in the plain words and meaning of the law.
If you would like to respectfully give your mana`o and urge Councilmembers Chock, Furfaro and Yukimura to allow the counting of the signatures as a charter amendment you can email them at mchock@kauai.gov , JFurfaro@kauai.gov and jyukimura@kauai.gov respectively. You can also testify on the measure by emailing counciltestimony@kauai.gov .
The meeting begins at 8:45 a.m. this Wednesday July 23 and will be streamed live on-line at the county's webcast site.
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