LET'S GO OUT TO THE LOBBY AND GET OURSELVES A WRIT: The news that the Kaua`i Police Commission has filed suit against Mayor Bernard Carvalho Jr. to have a court determine whether hizzonah had the power to suspend Police Chief Darryl Perry in February is no surprise.
On March 23 we noted that:
The agenda for next Wednesday's council meeting contains the following item:
C 2012-98 Request (03/13/2012) from the Police Commission for authorization to expend funds up to $10,000.00 to retain special counsel to represent the Police Commission in filing a complaint with the Fifth Circuit Court and asking for a declaratory judgment as to who has the authority to supervise and/or discipline the Chief of Police.
In noting the appropriation we said that:
People are always claiming "I hate to tell you 'I told you so,' but..."
Yet who are we kidding?- we love to do it.
So today we'll set up what will most assuredly be a little "see?" moment, sometime in the near future.
So call this Act 2 of this would-be three-act melodrama that, as we noted, will no doubt finish with a somewhat existential ending where, when it’s all over, the characters wind up right were they started.
Because we're willing to bet the farm that neither of the two 5th Circuit Count judges, Randall Valenciano and Kathleen Watanabe, are going to rule on what is essentially a political matter- a matter that the council could, according to the county charter, decide by themselves if they had once iota of election year political will.
Yeah- that'll happen... about the time Kapa`a traffic is a quaint anachronism.
Both judges have shown a propensity for "punting" whenever they possibly can. As we previously pointed out:
Watenabe has a history of punting these kinds of things. For example, in her decisions regarding various cases of disturbances of `iwi kupuna- the bones of native Hawaiians- by developers, she adamantly refused to rule, saying that the laws and regulations regarding the individual island burial councils and the State Historical Preservation Department (SHPD) that oversees the process, are unclear and that the legislature needs to clear thing up.
Our description is an oversimplification. But what is clear is that Watanabe did indicate that the solution was a political decision, not a judicial one.
As to Valenciano he was recently asked by Council members Mel Rapozo and Kipukai Kuali`i to clear up the use of the word "shall" in a matter regarding the Kaua`i Salary Commission's March 15 deadline for submission of their yearly "recommendations." County Attorney Al Castillo had written an opinion that, in this case, ""shall" was used "administratively" and therefor has to be read as "should."
But when the two council members went before Valenciano's court, he also said that it was a political matter and not only didn't the two have standing but that they should look to changing the law to make things clear rather than asking him to essentially split a baby.
Does anyone think that in this case either of the judges are going to get involved? Both come from a government background and perspective, Watanabe having served as county attorney and in other government jobs and Valenciano having been a long-time council member, even running for mayor one time. Both have a healthy respect for letting the government wheels turn as freely as possible and apparently do not want to get involved in inter-agency squabbles like the one over who should discipline the chief.
The ball here is clearly and fully in the council's court...
Section 7.05 of the Kaua`i County Charter details the "Powers, Duties and Functions" of the mayor.
There are 13 "Powers, Duties and Functions" The very last one reads:
"M. Exercise such other powers and perform such other duties as may be prescribed by this charter or by ordinance. (emphasis added)."
This means that the council can actually pass an ordinance regardless of whether the charter defines a specific power of the mayor or not. This is somewhat unusual in that powers not designated in a controlling document cannot normally just be taken in an inferior document (such as the charter and an ordinance respectively)... unless, as it is in this case, it is specifically granted.
The council also has the power to put a charter amendment before the electorate via a resolution.
But either way the problem here is that it exists in the political realm. It is doubly political in that the council must make a political decision as to which entity they want to give that power to- whether they do so via an ordinance or a charter amendment.
Should they give it to the mayor or to the police commission? They will no doubt face criticism for doing either. If they passed an ordinance, first they would have to decide themselves which way to go. If they proposed a charter amendment, they could only propose one or the other for the electorate to vote for- there's no provision for having a referendum type of charter amendment- so they face the same dilemma.
In either scenario, if the council decides to spent the $10,000, the money is completely wasted.
And we're pretty confident that if they do approve the expenditure, we'll wind up with a nice "we told you so" to tack up on the wall with all the others.
At the time we had no illusion that the council would do anything the "easy" way. Then, as now, the seven councilmembers were and are all too aware that public opinion's on the side of the police commission. But not by as wide a margin as many may think.
Despite the brouhaha, Carvalho still has plenty of loyal political adherents who wouldn't take kindly to a charter amendment that would give the disiplining power to the commission.
Make no mistake- everyone in town has an opinion as to whether Carvalho was right or wrong and they're pretty adamant on each side... enough to make it a voting-decision issue.
As a matter of fact just proposing a charter amendment that would give one side or the other the power to discipline or suspend the chief would be a political hazard for councilmember... no matter which way they voted on whichever side the measure would give the power to.
No one on the council can afford to throw away a single "one vote" they're always asking voters to "save" for them. And with the popular former state Senator Gary Hooser in the race there is, with little doubt, going to be one eighth-place-finisher among the incumbents... a vote for one "side" or the other could be the determining factor as to who that "one" is.
The Charter Review Commission (CRC) is still, as far as we know, dithering as to whether to put a measure on the ballot- probably one giving the commission, not the mayor, the power. CRC Chair Sherman Shiraishi actually tried to ask the council what the commission should do earlier this year with no real response forthcoming.
So now that the suit has been filed, as the local newspaper noted this morning, it's conveniently out of the council's hands because supposedly no one is permitted to comment on the matter since it's a "legal" proceeding now.
The paper quoted one of the attorneys filing the suit as saying this.
(Corlis J) Chang said the case is not a complicated one, and they seek to have a 5th Circuit judge decide on who has the authority to discipline the chief of police. The mayor has one view and the police commission has a different view, she said.
“It’s a really simple issue and its one where there are two different viewpoints, and our goal is to get a resolution from the court,” Chang said. “This is straight forward and there are no other agendas here.”
But apparently it is about- well no actually, exactly- 10G's worth of complicated.
This though may just be the key quote in the article:
Chang said it’s very early in the case and once the mayor has responded to the summons they will submit their motions and wait to be assigned a judge and a hearing date. Then she said it would be a matter of presenting legal issues based on documentation and legal precedents.
Apparently getting a ruling that tells the council and police commission to stop wasting the court’s time with what is essentially a political decisions should take until... let's see, subtract the campaign contribution... carry the sign waver... divide by the stack of council certificates and awards... oh we'd say... about... Wednesday, November 7- the day after the election.
Showing posts with label Judge Randall Valenciano. Show all posts
Showing posts with label Judge Randall Valenciano. Show all posts
Tuesday, July 3, 2012
Friday, March 23, 2012
TAKING THE MINOTAUR BY THE HORNS
TAKING THE MINOTAUR BY THE HORNS: People are always claiming "I hate to tell you 'I told you so,' but..."
Yet who are we kidding?- we love to do it.
So today we'll set up what will most assuredly be a little "see?" moment, sometime in the near future.
The agenda for next Wednesday's council meeting contains the following item:
C 2012-98 Request (03/13/2012) from the Police Commission for authorization to expend funds up to $10,000.00 to retain special counsel to represent the Police Commission in filing a complaint with the Fifth Circuit Court and asking for a declaratory judgment as to who has the authority to supervise and/or discipline the Chief of Police.
In addition the council has scheduled a closed-door, executive session (ES 535) for
a briefing on the retention of special counsel to represent the Police Commission in filing a declaratory action to determine who has the authority to supervise and/or discipline the Chief of Police.
But let us save you some time and money folks- neither judge on Kaua`i is going to even rule on the matter. Both of them will tell you that essentially this is a political matter that needs a political solution.
Fifth Circuit Judges Randall Valenciano and Kathleen Watanabe have both shown this propensity for "punting" before and it's doubtful they will change now.
We've found it amusing that both "sides"- the administration of Mayor Bernard Carvalho Jr. vs. Police Chief Darryl Perry and the Kaua`i Police Commission- both adamantly claim the charter gives them the power to discipline the chief.
But, as we've said a number of times there is nothing in the charter or Kaua`i County Code- or for that matter state law- regarding who has the authority to discipline or suspend the chief.
Hiring and/or firing him or her does rest with the police commission. But otherwise the law is "silent."
Watenabe has a history of punting these kinds of things. For example, in her decisions regarding various cases of disturbances of `iwi kupuna- the bones of native Hawaiians- by developers, she adamantly refused to rule, saying that the laws and regulations regarding the individual island burial councils and the State Historical Preservation Department (SHPD) that oversees the process, are unclear and that the legislature needs to clear thing up.
Our description is an oversimplification. But what is clear is that Watanabe did indicate that the solution was a political decision, not a judicial one.
As to Valenciano he was recently asked by Council members Mel Rapozo and Kipukai Kuali`i to clear up the use of the word "shall" in a matter regarding the Kaua`i Salary Commission's March 15 deadline for submission of their yearly "recommendations." County Attorney Al Castillo had written an opinion that, in this case, ""shall" was used "administratively" and therefor has to be read as "should."
But when the two council members went before Valenciano's court, he also said that it was a political matter and not only didn't the two have standing but that they should look to changing the law to make things clear rather than asking him to essentially split a baby.
Does anyone think that in this case either of the judges are going to get involved? Both come from a government background and perspective, Watanabe having served as county attorney and in other government jobs and Valenciano having been a long-time council member, even running for mayor one time. Both have a healthy respect for letting the government wheels turn as freely as possible and apparently do not want to get involved in inter-agency squabbles like the one over who should discipline the chief.
The ball here is clearly and fully in the council's court as we said in the post cited above.
Section 7.05 of the Kaua`i County Charter details the "Powers, Duties and Functions" of the mayor.
There are 13 "Powers, Duties and Functions" The very last one reads:
M. Exercise such other powers and perform such other duties as may be prescribed by this charter or by ordinance. (emphasis added)
This means that the council can actually pass an ordinance regardless of whether the charter defines a specific power of the mayor or not. This is somewhat unusual in that powers not designated in a controlling document cannot normally just be taken in an inferior document (such as the charter and an ordinance respectively)... unless, as it is in this case, it is specifically granted.
The council also has the power to put a charter amendment before the electorate via a resolution.
But either way the problem here is that it exists in the political realm. It is doubly political in that the council must make a political decision as to which entity they want to give that power to- whether they do so via an ordinance or a charter amendment.
Should they give it to the mayor or to the police commission? They will no doubt face criticism for doing either. If they passed an ordinance, first they would have to decide themselves which way to go. If they proposed a charter amendment, they could only propose one or the other for the electorate to vote for- there's no provision for having a referendum type of charter amendment- so they face the same dilemma.
In either scenario, if the council decides to spent the $10,000, the money is completely wasted.
And we're pretty confident that if they do approve the expenditure, we'll wind up with a nice "we told you so" to tack up on the wall with all the others.
Yet who are we kidding?- we love to do it.
So today we'll set up what will most assuredly be a little "see?" moment, sometime in the near future.
The agenda for next Wednesday's council meeting contains the following item:
C 2012-98 Request (03/13/2012) from the Police Commission for authorization to expend funds up to $10,000.00 to retain special counsel to represent the Police Commission in filing a complaint with the Fifth Circuit Court and asking for a declaratory judgment as to who has the authority to supervise and/or discipline the Chief of Police.
In addition the council has scheduled a closed-door, executive session (ES 535) for
a briefing on the retention of special counsel to represent the Police Commission in filing a declaratory action to determine who has the authority to supervise and/or discipline the Chief of Police.
But let us save you some time and money folks- neither judge on Kaua`i is going to even rule on the matter. Both of them will tell you that essentially this is a political matter that needs a political solution.
Fifth Circuit Judges Randall Valenciano and Kathleen Watanabe have both shown this propensity for "punting" before and it's doubtful they will change now.
We've found it amusing that both "sides"- the administration of Mayor Bernard Carvalho Jr. vs. Police Chief Darryl Perry and the Kaua`i Police Commission- both adamantly claim the charter gives them the power to discipline the chief.
But, as we've said a number of times there is nothing in the charter or Kaua`i County Code- or for that matter state law- regarding who has the authority to discipline or suspend the chief.
Hiring and/or firing him or her does rest with the police commission. But otherwise the law is "silent."
Watenabe has a history of punting these kinds of things. For example, in her decisions regarding various cases of disturbances of `iwi kupuna- the bones of native Hawaiians- by developers, she adamantly refused to rule, saying that the laws and regulations regarding the individual island burial councils and the State Historical Preservation Department (SHPD) that oversees the process, are unclear and that the legislature needs to clear thing up.
Our description is an oversimplification. But what is clear is that Watanabe did indicate that the solution was a political decision, not a judicial one.
As to Valenciano he was recently asked by Council members Mel Rapozo and Kipukai Kuali`i to clear up the use of the word "shall" in a matter regarding the Kaua`i Salary Commission's March 15 deadline for submission of their yearly "recommendations." County Attorney Al Castillo had written an opinion that, in this case, ""shall" was used "administratively" and therefor has to be read as "should."
But when the two council members went before Valenciano's court, he also said that it was a political matter and not only didn't the two have standing but that they should look to changing the law to make things clear rather than asking him to essentially split a baby.
Does anyone think that in this case either of the judges are going to get involved? Both come from a government background and perspective, Watanabe having served as county attorney and in other government jobs and Valenciano having been a long-time council member, even running for mayor one time. Both have a healthy respect for letting the government wheels turn as freely as possible and apparently do not want to get involved in inter-agency squabbles like the one over who should discipline the chief.
The ball here is clearly and fully in the council's court as we said in the post cited above.
Section 7.05 of the Kaua`i County Charter details the "Powers, Duties and Functions" of the mayor.
There are 13 "Powers, Duties and Functions" The very last one reads:
M. Exercise such other powers and perform such other duties as may be prescribed by this charter or by ordinance. (emphasis added)
This means that the council can actually pass an ordinance regardless of whether the charter defines a specific power of the mayor or not. This is somewhat unusual in that powers not designated in a controlling document cannot normally just be taken in an inferior document (such as the charter and an ordinance respectively)... unless, as it is in this case, it is specifically granted.
The council also has the power to put a charter amendment before the electorate via a resolution.
But either way the problem here is that it exists in the political realm. It is doubly political in that the council must make a political decision as to which entity they want to give that power to- whether they do so via an ordinance or a charter amendment.
Should they give it to the mayor or to the police commission? They will no doubt face criticism for doing either. If they passed an ordinance, first they would have to decide themselves which way to go. If they proposed a charter amendment, they could only propose one or the other for the electorate to vote for- there's no provision for having a referendum type of charter amendment- so they face the same dilemma.
In either scenario, if the council decides to spent the $10,000, the money is completely wasted.
And we're pretty confident that if they do approve the expenditure, we'll wind up with a nice "we told you so" to tack up on the wall with all the others.
Tuesday, November 24, 2009
PREROGATIVE BY PAVLOV
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.
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.
Friday, November 20, 2009
POLITICAL WON’T
POLITICAL WON’T: Our post Wednesday on the flakey “opinion” given to the charter commission regarding the county manager issue drew a couple of comments that deserve exposition, on an issue we kind of glossed over because it seemed to be self-apparent to us- but obviously not to everybody.
Doug White, who’s left a huge hole in the blogosphere since June when he last posted to his Poinography blog, asked
...under a manager system, who or what would lead the Executive Branch? If that leader is chosen by the Legislative Branch, then in effect there would be no autonomous Executive Branch, and thus no separation of powers. That's how I interpret the CA opinion.
Attorney blogger Charley Foster was of course more to the legal point saying
I think a better way for the county attorney to have argued it would have been to point out that plain text of HRS §46-1.5(1) requires counties to "establish the county executive, administrative, and legislative structure and organization," and that the proposed manager system would establish only an "administrative and legislative structure" in violation of the plain language of the statute. As Doug points out, a "mayor" who is chosen by and serves at the pleasure of the council is not really an "executive." It is true that separation of powers is at the heart of the issue and of the three-branches requirement. But it's possible to argue that the plain meaning of the statute requires an independent executive department without having to invoke that other doctrine.
So let’s look at the words in the relevant constitution and statue passages.
In Deputy County Attorney Mauna Kea Trask opinion he cites the fact that:
Art. VIII, section 2, Hawaii State Constitution states: Each political subdivision shall have the power to frame and adopt a charter for its own self-government within such limits and under such procedures as may be provided by general law. Such procedures, however, shall not require the approval of a charter by a legislative body.
Charter provisions with respect to a political subdivision's executive, legislative and administrative structure and organization shall be superior to statutory provisions, subject to the authority of the legislature to enact general laws allocating and reallocating powers and functions...
HRS section 46-1.5(1) states: Each county shall have the power to frame and adopt a charter for its own self-government, which shall establish the county executive, administrative, and legislative structure and organization, including but not limited to, the method of appointment or election of officials, their duties, responsibilities, and compensation, and the terms of their office.
Nothing there mentions any “autonomous” executive or an executive “branch”, certainly nothing about “separation of powers.” and as a matter of fact the law allows for the “county... to frame and adopt a charter” and determine “the method of appointment OR election of officials” (emphasis added).
Clearly the county may do whatever it pleases as far as not just the method of selecting or electing it’s executive officer but need not make any of them autonomous or adhere to any separation of powers doctrine. As a matter of fact, currently the executive and the administrative entities are indeed part of the same organizational structure with the mayor appointing and overseeing the department heads without any autonomy or separation of powers.
As matter of fact. unless you use an adjective to describe the word “executive”- one that isn’t in the law- no one can argue a county manager (CM) would not be an executive
All a county manager system would do is switch the executive to legislative oversight and make that position appointed rather than elected.
And, it would seem that by saying “appointment or election” the statue leaves room for a county manager type system. Any argument against an unelected executive is clearly a political rather than a legal one.
It should also be pointed out that currently the charter provides for an administrative assistant (AA) whose duties are very close to what a county manager’s would be. That position- who serves solely at the pleasure of the mayor- is one that has routinely overseen department heads on a day to day basis leaving the mayor free to look at the “big picture”, concentrate on “the vision thing” by delegating the nuts and bolts to the AA.
We also mentioned Wednesday that Trask included a section that makes it clear that no more than what is stated in the constitution and statute should be read into it- despite the fact that after saying that he proceeds to read into it separation of powers, checks and balances, autonomy and the lack of an election of the executive.
Trask writes:
According to the law, "The fundamental principle in construing a constitutional provision is to give effect to the intention of the framers and the people adopting it. This intent is to be found in the instrument itself. When the text of a constitutional provision is not ambiguous, the court, in construing it, is not at liberty to search for its meaning beyond the instrument." State ex rel. Anzai v. City & County of Honolulu, 99 Haw. 508, 519, 57 P.3d 433, 444 (2002).
Moreover, a constitutional provision must be construed in connection with other provisions of the instrument, and also in the light of the circumstances under which it was adopted and the history preceding it." Blair v. Harris, 98 Haw. 179, 45 P.3d 798, 801 (2002).
So let’s look at Trask’s arguments one by one:
The phrase included in both Art. VIII, section 2 and HRS section 46-1.5(1) requiring that each county "shall establish the county executive, administrative, and legislative structure and organization", is interpreted by the County Attorney's office to require each county within the state to have specific separation of powers between the executive and legislative branches, which the proposed council-county manager form would not have.
Given that the words “separation of powers” aren’t in the law and the fact that there is currently no separation of powers between the executive and administrative entitles- note also the lack of the word “branches” in law- this argument is clearly erroneous especially since “intent is to be found in the instrument itself” and that one “is not at liberty to search for its meaning beyond the instrument”.
Trask continues:
Furthermore, so as to not render either the, "legislative, executive, or administrative structure and organization," of the county superfluous, void or insignificant said branches need to be substantive and not merely formal.
We’re not quite sure what that means and whether it is a differentiation without a difference but assuming it isn’t, well, the current attachment of the administration to the executive belies irrelevance.
He then seeks to establish what may be called a four prong test.
The proposed amendment would be contrary to both the text and the intent of the State Constitution and the general laws of Hawaii, and therefore illegal, for the following reasons:
1. The State Constitution and the general laws on the subject clearly and unambiguously call for the counties to establish a legislative, executive, and administrative structure and organization of government.
True- and clearly that “structure and organization” is up to the county to determine as long as all three exist- which they would as we established under a county manager executive, certainly to the extent that they exist now.
2. Passage of the proposed amendment would deprive the public of their constitutional and statutory right to a democratically elected executive.
It’s hard to say where he found a “constitutional and statutory right to a democratically elected executive” since the words “democratically elected” not only do not appear but the statute specifically allows for an appointed executive.
And as to any national constitutional or statutory prohibition, how many hundreds of county manager systems exist and have presumably passed legal muster around the country?
3. The proposed council-county manager form of government would deprive the public of a democratic governmental structure that employs checks and balances that would ensure that no particular branch would get too powerful and abuse the representative system of democracy. This is clearly illustrated by the fact that the proposed amendment seeks to delete section 4.03 of the charter thus extinguishing the executive veto power.
We’re not quite sure what the relevance of this is but again the words “checks and balances” do not appear anywhere. Clearly this is a political argument and not a legal one.
4. Under the proposed amendment the council chair would be given
the title of "mayor” but would not exercise any executive authority. Such a titular mayor would not satisfy the mandate of either the constitution or the general laws on the subject.
Ceremonial mayors are common under county manager systems, where the executive is the county manager not the mayor if we’re looking for the “substantive” executive. As a matter of fact some mayors are even appointed by the legislative entity, some on a rotating basis from among the legislative members.
Trask implies that only a title of mayor bestows executive status- clearly an erroneous and presumptuous assertion.
The preconceived notions, the use of the straw man of the specific Lewis proposal to condemn all CM systems- illogically generalizing from the specific argument- and the outright interpretation based on additional language not found in law- especially when the law bans that- and causes Trask’s analysis to fall on it’s fallacious face.
-------
Also on Wednesday, we cited the inability of the council to compel administrative testimony without a formal investigation under the current charter as one of the good arguments for a CM system.
Doug also asked
... has the Council ever actually went the official investigation and subpoena route? If not, then they are fools for not at least trying to exhaust their existing powers before seeking a Charter change, aren't they?
That’s somewhat of a complicated question.- one that has roots in the political, statutory and fiscal realms.
Calling for and authorizing an investigation to obtain subpoena power every time an administrative person doesn’t show up when requested is pretty cumbersome and impractical.
For the last 10 years the council has at times sought to launch investigations. The first obstacle was the lack of any set method of doing so. After dickering around for a year or so they finally passed a resolution that defined a process. But then it became a political football as to which department to investigate first.
Originally it was to be the massive Department of Public Works but the word “massive” was the operative obstacle. Which division to investigate became a problem because so many of them were problematic. Finally a half a million dollars was appropriated to investigate one division but no one could decide which one to investigate.
But then a new council took office and with the departure of a majority of members- including the three main proponents, now-State Senator Gary Hooser, now 5th Circuit Judge Randall Valenciano and then-Chair Ron Kouchi, the newbies decided to investigate the police department instead- a subject well covered in KPD Blue.
The next decision was to, instead of spending lots of money to look at a tree amidst the forest, appropriate salaries for a county auditor position and staff to be able to essentially conduct investigations without having to deal with the cost and limitations of each investigation.
But again after procrastinating over the hiring, the County Attorney stepped in and said this would violate the prohibition of council interference with the administration.
Finally last November the voters passed a charter amendment establishing a county auditor under council services that was specifically exempt from the prohibitions on interference. A month or so back one was appointed by the council.
But really this has been an exercise in lack of political will all along with a majority of the council member eyeing the mayor’s job and not wanting to tie his or her own hands once they took office.
Clear as mud?
--------
With the holiday and resultant “so much basketball, so little time” next week we’ll be a little lite in posting- here’s a little lite reading regarding the whole Board of Ethics 20.02D business which we’ll try to address during half times and between games.
Doug White, who’s left a huge hole in the blogosphere since June when he last posted to his Poinography blog, asked
...under a manager system, who or what would lead the Executive Branch? If that leader is chosen by the Legislative Branch, then in effect there would be no autonomous Executive Branch, and thus no separation of powers. That's how I interpret the CA opinion.
Attorney blogger Charley Foster was of course more to the legal point saying
I think a better way for the county attorney to have argued it would have been to point out that plain text of HRS §46-1.5(1) requires counties to "establish the county executive, administrative, and legislative structure and organization," and that the proposed manager system would establish only an "administrative and legislative structure" in violation of the plain language of the statute. As Doug points out, a "mayor" who is chosen by and serves at the pleasure of the council is not really an "executive." It is true that separation of powers is at the heart of the issue and of the three-branches requirement. But it's possible to argue that the plain meaning of the statute requires an independent executive department without having to invoke that other doctrine.
So let’s look at the words in the relevant constitution and statue passages.
In Deputy County Attorney Mauna Kea Trask opinion he cites the fact that:
Art. VIII, section 2, Hawaii State Constitution states: Each political subdivision shall have the power to frame and adopt a charter for its own self-government within such limits and under such procedures as may be provided by general law. Such procedures, however, shall not require the approval of a charter by a legislative body.
Charter provisions with respect to a political subdivision's executive, legislative and administrative structure and organization shall be superior to statutory provisions, subject to the authority of the legislature to enact general laws allocating and reallocating powers and functions...
HRS section 46-1.5(1) states: Each county shall have the power to frame and adopt a charter for its own self-government, which shall establish the county executive, administrative, and legislative structure and organization, including but not limited to, the method of appointment or election of officials, their duties, responsibilities, and compensation, and the terms of their office.
Nothing there mentions any “autonomous” executive or an executive “branch”, certainly nothing about “separation of powers.” and as a matter of fact the law allows for the “county... to frame and adopt a charter” and determine “the method of appointment OR election of officials” (emphasis added).
Clearly the county may do whatever it pleases as far as not just the method of selecting or electing it’s executive officer but need not make any of them autonomous or adhere to any separation of powers doctrine. As a matter of fact, currently the executive and the administrative entities are indeed part of the same organizational structure with the mayor appointing and overseeing the department heads without any autonomy or separation of powers.
As matter of fact. unless you use an adjective to describe the word “executive”- one that isn’t in the law- no one can argue a county manager (CM) would not be an executive
All a county manager system would do is switch the executive to legislative oversight and make that position appointed rather than elected.
And, it would seem that by saying “appointment or election” the statue leaves room for a county manager type system. Any argument against an unelected executive is clearly a political rather than a legal one.
It should also be pointed out that currently the charter provides for an administrative assistant (AA) whose duties are very close to what a county manager’s would be. That position- who serves solely at the pleasure of the mayor- is one that has routinely overseen department heads on a day to day basis leaving the mayor free to look at the “big picture”, concentrate on “the vision thing” by delegating the nuts and bolts to the AA.
We also mentioned Wednesday that Trask included a section that makes it clear that no more than what is stated in the constitution and statute should be read into it- despite the fact that after saying that he proceeds to read into it separation of powers, checks and balances, autonomy and the lack of an election of the executive.
Trask writes:
According to the law, "The fundamental principle in construing a constitutional provision is to give effect to the intention of the framers and the people adopting it. This intent is to be found in the instrument itself. When the text of a constitutional provision is not ambiguous, the court, in construing it, is not at liberty to search for its meaning beyond the instrument." State ex rel. Anzai v. City & County of Honolulu, 99 Haw. 508, 519, 57 P.3d 433, 444 (2002).
Moreover, a constitutional provision must be construed in connection with other provisions of the instrument, and also in the light of the circumstances under which it was adopted and the history preceding it." Blair v. Harris, 98 Haw. 179, 45 P.3d 798, 801 (2002).
So let’s look at Trask’s arguments one by one:
The phrase included in both Art. VIII, section 2 and HRS section 46-1.5(1) requiring that each county "shall establish the county executive, administrative, and legislative structure and organization", is interpreted by the County Attorney's office to require each county within the state to have specific separation of powers between the executive and legislative branches, which the proposed council-county manager form would not have.
Given that the words “separation of powers” aren’t in the law and the fact that there is currently no separation of powers between the executive and administrative entitles- note also the lack of the word “branches” in law- this argument is clearly erroneous especially since “intent is to be found in the instrument itself” and that one “is not at liberty to search for its meaning beyond the instrument”.
Trask continues:
Furthermore, so as to not render either the, "legislative, executive, or administrative structure and organization," of the county superfluous, void or insignificant said branches need to be substantive and not merely formal.
We’re not quite sure what that means and whether it is a differentiation without a difference but assuming it isn’t, well, the current attachment of the administration to the executive belies irrelevance.
He then seeks to establish what may be called a four prong test.
The proposed amendment would be contrary to both the text and the intent of the State Constitution and the general laws of Hawaii, and therefore illegal, for the following reasons:
1. The State Constitution and the general laws on the subject clearly and unambiguously call for the counties to establish a legislative, executive, and administrative structure and organization of government.
True- and clearly that “structure and organization” is up to the county to determine as long as all three exist- which they would as we established under a county manager executive, certainly to the extent that they exist now.
2. Passage of the proposed amendment would deprive the public of their constitutional and statutory right to a democratically elected executive.
It’s hard to say where he found a “constitutional and statutory right to a democratically elected executive” since the words “democratically elected” not only do not appear but the statute specifically allows for an appointed executive.
And as to any national constitutional or statutory prohibition, how many hundreds of county manager systems exist and have presumably passed legal muster around the country?
3. The proposed council-county manager form of government would deprive the public of a democratic governmental structure that employs checks and balances that would ensure that no particular branch would get too powerful and abuse the representative system of democracy. This is clearly illustrated by the fact that the proposed amendment seeks to delete section 4.03 of the charter thus extinguishing the executive veto power.
We’re not quite sure what the relevance of this is but again the words “checks and balances” do not appear anywhere. Clearly this is a political argument and not a legal one.
4. Under the proposed amendment the council chair would be given
the title of "mayor” but would not exercise any executive authority. Such a titular mayor would not satisfy the mandate of either the constitution or the general laws on the subject.
Ceremonial mayors are common under county manager systems, where the executive is the county manager not the mayor if we’re looking for the “substantive” executive. As a matter of fact some mayors are even appointed by the legislative entity, some on a rotating basis from among the legislative members.
Trask implies that only a title of mayor bestows executive status- clearly an erroneous and presumptuous assertion.
The preconceived notions, the use of the straw man of the specific Lewis proposal to condemn all CM systems- illogically generalizing from the specific argument- and the outright interpretation based on additional language not found in law- especially when the law bans that- and causes Trask’s analysis to fall on it’s fallacious face.
-------
Also on Wednesday, we cited the inability of the council to compel administrative testimony without a formal investigation under the current charter as one of the good arguments for a CM system.
Doug also asked
... has the Council ever actually went the official investigation and subpoena route? If not, then they are fools for not at least trying to exhaust their existing powers before seeking a Charter change, aren't they?
That’s somewhat of a complicated question.- one that has roots in the political, statutory and fiscal realms.
Calling for and authorizing an investigation to obtain subpoena power every time an administrative person doesn’t show up when requested is pretty cumbersome and impractical.
For the last 10 years the council has at times sought to launch investigations. The first obstacle was the lack of any set method of doing so. After dickering around for a year or so they finally passed a resolution that defined a process. But then it became a political football as to which department to investigate first.
Originally it was to be the massive Department of Public Works but the word “massive” was the operative obstacle. Which division to investigate became a problem because so many of them were problematic. Finally a half a million dollars was appropriated to investigate one division but no one could decide which one to investigate.
But then a new council took office and with the departure of a majority of members- including the three main proponents, now-State Senator Gary Hooser, now 5th Circuit Judge Randall Valenciano and then-Chair Ron Kouchi, the newbies decided to investigate the police department instead- a subject well covered in KPD Blue.
The next decision was to, instead of spending lots of money to look at a tree amidst the forest, appropriate salaries for a county auditor position and staff to be able to essentially conduct investigations without having to deal with the cost and limitations of each investigation.
But again after procrastinating over the hiring, the County Attorney stepped in and said this would violate the prohibition of council interference with the administration.
Finally last November the voters passed a charter amendment establishing a county auditor under council services that was specifically exempt from the prohibitions on interference. A month or so back one was appointed by the council.
But really this has been an exercise in lack of political will all along with a majority of the council member eyeing the mayor’s job and not wanting to tie his or her own hands once they took office.
Clear as mud?
--------
With the holiday and resultant “so much basketball, so little time” next week we’ll be a little lite in posting- here’s a little lite reading regarding the whole Board of Ethics 20.02D business which we’ll try to address during half times and between games.
Friday, August 15, 2008
MOTHER HUBBARD’S LAMENT
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.
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.
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