LIHU‘E — Circuit Court Judge George M. Masuoka granted a motion by Ohana Kauai members Tuesday that gives them a say in the county-versus-county lawsuit involving the charter amendment to reduce property taxes passed by county voters last month. Masuoka
LIHU‘E — Circuit Court Judge George M. Masuoka granted a motion by Ohana Kauai members Tuesday that gives them a say in the county-versus-county lawsuit involving the charter amendment to reduce property taxes passed by county voters last month.
Masuoka granted Ming Fang, Walter S. Lewis, Monroe F. Richman, and Gordon Smith intervenor status. The four will now be able to defend the Ohana Kauai amendment to the county charter in Circuit Court.
In an extremely brief appearance in court Tuesday, Masuoka announced the decision.
Neither side presented any evidence for or against the motion.
Lawyers in the Office of the County Attorney sued members of the Kaua‘i County Council and Mayor Bryan J. Baptiste to keep them from implementing the amendment, because they believe that the amendment is illegal.
County attorneys said the measure illegally takes away the taxing power of the county and is unconstitutional, and Baptiste said he and members of the County Council will move forward with other, legal, appropriate, tax-relief measures (please see a viewpoint piece on the subject on the Forum page, A6).
A motion for a preliminary injunction against implementation of the amendment will be heard in January, at a date to be determined later.
According to county Public Information Officer Cyndi Mei Ozaki, as of yesterday members of the council authorized the expenditure of special-counsel fees and costs up to $60,000 from the special-counsel account, which included work done in conjunction with initial review of the ballot language and litigation costs and expenses. As of last Tuesday, Dec. 7, the county received one billing for payment of $10,444.67.
In a related matter, state Office of Information Practices leaders urged the Kaua‘i County Council not to use executive sessions in all cases to prepare for a court battle contesting the legality of the Ohana Kauai charter amendment.
OIP leaders said the council can use executive sessions to allow county attorneys to explain why they need additional funding to prepare for the court case.
At the same time, OIP leaders said approval of the funding should be discussed publicly at regular government meetings.
As a result of inquiries by council members into the matter, officials with the Kaua‘i Office of the County Attorney said they would follow the OIP recommendation.
The OIP action represents the latest legal skirmish between critics and supporters of the charter amendment as both sides prepare for a court trial.
The outcome could determine whether government maintains full taxing powers over island properties, and the amount of money that will go into county coffers in the future.
Voters approved the measure in the Nov. 2 general election.
The adopted measure calls for significant property-tax savings for the homestead class, representing thousands of residents who own and live in their own homes.
County officials have charged the mandate illegally and unconstitutionally takes away the taxing powers of the county.
They filed a lawsuit in Fifth Circuit Court on Kaua‘i in October to halt the implementation of the tax-relief measure.
The Ohana Kauai proposal advocates reducing property taxes for residents who occupy their homes to the tax amounts they paid in 1998.
The initiative also would limit tax increases to 2 percent a year in 2006, a year after the proposal would take effect.
The OIP decision stemmed from an inquiry from Kaua‘i resident Richard Stauber.
He questioned whether it was appropriate for the council to convene a special meeting in closed-door executive session in October to authorize the release of up to $25,000 to the county attorney’s office to hire legal counsel for the court case.
The $25,000 is a second increment county attorneys could use for the lawsuit. The council approved the first increment — $10,000 — earlier.
A third increment of up to $25,000 also can be used for the case.
The Honolulu law firm of Goodsill, Anderson, Quinn and Stifel was contracted to assist the county in preparing for the lawsuit.
A county official said government officials aren’t hiding anything, and noted that the amount of contracts with consultants is posted on the county’s Web site, www.kauai.hawaii.gov.
In a Dec. 3 letter to Council Chairman Kaipo Asing, OIP leaders said the state sunshine law did not allow the council to convene an executive session to “approve an additional appropriation for special counsel for election and ballot.”
The council usually holds executive sessions to respond to claims, and discuss personnel matters and other sensitive county issues.
OIP leaders said the council’s appropriation of funds to retain legal special counsel “did not involve its or the county’s powers, duties, privileges, immunities and/or liabilities,” OIP leaders said.
However, the council members were in the right when they convened the Oct. 21 meeting to allow County Attorney Lani Nakazawa to explain why she needed the second funding increment, OIP leaders said.
“In our opinion, discussions relating to the underlying lawsuit or the legal matter for which the county attorney is seeking to hire special counsel fall within that executive meeting purpose,” OIP leaders wrote.
But they said the meeting should not have been used as a tool in which to fund the request. “We do not agree with the county attorney’s position that the amount approved by the council discloses her legal analysis, especially in light of our understanding that the amount approved by the council is subsequently posted on the county’s web site,” agency officials said.
Analysis of the legal issues by Nakazawa “for which the special counsel is to be hired should be conducted in an open meeting,” they said.
OIP leaders also wrote that Nakazawa has explained to them that much of the council’s discussions and deliberations involving her request to hire legal counsel are intertwined with her analysis of legal issues.
She also believes the discussions and deliberations are “directly related” to her legal analysis of the matter, OIP leaders said.
Before they make a determination on Nakazawa’s assertions, OIP leaders said they want to give her the opportunity to explain how her advice and legal strategies “will be revealed if the council must deliberate and decide her request to hire special counsel in a public meeting.”
Lester Chang, staff writer, may be reached at 245-3681 (ext. 225) or mailto:lchang@pulitzer.net.
Tom Finnegan, staff writer, may be reached at 245-3681 (ext. 252) or mailto:tfinnegan@pulitzer.net.
