LIHUE — A civil complaint against the Kaua‘i County Council brought by two of its council members was dismissed in 5th Circuit Court on Tuesday. Chief Judge Randal Valenciano ruled to dismiss the case and said it would be up
LIHUE — A civil complaint against the Kaua‘i County Council brought by two of its council members was dismissed in 5th Circuit Court on Tuesday.
Chief Judge Randal Valenciano ruled to dismiss the case and said it would be up to the electorate to decide on the merits of council actions.
Deputy County Attorneys Mauna Kea Trask and Jennifer Winn presented the motion on behalf of the Kaua‘i County, council members Joanne Yukimura, Dickie Chang, Tim Bynum and Nadine Nakamura, and the County Salary Commission. Bynum was the only defendant present in court.
Honolulu attorney John Perkin represented the plaintiffs, council members Mel Rapozo and Kipukai Kuali‘i, who filed a civil complaint on Nov. 1.
The lawsuit, which had asked for judicial enforcement, alleged that the council had illegally allowed the Kaua‘i Salary Commission’s report to be adopted by resolution when it was received after a March 15 deadline.
The county attorney’s interpretation of the ordinance and the validity of the new report submitted after the deadline was the basis for the complaint.
The lawsuit sought a court declaration that the word “shall” as used in Section 29.03 of Article XXIX of the Kaua‘i County Charter is mandatory.
The failure of the commission to adopt its findings by resolution and forward them to the council and the mayor on or before the March 15 deadline rendered Resolution 2011-1 illegal, the lawsuit alleged.
Trask argued for the dismissal, saying there was not an actual case or controversy.
Perkin had argued that Rapozo and Kuali‘i are sworn to uphold the charter of Kaua’i County and had no other recourse than to pursue a legal solution to what they believe placed the county at legal risk.
He said it was not a political issue, and that the court was an appropriate jurisdiction to resolve a dispute over language of an ordinance.
Valenciano said the council had multiple opportunities to take action by voting, and by failing to vote, acted to allow the salary commission’s resolution to take effect after 60 days without rejection by the mayor or the council.
The council rejected the late budget resolution at its Sept. 7 meeting. It voted to reconsider the resolution on Sept. 21, and voted again to defer the “motion to reject” until a special meeting on Sept. 27. The resolution became effective on Oct. 4, having passed without a vote to reject.
The council voted to receive the total budget with the resolution included by unanimous vote on Oct. 5.
Prior to the dismissal, the court spent most of the hearing on conflict of interest concerns.
Valenciano said his potential conflicts of interest stemmed from serving as a county council member from 1999 to 2002, and that he was well-acquainted with many current elected officials, including Rapozo. Rapozo’s spouse is a court employee, and was Valenciano’s law clerk until recently, the judge added.
Despite his comments, there was no objection from the plaintiffs or the defendants to having Valenciano preside as judge.
The second issue was with conflict of interest questions raised about the county attorney.
Perkin said the county attorney’s office provides legal services to the council as a body, in addition to individual council members.
Trask said the county attorney’s office could fulfill its obligations to the council as a whole without a conflict in this case.
To expedite a ruling, that conflict of issue was dropped when Perkin recalled the motion on behalf of his clients.
Following the ruling, Perkin said he was disappointed the case ended on this motion and that it would not be decided on its own merits.
• Tom LaVenture, staff writer, can be reached at 245-3681 (ext. 224) or tlaventure@ thegardenisland.com.
