Learning lessons on both sides of citizen petitions

The episode of the effort of the group which identified itself as Kauai Rising to sponsor a proposed charter amendment is quixotic. It is a story of a grievous failure of governmental service and a failure of the sponsoring group to grasp the problems of their mission.

This article does not undertake to examine the merits or lack of them of the proposed measure. Regulation by the county of genetically modified organisms may be a great idea or not. The legality of the proposal could well be in serious doubt in light of the recent federal court decision regarding Ordinance 960. The purpose of this writing is limited to reviewing the tangled process for citizens who attempt to change our laws using petitions.

Under the County Charter provision is made in Article 24 for petitions signed by 5 percent of the county’s registered voters to place on a general election ballot a measure for a Charter amendments. Similar provision is made in Article 22 for petitions signed by 20 percent of the county’s registered voters to have on a ballot for a general or special election a measure for an initiative (to adopt an ordinance) or a referendum (to repeal an ordinance).

It is not clear why the number of signatures for an amendment is so much lower than for an initiative or a referendum, but that has been the situation for many years. With the county having about 40,000-plus registered voters, it is obviously tempting to seek a charter amendment that requires only about 2,000-plus signatures rather than an initiative or a referendum which requires 8,000-plus signatures.

County officials are not favorably inclined toward the use of citizens petitions, but the County Clerk’s office has managed to provide sponsors of proposed petition measures information about the procedural steps the office will require. These guidelines basically use the charter requirements stated in Article 22 for both charter amendments and the other objectives. The propriety of using Article 22 requirements for charter amendments has never been legally tested. These guidelines may be of some help to sponsors, but they have one fundamental shortcoming. They fail to provide the essential guidance as to the nature and limitations on a proposal that will qualify as a charter amendment. Engaging in a petition campaign is time consuming and involves considerable cost. It is reprehensible that when the county offers information for petition sponsors it does not provide complete information.

But the performance of sponsors of the Kauai Rising group was also flawed.

The sponsors should have been well aware that some council members would be sympathetic to their program and pursued more vigorously an effort to obtain its enactment by the council. Their recourse to a petition campaign should only arise when the failure of the council to act is a certitude.

The sponsors should also have known that in addition to their program being a political proposal, it had to comply with applicable legal standards. While no language of the charter identified what the content of their proposal had to be to constitute an amendment, the landmark 2007 Hawaii Supreme Court case of Nakazawa v. Baptiste should have been studied by their legal advisers. Any experienced lawyer can tell you that the law consists of more than legislative enactments. The July 8 opinion from the Kauai County Attorney’s office sets forth rather well the standards of guidance from that case that must be met for a measure offered as a charter amendment. The findings of that opinion were approved by the County Council at its July 24 meeting when the council decided that the Kauai Rising proposal did not qualify as a charter amendment.

Thereafter the sponsors issued an extended email to their supporters entitled “democracy trampled on Kauai” which intemperately accused the council of having engaged in a “coup d’etat” and went on to state a somewhat irrational requiem for their measure. In all the email’s abusive comments about the council, it was asserted that no language in the charter authorized the council to reject their proposal, but never mentioned was the quite clear Hawaii Supreme Court decision relied on by the council for its conclusions. This omission is inexplicable.

The supporters of the proposal’s disappointment is understandable, but they should have better analyzed the requirements they would need to meet to be able to design and offer it to the Kauai voters as a charter amendment. They should also have been prepared to make the necessary adjustments if their proposal were to be treated as an initiative. Their setback should be treated with resilience not resentment.

Walter Lewis is a retired attorney and Lihue resident who writes a regular column for The Garden Island.


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