Legality of legislation needs to be scrutinized better

In June 2013 Bill 2491 was introduced in the County Council seeking to regulate pesticides and genetically modified organisms.. The bill was adopted by the council in October 2013 but vetoed by the mayor.

The council overrode the veto but Ordinance 960 was invalidated in a lawsuit challenging the new law. The measure had strong supporters and vigorous opponents. At its meetings the council listened to a great deal of conflicting factual information about the characteristics and perils of the pesticides targeted and the genetically modification process.

The history of the measure illustrates the flaw in the legislative processes of our county sometimes described as “ready, fire, aim.” A clearly better procedure in the case of proposed laws concerning complex factual situations would be to precede any public testimony or council decision making with an objective review of the circumstances being presented by the proposed bill. The review should include examination of the legal questions involved, a survey of the applicable factual matters and the practicalities of enforcement.

In retrospect it is apparent that insurmountable legal issues were present. Our County Charter specifies in Section 4.02 that all ordinances shall embrace but one subject. The bill sought regulation of two distinct types of items — pesticides and genetically modified organisms — which are not readily connectable. But more troublesome was the fact that the bill ignored the reality of state or federal laws applying which might pre-empt local interference. The judicial decision invalidating the ordinance adopted relied on the pre-emption issue.

But the bill also faltered because of the absence of any consensual recognition of supporting facts to justify the action. While there was ardent and sincere favorable testimony it largely relied on anecdotal evidence instead of clinical findings.

The determination path for the council would have been vastly simplified if before any decision making occurred the council had been given competent legal advice and objective factual analysis of the issues involved.

Use of this preliminary step, however, does have several problems. The council does not have an adequate investigative staff and its access to legal advice is sometimes conflicted. The county’s procedures for retaining consultants for factual matters is cumbersome and retentions of legal counsel are rather costly and often unduly time consuming.

But the council should establish a procedure that would compel prior to its first reading for any proposed bill to receive legal review and a staff examination of potential issues.

The recent episode about the repeal of the barking dog ordinance might have been avoided if such a procedure were in place. It is readily observable that extended barking is disruptive and a nuisance. However, the ordinance was seriously flawed because of its enforcement requirements. While citizens could rely on judicial self help under the ordinance, few do, and in practice a citation for a violation under the ordinance required the personal presence of a police officer to attest to the necessary continuance of barking.

Our police are busy and too frequently the summoning of an officer only to have a cessation of the barking frustrates enforcement.

The repeal of the ordinance did not constitute the abandonment of need to control barking noise, but rather the need for a more generic noise control measure with better enforcement provisions.

Fortunately, the council appears to be gaining an understanding that major measures need to be thoughtfully considered. Recently it appointed a committee of three of its members to investigate, analyze and then make its recommendations about presenting to Kauai voters a potential charter amendment which would change our governing system to the increasingly popular council–manager form.

The deliberations of the committee are expected to take several months and be followed by consideration of the committee recommendations made by the full council.

It is to be expected that the end result of these preliminary steps should lead to a far better quality of a measure for voter acceptance.

The ordinances and laws that are the product of our council should receive prior adequate examination as to the legal and practical consequences that will ensue following their adoption. Our patience to allow such review to occur should be rewarded with sharper and more effective legislation.


Walter Lewis is a resident of Princeville and writes a biweekly column for The Garden Island.


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