In 2003, a small group of Kaua‘i citizens gathered to discuss their concern about soaring county expenditures and property taxes. About 10,000 properties on the island are owned and occupied by residents and the tax increases that had occurred and
In 2003, a small group of Kaua‘i citizens gathered to discuss their concern about soaring county expenditures and property taxes.
About 10,000 properties on the island are owned and occupied by residents and the tax increases that had occurred and were anticipated were threatening the ability of some of the owners to retain their homes. The group decided that there was no practical way county expenditures could directly be controlled, but taxes might be. Following much contemplation it was concluded to seek enactment by the Council, if possible, and if not by a charter amendment to be adopted by public vote of a measure that would restore taxes for long term residents to 1999 levels (taxes for more recent residents would be restored to the time of acquisition of the home) and to limit increases to 2% per year.
When the Council appeared unwilling to proceed on the measure, the group calling itself Ohana Kaua‘i circulated petitions for a charter amendment. The proposal was adopted by the Kaua‘i electorate in the November 2004 general election by a nearly two-thirds vote, despite the vigorous opposition of all elected county officials, government employee unions, and a number of business organizations.
Promptly after the election the County Attorney, acting for the County, amended an earlier abortive suit and filed an action for declaratory relief to invalidate the measure naming the County Council, the Mayor and the Finance Director as defendants. This proceeding was popularly ridiculed, and rightly so, as one where the County was using taxpayer money to sue itself. It was claimed that the measure violated the County Charter and the State Constitution. Four citizens supporting the Ohana measure intervened in the case and contended that the County had no ability to bring a case where there was no dispute among the parties and that the measure did not violate either the Charter or the Constitution.
After the Kaua‘i Circuit Court ruled in favor of the County and invalidated the measure, the four citizens appealed to the Hawai‘i Supreme Court. More than five months after the Feb.15, 2007, oral argument of the case, on Aug. 6, 2007, the court issued a 3 to 2 decision, the opinions revealing a fractious division of the court. The majority reshuffled the parties on their own initiative and then concluded that in its reformulated state that the measure violated the constitution, although not the charter. Two of the judges vociferously dissented objecting to the majority’s reshuffle of the parties and would have dismissed the case. They wrote, “With all due respect our role is to protect the judicial process, not to subvert it.”
The contrived majority decision made unprecedented efforts to create an intra-governmental dispute between the Council on one side and the Mayor on the other when no dispute truly existed. These efforts by the majority on behalf of our local officials reveal that their findings were more based on a political perception that citizens should not be trusted to set proper taxation policy than on a thoughtful application of the law.
The typical lawsuit involves a real controversy between the plaintiff and the defendant or defendants with actual or threatened injury to the plaintiff. These fundamental conditions did not exist in the Ohana measure case. Ever. The plaintiff and all the defendants wanted the same result and, as we all know, had no dispute among them and prosecuted this lawsuit with over $250,000 of taxpayer money to get political cover. And the County was unable to point to anything in the Ohana measure that was or would be injuring it.
So the majority of the court reached into its bag of tricks and pulled out a procedural rule that had not been used before which allowed the court to add or eliminate parties to a case and applied it to rearrange the parties so that the County Council was no longer a defendant. Having done this, the majority then observed that the Council had the duty to adopt a balanced budget each year and then without any factual or evidentiary support concluded that the Ohana measure would impact County revenues and “would likely necessitate county budget adjustments that would affect services provided to the citizens…”. Thus the majority wobbled to a conclusion, unsupportable by the facts, that there was injury. It is to be noted that the court used the procedural rule without any notice to the parties of its intent to do so or giving them any opportunity to offer argument about the propriety of the action. This maneuvering disturbed the two dissenting judges who accused the majority of subverting the legal system and acidly commented that using the procedural rule “to create a supposed controversy that did not in fact exist…” was unjustified.
It is disconcerting to accept that a measure designed to save our resident homeowners from tax burdens that would amount over the years to a number of millions of dollars will not be implemented, not because it was contrary to any law, but rather because of three activists judges whose personal ideology is based on the paternalistic notion that while citizens must pay taxes they should have no rights in determining them. The due process of the law was assuredly denied by the imperious treatment it was given by the majority of the Hawai‘i Supreme Court. The results had nothing to do with the law, and everything to do with classic Hawai‘i politics. A thoughtful motion to reconsider has been filed to give the majority an alternative to continuing to subvert the law.
• Walter Lewis is a resident of Princeville and author of a bi-weekly column in The Garden Island.
