Tim Sues Shay and Sheila: Claims Constitutional Rights Violated

Kauai Councilman Tim Bynum today filed a federal civil rights lawsuit against Prosecutor Shaylene Iseri-Carvalho, planning inspector Sheila Miyake and the county, claiming his constitutional rights were violated by their abuse of power and malicious prosecution.

"False and malicious criminal prosecution of political enemies is something you expect to see in the Third World, not in Hawaii,” said his attorney, former state Attorney General Margery Bronster, in a press release.

The suit alleges that Iseri-Carvalho targeted Bynum for prosecution of zoning violations, both as political payback and to keep him from questioning financial practices in the Office of Prosecuting Attorney. 

Both Miyake and Iseri-Carvalho committed acts “that amounted to an indifference to or purposeful deprivation” of Bynum's constitutional rights, the complaint alleges. As a result, he suffered severe emotional and physical distress.

It also claims that Bynum suffered significant financial hardship when a county planning employee falsely told buyers that the alleged zoning violations would transfer to the new owners, prompting them to cancel escrow. No dollar amount is specified as damages.

The complaint, which you can read in full here, also implicates former Council Chair Kaipo Asing as orchestrating events, though he is not presently named as a defendant.

The lawsuit is partly based on a secret tape recording that first deputy Jake Delaplane made of a two-tour conversation he had with Miyake.

“Incredibly, they made tape recordings discussing their plans and they joked on those tapes about committing perjury if ever caught,” Bronster said in the press release. “Councilmember Bynum’s rights were severely injured and we plan to bring everyone involved to justice.”

According to the complaint, Miyake was recorded saying, “It's all political, but I will never say on stand that it is political. It will be my demise.”

Miyake also reportedly was taped saying she and former Planning Director Ian Costa pursued the zoning violation, against advice from deputy county attorneys, “because Kaipo wanted it. Kaipo was asking. And I gotta answer to the Council Chair.”

Iseri-Carvalho then waited a year — “until the next election cycle,” the complaint states — to file four criminal charges against Bynum.

Bynum's lawsuit stems from the criminal prosecution, which the complaint says was based on no probable cause, and Iseri-Carvalho's subsequent efforts to stifle his freedom of speech. Earlier this year, Iseri-Carvalho released a letter demanding Bynum be recused from Council discussions about the Prosecutor's office while he was facing criminal charges.

Bynum, “fearful of the Prosecutor's unprincipled ire,” sought an opinion from the county Board of Ethics, which later concluded he did not have a conflict of interest.

The misdemeanor charges were dropped earlier this year after Judge Kathleen Watanabe recused Iseri-Carvalho’s office from the case and appointed special deputy attorney general Richard Minatoya to investigate the matter. He determined the case was unprovable.

Iseri-Carvalho and Miyake are being sued as individuals, and in their official capacity. Other defendants could be added as the lawsuit progresses.

“Through the civil action being taken, I look forward to demonstrating how baseless and without merit the actions against me were,” Bynum said in a personal statement released tonight. “More importantly, my hope is that holding these individuals responsible will help prevent abuse of others and ensure that this kind of deliberate mistreatment does not happen again. I look forward to putting these issues behind me so I can focus fully on my family and my responsibilities as a Councilmember.

Bynum is alleging that Iseri-Carvalho and Miyake harbor longstanding personal animosity against him that was heightened by his 2008 vote on the vacation rental bill.

As has previously been reported in this blog, in 2010, Bynum allowed a family friend, Victory Yokotake, to reside at his house, where five years prior he had built a county-permitted addition that included a counter top/bar and sink. Yokotake was assaulted by one of her friends, and the police officer responding to the call “incorrectly characterized the addition … as a separate apartment,” the complaint states.

An unknown person with access to the police report allegedly informed Miyake and Iseri-Carvalho that Bynum was illegally “renting out a portion of his house.” Though Miyake allegedly knew the identity of the person, she treated it as an anonymous complaint. Miyake allegedly stated she pursued the complaint because “Kaipo Asing was asking.”

Bynum's complaint goes on to include an email correspondence between Iseri-Carvalho and former Planning Director Ian Costa, in which she asks if its illegal for Bynum to rent out a portion of his home and is told no — the violation would lie in whether he had installed a second kitchen, which would make it a multi-familly unit rather than a single-family residence.

While Bynum was attending a Council meeting, Miyake and inspector Patrick Henriques allegedly walked through a gate and looked through the windows of his house, where they reportedly saw a rice cooker and refrigerator in the addition.

Miyake told deputy county attorneys Mike Dahilig and Ian Jung what she had done and seen, and they advised her she had engaged in trespassing and a warrantless search, and that the presence of a rice cooker did not constitute a kitchen.

Despite their advice, Miyake went ahead and had Henriques issue a notice of zoning violation to Bynum, the complaint states. She emailed a copy to former County Clerk Peter Nakamura, who reported directly to Asing, with the subject line reading “4 your eyes only.” Bynum did not receive a copy of the notice until a month later.

The complaint alleges that Miyake sent Nakamura the email with the intent that it would be made public and used against Bynum in the election.

The complaint also maintains the planning department failed to properly train its inspectors in search laws and the county zoning ordinance, with Miyake stating that “each inspector has his own kingdom,” and that such determinations are made ad hoc, arbitrarily and in this case, capriciously and maliciously.

It details as well Delaplane's attempt to enlist another deputy prosecutor to surreptitiously solicit information from Yokotake that could be used against Bynum. The action ultimately led to the OPA's office being recused from the case, which opened it up to investigation by an outside source.

Though Bronster , in the press release, stated “I have spoken with Kauai County Attorney, Al Castillo, and he seems to understand the gravity of the situation,” Castillo said he had not seen the complaint and had no comment.

In his written statement, Bynum, who is serving his third term on the Council, said, “I also knew that politics could be tough and at times even ugly.  But I had no idea that I would be the target of major abuses of power planed and perpetrated by County officials for purely political reasons.  This blatant abuse of power has led to the difficult decision to take legal action by filing a civil rights complaint in Federal Court.  These actions by a small group of powerful people led by Prosecutor Shaylene Iseri-Carvalho have had a huge impact on my home, my family and myself.

"Many people on Kauai are coming to the realization that serious wrongdoing by our Prosecutor in a number of areas is truly hurting people, programs, institutions and our community," he continued. " It needs to stop.  Being wrongly charged and labeled a criminal required me to hire attorneys to defend myself.  In the process of clearing my name we have discovered overwhelming evidence of misconduct by Ms. Iseri-Carvalho and her allies.  The complaint we are filing speaks for itself and highlights just some of the evidence of abuse.”