Wednesday, January 29, 2014

Musings: No Defense

The Hawaii Supreme Court has ruled that kanaka maoli have no special or fundamental rights when it comes to building a nation.

The court issued its decision yesterday in a case stemming from the trespassing conviction of three citizens of the Reinstated Hawaiian Nation who landed on Kahoolawe in July 2006. They intended to stake a claim to all the lands owned by the Kingdom of Hawaii when it was illegally overthrown in 1893 and initiate a process to ascertain whether kanaka were likely to receive any assistance from the Hawaii judicial system in their efforts to re-establish their nation.

The Justices made it clear in their ruling that kanaka can't break Western law — in this case, landing without state permission on an island that is being held in trust until it can be returned to a sovereign Hawaiian entity — and claim they're doing it under the auspices of nation-building.

Though the high court rejected the nation-building arguments, it did overturn the trespassing convictions on a technicality. It's unknown whether Maui County will refile the charges.

With the court decision in place and the state Legislature clearly unwilling to deliver justice to kanaka maoli, I'm told the Reinstated Hawaiian Nation will now focus its efforts on international recognition. Will world opinion pressure the United States to address its admittedly illegal overthrow of the Hawaiian Kingdom?

The "Atooi Nation" flexed its muscles Monday night, joining with activists to shut down a Department of Water meeting on a proposed new horizontal well drilling project. Councilwoman JoAnn Yukimura told The Garden Island:

“Although I wasn’t able to stay for the whole thing, what I saw made me very sad because it looked like a community that was not able to talk civilly and with aloha about a very important issue.”

Sad, yes, but surely she's not surprised. I think we all knew this was going to be the new model for public meetings on Kauai, since it was used so effectively to muscle through Bill 2491/Ordinance 960 — with JoAnn's acquiescence. Go Team Fist!

What a great legacy for Councilman Gary Hooser, who blew off today's dreary Council meeting to get his ego stroked at the far more exciting People Not Profits march at the state Capitol. And you thought he was supporting Bill 2491 because he cares about Kauai.

Gary's son Dylan, meanwhile, is beginning to take a more visible role in politics — perhaps positioning himself for a Council run? The sunrise shell entrepreneur accompanied dad to opening day at the Lege, holding a “shame on you” poster outside the door of Kauai representatives, and last weekend's Filipino Chamber of Commerce banquet. As the old saying goes, the apple doesn't fall far from the tree, as evidenced by Dylan's  Civil Beat commentary today, which is pretty much a verbatim rehash of Gary's claims, many of which have been discredited.

Interesting that Maui attorney Lance Collins is challenging the county's attempt to secure pro bono attorneys to defend us against the chem corps' challenge of 2491. Especially since Gary hosted Lance at a recent Northshore meeting on the benefits of County Council districts.

Could it be they're looking for a way out, or trying to force the county to foot the bill for a defense run by attorneys for nonprofits that stand to benefit greatly from the associated publicity?

Though some attorneys have told me there may be some merit in Lance's claim that the county's definition of pro bono can't extend to court costs and fees, it appears his assertion that the Council must approve special counsel is off-base. The Council approves funding for special counsel, but it is the County Attorney's office that determines when and if special counsel is used.

Maybe attorney Teri Tico, who stands to make millions off the sale of her Haena house — part of a four-lot subdivision she created that now includes three vacation rentals — could fund the defense, with other attorneys donating their time. I mean, they did promise, in an Oct. 18, 2013 letter to Mayor Bernard Carvalho:

We urge you to allow Bill 2491 to become law. We will be there to defend it.

23 comments:

Anonymous said...

Yes, Joan you are correct.
Hooser/Bynam have endorsed and glorified true public discourse. Threats and fear, yeah baby, the new Kauai model.
I am happy tax-cheat Hooser, is grooming his son, drug dealin' Dylan for office. Kauai may even vote dealin-Dylan in. I don't think Bynam will follow Gary's example of nepotism with his boy tho', Timmy did not quite have the clout to get Bynam Boy's felony vaporized....Welcome to politics, kiddies.

Anonymous said...

Why should we be paying Gary's salary while he marches in Honolulu?

Shame on YOU Gary for cheating the Kauai taxpayers. Stay home and do your job.

Anonymous said...

It's amusing how easy it is for the haters to spew their minds behind the veil of anonymity. And even funnier the obvious; if it were them in those positions how much they would most likely do the same or worse.

Anonymous said...

3:08 Haters or not .truth is . facts are facts.

Anonymous said...

Joan,

I filed the procurement protest over the so-called "donation of litigation expenses" which is unethical for any Hawaii attorney to provide except in a few limited circumstances. It is possible that the county attorneys -- who are government attorneys -- are not familiar with this rule since they don't ever pay for litigation expenses. It is also possible that it is a cynical attempt by someone involved in the issuing of the solicitation to lure unsuspecting, well-meaning attorneys into an ethics trap by trying to conflate pro bono legal service with "donation of litigation expenses".

There is nothing illegal or wrong with getting pro bono legal service which my protest makes crystal clear. It is the requirement of the attorney to also finance litigation expenses which is improper and unethical. At the minimum, this claim alone is enough to cancel the solicitation. And if the rest has no merit, the county can re-solicit without the unethical litigation-expense add-on.

But this touches on a more fundamental issue which is that Kauai's Charter leaves hiring of special counsel and the scope and terms solely to the County Council, not the mayor, the finance director or the county attorney. The county attorney cannot get around Section 8.06 of the Kauai County Charter by first finding the special counsel and setting the terms of employment then presenting everything to the Council after the fact. This issue of who is to hire special counsel was litigated twenty years ago at the Hawai'i Supreme Court between the Maui County Council and Linda Lingle with her county attorney and yet Lingle and her county attorney lost. Simply because Kauai has not followed their own charter provision and has a custom regarding the hiring special counsel doesn't make it legal or right. In the bigger picture, if someone declared they had a conflict of interest would you want them to then decide which attorney would represent you regarding that issue? I doubt it.

I have not been hired by Gary Hooser or anyone else and I did not file the protest at Hooser's or anyone else's prompting. Three weeks ago, I paid to come to Kauai on my own dime after several people and groups over the last year had called and e-mailed me regarding district voting. I am grateful to Hooser who gave me a ride to and from the airport to the Charter Commission subcommittee meeting even though we hold different opinions regarding district voting. I have donated to JoAnn Yukimura's campaigns previously and yet that has no relevance to the protest either.

I am not involved in any surreptitious conspiracy with anyone. I don't really know the personalities involved or how people are or are not connected to each other or the issues and I frankly don't care.

The procurement solicitation as it currently stands undermines confidence in the legal profession by requiring an attorney willing to provide pro bono service to finance the County's litigation expenses in violation of our ethical rules. That is something I care about and why I filed the protest.

Please extend to me the courtesy of contacting me and asking me directly before questioning my motives through innuendo.

Lance D. Collins

Joan Conrow said...

Lance,

The Kauai County Charter Section 8.06. Special Counsel reads:

The council may, by vote of five members, authorize the employment of special counsel for any special matter necessitating such employment. Any such authorization shall specify the compensation, if any, to be paid for said services.

Your interpretation that it "leaves hiring of special counsel and the scope and terms solely to the County Council," to the full exclusion of the mayor and County Attorney, seems a bit broad.

And of course I will take you at your word that your protest is motivated solely by your deep commitment to the ethics of your profession, though please forgive my puzzlement that you have never before expressed it so zealously here on Kauai. For instance, in regard to some of the actions of our previous prosecutor.

ןıuǝ oɟ ɟןıƃɥʇ said...
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Joan Conrow said...

Lance,
I was disappointed to see you withdrew your comment posted at 11:03 pm. I wanted to ask you about this assertion:

"And whether the Council claims the power it is granted in the Charter, circumstances impel them to take control of this process and make it as deliberative and well-informed as possible."

Why do the circumstances only now impel them to take control of the process? Why didn't you speak up when the county was using its usual process to procure special counsel in the civil rights lawsuit filed by Councilman Tim Bynum, the pro bono representation of the police commission in its challenge of the mayor's power?

Or are your ethical concerns, and interest in our charter, strictly situational?

Anonymous said...

Joan,

I have slowly been increasing my following of charter issues on Kauai over the last year as your Charter Review commission has been working and I have been fielding calls and e-mails -- which culminated in me deciding to attend one of their meetings to testify about district voting. Good government is one of the areas that I spend a great deal of time professionally and the structure of government is one area that I spend a great deal of time academically.

I am not familiar with Bynum's civil rights case, but the mayor's illegal claim to power over the police department is an example I am familiar with and where the appointment of special counsel by a deliberative process of the council should have occurred as opposed to the "customary" short-cut process that is used for routine slip and fall or police brutality cases.

Joan Conrow said...

but the mayor's illegal claim to power over the police department is an example I am familiar with and where the appointment of special counsel by a deliberative process of the council should have occurred

So why didn't you say anything about that, especially since it also involved pro bono services? Why is it only this case that prompted a formal protest?

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Anonymous said...

I was not aware of those details at the time or I may have. I did give my thoughts to someone who e-mailed me regarding my opinion on the matter at the time but was not asked to share it with the Council and I don't recall seeing a procurement notice.

Did the hiring of special counsel for the police department matters involve the requirement that the attorney also finance litigation expenses? There is nothing wrong with offering or obtaining pro bono legal services at all. It is the requirement that the attorney also finance litigation expenses which violates our ethical rules and is impermissible.

Joan Conrow said...

Lance,
I checked with the county re: whether the police commission's pro bono attorney is paying litigation expenses and got this response:

The original contract and first amendment provided that they would do the work for no more than $30,000 in compensation. The second amendment specified that they would continue to work "without any additional compensation." Their "bills" to us show the amount of fees that have been waived. The "bills" have not mentioned costs/expenses so we don't know if they are incurring additional costs at this time. If they are, we haven't been billed.

As for the rest of your argument, I also got this from the county:

In terms of the protest, one issue articulated was that the procurement violated the County Charter which mandates that the County Attorney seek Council approval to higher special Council. We agree as to the requirement of the Charter. However, the procurement activity only seeks, as it does so every year during the month of June as required by rule, to develop a list of pre-qualified attorneys who can be utilized in the event that special counsel needs arise. The charter mandates Council approval at the point when an attorney must be hired and County funds will be obligated. The Office of the County Attorney has fully complied with this Charter obligation as a matter of course.

As with most legal issues, it seems there's a difference of interpretation. Are you prepared to go to court to challenge it further?

Anonymous said...

Joan,

If I am not satisfied with the Finance Directors' resolution of the protest -- which involves five different claims only two of which you have focused on -- I intend to raise the matter to the state Office of Hearings Officer, which is the next step in the procurement protest process. I cannot speculate on what that office will do so it would be impossible for me to guess whether appealing that to the courts would be necessary.

The purpose of the protest is to ensure that the County's defense of its laws are done ethically and properly in the first instance. I have found the high level of vitriol I have received by e-mail, telephone and in a few online comments to be baffling.

The protest and its final disposition will in no way effect Kauai's position in the federal lawsuit. Judges in our legal system to do not penalize government parties for reasonable delays in obtaining legal counsel when special counsel is required. A protest to the procurement of special counsel is considered a reasonable delay.

And the protest will not stop or prevent Kauai from obtaining pro bono legal services to defend the law. It's the litigation costs, which implicates ethical matters, which is improper. If the Council were to decide the scope and (non)compensation of special counsel -- as I argue -- that would not prevent Kauai from accepting pro bono services.

It is also my claim that obtaining pro bono services does not fall under the applicability of the procurement code. That is, the Council can directly approve accepting pro bono services or enter into a cooperative agreement with an attorney to engage in pro bono services without involving the procurement process. The only matter that would need to be resolved is the reimbursement of litigation expenses. (This is different from the situation you have described where an attorney has been hired for money and then decides at some point in the litigation to continue without further charges of her services -- which converts an hourly billing situation to a discounted rate or flat rate situation.)

I am also quite surprised that with the extensive investigative reporting you do on how county government twists (and/or ignores) planning and building laws to allow what seems to be expressly prohibited to occur, you seem to uncritically take the opinion of the county spokesperson, who is not an attorney, and present it uncritically as a "difference of interpretation".

Joan Conrow said...

Lance,
And I am quite surprised that you would think the county spokeswoman would issue a statement without having consulted the county attorney and procurement officer.

As I stated in my original post, some attorneys I've spoken with think there is merit to your claim and others do not. Quite clearly there is a difference of interpretation regarding both the charter and the state procurement code. I am not uncritically accepting nor advancing anyone's opinion, including your own, as "The Truth."

As for being baffled by the “vitriol,” surely you expected some sort of blowback when, as the resident of another county, you suddenly inserted yourself into a highly contentious issue.

Anonymous said...

The procurement for legal services was not limited to attorneys in Kauai and our profession is a state-wide profession with state-wide ethics rules. The court that will be hearing the case is in Honolulu. So to directly answer your question, I am genuinely surprised. I have assisted many people and groups across this state (and internationally) in my years as an attorney and this is the first time that my status as a resident of a different island has ever been made an issue.

From the content of the attacks, it is clear that these people do not understand the legal issues involved, are quite passionate about the related issues and have made a judgment -- rightly or wrongly -- that my procurement protest threatens or frustrates their interests. Xenophobia seems to be a dominant political discourse in Kauai right now and as noted I am not from and do not live in Kauai. So, in that context, I can understand the response, it just wasn't expected.

Anonymous said...

I heard Shaylene is running for Council.

Anonymous said...

I can see why. She's clearly beloved and respected by most folks here on Kauai. Everywhere you go all you hear is "oh where is Shay we miss her???? It's so ludicrous that she's not around to bring misery and chaos to everyone's lives!"

Anonymous said...

Surely the DOW must've known that this project would be offensive to Kanaka Maoli. What happened at the public meeting has nothing to do with bill 2491 but rather everything to do with anger at being consistently and systematically ignored by the "system" time and time again. There is no justice, no cultural sensitivity or deference to our traditions by the powers that be. Waialeale is the life giving source, the piko of Kaua'i of which Mauna Kahili is part of. What gives the entity DOW the power to make the decision to go ahead with this project without consulting our people? They can't make these decisions in a vacuum. We were told that we will have a chance to comment during the EIS. That process has failed us time and time again, many projects have been railroaded through despite our objections. The lack of civility has everything to do with kanaka having no say about what happens on our 'aina, of which wai is of the utmost value. These confrontations will continue as long as the question of justice is ignored. Placing the blame at the feet of the redshirts detracts from the real reasons for the confrontation.

Anonymous said...

Really low flow in the streams for February and the mountains have been clear.

Anonymous said...

2:04. You say people were angry at being ignored and never given a chance to comment. That was the purpose of the meeting, to take comments!!! But nobody got a chance because it was shut down by the rude ones. You can't have it both ways.

Anonymous said...

2:04. How is it justice for a few to shut down a PUBLIC meeting so no one can participate even kanaka?

Anonymous said...

It's the Kingdom of Atooi not a participatory democracy. Nobody talks but the King. Lucky if you get to listen.