August 2007

Here are links to all the posts on the “Ohana Kauai” Charter Amendment case, in which the Hawaii Supreme Court in a 3-2 decision held that friendly government officials have standing to institute lawsuits against each other to challenge a charter amendment enacted by a vote of the people.  Chief Justice Ronald Moon authored the majority opinion, which was joined by Associate Justices Steven Levinson and Paula Nakayama. 

In the words of the dissenting opinion, the majority, on its own initiative and after briefing and argument, rearranged the parties by

deleting [the Defendant Kauai County Council] as a defendant in this case and adding it back as the putative plaintiff in order to create a supposed controversy between the County Council and Defendant Mayor of Kauai . . . manipulating the lawsuit so as to create a controversy that did not in fact exist when the suit was filed, when…

Continue Reading ▪ County of Kauai ex rel. Nakazawa v. Baptiste: Kauai Property Tax Decision Summary Page

Reason Magazine has posted Professor Ilya Somin’s article The Limits of Anti-Kelo Legislation.  An excerpt:

Although important progress in protecting property rights has been madein some states, such predictions turned out to be seriously overstated.The Kelo backlash has not been as effective as many expected. Too often, cosmetic changes have taken the place of real reform.

Nearly every state legislature has either adopted or considered legislation to curb the use of eminent domain since Kelo,but only 14 have enacted laws that provide significantly increasedprotections for property rights. Several other states have enactedeffective reforms by popular referendum. Seventeen state legislatureshave passed laws that purport to restrict eminent domain, but inreality accomplish very little.

The complete article is well worth reading. Continue Reading ▪ Article on Effectiveness of Eminent Domain Legislation After Kelo

I’ve been asked to repost the briefs in the Kauai property tax decision.

Here are the merits briefs of the parties, all in Adobe Acrobat (pdf) format:

The appeal also generated amici interest:

Continue Reading ▪ Repost: Briefs in Kauai Property Tax Decision

The Rick Hamada show (KHVH 830-AM) discussed the Kauai property tax decision with Hawaii State Senators Colleen Hanabusa (Senate President, D-Waianae) and Sam Slom (R-East Oahu) earlier this week, and has posted a podcast of the radio show (23mb mp3) at HonoluluTownPodcast here.

Discussion begins at the 12 minute mark and ends at the 19 minute mark.  An excerpt:

SEN. SAM SLOM: The interesting thing about this — of course it’s a blow to taxpayers — and a blow to voters, and a blow to those of us that really believe in home rule.  But the interesting thing about the ruling in this case, was the 3-2 ruling.  And the fact that …

SEN. COLLEEN HANABUSA: We’ve had a lot of those…

SEN. SAM SLOM: All of a sudden.  I mean remember when everything was 5-0?

RICK HAMADA: Everything was 5-0.

SEN. COLLEEN HANABUSA: Oh it hasn’t been for…

Continue Reading ▪ Podcast: Rick Hamada Show Commentary on Kauai Property Tax Decision (mp3)

LegalNewsline posts “Paradise doesn’t include setting own tax rates, Hawaii SC rules.”

“Because [it] usurps the county government’s/county council’s’functions, powers and duties relating to the taxation of realproperty,’ we hold that the Charter Amendment is unconstitutional,”wrote Chief Justice Ronald Moon, with Justices Steven Levinson and Paula Nakayama.

But dissenting Justice Simeon Acoba,joined by Justice James Duffy accused the minority of “manipulating thelawsuit so as to create a controversy that did not in fact exist.”

“Theonly way the merits in this case are reached by the majority is throughthe manipulation of the parties and the lawsuit — a course that, in myview, fosters unwise and dangerous precedent,” Acoba wrote.

OhanaKauai (OK), the group that brought the original charter, charged theCounty with pulling legal fast ones to bring the case to the SupremeCourt, the Honolulu Advertiser reported. 

“Kauaiofficials sued each other to invalidate [the charter], with the…

Continue Reading ▪ More Commentaries on Kauai Property Tax Decision

The editorial in today’s Honolulu Star-Bulletin, “Court right to reject Kauai tax referendum,” reflects a pretty gross misunderstanding of the issues in the Kauai property tax decision, and of the limited role of the courts in a democratic society.

First, the editorial blows right by the fact that the case was manufactured by county officials in order to get what is in essence an advisory opinion from the courts. What does the editorial say about the most critical issue in the case, the question of whether government officials who disagree with the people’s vote can create a fictional lawsuit, funded by public money, to attack the vote in court?  Merely that it was a speedbump on the road to apolitically wise result: 

Kauai Mayor Bryan Baptiste and the County Council both opposed theinitiative, and the county attorney brought it to court by suing themayor, the Council and…

Continue Reading ▪ Kauai Property Tax Charter Amendment: Star-Bulletin Editorial Misses The Real Story

Charlie Foster posts “County sues self.  Wins!” at his Planet Kauai blog:

However, the Supreme Court agreed with the lower court that theamendment violated the state constitution. Article VIII, Section 3 ofthe Hawai`i Constitution states that “all functions, powers and dutiesrelating to the taxation of real property shall be exercisedexclusively by the counties.” The county argued, and the courtaccepted, that by “counties” the constitution means “county councils”or “county governments.”

This strikes me as an arbitrary readingof the constitution – though the court does dress it up in “originalintent” garb, claiming that committee notes reveal that the truemeaning of “counties” is something more specific than what the documentactually says.

Here we have a case in which the countydid in fact properly exercise its power concerning the taxation of realproperty – in this case by a ballot initiative amending the countycharter. In order to take the win…

Continue Reading ▪ Commentary on Kauai Property Tax Decision

A Supreme Court majority of Justices Ronald Moon, Steven Levinson and Paula Nakayama allowed the suit. But in a minority opinion, Supreme Court Justices Simeon Acoba and James Duffy chided the majority for “manipulating the lawsuit so as to create a controversy that did not in fact exist.”

Acoba and Duffy argued that the case should have been dismissed because there is no difference of opinion between the county officials who are suing and those who are being sued.

“There is no actual controversy among the parties to the amended complaint because they all agree that the subject Charter Amendment is ‘invalid,’ ” they wrote. They argued that the appeal should have been dismissed.

“We’re disappointed that the court allowed this fabricated lawsuit to go forward,” said Thomas, who filed the appeal for the ‘Ohana Kaua’i leadership…

Continue Reading ▪ Latest News on Kauai Property Tax/Standing Appeal

I’m reposting an op-ed published by the Honolulu Advertiser last year regarding the implications of the Kauai property tax case.

Whose county is it, anyway?

According to Kaua’i government officials, how much property tax homeowners pay is an issue too important to be trusted to the people who pay them.

In recent years, the median value of Kaua’i homes has soared to nearly $700,000, a 48 percent increase this past year alone. The staggering prices are the product of a hyperactive market fueled by speculation, and investors flush with cash willing to pay top dollar for modest properties.

A rise in market value has little benefit to those who have no intention of selling. When a neighbor’s home sells, or is upgraded by a new owner, all of the properties in the neighborhood see an increase in assessed value, which the tax collector uses to justify increased property taxes.…

Continue Reading ▪ Whose “County” is it, Anyway?

The Hawai‘i Supreme Court has invalidated a voter-approved charter amendment its proponents say was intended to save millions in tax bills for thousands of property owners who own their homes and live in them.

In an Aug. 6 ruling, the court permitted the county to file a lawsuit to prevent Mayor Bryan Baptiste, then-finance director Michael Tresler and the Kaua‘i County Council from implementing the Ohana Kaua‘i measure, which was approved in the November 2004 General Election.

The court also ruled the charter amendment violated a provision of the Hawai‘i Constitution that gives exclusively taxing authority to the county councils from each island.

But Ohana Kaua‘i won on one count — that its measure didn’t violate the county charter, as contended by the county.

Full article.

Pacific Legal Foundation Managing Attorney Robert Thomas…

Continue Reading ▪ Reports of Kauai Property Tax/Standing Appeal