Property tax

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“In a democracy, the people get the government they deserve” states the old dictum.  That pretty much sums up one response to The Wall Street Journal story This Side of Paradise about the “Ohana Kauai” property tax charter amendment case.  A WSJ reader proposes: “It’s Simple: Vote Them Out.”

The need to restrain local taxation in Kauai may be compelling; butthere is another, and undiscussed, option. Vote out the recalcitrantmayor and/or governing council and replace them with officials for whomcontrolling the level of taxation is a high priority. Who knows? Facedwith the broader issues of local government, Ohana Kauai’s voters maybe able to impel all manner of improvements in local policy andadministration.

Full story here. 

He’s got a point, of course.  Removing unresponsive elected officials from their positions, either by voting for the other guy in the next election or by recall (the Kauai Charter provides…

Continue Reading ▪ Getting the Government They Deserve — “Ohana Kauai” Solution Proposed

The Wall Street Journal posts “This Side of Paradise,” about the “Ohana Kauai” property tax Charter Amendment case, County of Kauai ex rel. Nakazawa v. Baptiste, No. 27351 (Aug. 6, 2007). 

Inthat 3-2 decision, the Hawaii Supreme Court over a vociferous dissent,held that friendly government officials have standing to manufacturelawsuits against each other to challenge a charter amendment enacted bya vote of the people, and that the Hawaii Constitution delegatesproperty tax power exclusively to “county councils.”

The Pacific Legal Foundation’s Robert Thomas stepped in, arguing the case before the Hawaii Supreme Court on Feb. 15, 2007, on behalf of four property owners. Honolulu attorney Gary Slovin, for the county, countered that allowing people to vote on taxes would create “chaos.” A few members of the County Council publicly agreed. The Hawaii Government Employees Association, fearing government jobs held by union members might be cut, issued a…

Continue Reading ▪ National Spotlight on the “Ohana Kauai” Property Tax Charter Amendment Case — Wall Street Journal: “This Side of Paradise”

Kauai’s newspaper posts “Ohana amendment decision the result of classic Hawaii politics,” a commentary by Walter Lewis, one of the Kauai homeowners who intervened in the County vs. County lawsuit, an effort by county officials to strike down a voter-enacted property tax relief charter amendment.

The typical lawsuit involves a realcontroversy between the plaintiff and the defendant or defendants withactual or threatened injury to the plaintiff. These fundamentalconditions did not exist in the Ohana measure case. Ever. The plaintiffand all the defendants wanted the same result and, as we all know, hadno dispute among them and prosecuted this lawsuit with over $250,000 oftaxpayer money to get political cover. And the County was unable topoint to anything in the Ohana measure that was or would be injuring it.

Complete commentary here.  [Note: I represent the homeowners.] 

Sunday update:  Charley Foster’s letter to the editor responding to Continue Reading ▪ Article on the Kauai Property Tax Decision

My thanks to Sandy Brodie and Karlos deTreaux for having me on their “Kauai Soapbox” program today on KKCR-FM 92.7, where we discussed the “Ohana Kauai” property tax charter amendment case and recent decision by the Hawaii Supreme Court.

Stream the podcast here (1 hr):

Or download the podcast here (52mb mp3).Continue Reading ▪ Podcast: Radio Interview on Kauai Property Tax Charter Amendment Case (mp3)

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