OIP loses sunshine battle with Kauai Council

The case arose from a January 2005 closed meeting of the Council to discuss whether to investigate "alleged unethical activity of the Kauai Police Department." After the meeting, County Police Commission chair Michael Ching filed an open meeting violation complaint with the OIP. The OIP issued an opinion letter saying that with the exception of some attorney-client communications, the meetings secrecy was not supported by the state sunshine law.

Ching and Richard Stauber requested minutes of the meeting. The county asked the OIP to reconsider but the OIP refused and ordered the county to release redacted minutes. The county then sued for declaratory relief against the OIP and was successful in the circuit court. The OIP appealed and today the county again won.

More later, but for now, here's the ICA decision.

Proposed unauthorized practice of law rule

An opinion piece in today's Star-Bulletin seems to ignore some of the amendments made since the first draft, but nevertheless makes some interesting points that are still relevant -

Several states have adopted similar restrictions but the Department of Justice's antitrust division and the Federal Trade Commission objected to a "model" provision considered by the American Bar Association. In a letter to the association, the agencies noted that "consumers generally benefit from lawyer-nonlawyer competition in the provision of certain services."

A letter to the Supreme Court by Jeffrey H.K. Sia, last year's Hawaii bar president, cites no harm in the way nonlawyers service clients in performing quasi-legal functions. Likewise, other states that have adopted such a restriction did so after providing "no factual evidence and little evaluation of how the ability of lay services had actually hurt consumers," the Justice Department and FTC stated in the letter to the ABA.

Legislature passes act overturning Supreme Court decision

No, not Act 2. But in what in post-Act 2 Hawaii could serve as a "teaching moment," the US Congress has sent a bill to President Obama that would overturn a Supreme Court decision that required strict adhesion to a statute of limitations congress has written into an employment discrimination law. The law required claimants to file their claims 180 days “after the alleged unlawful employment practice occurred.”

The plaintiff in the case, Lilly Ledbetter, had argued that she did not become aware of a discriminatory pay discrepancy until near the end of her 19-year career at a Goodyear Tire & Rubber Co. plant in Gadsden, Ala. The court held that, too bad, the law required her to bring suit within 180 days. Congress understandably didn't like the harsh result and changed the law - which is, of course, its prerogative.. The president is expected to sign it. No one is expected to challenge congress's power to change its laws in response to supreme court decisions it doesn't like.

Governor's ceded lands statement

From today's state of the state address, via inversecondemnation.com -

Before concluding I want to take a moment to speak about the case pending before the United States Supreme Court involving the issue of ceded lands.

The issue involved in this case is not whether ceded lands should or should not be sold.

Rather the issue involves the fundamental question of whether the State of Hawai‘i has clear title to the land transferred to us by the federal government at the time of statehood.

The roots of this case date back to a decision made by former Governor Waihe‘e in the 1980s to sell certain ceded lands on Maui and Hawai‘i for the construction of affordable housing.

It was a decision he believed was in the best interest of all the people of Hawai‘i.

It is a decision that former Governor Cayetano defended in court because he believed it was in the best interest of all the people of Hawai‘i to do so.

And it is a decision that we are appealing to the United States Supreme Court because I believe it is in the best interest of all the people of Hawai‘i.

Walter Lewis helps to illuminate Hawaiian ceded lands case

In the Garden Island today.

As is often the situation, the briefs by the parties make it appear that they are talking about two different cases.

Hawaii Civil Unions bill

Via Georgette Deemer's twitter feed -

Here's info on and link to Hawaii Civil Unions bill that seems likely to pass the House. Not sure about Senate.

Poinographer comments -

Seems a bit presumptious to forcast the passage of a bill before it is even heard. MajPack bills with more sigs die, too.

To which Georgette replies -

You're right. But with 32 members signing I would agree with Advertiser story that the bill has a good shot in the House.

Honua Kai condo buyers sue for refund

The Maui News has a fairly detailed account.

On proposed legislation to ban ceded lands sales

Star-Bulletin -

Sen. Clayton Hee, a former OHA chairman, said state lawmakers need to step in because the U.S. Supreme Court will likely rule that these lands are the property of the state -- not the Hawaiians.

"We want to do this as soon as possible, and ideally before the Supreme Court rules," said Hee (D, Kahuku-Kaneohe). "It wouldn't pre-empt the Supreme Court. It would fortify the argument ... that no land sales should occur until reconciliation with the native people occurs."

The high court will hear the case Feb. 25, and lawmakers are racing to pass a measure before the court can make a decision.

Gov. Linda Lingle said she would go forward with the appeal to the Supreme Court "to make clear our position that these lands that were given to the state, that were ceded over when we became a state, those belong to all the people of Hawaii."

AG Bennett's criticism of proposed unauthorized practice of law rule

Star-Bulletin -

In a letter to the [Hawaii State Bar Association], Bennett said he cannot support the proposal. He said state lawmakers refrained from defining the unauthorized practice of law because any attempt would be "fruitless because of new developments in society, whether legislative, social, or scientific in nature, continually create new concepts and new legal problems."

Bennett suggested that the exemptions are so ambiguous that the enforcement of the state law would be "extremely difficult."

I would add that ambiguity invites litigation.

Friday's gecko

It's been too long.


This one is borrowed from the internet - how to identify the sex of a gecko.

OHA's ceded lands brief is now available online

(Here). I'm eager to give it some attention over the weekend. Until then, here's a bare bones outline of the arguments -

I. The Hawaii Supreme Court correctly held that, in light of the ongoing reconciliation process, it would constitute a breach of fiduciary duty under state law for the State to sell ceded lands.

A. In holding that it would constitute a breach of fiduciary duty under state law for the State to sell ceded lands, the Hawaii Supreme Court merely relied on factual findings in the Apology Resolution.

B. The Hawaii Supreme Court’s reliance on factual findings in the Apology Resolution was proper.

C. The Hawaii Supreme Court correctly held as a matter of state law that it would constitute a breach of fiduciary duty for the State to sell ceded lands.

D. Because the Hawaii Supreme Court’s decision rested on state law, this Court should dismiss the petition for lack of jurisdiction.

II. The remaining arguments concerning federal law [the Newlands Resolution and similar federal statutes, and the Admission Act] presented by petitioners and the United States are not properly before the Court and in any event lack merit.

As expected, it appears to minimize the extent to which the state Supreme Court relied on the federal Apology Resolution for its decision blocking the sale of lands. The argument asserts that the Apology Resolution, in combination with other events, created a fiduciary duty in the state, and further asserts that the decision itself was based in this state law duty. It's an interesting argument. I look forward to giving the brief a thorough reading.

Here's the Hawaii Supreme Court's decision.

Senate approves Rom Trader to 1st Circuit

Via twitter.com/hawaiisenate

Senate just approved nomination of Rom A. Trader to the Circuit Court of the First Circuit with 24 ayes

Revised draft rule defining unauthorized practice of law

Via Dan Seto - The draft revised rule defining unauthorized practice of law is online (pdf). The first draft roped in a lot of activities that, while arguably "practicing law," are often traditionally performed by non-lawyers. In fact, some other professions depend on their ability to perform such functions. The new draft has carved out exceptions for Realtors and accountants and others.

And the final contestants are...

Advertiser -

Governor Linda Lingle today released a list of six judicial nominees that was provided to her by the Judicial Selection Commission to fill the vacancy on the Hawai'i State Supreme Court created by the retirement of Associate Justice Steven Levinson.
...
Lingle has 30 days from receipt of the list (January 20, 2009) to make her selection.

Click through to the article for the list and professional bios.

A dog

...waiting patiently in a parking lot.

Judge reverses convicted child abuser's release on bail pending Hawaiian sovereignty appeal

It was puzzling why Circuit Judge Virginia Crandall last month granted a convicted and sentenced child abuser's motion to be allowed to remain free on bail pending her appeal - an appeal based on the theory that the court had no jurisdiction over her because she was, "Her Highness Rita Kulamika Makekau, Royal Minister of Foreign Affairs for the Hawaiian Kingdom Government."

The trouble with that theory - for purposes of the motion to remain free - is that for a sentenced defendant to remain free on bail the court "must find that the significant question at issue [on appeal] is one which is either novel, which has not been decided by controlling precedent, or which is fairly doubtful." (State v. Cullen, 946 P.2d 955, 86 Haw. 1 (1997)).

As I mentioned at the time, the argument that state courts have no jurisdiction over Native Hawaiians is none of those things. It is well settled as far as Hawaii courts are concerned that the state has jurisdiction to enforce its criminal laws within the boundaries of the state, regardless of whether the defendant in question is Native Hawaiian and claims immunity from state jurisdiction.

Indeed, as the Advertiser reports this morning:

[Judge]Crandall said the reconsideration motion that [Honolulu City & County Prosecutor, Peter] Carlisle's office filed contained convincing arguments that Makekau would be unlikely to prevail in her appeal and should begin serving her prison sentence immediately.

So why did the judge grant the motion in the first place? According to the Star-Bulletin -

[Judge] Crandall said the prosecution did not object to her granting Makekau bail pending appeal during plea negotiations, when Makekau pleaded no contest, when she was sentenced and when she asked for bail. Instead, Crandall said, the prosecution consistently left the issue of bail up to the court.

It was only after Crandall said Makekau can remain free on $41,000 bond last month that Carlisle objected and asked the court to reconsider.

"The state's recent change in position and raising of new issues that could have been raised earlier has been very disrespectful of this court and the judicial process," Crandall said.

Ceded lands presentations on agenda for Legislative Hawaiian Caucus

Via Hawaii House Blog -

The Legislative Hawaiian Caucus will hear concerns from Attorney General Mark Bennett and other civil attorneys about Hawaii’s “ceded lands” on Thursday, January 22.
...
Attorney Sherry Broder is scheduled to update the caucus on the legal challenges to preserve lands for Native Hawaiians. Broder has represented the Office of Hawaiian Affairs in obtaining entitlement to “ceded lands” revenues and was the chief attorney for OHA from 1986 to 2002. Broder also had been elected the first woman president of the Hawaii State Bar Association.

Ceded Lands Case Debate

Via inversecondemnation.com -

Whether the Hawaii Supreme court was correct when it blocked the sale of land based on a joint resolution that Congress passed in 1993 to apologize for the 1893 overthrow of the Kingdom of Hawaii, and whether the Apology Resolution itself is factually correct.

Thursday, February 12, 2009, 12:45 - 2:00 pm; Classroom 2, U. Hawaii Law School

[T]wo renowned legal experts. Ilya Shapiro is a Senior Fellow at the Cato Institute's Center for Constitutional Studies and Editor-in-Chief of the Cato Supreme Court Review. He has written and debated on several Hawaii-focused topics.

Carl Christensen holds an appointment as Visiting Assistant Professor of Law at the William S. Richardson School of Law, University of Hawaii. Prior to accepting his current position, Professor Christensen served as Senior Counsel to the U.S. Senate Committee on Indian Affairs and as Staff Attorney with the Native Hawaiian Legal Corporation.

It seems silly

...but I suppose it was predictable. As SCOTUSBLOG pointed out yesterday -

With one word — “faithfully” — misplaced, and with some hesitation, Chief Justice John G. Roberts, Jr., led Barack Obama on Tuesday in taking the constitutional oath required of a new President. But, within minutes, the chattering on the Internet ensued, raising questions about whose fault it was and, more importantly, wondering whether the oath was valid and whether President Obama was, indeed, President.

The post went on to explain at some length why the incident is meaningless and will have no impact. But today real live serious constitutional scholars (Akhil Reed Amar and Jonathan Turley) are suggesting, if for no other reason than to head off the inevitable conspiracy theories, that Obama should consider taking the oath again. I was interested to learn that it wouldn't be unprecedented: "Two previous presidents -- Calvin Coolidge and Chester A. Arthur -- repeated the oath privately because of similar issues."

Update: via KGMB9 via twitter -

Chief Justice John Roberts has administered the presidential oath of office to Barack Obama for a second time just to be on the safe side. The unusual step came after Roberts flubbed the oath a bit on Tuesday, causing Obama to repeat the wording differently than as prescribed in the Constitution. White House counsel Greg Craig said Obama took the oath from Roberts again out of an "abundance of caution." The chief justice and the president handled the matter privately in the Map Room on Wednesday night.

BlogNetNews

BlogNetNews.com/Hawaii has a new look and new features.

Check it out. Also, if you publish a political or policy or commentary oriented blog that is not listed, or if you know of one, feel free to let me know in the comments.

That hat

...was something else.

"Justice Moon has made his decision; now let him enforce it."

Just a perverse random thought based in Andrew Jackson's famous rebuke of Chief Justice John Marshall and brought on by the Hawaii Supreme Court's order today denying the governor's motion for additional time to appoint the second at-large regent of the University (here's the order). In reality, I imagine there would be great political cost to ignoring this court order. Could be a fascinating snub, though, to miss it by a couple of days...

OHA loses SCOTUS Ceded Lands lawyer to Obama

The BLT, via raatz: Georgetown law professor Neal Katyal, co-counsel for OHA on Hawaii, et al. v. Office of Hawaiian Affairs, et al. (set for hearing on Feb. 25) is tapped to serve as principal deputy solicitor general starting Tuesday. Williams & Connolly's Kannon Shanmugam will argue the case.

(It was Katyal who successfully argued Hamdan v. Rumsfeld).

How to recession-proof your Hawaii law practice

Pacific Business News -

Mounting government regulation and an increasingly complex business landscape have created a high demand for attorneys specializing in government relations and regulatory law.
...
The state’s notorious bureaucracy and its multiple layers of regulation make the specialization in governmental law one of the most reliable and recession-proof practices in Hawaii.

Saturday photo blogging

Interesting *lege* session shaping up for legal bloggers?

Another intriguing tweet from Derrick DePledge

From Rep. Karamatsu: Civil unions and medical-malpractice reform will be in play before the House JUD this session.

Odd legal theory dismisses charges against Naue protesters

Joan Conrow has good coverage at The Hawaii Independent of yesterday's dismissal by district court judge Judy Senda of trespassing charges against defendants who, opposing construction there due to the presence of ancient burials, had chained themselves together at the Naue building site. According to Joan, and to this less detailed Star-Bulletin piece, prosecutors, who had no desire to press on with charges, essentially stipulated to a ruling based in doctrines discussed in State v. Marley, 54 Haw. 450, 471-72, 509 P.2d 1095, 1109 (1973).

Marley involved a group of Viet Nam War protesters charged with trespass for occupying some offices in a Honeywell property in Honolulu. The Marley court considered but declined to apply legal doctrine that deems as reasonable criminal acts taken to prevent the occurrence some other crime.

It's hared to say whether the defense doctrine would have flown in this case had the prosecution and the judge not been eager to find a reason to avoid prosecuting. On the one hand, the circuit court had previously declined to grant a preliminary injunction on a finding that the harm to be avoided had already occurred. Also, if work was not underway at the very moment of the trespass, under the law the defense would not apply. On the other hand, the stipulation also relied in part on the circuit court ruling last September that the state Historic Preservation Division had failed to properly follow procedures when it approved property owner Joseph Brescia's burial treatment plan in 2007.

I'm not sure how that technically would justify application of the doctrine, but I can see how it represents a handle - a sort of emergency equity break handle - to grasp for when the judiciary has announced that the regulatory body has biffed up its job - and when tensions and emotions are high.

As if acknowledging the novelty of the theory in this application (and reminiscent of Bush v. Gore), Judge Senda admonished everyone that the ruling is limited to the present circumstances.

Hawaii Law Enforcement Coalition wants to limit state search and seizure protections?

(Updated and bumped)

The federal Constitution sets a floor for individual constitutional rights. States are free to provide broader rights under their laws than the U.S. Constitution requires. According to this KHON story, the Hawaii Law Enforcement Coalition's "2009 legislative package" calls for a state constitutional amendment that would "better align" Hawaii search and seizure and/or evidence law with federal law.

I want to see the proposal before saying much about it, but I can't imagine I would support a measure preventing the state from affording greater rights than whatever the U.S. Supreme Court interprets the 4th Amendment to mean.

Update: Here is a failed bill from 2002 that would have amended the state constitution to "ensure that relevant evidence admissible under decisions by the United States Supreme Court on federal constitutional provisions relating to search and seizure and self-incrimination would also be admissible in state criminal proceedings."

Commenting on Illinois' judicially self-imposed lockstep approach to interpreting the state's search and seizure protections, John Marshall law prof Timothy P. O'Neill noted -

Obviously, this interpretation turns federalism on its ear. In a special concurrence in Tisler [the Illinois case adopting the lockstep doctrine], Justice William G. Clark had it exactly right: "[Lockstep] is dangerous because it limits our power to interpret our own state Constitution in the future."

So did Justice James D. Heiple: "There is no reason for deference in this area of constitutional interpretation.... Regardless of the language employed in the two documents, they are separate and distinct. The United States Supreme Court has the responsibility to interpret the federal Constitution; the Illinois Supreme Court has the responsibility to interpret its state Constitution. These are nondelegable duties." People v. Mitchell, 650 N.E.2d 1014, 1025 (1995).

Lockstep obviously has Justice Louis D. Brandeis rolling over in his grave. It was Brandeis who envisioned the federal system as one in which an individual state would serve as a "laboratory" in which a state could experiment by granting its citizens more rights than the federal Constitution mandates. New State Ice Co. v. Liebmann, 285 U.S. 262, 311. But to paraphrase Judge Alex Kozinski of the 9th U.S. Circuit Court of Appeals, the Illinois Supreme Court apparently sees its role not as an independent laboratory, but rather as a low-level employee merely following orders in a research park run by the U.S. Supreme Court. Kremen v. Cohen, 325 F.3d 1035, 1047 (9th Cir. 2003).

(I notice the KHON piece says "Federal law is much more black and white..." That's a laugh. The field of federal search and seizure law is vast and complex. Have a look at the annotations in the USCA under the 4th Amendment. It goes on and on for hundreds of pages. According to Stephens and Glenn's excellent treatise on the topic, Unreasonable Search and Seizures, "No provision of the U.S. Constitution has been more difficult to interpret or more controversial in its application than the Fourth Amendment's guarantee of the right of personal security against unreasonable searches and seizures.")

Just look at all those ferries racing to assist the passengers of the jetliner that ditched in the Hudson River today

That's really...Super.

OHA offers public land trust revenue bill

OHA's press release is here. The bill purports to settle the ongoing dispute over past payments from the income and proceeds of the Public Land Trust. Unlike the negotiated proposal that failed to pass the Senate in '08, this one resolves past due claims only and explicitly leaves open future claims. According to OHA Chair Haunani Apoliona's remarks at the press conference -

Cognizant of the strapped conditions of the present economy, OHA is prepared to accept payment in the form of land.

• In Kaka ‘ako Makai in Honolulu. These parcels are the same parcels identified in last year’s proposed resolution.
• Along the Banyan Drive resort area in Hilo. These parcels include: the Country Club Condo Hotel, Reed’s Bay Resort Hotel, Uncle Billy’s Hilo Bay Hotel, the Hilo Hawaiian Hotel and the Naniloa Hotel and Golf Course.

New First Circuit Court judge?

Derrick DePledge just tweeted -

Deputy prosecutor Rom Trader breezes through Senate JGO info briefing and appears headed toward confirmation as First Circuit Court judge.

Hawaii Reporter has more background today -

The Hawaii State Bar Association Board of Directors rated Trader as "qualified" for the position after surveying their members and getting "very high praises of Mr. Trader" and unanimous support.
...
Trader will have to be confirmed by the majority of full Senate. The legislative session will convene next week Wednesday. Senate Judiciary Chair Brian Taniguchi says he expects his committee will vote on Traders' confirmation on Thursday at 10:30 a.m. and the full Senate will vote on Friday.

Suing anonymous web critics

Still not generally successful.

Last week there was the story of the supermodel who has sued Google over a blog whose whole purpose is to taunt the model as old and skanky.

Today there's this post about a similar suit on the Citizen Media Law Project blog -

Last month, an anonymous website dedicated to criticizing Ohio homebuilder Powermark Homes succeeded in maintaining its anonymity in the face of a lawsuit brought by the company and two of its principals, Mark and Lisa Powers, who had sued the anonymous operator of Powermark Homes Alert. At the time of the suit, the homepage for the site included a picture of Mark and Lisa and the statements "The Truth Exposed" and "Do you really want to do business with this Ohio Home Builder?"

University of Hawaii Law Review online

The current and prior issues of the University of Hawaii Law Review are available online. I certainly hope they intend to make that a habit.

Here are some articles from the current issue -

Doe v. Kamehameha Schools: A “Discrete and Insular Minority” in Hawai‘i Seventy Years After Carolene Products?

Judge David Alan Ezra

The Hawaiian Usage Exception to the Common Law: An Inoculation Against the Effects of Western Influence

David M. Forman

Doe v. Kamehameha Schools: The Undiscovered Opinion

Eric Grant

“How Missionaries Thought: About Property Law, For Instance”

Alfred L. Brophy

And here's an article and several comments from the last edition -

Water Regulation, Land Use and the Environment

David L. Callies and Calvert G. Chipchase

Medical Malpractice in Hawai`i: Tort Crisis or Crisis of Medical Error?

Steven K. Idemoto

Prostitution: Protected in Paradise?

Marissa H.I. Luning

An Analysis of Hawai`i's Tradition of "Local" Ethnic Humor

Karyn R. Okada

"Officially" What? The Legal Rights and Implications of `Ōlelo Hawai`i

Ka`ano`i Walk

Legal to photograph the police? Officer caught by video phone shooting subdued victim charged with murder

The legality of photographing police officers has been a relatively popular subject here generating some good comments after Damon Tucker was recently asked to stop photographing at the post office and, when the cops showed up, he photographed one of them.

Here's an interesting story in which cell phone video is some of the evidence that has led prosecutors to charge a police officer with murder after he shot a subdued, unarmed individual who was lying face down waiting to be handcuffed.

As discussed in an earlier ABAJournal.com post, a criminal charge was predicted, based on witness accounts—and a cell phone video—of the shooting, but experts said they doubted it would be murder, given the difficulty of proving intent. Reportedly, the unarmed victim, supermarket worker Oscar Grant III, 22, was lying facedown on a BART transit station floor when witnesses say Mehserle shot Grant as Mehserle appeared to be about to handcuff Grant.

At a press conference today, however, Alameda County District Attorney Tom Orloff said "From the evidence we have, there's nothing that would mitigate that, something lower than murder," reports the San Francisco Chronicle.

Wednesday dog blogging

My sister's dogs, staying.

OHA's Ceded lands moratorium bill

Here, with various links, including to the bill itself, is the OHA's statement about its bill which would prohibit the sale or exchange of lands...

- Ceded to the United States by the Republic of Hawai'i in 1898,
- Acquired in exchange for lands so ceded, and granted to the State of Hawai'i by the Admission Act of 1959,
- Retained by the United States under the Admission Act of 1959 and later conveyed to the State in 1964,

"...until the claims of the native Hawaiian people to the public land trust lands have been resolved or until the legislature finds that the state no longer supports reconciliation between the state and the native Hawaiian people."

I'm no expert at all in the state legislature but for some reason - probably because of its ongoing inability to craft a settlement with the OHA on the ceded lands - I wasn't under the impression that it would side with the state supreme court on this issue. To tell the truth, what I imagine happening is the SCOTUS overturning the state supremes and the whole thing going back to the state court which would then craft another decision prohibiting sale of the lands but basing it entirely on a state law theory.

Citation pointers for my attorney friends

...who know the frustration of citing to some authority not listed in the Blue Book or ALWD - restroom graffiti, for instance, or Magic 8-Ball answers, or alien mind transmissions.

Or tatoos. Sometimes you have to cite to those.

Or epithets hollered out of car windows.

The PMLA has answers.

(hat tip to the (new) legal writer)

Hawaii Land Use Law

Two day conference at the Ala Moana Hotel January 15th and 16th. It boasts an impressive faculty and agenda.

Who Should Attend - according to the website:
Attorneys and Legal Staff
Government Officials
Planners
Landowners
Developers
Real Estate Professionals
Appraisers
Environmentalists
Anyone Concerned with the Present and Future Use of Hawai`i’s Land

Hat tip Robert Thomas who, on a related note, has been designated as the Hawaii member of the Owners' Counsel of America. Congratulations.

Ceded lands forum

Via KGMB9.com -

Kupu'aina set up a two-panel forum, the first with Bill Meheula and Mark Bennett. The second, a "solutions-based panel" that included some familiar faces.
...
Kupu'aina videotaped the forum and is now offering it via its website.

Hawaii Sunshine Chronicles

...is an interesting looking new blog, funded by the Grassroots Institute and written by “Transparency Correspondent” Don Ray.

My task is to report on all levels of government in Hawaii. I’m looking specifically for juicy examples of government waste, misuse of the people’s hard-earned tax dollars, corruption, cronyism or just plain poor performance on the part of our public servants.

It could bear watching. If you follow the local blogs via BlogNetNews you'll find I've added it to the list there.

local legal items

Advertiser -

Legal Aid Society of Hawaii director resigning

Ex-Honolulu firefighter gets 10 years for arson, to undergo drug treatment

Leong admitted setting three brushfires in the Makapu'u area last July and said he had smoked crystal methamphetamine earlier in the day.

Star-Bulletin -

Hawaii could get another federal judgeship

...under legislation pending in the U.S. Senate.

The bill introduced today would temporarily give California, Hawaii, Kansas, Nebraska, Ohio and Pennsylvania extra judges.

Hawaii Land Use law & Policy -

Highlights of Maui’s New Bed and Breakfast Ordinance

...some of the more significant changes.

The argument for grandfathering vacation rentals on ag lands

Mel Rapozo and others make the argument that the text of HRS 205-5(b)(2) clearly and unambiguously prohibits transient vacation rentals on ag lands.

In opposition to that, I've heard two arguments pressed by those who believe there is ambiguity regarding whether prior existing TVAs ought to be grandfathered.

The first argument asserts that HRS 205-5(b)(2) applies to what counties may allow in an agricultural tourism ordinance, and was not intended to apply outside that context.

As I understand the other pro-grandfathering argument, it is claimed that HRS 205-5(b)(2) was enacted relatively recently and that what is ambiguous is the status of TVAs that existed before its adoption.

I don't know when (b)(2)'s prohibition against overnight accommodations took effect, but there arguably exist vested rights pertaining to TVAs that existed prior to its passage.

To be clear, I'm not staking out a position on either side of this argument. But I do find the arguments of both sides fascinating and welcome any commentary one way or the other.

Update in county council ag land vacation rental battle

Related to this post from earlier in the day, council member Mel Rapozo has answered council member Tim Bynum's assertion that state law is ambiguous on the issue with a blog post titled - HERE IS THE LAW!!! LOOK AT SECTION 205-5(b)(2).

Paul Brubaker, Sen. Sam Slom and author Heather Moir-Dangler

...discuss the economy tonight on Andy Bumatai. But what's really interesting, I think, is that Andy Bumatai has invited people to submit questions for the panel via Twitter -

Tweet me Qs & now & I'll clip them 4 the broadcast.

A short history of the billable hour

...and the consequences of its tyranny.

Alert - Ian Lind is squid blogging!

With photos. Check it out here.

Ag land vacation rental battle in the county council

The GI's Michael Levine describes yesterday's County Council Planning Committee meeting at which council member Tim Bynum expressed his support for a bill that would grandfather vacation rentals on agricultural land in perpetuity, similar to the treatment of rentals on residential land in the original law.

Tim sites the ambiguity of state ag land laws and the equity - or lack thereof - of depriving landowners of use of their property that commenced when such use was arguably legal.

“In my opinion, the laws about what you can and cannot do on ag land are not clear,” he said. “It wasn’t fair to say ‘if you’re on ag land, you can’t continue.’ It’s still very controversial what’s legal and what’s illegal on ag land. The county needs time to figure it out.”

Bynum said the Important Ag Land study could take years, and clarified that the grandfather clause — which applies to any vacation rentals that were created “appropriately” before the law was passed — could extend to ag land rentals even beyond the conclusion of that study.

“Fairness is a big important issue to me. (Landowners) had ordered their economic life around the status quo, which was at that point to do vacation rentals (on ag land),” Bynum said. “To take that away without good reason would be devastating for some people. They’d lose their property on Kaua‘i.”

Meanwhile, on his blog, Kauai Politics, council member Mel Rapozo called rumors of the bill "disturbing," and said that "Hawaii state law specifically prohibits vacation rentals on lands that are zoned agriculture." Furthermore, he said, "This doesn't help the farmers, nor does it help the existing visitor industry."

Interestingly, in debates over a related resolution in the legislature earlier this year, the Committee on Water, Land, Ocean Resources & Hawaiian Affairs made findings that contradict Mel's points. -

[A]lternative visitor accommodations, including those in single-family dwellings and farm dwelling units, play a dual role in supporting both the tourism and agricultural industries. Some counties, however, have taken the position that chapter 205, Hawaii Revised Statutes, per se prohibits single-family and farm dwelling transient vacation rental uses within state agricultural districts without a special use permit.

This interpretation of chapter 205, Hawaii Revised Statutes, appears to be contrary to the legislative intent of Act 199, Session Laws of Hawaii 1976 with respect to prohibited uses in state agricultural districts and Act 186, Session laws of Hawaii 1980, which authorized the counties to restrict the location of transient vacation rentals to those existing in multifamily buildings.

Underlying ongoing confusion as to the law, the committee requested the Attorney General to review the issue and submit a legal opinion to the Legislature as to whether vacation rental uses in single-family dwellings and farm dwellings in state agriculture districts are prohibited under chapter 205, Hawaii Revised Statutes.

Update: Mel has answered Tim with a blog post titled - HERE IS THE LAW!!! LOOK AT SECTION 205-5(b)(2)

More on Pflueger's attorneys' comments yesterday

Tim Sakahara at kgmb9.com has more detail about yesterday's comments by Pflueger defense attorneys. According to the piece, Pflueger's attorney said

...the state deliberately withheld evidence from the grand jury. He specifically says a letter that dates back to 1990 and was signed by Pflueger gave the state permission to inspect the dam could have had a great impact on the grand jury.

"That particular piece of correspondence was not only withheld from the grand jury, but it was withheld from us and concealed from the state for two years," said Bill McCorriston, Pflueger’s Attorney.

But the central defense theme appears to be that the state is scapegoating the defendant -

[T]he defense continued to lay out parts of its case saying Ka Loko Dam has always been classified as low hazard which means it does not pose a risk to people or property.

"Given that what nerve of the State of Hawaii to say Jimmy Pflueger should have known more than the State of Hawaii," said McCorriston.

"You ask me why would the State of Hawaii do this? Well the state is a defendant in a number civil cases where the damages are alleged to be more than $100 million well the state doesn't have insurance so how is the State of Hawaii going to get out of it? Blame one guy," said McCorriston.

Akaka Bill costs

Nancy Cook Lauer has an interesting post at All Hawaii News about discussions among different sides of potential costs of the Akaka Bill.

OHA Administrator Clyde Namuo said a cost can’t be affixed to the bill, because the bill allows for many different scenarios.

The highest cost would come about if Native Hawaiians decided to set up reservations as a method of self-governance, where they would have their own government, including criminal and civil laws and the infrastructure to deal with it.

“It’s permitted in the bill, but if you ask me, do I think the Hawaiian people would want that, that is not my sense,” Namuo told the committees. “A system similar to Native Indian reservations is possible … I don’t think people would want that … but the bill allows that discussion to occur.”

This sounds familiar

Utah AG: BCS may violate antitrust laws

It wasn't quite a year ago that Neil Abercrombie was making the same sorts of noises. But, recall, Neil employed more hyperbole - even comparing the BCS to slavery(!).

Update: Honolulu Advertiser - The BCS coordinator said today major college football's leaders feel the postseason system is in compliance with federal antitrust laws.

Random things via Twitter

Some stuff I read - or skimmed - when it came across my Twitter today:

ABA Journal - 1st Surrender, Then Contest 1977 Child-Rape Plea, Gov’t Tells Polanski

Find Law docs - Appeals Court Rejects Former Judge's $54M Pants Lawsuit Against Dry Cleaners

Inersecondemnation - THE NINTH CIRCUIT REDISCOVERS SUBSTANTIVE DUE PROCESS IN LAND USE CASES (pdf)

Legal Theory Blog - Hardy on Popular Understanding of the 14th Amendment

Speaking of suing for bad online behavior...

As an aside related to the post immediately below this one, this appeared on TortsProfBlog late last month -

The new volume of the Yale Law Journal Pocket Part includes an article by Nancy S. Kim (Cal Western) on "Imposing Tort Liability on Websites for Cyber-Harassment." Kim acknowledges that websites are immune from liability as publishers, but argues that they should be held liable as business proprietors under a "reasonable care" standard.

Suing for online bad behavior

...is often not very successful. For one thing federal law (47 U.S.C. §230) "creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service" Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997), cert. denied, 524 U.S. 937 (1998).

I bring it up because according to this piece -

Canadian model Liskula Cohen has sued Google for a number of snarky remarks that were made by a blogger using the company’s Blogger service. The NY Daily News reports that the former Vogue cover girl has been called ’skanky’ and ‘an old hag’ by an anonymous blogger on a website called Skanks in NYC (could be deemed NSFW).

The piece describes it as a "defamation suit" but, while the comments in question are vicious, I interpret them as someone's opinion as opposed to statements of fact - and opinion is a defense against a claim of defamation. (So is truth, for that matter. Wouldn't that make for an entertaining factual inquiry: "The court finds as a matter of fact that the supermodel is/is not "a skank"").

Maybe she's not suing Google on the defamation claim, though. The article says she "seeks a court order compelling Google and its Blogger service to identify the anonymous blogger." But I would think that the way a plaintiff would normally go about that would be to sue the unknown blogger (as a "Doe(s)") and within that suit subpoena the provider for either the blogger's identification or information that could lead to the blogger's identification.

More on Pflueger defense

The GI's Michael Levine and the Advertiser provide a preview this morning of the defense's theories in the in the Ka Loko Reservoir Dam disaster case.

According to their reports, the defense asserts that the attorney general's office withheld exculpatory evidence from the grand jury - which can be grounds for dismissal. The defense also denies that Pflueger filled in the spillway or hired anyone to fill it, and asserts that the state failed to present any evidence that he did.

According to the defense, a 1984 joint state-federal report found seepage at the base of the dam. The defense claims the dam failed from erosion at the base and not from overtopping (although, my understanding is that overtopping causes erosion at the base) and that the state is scapegoating Pflueger because it stands accused in a civil suit of some culpability for the disaster. Related to that point, the defense indicates that it intends to ask for a rehearing on a previously denied motion to disqualify the AG on conflict of interest grounds.

Finally, in an interview with Michael Levine, defense attorney Bill McCorriston asserted that flood victims were staying in unpermitted dwellings illegally placed in a flood zone and that it was therefore not reasonably foreseeable that they would be harmed. (I'm not sold on this theory. I would think that if Pflueger is found responsible for the collapse, then anyone killed could be a foreseeable victim whether they be hunters, hikers, campers, or people living there illegally).

James Pflueger's plea in Ka Loko Dam case - and what the state must prove

Malia Zimmerman's report is here - Jimmy Pflueger Pleads ‘Not Guilty’ in Kauai Manslaughter Case.

Pflueger has hired well-known Los Angeles-based criminal attorney Brian A. Sun, to represent him along with Hawaii-based attorney William McCorriston. Sun's bio says: "Brian Sun has earned a national reputation as a distinguished trial lawyer specializing in complex business litigation and white-collar criminal defense. He has successfully litigated cases against some of the nation's top trial lawyers." See Sun’s background here: http://www.jonesday.com/basun/

Now the state has the burden of proving Jimmy Pflueger caused the deaths of those who died in the flood, and that he did so recklessly - that is, he was aware of a substantial and unjustifiable risk that his conduct would cause such a result, and he consciously disregarded that risk.

I don't know that the state has talked publicly about its theory of what happened. For his part, Hawaii Reporter reported back in November that -

Pflueger denies ever seeing a spillway on his property, though admitted to Hawaii Reporter in a 2006 interview that he may have covered the emergency spillway without realizing he'd done so when he moved dirt around the reservoir with a specially designed tractor.

It will be interesting to watch the facts develop and whether the state will be able to prove the requisite culpability.

More: From the Advertiser -

State Attorney General Mark Bennett, who is prosecuting the criminal case, alleges that Pflueger took actions that led to the dam failure.

Pflueger's attorneys have maintained he did not fill Kaloko Dam's spillway with dirt, erasing its function as an emergency exit for water when the reservoir is too full.

And from the Star Bulletin -

Pflueger’s other lawyer, David Minkin, who was on Kauai, said he and his client believe the state “is attempting to scapegoat Mr. Pflueger” and that they will “be successful in disproving the state’s case.”

New wave lawyers

This article by Texas attorney-blogger Chuck Newton more or less describes how I've been practicing law for the last several years. He calls it "Third Wave practice" after the Alvin Toffler book.

We work from our homes or from cubicles or small, shared offices free from the confines of standardization, centralization, concentration, synchronization, and bureaucracy, which have primarily contributed to the dissatisfaction of lawyers with the practice of law. We live, support, and fight for diverse lifestyles. We do not employ other lawyers or staff so much as we operate within these adhocracies or fluid organizations in which we, as attorneys and firms, come together only to work on specific cases or tasks. In other words, we are freelancers. We survive not on libraries, expensive associates, in-house computer systems, and high-rise offices of marble and mahogany, but off of the Internet, online research, information, and social media. We do what attorneys were programmed to do — we collect information, process information, analyze information, repackage information, and sell it in packages or in a means to make the lives of ordinary people and organizations better.

Legal to photograph police in public?

Blogger Damon Tucker is still asking. I don't have a definitive answer. I don't find any law against it, but proving a negative and all...

Nationally, there are a couple of notable cases in the news. An intriguing piece in the Seattle Times from 2007 reports that -

An amateur photographer who was taken into custody last year after shooting pictures of two Seattle police officers making an arrest on a public street received an $8,000 settlement this week, the American Civil Liberties Union of Washington announced Thursday.

USA Today technology columnist Andrew Kantor in a piece about misinformation about photography rights recounted

...the story of Neftaly Cruz, a senior at Penn State who on July 19 was not only harassed but taken into custody by Philadelphia police for obstructing an investigation. How did he do this? By taking pictures of the cops while standing on a public street.

Kantor concludes that-

Cruz's actions were absolutely and undoubtedly legal, and not surprisingly he was released without being charged with anything.

Kantor has a pair of columns on the rights of photographers (here and here) in which he asserts that one is free to photograph just about anything or anyone that one can see out in public. According to Kantor, the test is whether the subject has a reasonable expectation of privacy. Thus, according to Kantor, using a long lens to capture someone purchasing medications in a pharmacy is probably a violation of their privacy, but photographing someone walking along the public street is absolutely protected.

If Kantor is correct and a reasonable expectation of privacy is the correct test as to who or what we can photograph in public, then I would imagine police officers carrying on their duties in public are fair game for photographers.

(The same applies to buildings, by the way. According to Kantor, aside from certain military installations, we are free to photograph any building we please and no one can legally stop us or take away or make us erase the images we have taken).

State judiciary clarifies its stance on salary differences with governor

Via Aaron at the Kona Blog, this AP piece in which the judiciary clarifies an earlier Advertiser piece -

The judges woke up this morning to a front-page Honolulu Advertiser story saying they will oppose the governor's call to postpone pending salary increases for top state officials.

But a spokeswoman for the Hawaii State Judiciary insists the judges had taken no position on Lingle's proposal but simply had submitted a budget request that takes into account the law as it currently stands.

And the law now is that the state's 90 judges and justices are due a 10 percent raise July 1st.

Judiciary spokeswoman Marsha Kitagawa says the Judiciary is just following the law and not taking a position on Lingle's proposal.

When lawyers read the news

The Star Bulletin headlined its piece today on the recent Supreme Court case in the Kona bypass condemnations -

Suit to block highway is dismissed

The state high court orders hearings into ethics allegations over a Big Isle road

Lawyer-blogger Robert Thomas corrects the paper - There wasn't a suit to block the highway, it wasn't dismissed, and there are no hearings ordered over any ethics allegations.

Sovereignty dissertation

David Keanu Sai's political science PhD dissertation:

THE AMERICAN OCCUPATION OF THE HAWAIIAN KINGDOM:
BEGINNING THE TRANSITION FROM OCCUPIED TO RESTORED STATE

Before there was peak oil...

This Times Online article from earlier in the year is enjoying an internet resurgence -

Remember when coal was going to run out?

Past notes: in the mid-Victorian period they thought stocks of the black stuff would be exhausted by 1900

...
That we have even got this far without exhausting the Earth's resources would have astonished the Victorians. In the mid-19th century, the outlook seemed bleak. Among the experts arguing that we were squandering our limited energy supply for short-term prosperity was William Stanley Jevons, Professor of Political Economy at University College London.

In his work of 1865, The Coal Question, the distinguished economist cautioned that we had become wholly dependent on the finite resource of coal. Indeed, some calculations - based on the increasing rate of extraction and the geological analysis of how much coal remained underground - suggested that Britain could run out by 1900.

At this point, Jevons maintained, the economy would literally run out of steam, reducing Britons to a medieval standard of living. The cost of shipping coal from elsewhere in the world would be prohibitive and, in any case, the leading geologists calculated that other countries would quickly exhaust their stocks as well.

“I draw the conclusion that I think anyone would draw,” wrote Jevons, “that we cannot long maintain our present rate of increase of consumption.” John Stuart Mill agreed, announcing that his “treatment of the subject was almost exhaustive”. William Ewart Gladstone was so impressed that he devoted a large section of his famous Budget Speech of 1866 to the findings of Jevons.
...

I can't help it, now when I read someone lecturing that peak oil is ushering in the collapse of society as we know it I imagine them in pince-nez specs, handlebar mustache and a bowler hat.

First Circuit judge nominee announced

Russell Pang, Chief of Media Relations for the Office of the Governor, in Hawaii Reporter -

Governor Linda Lingle today nominated Deputy Prosecuting Attorney Rom Alex Trader to serve as a judge of the First Circuit Court (O‘ahu). Trader’s nomination is subject to confirmation by the Hawai‘i State Senate.

Read the article for much more about the nominee and his background.

The Employee Free Choice Act

Georgette has posted about it over at the Hawaii House Blog and about efforts in various states to head off that aspect of the law that would eliminate the requirement for a secret ballot in unionizing workplaces.

The law firm Kilpatrick Stockton LLP has a blog dedicated to covering the Act - EFCA Updates.

Coincidentally, The WSJ has an opinion/analysis piece today - The Senate Goes Wobbly on Card Check - with the tag line, "It's hard to defend taking away the secret ballot."

Moon v. Lingle on judicial salaries

According to this Advertiser piece, the chief justice and the governor are not seeing eye to eye on cost cutting.

Similar issues are occurring on the federal level according to this recent post at The Volokh Conspiracy.

Curious about what state judges make? According to the Advertiser -

The July 1 raises would increase judges' salaries to a high of $181,476 for Chief Justice Ronald Moon, to $148,548 for Family Court judges.

The Garden Island's "lighter side" of the year in review

...includes the dog path, Tropic Thunder, the drunk who rode his horse into Wilcox Hospital and, my favorite, The Koloa monkeypod trees.