Citizen Media Law Project: Blogger Wins Big Settlement Over Public Records Delay

A little bit swamped lately. Hence the light blogging. Thought I'd pass along, though, this item from The Citizen Media Law Project -

In a nice cautionary tale for government agents who refuse to take public records requests seriously, Washington state political blogger Stefan Sharkansky won a $225,000 settlement last week from a county government that took two years to comply with his request for information. The settlement ended Sharkansky's lawsuit against King County over officials' improper delay in producing documents related to the state's 2004 gubernatorial election.
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...Sharkansky's story is a great example of how bloggers can contribute to the public dialogue. Sharkansky saw a hole in news coverage of an important event and took it upon himself to fill it. Doing so didn't require any specialized journalistic knowledge, save for a few basics on freedom of information that one can easily acquire in a quick glance at CMLP's Legal Guide.

Local activist sues over Villages at Poipu development

Local activist Theodore (Teddy) Blake, represented by the Native Hawaiian Legal Corporation, filed suit last month over the Knudsen Trust's planned Village at Poipu development. The complaint for declaratory and injunctive relief, available online here, names as defendants the Eric A. Knudsen Trust, The county planning commission and planning department, Planning Director Ian Costa, the Department of Land and Natural Resources, and DLNR Chair Laura Thielen.

The factual allegations can be read in the complaint. The legal claims are:

• that the process of considering the Knudsen Trust's Village at Poipu development proposal violated the state public trust doctrine;
• that in the process of considering the Knudsen Trust's application for final subdivision approval of Phase One of the development, defendants failed to thoroughly investigate and protect Native Hawaiian rights;
• that defendants failed to comply with the requirements of HAR Chapter 13-284 - the administrative rules governing the review process the SHPD is to follow in making comments to state and county agencies on entitlements affecting historic properties;
• that the development threatens to cause irreparable injury to burial sites and other historic sites;
• that defendants failed to comply with the objectives, policies, and guidelines of HRS 205A, specifically, "the protection, preservation, and restoration of historic and prehistoric resources in the coastal zone management area that are significant to Hawaiian history and culture"; and
• that a supplemental EIS is required to address a plan to cross the Hapa Trail with a street.

That is a bunch of issues. And it's a classically Hawaiian land use dispute. Complaints tend not to contain much in the way of legal argument. That's not their purpose. We can hope though that there will be some summary judgment motions filed and those will give rise to some interesting arguments on the issues.

Friday gecko blogging

Looking out the kitchen window the other night...

Hawaii Legislature's Superferry reconsideration amicus brief

The Senate Majority Caucus Tweeted:

Hawaii State Legislature today filed an amicus brief in the Superferry reconsideration. Here's the brief http://tinyurl.com/cftoef

State's arguments for reconsideration of Hawaii Supreme Court Superferry decision

I put out a Twitter request last night asking if anyone had and was willing to share the state's memorandum in support of its motion for reconsideration of the Superferry II decision, and Derrick DePledge was nice enough to respond with a copy.

For those interested, I've posted it here (pdf). (It's a free hosting service and downloads can be slow).

It contains some interesting arguments and I hope to get time to write about it in more detail later, but for now, here are the brief's highlights:

There was no exercise of legislative power over the lands: The court held that one sentence of Section 15 of Act 2 effected an exercise of legislative power over state lands - that sentence being, "Any state lands previously authorized to be used to facilitate or support the operation of a large capacity ferry vessel, shall be authorized to be used to effectuate the provisions of this Act." The state asserts that the only authorization for the use of state lands is contained in the operating agreement between the state executive branch and the Superferry company. The fact that the legislature in Act 2 confirmed the ongoing viability of the executive branch operating agreement, argues the state, did not transform that operating agreement into an exercise of legislative power over state lands.

The severability section of Act 2 applies: Act 2 contains a clause stating that if any provision of the Act is held invalid, it will not affect the validity of other provisions or applications of the Act. Thus, argues the state, the court - finding that a single sentence converts Act 2 into a special law regarding lands - should have severed out that sentence and upheld the remainder of the Act.

Act 2 was not special legislation: The state argues that the court abandoned longstanding Hawaii precedent in favor of a minority view contained in a "maverick" Colorado case. According to the state the court was completely off the mark when it held that the Hawaii case, Bulgo, did not involve a statute that created a class with only one member or a statute of limited duration. (I'll insert some personal opinion here and say that I thought the court's effort to distinguish Bulgo from the facts of Superferry was flimsy and unconvincing. If the court desired but could not otherwise get past the rule of Bulgo, then it should have overturned it. It appears now that the court has given itself the best of both worlds for future cases and, if it approves of challenged legislation, may cite Bulgo, and if it disapproves, it can invoke Superferry II).

There was no basis for the award of attorney's fees against the state because the state did not waive its immunity from the fee award, and the court cannot waive the state's immunity: States enjoy sovereign immunity. As a general matter, they are immune from money damages except when they specifically and clearly waive their immunity. In other words, a state cannot be liable for money damages (including an award against it of attorneys fees) for its violation of a statute without specifically saying by way of statute that it has relinquished its immunity. Here, there is no legislation waiving sovereign immunity from an award of attorney's fees for a violation HEPA, HRS chapter 343. It was a violation of the separation of powers doctrine for the court to engage in judicial legislation and create a doctrine effectively waiving the state's immunity.

This is not an equal protection case: Again, some personal opinion - readers might recall that I was somewhat scandalized by the court's references to equal protection in the conclusion of its opinion.

Lingle Administration files Superferry reconsideration motion

via Derrick DePledge on Twitter

The Lingle administration filed its motion for reconsideration asking the state Supreme Court to reverse its Superferry ruling.

Here's Derrick's article in the Honolulu Advertiser.

Newspapers would do a huge service if they would share with us source documents. It would be great if the Advertiser would host and link to the argument memorandum.

Paul M. Sullivan on Van Dyke's Who Owns the Crown Lands of Hawai'i?

Via Inversecondemnation.com, Paul M. Sullivan reviews Jon M. Van Dyke's Who Owns the Crown Lands of Hawai'i?

One might grumble that [Who Owns the Crown Lands of Hawai'i?] lacks the rigorous discipline and balance of a legal treatise or a work of historical scholarship, but that is not the book's purpose, and its real shortcoming is not that it is unscholarly, but that its advocacy does not withstand probing examination. What the book proposes is a giveaway of state and federal public property in a race-concsious manner in order to radically change a 160 year old race-neutral land reform program with which the United States had nothing to do, conducted by a foreign government - the Kingdom of Hawai'i - pursuant to its own validly-enacted laws, which achieved very legitimate objectives for the kingdom and its populace largely through the benevolent supervision of a visionary monarch. Professor Van Dyke's book simply does not show that either the federal government or the state of Hawai'i has any reason or any authority to pursue such and endeavor.

A Very Durable Myth: A Critical Commentary on Jon Van Dyke's Who Owns the Crown Lands of Hawaii?, 31 U. Haw. L. Rev. 341, 344-45 (2009)

When courts go wild

cbsnews.ca -

A Quebec father who was taken to court by his 12-year-old daughter after he grounded her in June 2008 has lost his appeal.

via The Volokh Conspiracy

FBI serves search warrants in alleged Hawaiiloa Foundation bond scam

I've been following with some interest the Advertiser's coverage of the investigation of an alleged bond scam. Yesterday the paper reported that the FBI has served search warrants on four homes, taking computer records, boxes and files. According to the paper -

The bogus bonds...purport to represent ownership in a fictitious Hawaiian nation named Ko Hawaii Pae Aina, sponsored by the Hawaiiloa Foundation.

Back on November 18 the paper reported an interview with Douglas Gillman -

...a 78-year-old retiree from Waialua [who] gave $2,500 to a woman on Maui claiming to be an officer of the Hawaii Loa Foundation, a Native Hawaiian group with "ownership rights" to swaths of local land.
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He was initially offered a $1 million bond that would cover any outstanding mortgage. He told the woman the lands were paid off and she responded by saying she could ensure that his annual property tax bill of $4,000 would disappear if he paid her $2,500.

Gillman accepted and gave her the money while filling out paperwork that he filed with the city. He said he is flying to Maui on Thursday to meet with her to discuss using the $1,000,000 bond to pay off five credit cards.

He said he has become skeptical of the scheme since he learned of the FBI probe.

"If they send a $1 million bond to the companies I owe, that's not going to work. I'm not sure the property tax exemption is going to work," said Gillman. "We'll see Thursday what they say in the meeting."

Apparently they worked something out in the meeting because there's featured on the Ko Hawaii Pae Aina website a turgidly legalistic disclaimer that purports to be a letter from the 78-year-old retiree to the Hawaiiloa Foundation stating:

I, Douglas Neddles Gillman, Sr., do hereby rescind, retract and revoke the statements and the mention that I made of the Hawaiiloa Foundation that I have made in relation or connection with the articles printed by the Honolulu Advertiser, published on the dates on [sic] November 17 and November 18, 2008.

I sincerely apologize for any injury that may have been caused by my misstatements that were not true, as I did in person to the volunteer staff at the Hawaiiloa Foundation on November 20, 2008 on Maui.

There's also posted a hand-written letter, also purportedly from Mr. Gillman that says, "I am very sorry for the mistake I made to the Honolulu Advertiser...I don't know who I was talking to, because I cannot hear good," and "P.S. I just received your letter this morning[.]"

On the same web page is also posted a "Declaration of Non-Responsibility, Truth and Verified Facts" that appears to have been published as a "legal notice" in local papers and which claims that the Hawaiiloa Foundation "does not take responsibility for persons who manipulate information shared in free classes...and does not sell bonds and does not participate in mortgage scams."

According to yesterday's Advertiser story -

[H]omeowners, many of whom are Native Hawaiian, were charged between $2,500 and $10,000 to attend seminars or counseling sessions on avoiding foreclosure, and were told they would receive bonds worth $1 million that could be used to pay off the outstanding balance of their mortgage.

Officials said the bonds were bogus and that no mortgages were paid off.

The schemes also promise to block property taxes and override credit card debt.

Native Hawaiian Legal Corporation seeking an Executive Director

According to KamaainaJobs.com

Informaional briefing on ceded lands legislation

Georgette Deemer, live Tweeting an informational briefing on proposed ceded lands legislation, indicates some consensus toward 2/3rd leg. preapproval on sales, no change regarding exchanges. There was also some discussion about whether such legislation might run afoul of state constitution Article XI, sec. 5, requiring legislative power over state lands be exercised by general laws - the same section used to sink the Superferry.

Bennett: Personally believes that Gov would sign bill with amendments discussed today - primarily 2/3rd leg. approval on ceded lands.

Rep. Wooley: has concerns that both preapproval and disapproval process has constitutional issues re: special vs. general law.

Bennett: If leg. passed 1 yr or 5 yr moratorium, sees significant legal problems. Could tee-up 14th amendment issues.

One more time, in case you missed it...

SCOTUSblog - Opinion Recap: Hawaii v. Office of Hawaiian Affairs

Kaho'olawe trespass court - sovereignty is a nonjusdiciable political question

In July of 2006 Nelson Armitage, Russell Kahookele and Henry Noa traveled to Kaho'olawe to exercise and reclaim property rights in the island for the Reinstated Kingdom of Hawaii. Under state law entry onto the island or into its waters requires a permit (The island had served as a bombing range for approximately fifty years and the state restricts access to protect against the dangers that may still exist there). The three intentionally declined to comply with the permit requirements and were charged with violating the statute.

The defendants filed a motion to dismissed based in part on HRS § 6K-9 which provides that upon recognition by the federal government and the state, the management and control of the island shall be transferred by the state to the sovereign native Hawaiian entity.

The defendants put on an expert witness in order to establish that the Reinstated Kingdom is a sovereign native Hawaiian entity and asked the court to recognize the Kingdom as such and, further, to provide standards or guidelines to resolve their attempt to be recognized. The court, however, ruled not only that the defendants had failed to prove the contention, but also that the issue was a nonjusdiciable political question and that "the court lacks authority to make such a determination" -

An action by this Court would, in turn, direct Congress and the State Legislature to recognize the Reinstated Nation of Hawaii as the native Hawaiian sovereign entity, and this Court cannot act where Congress and the State Legislature must.

Attorney for the defendants, Dan Hempey, was not surprised by the court's holding that it does not have the authority to recognize a sovereign entity for purposes of 6K-9, but he expressed frustration that the court nevertheless went ahead to made the determination that his clients had failed to prove that the Reinstated Kingdom was such an entity.

In what Dan describes as emotional testimony, Henry Noa complained that the state legislature's promise of sovereignty, but subsequent inaction leaves no place to turn but to the courts.

Former Hawai`i Attorney General Michael Lilly's Superferry suggestion

In Hawaii Reporter -

Hawai`i’s Environmental Protection Act requires an Environmental Impact Statement (EIS) for major government actions that may have a significant effect on the environment. The State correctly believed that the minor work on a Maui pier for the Superferry was so insignificant it did not require an EIS.

However, the State was blind-sided by the Hawai`i Supreme Court’s August 31, 2007 decision extending the EIS requirements to consideration of “secondary” or remote impacts.
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The Governor and Legislature have now been handed a second opportunity to make the law pono by saying what everyone believed. The Legislature could enact simple language...making clear that our environmental laws do not extend to “secondary” impacts

Friday gecko blogging

A friend of mine snapped this in the Galapagos Islands. I'm having a little trouble making out the details, but he sent another that, while not of geckos, is clearly a pair of some kind of lizard.

A modest proposal for a Hawaii traffic court sovereignty defense

In the comments to an earlier post about sovereignty arguments in traffic court, I was invited (or challenged?) to "figure out an approach for Kanaka that could win." It's a tough assignment, but I've been giving it some thought.

Back in 1994 the Hawaii Court of Appeals heard the case of Anthony Lorenzo who had been convicted of driving without a license, negligent injury, and failing to render assistance after being involved in an automobile accident. State v. Lorenzo, 883 P.2d 641, 77 Haw. 219 (Haw.Ct.App. 1994).

Lorenzo had made a motion to dismiss in the lower court arguing that the Kingdom of Hawaii was recognized as an independent sovereign nation by the United States in numerous bilateral treaties; the Kingdom was illegally overthrown in 1893 with the assistance of the United States; the Kingdom still exists as a sovereign nation; he is a citizen of the Kingdom; therefore, the courts of the State of Hawaii have no jurisdiction over him.

The lower court denied the motion, saying, "Although the Court respects Defendant's freedom of thought and expression to believe that jurisdiction over the Defendant for the criminal offenses in the instant case should be with a sovereign, Native Hawaiian entity, like the Kingdom of Hawaii, such an entity does not preempt nor preclude jurisdiction of this court..."

In other words, according to the appellate court, "The essence of the lower court's decision is that even if, as Lorenzo contends, the 1893 overthrow of the Kingdom was illegal, that would not affect the court's jurisdiction in this case."

Then the appellate court announced that that's not really true, calling the lower court's rationale "open to question in light of international law."

What does that mean? The court explained by way of a footnote: "A state has an obligation not to recognize or treat as a state an entity that has attained the qualifications for statehood as a result of a threat or use of armed force in violation of the United Nations Charter. Restatement (Third) of the Foreign Relations Law of the United States § 202(2). The illegal overthrow leaves open the question whether the present governance system should be recognized, even though the illegal overthrow predated the United Nations Charter."

Nevertheless, the appellate court explained, the lower court's decision was correct because Lorenzo "presented no factual (or legal) basis for concluding that the Kingdom exists as a state in accordance with recognized attributes of a state's sovereign nature."

This of course raises the tantalizing prospect of what then might the court do if a defendant did establish as a matter of fact (or law) that the Kingdom exists as a state in accordance with recognized attributes of a state's sovereign nature?

There's no copyrighting of legal arguments, but I want to acknowledge that this is what I'm almost sure attorney Dan Hempey and his defendant clients in the Kaho'olawe trespass case are up to. They spent a lot of time with an expert witness on the stand covering "the essential attributes of sovereign statehood" listed in another footnote to the Lorenzo decision.

So what would a court do if a defendant was able to establish the existence of the Kingdom? Would the court announce its own lack of jurisdiction? I dunno. Doubt it. But maybe that's where the Hawaii Supreme Court's ceded land decision could be stretched to accommodate the facts of a sovereignty challenge.

The ceded lands court enjoined sale of the lands until settlement of "unrelinquished claims" growing out of the events of the overthrow of the Kingdom. Well, native sovereignty is also an "unrelinquished claim" arising from the same events. In fact, it could turn out that in the end the state loses its sovereignty in the ceded lands, or parts thereof, depending on what settlement ensues. Why not also enjoin the state's exercise of sovereignty over natives until all those issues are sorted out?

Of course this strategy depends on how the Hawaii Supreme Court handles the remand from the SCOTUS of the ceded lands case. If the court says, "never mind," and backs off its injunction, then this bet is off. But if it sustains the injunction on state law foundations, then why not press any and all claims contingent on the outcome of a future settlement?

That's my idea. I admit, it has its weaknesses. (For one thing, it would leave an entire class of people, or, if applied to ceded lands, a number of geographic locations, devoid of any criminal jurisdiction at all.) I invite all to improve on it or rip it apart or maybe just distinguish it in principle from the ceded lands decision.

Legislature moves court for leave to file brief in Superferry reconsideration motion

Via Senate Majority Caucus blog, the legislature has filed a motion for leave to file a brief in support of the state's motion for reconsideration in the Superferry Act 2 case. As fun would have it, the Senate Majority Caucus blog has made the motion and supporting memorandum available here.

The legislature first argues that the court relied on an overbroad interpretation of the “general law” requirement of Article XI, section 5, which "could significantly limit the Legislature’s ability to enact laws or to address specific public policy challenges as they arise"

The legislature next expresses concern about the constitutionality of “sunset” clauses and the decision's impact on the legislature's ability to use them in the future.

Third, the legislature would like the court to address the decision's impact on Act 2's severability clause, and on the effectiveness of such clauses in future legislation.

Finally, the legislature worries that "significant uncertainty may result if Art. XI, s 5 of the Hawaii State Constitution is applied to legislation that does not seek to transfer real property outside the political subdivisions and departments or agencies of the state."