Joan Conrow, Garden Island, et al, prevail in defamation appeal

The case arose, in the words of the decision (PDF), out of the investigation by the Kauai Police Department of two murders and an attempted murder, each involving sexual assault and stabbing of women, that were committed in separate incidents in 2000 on Kauai. In 2000 the Plaintiff-Appellant sued the Kauai police chief, a number of officers, and the county, claiming they had engaged in misconduct while investigating him for these crimes. He also sued the authors (including Joan Conrow) and publishers of articles appearing in the Honolulu Magazine and The Garden Island claiming, among other things, that the articles had defamed him.

The trial court had granted the journalists/publishers motions for summary judgment and dismissed the complaint against the county defendants for failure to prosecute. In upholding the lower court's judgment, the Intermediate Court of Appeals provides an interesting and in depth analysis of defamation law that I won't expand on here. But it's worth a read if you're interested.

ACLU gets involved in Brescia case

Via the Advertiser, The ACLU will represent Keoni Kealoha Alvarez who, according to the article, is "an independent filmmaker working on a documentary about Native Hawaiian burial practices who has been subpoenaed by lawyers for" Joseph Brescia. According to court records available online Alvarez does not appear to be a named party in any actions involving Brescia, however the paper indicates that the subpoena is related to Brescia's "civil suit against individuals he claims have delayed [] construction." According to the article the subpoena encompassed "[n]early all of Alvarez's unpublished interviews and raw video footage."

The ACLU and Honolulu lawyer James Bickerton are invoking Hawaii's "media shield law" in contesting the subpoena on behalf of Keoni Kealoha Alvarez.
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Bickerton said Hawaii's media shield law restricts lawyers from using subpoenas to compel protected information from journalists.

Some old cases relevant to Kauai's suit against the Hanalei boat tour operator

Hawaiioceanlaw.com has provided some interesting history relevant to Kauai County's suit alleging permit violations against a Hanalei boat tour operator -

The State of Hawaii attempted to require boat operators to obtain permits to operate in Hanalei Bay and Hanalei River. A boat operator challenged the regulations, citing the Supremacy Clause of the Constitution. The regulations were struck down by the Ninth Circuit. Young v. Coloma-Agaran, 340 F.3d 1053 (9th Cir. 2003).

Separately, rival tour boat operators brought suit against the Hanalei boat operators asserting that their alleged failure to obtain necessary state and county permits were unfair competition. The Hawaii Supreme Court rejected the suit. Whitey's Boat Cruises, Inc. v. Napali Kauai Boat Charters, Inc. No. 26334 (2006).

In Whitey's Boat Cruises, some tour boat operators claimed that a bunch of other tour boat operators were conducting tours in the area of Hanalei and along the Na Pali coast without the requisite county and state permits. The court held that the county and state permitting regulations didn't provide a private right of action for the kinds of economic harms alleged.

In the Young case, three commercial tour boat operators had successfully challenged a state regulation that prohibits them from operating their tour boats in Hanalei Bay -

In 1999, the state considered a proposal to prohibit commercial boating in Hanalei Bay. A report from the public hearing on the proposal indicates that regulators were concerned about putting to rest "years of turmoil" over tourist activities in Hanalei, as well as maintaining the natural beauty of the Hanalei area. Comments from the public were by and large hostile to continued commercial tour boat activities in Hanalei Bay. Approximately five months later, the ban took effect and the Department revoked the plaintiffs' use permits.
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We conclude that the ban, in conjunction with the relevant federal shipping laws, violates the Supremacy Clause. Simply stated, the ban completely excludes the plaintiffs from conducting their federally-licensed tour boat businesses in Hanalei Bay. We are sympathetic to the challenges posed by the user conflicts occurring in the bay. We hold, however, that the state's refusal to issue use permits under any conditions has effectively rendered it impossible for the plaintiffs to comply with both federal and state law in order to ply their trade. See Florida Lime, 373 U.S. at 142-43, 83 S.Ct. 1210.

The state argues that the Department was exercising the state's police power to alleviate user conflicts at Hanalei when it adopted the ban. Indeed, the Supreme Court has held that "[i]n the exercise of that power, the states and their instrumentalities may act, in many areas of interstate commerce and maritime activities, concurrently with the federal government." Huron Portland, 362 U.S. at 442, 80 S.Ct. 813. However, the Court went on to point out the "basic limitations" of such power: "Evenhanded local regulation to effectuate a legitimate local public interest is valid unless preempted by federal action." Id. at 443, 80 S.Ct. 813 (emphasis added). Thus, even if the ban is an exercise of concurrent power, the state's contention is immaterial to our analysis; as we have explained above, the ban actually conflicts with the federal licensing scheme.

New Hawaii legal blog

Honolulu employment law and civil litigation attorney Roman Amaguin has a new (May 23) blog, Virtual Hawaii Employment Lawyer.

One to watch: County files complaint against commercial boat tour operator

According to a county press release (PDF):

The County recently filed a complaint in Fifth Circuit Court against Lady Ann Cruises, Inc. dba Na Pali Explorer.

The complaint alleges that Lady Ann Cruises is not properly permitted to operate commercial boat tours out of the Hanalei River boatyard, and is in violation of the boatyard’s special management area (SMA) permit that was issued by the Planning Commission.

In order to operate legally from the Hanalei River boatyard, Lady Ann Cruises would need permission from the Planning Commission, and no such application has been made nor has such permission been granted.

The complaint also states that loading and unloading of passengers from the Hanalei River boatyard “significantly impacts coastal waters and related coastal resources” and that such activity requires a SMA permit from the Planning Commission.

The County is asking the court to issue a temporary restraining order, preliminary injunction and/or a permanent injunction preventing the loading and unloading of passengers at Black Pot Beach.

Meanwhile, according to the Garden Island -

[A]ttorney Richard Wilson..., representing Lady Ann Cruises, Inc., doing business as Na Pali Explorer, and Mike Sheehan, owner of the river boatyard, said in a telephone interview Friday he welcomes the chance to prove in court what federal courts, state opinions and even the county’s own filings agree to: The county has no authority to regulate any boating in Hanalei River or Hanalei Bay.

Wilson said both Lady Ann and Sheehan have SMA permits, and an argument used by county attorneys seeking to dismiss a 2005 lawsuit Sheehan filed against the county used the following argument:

“The CZMA (Coastal Zone Management Act) does not afford the county authority to regulate commercial boating activity at Hanalei River or Hanalei Bay.”

Lady Ann’s operations are not illegal on any level, Wilson said. “It is fully permitted and fully allowed,” and anybody with a U.S. Coast Guard-certified vessel can operate in navigable waters of Hanalei Bay and Hanalei River, and there is little or nothing state and county officials can do about it, Wilson said.

Another sovereignty bond scandal update

I finally grabbed the chance to come up for air after a busy, busy month just in time to see that Peter Boylan at the Advetiser and Ian Lind have updated the sovereignty bond scandal story with some follow up on fallout from the FBI's execution of search warrants in the investigation last month.

Ian is to be commended for hosting some of the court documents as well as linking to some of his fascinating coverage from years past of one of the litigant's long history of involvement in - let's call them - controversial and newsworthy entanglements in financial and real estate disputes.

Following the searches and seizures, a handful of what I take to be suspects in the case provided a glimpse into what I imagine will be their defense strategy going forward. There's a certain approach to pro se litigation that attorneys generally won't indulge in, mostly because of the risk it poses to one's license to practice. The strategy is to answer every act of the other side with a blizzard of frivolous and often unhinged and incomprehensible objections, motions and appeals. Often these filings are after the manner of a deranged street corner evangelist and reveal a sort of confident, freewheeling though disjointed apprehension of legal procedures and doctrines.

The litigants have already filed hundreds and hundreds of pages of documents - things with titles like, "Affidavits of Truth from Various Individuals," "Demands for the Return of the Kokua Gift(s)(parts 1 and 2)," "Affidavits of Truth in Support of Hawaiiloa Foundation of Various Individuals (parts 1 through 4)," and "Affidavits of Probable Cause by Various Individuals (parts 1 through 8)."

It's a strategy that can work to force a settlement on opposing litigants with means too modest to defend against a relentless onslaught. (It's not without its risks, though. Such strategies can eventually get the litigant sanctioned, fined, and finally drummed out of court. But that can take years). But this isn't a modest opponent in a civil action. This is the Government in a criminal investigation.