Interesting drafting glitch in Kauai's new electronic device ordinance which states "No person shall operate a motor vehicle while using a mobile electronic device." The ordinance defines "use or using" as "holding a mobile electronic device while operating a motor vehicle." Thus, no person shall operate a motor vehicle while holding a mobile electronic device while operating a motor vehicle.

I also see that "digital photographic device[s]" are included among the electronic devices the new ordinance bans. Interestingly then, digital photography is explicitly barred to drivers while old fashioned film photography is not.

Kauai's ban on using Mobile Electronic Devices While Operating a Vehicle

...went into effect today. Did anyone get busted? Under the new ordinance

No person shall operate a motor vehicle while using a mobile electronic device.

while

"Use or using" means holding a mobile electronic device while operating a motor vehicle.

So, does that mean using a headset does not violate the ordinance? Not sure. Maybe I'll become a test case.

The text of the ordinance (as provided on the County web site - I make no representations regarding its correctness) is as follows:

SECTION 1. Chapter 16, Article 20, Kaua'i County Code 1987, is amended by adding a new section to be appropriately designated and to read as follows:

"Sec. 16-20._ Use of Mobile Electronic Devices While Operating a Vehicle.

(a) No person shall operate a motor vehicle while using a mobile electronic device.

(b) The use of a mobile electronic device for the sole purpose of making a "911" emergency communication shall be an affirmative defense to this ordinance.

(c) The following persons shall be exempt from the provisions of subsection (a):

(1) Emergency responders using a mobile electronic device while in the performance and scope of their official duties; and

(2) Drivers possessing a valid amateur radio operator license issued by the Federal Communications Commission and using a half-duplex two-way radio.

(d) As used in this section:

"Emergency responders" include fire fighters, emergency medical service technicians, mobile intensive care technicians, civil defense workers, police officers, and federal and state law enforcement officers.

"Mobile electronic device" means any hand-held or other portable electronic equipment recognized by the citing officer or other witness to be capable of providing wireless and/or data communication between two or more persons or of providing amusement, including but not limited to a cellular phone, text messaging device, paging device, personal digital assistant, laptop computer, video game, or digital photographic device, but does not include any audio equipment or any equipment installed in amotor vehicle for the purpose of providing navigation, emergency assistance to the operator of the motor vehicle, or video entertainment to the passengers in the rear seats of the motor vehicle. A "two-way radio" or Private Land Mobile Radio System as defined by Title 47 of the Code of Federal Regulations, Part 90, when used for business purposes, shall not be considered to be a "mobile electronic device".

"Operate a motor vehicle" means to drive or assume actual physical control of a vehicle upon a public way, street, road, or highway.

"Use or using" means holding a mobile electronic device while operating a motor vehicle.

(f) Any person convicted or found liable of violating any provisions of this section shall be subject to a maximum fine of fifty dollars ($50).

(g) Any person convicted or found liable ofviolating any provisions of this section while operating a motor vehicle in a school zone or construction area as defined in HRS Section 291C-104 shall be subject to a maximum fine of one hundred dollars ($100).

SECTION 2. This ordinance shall take effect three (3) months after its approval.

United States v. Kauai Island Utility Co-op

The indictment is here (pdf). (I've stored it on a free hosting service so it can be slow to open).

KIUC is charged with nine counts each of taking threatened species in violation of 16 USC §§ 1538(a)(1)(G) and 1540(b)(1) and Title 50, Code of Federal Regulations, § 17.31(c) and (a); and taking migratory birds in violation of 16 USC §§ 703(a), 707(a).

I haven't had time to do more than scan it and I'm no expert at environmental law - especially endangered species (we'll learn about it together as the case progresses) - but I notice that many of the allegations involve birds found "near" power lines and power poles, and that causes me to wonder what the burden of proof is in these sorts of cases.

Recent news reports of the indictment are here (Garden Island) and here (Advertiser).

They come for the illegal pictures of federal buildings but stay for the great weather

I see on the site meter that someone with a U.S. Dept. of Justice domain name, IP address, and ISP visited Planet Kauai via a Google search for "illegal pictures of federal buildings."

The post they stumbled upon could not have been of much use to them since it contains no pictures of federal buildings or any information on the il/legality of taking pictures of federal buildings. However, I can now report that last month the ACLU filed suit on behalf of a photographer challenging a federal regulation, 41 C.F.R. § 102-74.420, that apparently does regulate photography on federal property. (Here is the complaint (pdf)).

And here is a picture of a federal building. Is it illegal? I don't know. Maybe we'll find out if someone from the DoJ repeats their Google search.

Garden Island - KIUC indicted for endangered species law violations

Advertiser - Utility charged in bird deaths

Haw. Supreme Court denies cert in case involving inadvertent discovery of forty-two burials

The case, Hui Malama I Na Kupuna O Nei v. Wal-Mart, involved the interpretation of HRS § 6E-42, which requirs a permitting agency to seek SHPD's review and comment on any project "which may affect historic property...or a burial site."

The plaintiffs had argued essentially that the statute requires permitting agencies to seek SHPD review and comment prior to granting any project approvals.

In December, the ICA held that the plaintiff's interpretation "impermissibly ignores the clear language of the statute" and affirmed the First Circuit Court's holding that the statute requires SHPD's review and comment only when the permitting agency "knows, or has reason to suspect, that the project may impact a burial or other historic site," and that, since there was "no evidence that the City Defendants knew of or should have known" that a burial site existed on the property, the statute was not violated.

The question of when an agency knows or should know that a project "may affect" burial sites is an interesting one because there are locations where, even though there is no living memory of burials, the probability is that some exist there.

However, in this case the property, originally brackish-water marshlands, had been filled and extensively developed and used by commercial and industrial tenants for at least fifty years by the time Wal-Mart purchased it. Multiple environmental, archaeological, and other assessments involving subsurface excavations, borings, and testing had been conducted and documented both for the Wal-Mart project and for other proposed developments on and near the property, and none of the assessments indicated the existence of burial or historic sites. Moreover, SHPD had previously advised that proposed developments for portions of the Property would either have no effect or were unlikely to have an adverse effect on significant historic sites.

Star Bulletin -

A bill signed into law yesterday expands the list of felony charges that prosecutors can levy against a suspect without going through the grand jury process.
...
Added to the list of felonies for which an affidavit can be used are charges of unauthorized entry into a dwelling, unauthorized possession of confidential personal information and second-degree methamphetamine trafficking.

Jim Fulton, spokesman for the city Prosecutor's Office, said the use of written information to describe probable cause for charges has been "efficient and cost-saving." It is not used for major felony charges, which are still leveled through the grand jury indictment process.

The Reporters Committee for Freedom of the Press: Hawaii's new vexatious requester law could affect journalists

Though the bill was written in response to the large number of requests made to see President Obama's birth certificate -- which the health department told the Hawaii Reporter in March take up about 10 hours a week -- the language does not limit its scope to merely duplicative requests for the president's birth certificate.

Instead, the law defines a "vexatious requester" as someone who files multiple requests that after "good faith review and comparison" are "duplicative or substantially similar in nature."

"The bill may potentially impact journalists requests," said attorney Jeffrey Portnoy, noting it put a lot of faith in agencies that will have the power to to dismiss any request it deems substantially similar.

The continuing saga of Kauai County vs Lady Ann

After failing in December to convince the Fifth Circuit Court that Lady Ann Cruises lacked the permits necessary to operate out of Michael Sheehan’s boat yard in Hanalei Bay, the County has now revoked the boat yard's permits.

According to Paul Curtis at the the Garden Island

Sheehan’s attorney, Richard Wilson, said the move was expected, he’ll appeal the decision, and once again looks forward to defending his client in state District Court here.

Here's the county's press release (pdf).

In an annoyingly unpublished decision today (pdf), the Hawaii Intermediate Court of Appeals rules it prosecutorial misconduct where the prosecutor commented in opening statements that the defendant "had an annoying habit of getting high on marijuana."

Amusingly, in response to the defendant's request for a mistrial, the prosecutor explained that "it honestly didn't occur to [him] that [the defendant's] smoking marijuana was a prior bad act," [evidence of which is generally not admissible under Hawaii Rules of Evidence 404(b)].

Civ Pro Prof Elena Kagan

Here's an entertaining piece in Above the Law by one of the Supreme Court nominee's students.

At that point I just kind of had a disassociative break. My mouth kept moving, but my mind went into some kind of fetal position.

Ah, law school memories. I once had a similar brain spasm in my first tax class. And once in contracts my mouth kept moving even as my brain recognized it was saying something completely erroneous. Luckily, for most former law students, such embarrassments are offset by brilliant moments of total in-the-zone brain/mouth unison is which the brain seemed to anticipate each next question and the mouth spilled out actual articulate substantive and relevant answers.

Brewing up another Kauai land use fight

Léo Azambuja in the Garden Island -

Waimea residents and [] attorney [Walton Hong] representing a family which has Kaua‘i roots dating to 1898 are involved in a battle to decide whether the family has rights to develop a piece of land sitting on a flood zone close to Waimea River.

SCOTUS Blog has a roundup of media and online reaction to the nomination of Elena Kagan to the Supreme Court.

I always look forward to Supreme Court justice confirmation hearings.

New DUI court in the works

A Hawaii Public Radio report you can hear here. (Thanks to Marsha Kitagawa for the forward. Marsha also happens to have a piece in the Star Bulletin today about the state's probation officers).

Penny Pinching in Paradise - Because stuff is really expensive here.

National Day of Prayer challenge

Although a federal district court last month struck down the statute providing for a national day of prayer (opinion and order), the judge stayed the ruling pending appeal by the government, allowing the event to take place today.

Personally, I prefer the government to remain secular. I'm not interested in seeing it make proclamations of a religious character.

Nevertheless, from a legal standpoint, I disagree with the district court's opinion that a national day of prayer is a violation of the First Amendment. (The opinion also appears to be contrary to Supreme Court precedent). In my judgment, given its history and text, the establishment clause has a two-fold intent. It prohibits Congress from establishing a federal state religion, and it prohibits Congress from interfering with any states' rights to establish state religions for themselves.

So, while my personal preference is that state and federal governments remain secular in every respect, in my judgment religious entanglements such as today's day of prayer (or even such things as Creches or Decalogues on public property) do not violate the Constitution.

Hawaii's newest lawyers

Everyone who passed the February Hawaii Bar exam (PDF).

AP: Congress makes too many vague laws

A conservative think tank and criminal defense lawyers are forming an unusual alliance to try to get Congress to quit writing criminal laws so loosely that they subject innocent people to unjust prosecution and prison.

A new study by the Heritage Foundation and the National Association of Criminal Defense Lawyers finds that nearly two dozen federal laws enacted in 2005 and 2006 to combat nonviolent crime lack an adequate provision that someone accused of violating the laws must have had a "guilty mind," or criminal intent.
...
The Supreme Court is reviewing three cases involving prosecution under a federal fraud statute that Justice Antonin Scalia has described as a potent tool in the hands of "headline-grabbing prosecutors" in pursuit of behavior that may be unappealing or ethically questionable, but not necessarily criminal.

Honolulu journalist Daryl Huff on cameras in the courts, over at Above the Law.

"I was indirectly involved, along with many others, in writing the Hawaii Supreme Court Rules that allow television and still photography in all but Family Court cases involving children. The rules are relatively simple and have required no significant adjustments in 26 years.

"The assumption is that cameras will be allowed in all cases, with appropriate notice to the parties, except for a handful of exceptions where media must overcome a presumption of good cause to deny photographic coverage."