A win is a win

...even if it's not published. Last week the ICA issued its summary disposition in an appeal I filed as court appointed appellate counsel to a pro se defendant who, after repeatedly demanding stand-by counsel, in the end announced his desire to hire an attorney to represent him but, because of the recent loss of his job, had failed despite good faith efforts to secure counsel in time for trial.

On appeal, I argued that the defendant had not waived his right to counsel and that, while he did erroneously assert throughout pre-trial proceedings that the Sixth Amendment's "Assistance of Counsel" guarantee entitled him to stand-by counsel, in the end he had made an unequivocal assertion of his right to counsel, which was wrongly denied.

The ICA disagreed a bit with me on the facts and declined to acknowledge the defendant's final demand for counsel. Nevertheless, the ICA did agree with me that the trial court had failed to ensure a proper waiver of counsel before requiring the defendant to proceed pro se.

The ICA and I also agreed, concerning an additional issue on appeal, that the court had failed to make required findings of fact on the record in denying the defendant's HRPP Rule 48 speedy trial motion to dismiss.

Justice Acoba: taxpayers have standing, but failed to name indispensable party

In a concurring opinion to yesterday's Hawaii Supreme Court decision finding non-native taxpayers lacked standing to challenge property tax exemptions granted to Native lessees under the Hawaiian Homes Commission Act, Justice Acoba disagreed with the Court's standing analysis, saying

Taxpayers...allege that the denial of an exemption equal to that afforded Hawaiian homestead lessees denies them equal protection under the law. Such injury would seem sufficient for purposes of standing.

...

The majority attempts to characterize the instant case as one involving standing for purposes of a challenge to the Hawaiian homestead lease criteria. However, that is directly contrary to what Taxpayers claim they are challenging. The majority in fact notes that Taxpayers “assert[] that ‘none of the Taxpayers . . . ask for an award of a homestead lease.’” Majority opinion at 39 (brackets omitted). Contrary to the majority’s characterization of the instant suit, Taxpayers specifically challenge the tax exemption.

Justice Acoba nevertheless joined in the result reached by the majority on grounds that the taxpayers had failed to name the United States as a party

[B]ecause Section 4 of the Admission Act provides that the provisions of the HHCA are “subject to amendment or repeal only with the consent of the United States,” the United States must be made a party to this action. Having failed to name the United States as a party to the instant action, Taxpayers cannot pursue their claims.

Haw. Supremes: No standing for taxpayers claiming that Hawaiian homestead exemptions constitute racial discrimination

Non-native Hawaiian property owners sued in the Tax Appeal Court, arguing that, because only native Hawaiians are eligible to become homestead lessees, exemptions from property taxes granted to lessees under the Hawaiian Homes Commission Act discriminate on the basis of race in violation of the Fifth and Fourteenth Amendments to the United States Constitution and federal civil rights laws.

They asked for refunds of property taxes paid in excess of what they would have been assessed had each of them been granted a tax exemption; a declaration that the HHCA, § 4 of the Admission Act, and article XII, sections 1-3 of the Hawaii Constitution are invalid; and an injunction barring implementation of any property tax exemption given exclusively to Hawaiian homestead lessees.

Noting that the record failed to establish that the plaintiffs were actually interested in participating in the homestead lease program, the Court found that plaintiffs had not established an injury-in-fact sufficient to confer standing and that the tax appeal court therefore lacked jurisdiction in the case.

The decision contains an interesting recitation of the relevant historical background concerning ceded lands, Hawaiian home lands, and the admissions act, as well as a good amount of 'suspect classification' analysis and, of course, injury-in-fact and standing analysis.

Editorial opinion: There is a class of single-family dwellings on Kauai ag lands that should not need special permits to operate as TVRs: Those built on lots that existed before June 4, 1976

The following is editorial opinion only. Do not construe it as legal advice, for it is not. In fact, this opinion conflicts with current language in the Kauai code which is ignored at the ignorer's peril.

HRS §205-4.5 lists permissible uses within agricultural districts. It further provides that uses not expressly permitted are prohibited, "except...construction of single-family dwellings on lots existing before June 4, 1976."

Thus, "farm dwellings" - meaning single-family dwellings located on and used in connection with farms - are listed and are therefore permissible. Single family dwellings not located on and used in connection with farms, on the other hand, are not listed and are therefore impermissible within ag districts.

Unless...they are constructed on lots that existed before June 4, 1976. That is: to this day, single-family dwellings can be constructed on ag lots even though not on or used in conjunction with farms, so long as the lot existed before June 4, 1976.

Single-family dwellings on ag lots that existed  before June 4, 1976 can be used for anything that single family dwellings can be used for. Their owners can live in them, even if not in connection with any farm. Or, their owners can rent them out to tenants pursuant to long-term leases.

Before March 7, 2008, owners of single-family dwellings on ag lots - just like any other owners of any other single-family dwellings on Kauai - could even rent them out short-term as, for instance, transient vacation rentals. Before that date, single-family dwellings could be built on ag lots that existed before June 4, 1976  and be legally operated as TVRs, just like that, with no special permits required.

Then, due to amendments to Kauai's zoning code, owners of single-family dwellings outside the VDA - whether on ag land or not - could no longer put their dwellings to use as TVRs after March 6, 2008.

However, because "the right of a property owner to the continued existence of uses and structures which lawfully existed prior to the effective date of a zoning restriction is grounded in constitutional law,"(Waikiki Marketplace Inc. Co. v. Chair of Zoning Bd. of City & County of Honolulu, 86 Haw. 343, 353, 949 P.2d 183, 193), owners who had operated their single-family dwellings as TVRs prior to March 7, 2008 may continue to do so.

That includes operators of TVRs in single-family dwellings on ag lots that existed prior to June 4, 1976.

The current incarnation of the zoning amendment that cut off the date for commencing operation of a TVR outside the VDA at March 7, 2008, (Ordinance No. 904), requires for the grandfathering of pre-existing single-family TVRs on ag land, that the operator obtain a special permit, unless "it was built prior to June 4, 1976."

Presumably, the "built prior to June 4, 1976" language is a nod to the language in HRS §205-4.5 grandfathering the right to build single-family dwellings on ag land lots existing before that date. But the Ordinance 904 grandfathering clause seems to misconstrue the HRS §205-4.5 grandfathering clause. HRS 205 doesn't just grandfather single-family dwellings build on ag land prior to June 4, 1976. It grandfathers single-family dwellings build on lots that existed on ag land prior to June 4, 1976, regardless of when the dwelling was built. The dwelling could be built in 1984, or 2004 and it would still be a legal single-family dwelling even if not located on and used in connection with a farm.

Thus, single-family dwellings built on ag lots that existed before June 4, 1976 do not need special permits to be legal single-family dwellings, even if not located on and used in connection with farms. They do not need special permits to be rented out to long-term tenants. Nor did they need special permits to operate as TVRs prior to the zoning amendment cut off date of March 7, 2008.

Nor, it would seem, should they need special permits now to operate as TVRs so long as they operated as such prior to the zoning amendment cut off date of March 7, 2008. At least that is what the constitutionally grounded right of a property owner to the continued existence of uses and structures which lawfully existed prior to the effective date of a zoning restriction would seem to dictate.

A bit more on Kauai Sierra Club's letter opposing Anaina Hou permits

Honestly, I have no dog in this fight, so I'm really not trying to argue one way or another regarding the merits of the planning commission’s April 12 approval of a special permit for the Kilauea Pavilion. But, after posting yesterday that the relevant state statute is at variance with the Sierra Club's assertion that the special permit process is not appropriate for commercial uses of ag land and the permit somehow represents new precedent, I received an unrelated document from the planning department that coincidentally lists a number of examples of special permits approved as "unusual and reasonable uses" on ag lands, including quarries and processing plants (Hanamaulu valley, Wahiawa valley, Princeville cement processing), airport (Princeville), cell phone towers, alternate energy facilities, helicopter landing areas, sewage treatment and water tank facilities, and electrical substations, as well as schools and churches.

Court holds that Second Amendment protects stun guns

It's a Michigan court, so there is nothing binding on Hawaii. I bring it up though because Hawaii has a law (HRS §134-16) prohibiting the possession by anyone but public officers of an "electric gun," meaning any portable device that is electrically operated to project a missile or electromotive force.

The Michigan court wrote

Because the Court finds that a stun gun is an arm under the Second Amendment, it likewise followes that states may regulate the ownership and possession in the same manner as any other arm. Thus, prohibitions on the possession of stun guns by felons and the mentally ill and in sensitive places such as schools and government buildings, as well as conditions and qualifications on the commercial sale of stun guns would be constitutional. However, this Court holds that a total ban of stun guns, such as that effectuated by the Michigan staute under which Defendant is charged, is unconstitutional. The Heller Court found that a total ban on handgunds was unconstitutional; in this case, the Court is presented with a nonlethal stun gun that Defendant possessed for self-defense purposes. based on the holding in Heller and McDonald, this Court finds that the Michigan statute totally banning stun guns is unconstitutional and Defendant's charge should be dismissed.

See the decision for the complete analysis. And, hey, if you ever have a client charged with possession of an "electric gun," you can cut and paste whole blocks from the decision into a motion to dismiss and, after that, into your opening brief for the ICA. (I first saw news of the decision in The Volokh Conspiracy, in the sidebar to the right).

Kauai Sierra Club's opposition to Anaina Hou permits

Léo Azambuja has a piece in this morning's Garden Island about a letter from the Kauai Sierra Club to the county planning commission expressing opposition to the commission’s April 12 approval of a special permit for the Kilauea Pavilion. The piece notes that

Sierra Club executive committee members believe that the special permit process is not appropriate to grant uses of commercial projects on lands zoned state agricultural

The letter states in part

The Special Permit process is not appropriate for granting nonagriculture-related commercial uses on agricultural lands.

The appropriate procedure for considering applications for commercial uses that have no relation to agriculture on Agricultural land is to apply for a variance or a rezoning, and to make the showing that the proposed uses would meet the standards associated with a variance or rezoning. If the proposed uses met those standards, then the application for the variance or rezoning could legitimately be considered on its own merits.

Instead, the Kilauea Pavilion permit application has used the vehicle of a “Special Permit” as an end-run around compliance with the necessary variance or rezoning standards.

However, Hawaii Revised Statutes §205-6, titled "Special permit," provides

(a) Subject to this section, the county planning commission may permit certain unusual and reasonable uses within agricultural and rural districts other than those for which the district is classified. Any person who desires to use the person's land within an agricultural or rural district other than for an agricultural or rural use, as the case may be, may petition the planning commission of the county within which the person's land is located for permission to use the person's land in the manner desired.
...
(c) The county planning commission may, under such protective restrictions as may be deemed necessary, permit the desired use, but only when the use would promote the effectiveness and objectives of this chapter; provided that a use proposed for designated important agricultural lands shall not conflict with any part of this chapter.

Sierra Club might argue that special permits are not appropriate for granting nonagriculture-related commercial uses on agricultural lands, however there is no explicit prohibition in 205 or stated in definitive terms in any case I'm aware of.

The Sierra Club letter states other legal grounds not discussed here for it's opposition to the permit. See the link to see the complete statement.

Why Good Friday, while an official state holiday, is not a religious holiday in Hawaii

Robert Thomas has the history and the law.

For the defense bar: New fees request rule and forms for court appointed private counsel

Filed by the Hawaii Supreme Court today, here.

New tool for keeping up with case law and practice area developments

(Via Robert Ambrogi's Law Sites). Sign up at Justia.com for free, daily opinion email summaries from federal and state courts that you choose, or weekly summaries of opinions in practice areas of your choice.

Unfortunately, Hawaii is not one of the jurisdictions included among the 25 state court options. However, all the federal circuits are there, and the list of practice area choices is pretty extensive.

Congratulations to Kauai public defender Christian Enright

...who won not-guilty verdicts for his client yesterday in second degree attempted murder and second-degree assault counts. The defendant will be retried on a pair of class C felony first-degree terroristic threatening charges. (The defense has to love a complaining witness who is shown to have consumed 18 beers, half a joint, and a cup of psilocybin mushroom tea on the day in question). Garden Island reporter Jessica Musicar's coverage is here, here, here, and here.

A nice pair

...that I happen to be currently reading. Both are new editions. The Cross Examination Handbook provides interesting examples of strategies and techniques from real world cases such as Enron, O.J., Scopes, Ted Bundy, among others, and stresses creating a case theory and integrating cross with the theory.

I downloaded the Kindle version of the Handbook of Cross Examination, which calls the rules of evidence the cross examiner's bible and organizes much of it's content accordingly.

Taxing Hawaii online shoppers

A Jeff Jacoby column in the Boston Globe today - There’s no fairness in taxing e-sales - caught my attention because it coincidentally addresses claims made in a pair of bills working their way through the Hawaii legislature that seek to tax e-sales.

HB 1183 states

The legislature finds that few online retailers domiciled out-of-state collect the general excise tax on sales made to Hawaii residents. This results in a substantial loss of tax revenues for the State and provides an unfair advantage to out-of-state retailers at the expense of local businesses.

SB 1355 states

The purpose of this Act is to adopt changes to Hawaii's tax law that will allow Hawaii to participate in the national streamlined sales and use tax agreement. This agreement simplifies state tax systems, removes burdens to interstate commerce that are defined in the United States Supreme Court decision in Quill Corp. v. North Dakota, 504 U.S. 298 (1992), and "levels the playing field" between local and out-of-state retailers.

(Emphasis added).

The Globe column states in relevant part

This supposed “fairness’’ argument is echoed by the Alliance for Main Street Fairness, which lobbies against what it calls the “online sales tax loophole.’’ The Alliance argues that “a sale is a sale is a sale,’’ and that whether it takes place in cyberspace or in the shop around the corner, the sales tax should be collected. ...

But it’s a hollow argument. All other things being equal, consumers no doubt prefer a tax-free shopping experience. But all other things are rarely equal. E-retailers (or mail-order catalogs) may have a price advantage, but well-run “Main Street’’ businesses have competitive advantages of their own. They attract customers with eye-catching window displays. They play up local ties and neighborhood loyalty. They give shoppers the chance to see, feel, or try on items before buying them. They enable the serendipitous joys of browsing. They don’t charge for shipping. And they offer potential customers a degree of personal service and warmth that no website can match.

The current system is far fairer than the one Durbin wants. Bricks-and-mortar merchants charge sales taxes based on their physical location. The same rule applies to online merchants. A Pennsylvania tobacco shop doesn’t collect Ohio sales taxes whenever it sells a humidor to a visitor from Ohio. Amazon shouldn’t have to, either.

“Out-of-state companies that aren’t paying their fair share of taxes,’’ Durbin argues, “are sticking Illinois residents and businesses with the tab.’’ What tab? Taxes paid should bear some relation to services received, and merchants with no “substantial nexus’’ to a state receive no services from it. They don’t use its firefighters or sewers, don’t send their kids to its schools, and don’t expect it to plow their streets after a blizzard. To force them nevertheless to collect and remit that state’s taxes would be grossly unreasonable.

Finally!

Formation of an Appellate Section of the HSBA

Federal law and cockfighting on Native lands

…in rural Oklahoma. Yesterday's 10 Cir. decision (United States v. Langford), involving federal and state jurisdiction in Indian country (defined in 18 U.S.C. 1151(c) as Native American reservations, Indian communities, and trust lands) raises the sort of layering of a body of specialized federal statutory and common law over all the other law we normally deal with that could occur here in Hawaii if some incarnation of the Akaka Bill ever passes. It’ll be like make-work for lawyers!

Approximately sixty law enforcement officers from the F.B.I., Bureau of Indian Affairs, Immigration and Customs Enforcement, United States Department of Agriculture, and the state highway patrol raided a cockfight located in Indian country in rural Oklahoma. Of the approximately seventy people cited during the raid, between five and seven were Indian. Everyone else, including the defendant, were non-Indian.

There is no federal law against cockfighting. However, Oklahoma has a statute that criminalizes cockfighting as well as being a spectator at a cockfight. The defendant was tried and convicted in federal court under a pair of federal laws, (the Assimilative Crimes Act, as applied through the Indian Country Crimes Act) which essentially make state laws into federal laws when the state law is violated in Indian country.

However, under a long line of Supreme Court precedents, this only applies when the perpetrator or the victim of the crime, or both, are Indians. The federal government does not have jurisdiction over cases in which non-Indians commit crimes against non-Indians.

The issue of first impression before the 10th Circuit in this case was whether there is federal jurisdiction for a victimless crime perpetrated by a non-Indian in Indian country. The court, noting that its “conclusion flows ineluctably from Supreme Court precedent” said there is no federal jurisdiction and that the states possess exclusive criminal jurisdiction over crimes occurring in Indian country if there is neither an Indian victim, nor an Indian perpetrator.

Of course I have no idea what the local legal landscape might look like under an enacted Akaka bill, but I imagine there will reside in any Native lands created or recognized by a federal act some form of federal jurisdiction.

Journalist shield law v. a defendant's constitutional right to confront witnesses and present a defense

Honolulu Civil Beat has an article today updating the progress of a bill to extend by two years Hawaii's press shield law, which, barring an extension, will sunset at the end of June.

The American Civil Liberties Union of Hawaii, the Society of Profession Journalists-Hawaii Chapter, the Big Island Press Club and Common Cause Hawaii sought to have the law made permanent.

But Judiciary Chairman Clayton Hee said the Senate accepted the recommendations of the Hawaii Judiciary, which wants to study the matter and report to the Hawaii Legislature in the 2012 session.

The article goes on to quote the chairman of the Hawaii Supreme Court Standing Committee on the Rules of Evidence as stating, "The committee observes that the drafters of evidence rules did not recommend a journalists' privilege, and the 1980 Legislature did not adopt one. Nor do the Uniform Rules of Evidence contain such a privilege. The committee has no present information regarding the status of journalists in the other 49 states, but would undertake this kind of research if the matter were referred to it."

The arguments for a press shield law are well known. But there exist other countervailing interests that merit some attention. Earlier this year a New York court took up an interesting issue in the collision of that state's journalist shield law with defendant's constitutional right to confront witnesses and present a defense. In that case, the defendant was charged with attempted murder, among other felonies, on the allegation that he was an accomplice in an attempt to shoot a police officer.

The prosecution asserted that the defendant had yelled "shoot the cop." However, the New York Daily News reported that an official had said the defendant's mother had been the one who shouted "shoot the cop." The defendant subpoenaed the newspaper for the source of the statement to determine whether it was made by one of the two officers present at the time of the crime. If it was, and if the officer testified that the defendant had made the statement, the defense could impeach the witness with his prior inconsistent statement.

The paper moved to quash the subpoena, arguing that under the state's press shield law, the identity of a confidential source is absolutely protected from disclosure.

The court provided the following analysis:

If the subpoena at issue were a prosecution subpoena, that would end the analysis. But the subpoena is a defense subpoena. Defendant insists that his rights under the Confrontation Clause of the Sixth Amendment and under the Due Process Clause of the 14th Amendment trump the statutory and constitutional privileges of the Daily News. Under the facts of this case, this court agrees.

A defendant's Sixth Amendment rights to confront witnesses and present a defense are generally subject to rules of privilege and to other evidentiary restrictions. A defendant generally could not, for example, insist on presenting testimony about a co-defendant's privileged communications with that co-defendant's attorney. Nor could he expect to elicit declarations in violation of the rules against hearsay. But under some extreme circumstances, rules of evidence must be subordinated to a defendant's due process right to a fair trial. The lead case is Chambers v. Mississippi, 410 U.S. 284 (1973). There the Supreme Court ordered a new trial because a confluence of state evidence rules had wrongly prevented the defendant from eliciting reliable proof that someone else committed the crime with which the defendant was charged.

Applying the Chambers rationale, any number of state and federal decisions have concluded that the interests of the press protected by constitutional and statutory privileges may have to give way when weighed against a criminal defendant's claim that protected information is vital to his defense. See, e.g., United States v. Criden, 633 F2d 346 (3rd Cir 1980); People v. Le Grand, 67 AD2d 446 (2d Dep't 1979) (Titone, J.); People v. Nasser, 15 Misc 3d 499 (Sup Ct Westchester Co 2007) (prior inconsistent statements); Matter of Sullivan v. Hurley, 167 Misc 2d 534 (Sup Ct Queens Co 1995); People v. Troiano, 127 Misc 2d 738, 741-42 (Co Ct Suffolk Co 1985). In a typical case, the balancing process will yield a result upholding the press privilege. See, e.g., Matter of Perito v. Finklestein, 51 AD3d 674 (2d Dep't 2008); People v. Hendrix, 12 Misc 3d 447 (Sup Ct Kings Co 2006); People v. Troiano; People v. Iannaccone, 112 Misc 2d 1057 (Sup Ct NY Co 1982); People v. Marahan, 81 Misc 2d 637 (Sup Ct Kings Co 1975). But on occasion, the facts result in a conclusion that the interests of the defendant outweigh those of the press. See, e.g., People v. Nasser; Matter of Sullivan v. Hurley.

The rule may be stated this way: where a criminal defendant seeks press information that (1) is highly material, (2) is critical to the defendant's claim, and (3) is not otherwise available, then the press privilege must give way in the face of the Sixth Amendment. And that is true even if the information is confidential. Notably, that test is consistent with the rule announced in O'Neill defining press protections under the New York constitution. And of course the test is the one applicable under the Press Shield Law when any party in any case, civil or criminal, seeks non-confidential press information. Constitutional requirements dictate that this standard be applied as well when a defendant in a criminal case seeks confidential information, even though in that circumstance the Press Shield Law would absolutely bar a subpoena.

Hawaii's shield law states that its privilege does not apply if there is substantial evidence that the source or information sought to be disclosed is material to the investigation, prosecution, or defense of a felony, or to a civil action for defamation, and the source or information sought is unavailable, despite exhaustion of reasonable alternative sources; noncumulative; and necessary and relevant to the charge, claim, or defense asserted.

What I'm reading....

"Tax Deductions for Professionals." Every April I'm reminded of how much I need to think about taxes the other eleven months. I'm finding this Nolo manual to be an efficient and readable presentation of a massive amount of helpful information. (I downloaded the Kindle version). From the reviews: "Aimed at anyone who runs a professional practice, including doctors, dentists, lawyers, engineers, architects and even chiropractors -- to say nothing of accountants. " -- Accounting Today; "Step-by-step strategies for making your tax bill as low as possible"; and, not least, "guidelines for converting a vacation into a business trip."

R.I.P. Sidney Lumet

...director of a couple of great legal-themed movies, "12 Angry Men" and "The Verdict," as well as the excellent corrupt cop flicks "Serpico" and "Prince of the City" and, of course, one of my perennial Sunday afternoon faves, "Dog Day Afternoon," died this morning at 86.

ICA upholds Obama birth certificate case dismissal

The Hawaii Intermediate Court of Appeals today upheld the dismissal of a state freedom of information request for disclosure of President Obama's birth certificate. (State v. Fuddy, No. 30176 (April 7, 2011)). Pro se plaintiff, Dr. Robert Justice, filed a complaint in the Hawaii First Circuit court after the Department of Health had denied his request. The Circuit Court granted the Departments' motion for dismissal of the complaint on grounds that Dr. Justice had failed to state a claim for which any legal relief can be granted.

Hawaii's freedom of information statute (HRS §§ 92F-11 through 92F-19) provides that, generally, all government records are open to public inspection and that upon request an agency is to make such records available for inspection and copying during regular business hours.

The Department of Health (and, technically, the Department's director, who was also a named defendant) argued that, the general freedom of information requirements notwithstanding, it would be improper to disclose the birth certificate because HRS § 338-18(b) explicitly prohibits the Department of Health from disclosing public health statistics records, including birth records, unless the applicant falls within one or more of 13 specific enumerated categories of persons deemed to have "a direct and tangible interest" in the record. (The catagories include the person about whom the record refers, that person's family, others acting on behalf of that person, persons requiring the information to establish rights related to adoption, monetary payments, or property, and persons who have obtained a court order requiring the disclosure).

The plaintiff did not disagree that he did not qualify as having a "direct and tangible interest" under Section 338-18(b). Rather, he argued that his right to the birth certificate was established in the freedom of information statute, 92F-12(b)(3), which provides that "[a]ny provision to the contrary notwithstanding, each agency shall...disclose:...Government records pursuant to a showing of compelling circumstances affecting the health or safety of any individual[.]"

The plaintiff asserted that such compelling circumstances exist in this case because the president "is the Commander-in-Chief of our military and entrusted with our nuclear and chemical arsenals..." and that "the purported birth certificate...will ensure the health and safety of all 300 million of us by making sure that our military and our nuclear and chemical arsenals are still under our control and not in the control of any one of our enemies."

The appellate court disagreed. Taking as analogous language from the federal privacy act (permitting disclosures upon "a showing of compelling circumstances affecting the health or safety of an individual"), the court cited legislative committee reports asserting that by legislative intent the privacy act was to apply in rare situations when "necessary to save the life or protect the safety of an individual in a medical or safety emergency." The court also looked to federal case law asserting the privacy act was intended to apply only in "life and death situations."

(The court cited to a well established doctrine that it "may look to the interpetations of analogous federal law[] by the federal courts for guidance," and stated, "[g]iven their substantially identical language and similar subject matter, we conclude that HRS 92F-12(b)(3) should be interpreted in the same fashion as [the language from the federal privacy act]." I would quibble with the assertion that the state freedom of information act is really analogous in subject matter to the federal privacy act, but oh well).

The court concluded that "[w]ile Plaintiff may have a strong desire to personally verify President Obama's eligibility, we conclude that such desire does not constitute "compelling circumstances affecting the health or safety of any individual" within the meaning of HRS § 92F-12(b)(3)."

Judiciary: Acoba Appointed District Court Judge on Kauai

Announcement from the judiciary -

Chief Justice Mark E. Recktenwald has appointed Edmund D. Acoba as District Court Judge in the Fifth Circuit (Kauai). Acoba fills the vacancy created by the retirement of Judge Calvin Murashige.

Acoba is currently the supervising attorney of the Office of the Public Defender on Kauai. Before becoming a public defender in 1989, he worked in the Kauai Office of the Prosecuting Attorney. A former president of the Kauai Bar Association, Acoba earned his law degree from Whittier College of Law in 1987.

The chief justice appoints district family court judges from a list of not less than six nominees submitted by the Judicial Selection Commission.

Acoba is the first person appointed to serve as a full-time judge by Chief Justice Recktenwald, who took office in September 2010.

Acoba’s appointment is subject to confirmation by the State Senate.

Walter Lewis: "private citizens were urged" to file info request on Sunrise Capital - Kauai County settlement agreement

In the context of an opinion piece in the Garden Island on Kauai County's sometimes tenuous adherence to the the state sunshine law, Walter Lewis apparently sheds some light on why the Sunrise Capital - Kauai County settlement agreement, inked in October of '09, has recently received criticism in the Garden Island and local blogs lately. As Walter notes, "The parties agreed that the agreement would be kept strictly confidential except as disclosures might be required under the Sunshine Law." However -

In the almost one-and-a-half years since the agreement circumstances have changed and it appears the deal is unraveling. Early this year councilmember Bynum introduced Bill 2397 seeking a budget change for $417,000 relating to the Kekaha landfill operations including the shrimp farm matter. Private citizens were urged to file an information request under Section 92 F which would be necessary to break the confidentiality requirement and make public the 2009 agreement. Now, with the confidentiality requirement ended, the council will be able to discuss the issues openly. Secrecy has its costs.

I wonder what facts lurk behind the passive language - "Private citizens were urged to file an information request..."? The confidentiality clause is pretty sweeping (it is paragraph 12 of the agreement, here).

Unless disclosure is required by HRS Chapter 92F or other applicable law, the Parties agree and hereby acknowledge that the alleged facts and circumstances giving rise to any and all Claims being released herein and the fact that the Parties have agreed to forever resolve and compromise a dispute between them, and the terms and conditions of this Agreement shall, except as otherwise provided in this Paragraph 12, remain strictly confidential.

From and after the date of this Agreement, the Parties and/or their representatives shall not disclose, communicate, or discuss with any person the alleged facts and circumstances giving rise to any and all Claims being released herein and the fact that the Parties have agreed to resolve and forever settle any dispute between them, and the contents, terms, and conditions of this Agreement...

I'm pretty sure that a party wishing for whatever reason to disclose the agreement is in breach of the confidentiality clause if the party urges (or suggests or hints) that some private citizen might want to make an information request. Of course, there's the larger question regarding whether such an agreement should be confidential in the first place.

Books: The Rights of Indians and Tribes

The new fourth edition of Stephen Pevar's The Rights of Indians and Tribes could find an important place in Hawaii law offices if some incarnation or other of the Akaka Bill ever overcomes its perennial broad-spectrum unpopularity (outside the political classes) and actually passes both houses and gets signed into law. From the Oxford Univ Press description:

Federal Indian Law encompasses nearly 400 Indian treaties, hundreds of federal statutes, and thousands of court decisions. When the first edition of The Rights of Indians and Tribes was published in 1983, it firmly established itself as the only book explaining Federal Indian Law in a clear and easy-to-understand way for students and practitioners of Indian law, tribal advocates, government officials, and the general public....This fully updated new edition includes a wealth of new information on recent legislation and judicial decisions[.]

(Hat tip, Turtle Talk, located in the sidebar to the right).

Ideology and Intelligence in Legal Scholarship

This is just some Friday April Fools Fun. A poke at my progressive friends. Periodically there is news of a study that purports to reinforce the convention that libs are smarter than cons. In one of the blogs linked in the sidebar to the right today is a[n April Fool's] post about a study that purports to show the opposite, at least among legal scholars. It's always been my opinion that there is probably no correlation one way or the other between ideology and intelligence. I take that opinion from my own anecdotal experience of having encountered some extremely intelligent people from both camps, as well as many not so intelligent people from both camps. But, just to stir the pot, "from the abstract":

A variety of commentators have suggested that there is positive correlation between the ideological valence of legal scholarship and the intellectual capacity of the author. In their most common form, these suggestions posit an association between "progressive" or "left leaning" political views, and "IQ" or "intelligence." Recent developments in content analysis and the measurement of inellectual capacity now permit empirical testing of these claims.
...

The Pearson product-moment correlation coefficient (-0.61) provides strong evidence of a negative relationship between progressive ideology and intelligence.