Planet Kaua`i

ICA upholds circuit court's refusal to let defendant present sovereignty defense

2012-01-26T22:19:00.000-10:00

The ICA last August affirmed by summary disposition the conviction of a defendant for Unauthorized Entry in a Dwelling and five counts of Violation of an Order for Protection. (State v. Kaluau) Among the issues the defendant raised on appeal was that the circuit court had "preclud[ed] him from presenting his 'Hawaiian Kingdom' evidence".

According to the ICA

The circuit court did not err in precluding Kaluau from introducing "Hawaiian Kingdom" evidence. The sovereignty of the State and its lawful jurisdiction over the inhabitants of the State is a matter of law that is well-established. State v. Fergerstrom, 106 Hawai'i 43, 55, 101 P.3d 652, 664 (App. 2004); see also State v. Lorenzo, 77 Hawai'i 219, 883 P.2d 641 (App. 1994).

Recall that in May the ICA had required a court-appointed attorney to submit supplemental briefing of a sovereignty defense after the attorney had stated in the opening brief

that he is providing ineffective assistance of counsel on appeal as he "is incapable of properly asserting the 'Hawaiian Sovereignty' Defenses of the Defendant, since he does not agree with the Defendant's political position[.]"

No reconsideration or clarification of the Hawaii Supreme Court's order invalidating the 2011 Final Reapportionment Plan for the state legislature

2012-01-23T12:46:00.000-10:00

Because...

the lack of complete information about the non-permanent status and location of Hawaii's non-residents is no basis for disregarding the express mandate of the Hawai'i Constitution, article IV, section 4, that only permanent residents be counted in the population base for the purpose of reapportionment of the
state legislature.

For the defense bar - some new SCOTUS Search and Seizure law

2012-01-23T08:13:00.000-10:00

The Government’s attachment of [a] GPS device to [a] vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment.

United States v. Jones (PDF)

Interestingly, the court did not rely at all on the "reasonable expectation of privacy" formulation adopted by the court in 1967 in Katz v. United States. Instead, the court held that the kind of intrusion here - the attachment of a tracking device to a vehicle - constitutes the sort of common law trespass against a person's "effects" that would have been considered a search within the meaning of the Fourth Amendment at the time it was adopted.

(Under the Fourth Amendment, "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated[.]"

Kauai Publishing's bankruptcy

2012-01-16T00:46:00.001-10:00

On December 12 Lee Enterprises, Inc., and Kauai Publishing Co., publisher of the Garden Island, filed petitions for Chapter 11 reorganization in the U.S. Bankruptcy Court for the District of Delaware (here and here).

A Chapter 11 Plan of Reorganization - "Amended Joint Prepackaged Plan of Reorganization for Lee Enterprises, Incorporated and Its Debtor Subsidiaries"- and exhibits was filed by Lee Enterprises, Incorporated.

And on Friday the IRS filed an objection to the plan.

Civil unions and the clash of equal protection and freedom of religion

2012-01-15T23:20:00.001-10:00

Here's a story out of New Jersey that brings to mind the recently dismissed motion for a restraining order sought by a pair of Hawaii churches to prevent the state from enforcing the new civil union law.

A New Jersey judge ruled Thursday that a church group violated the state's discrimination laws when it prevented a lesbian couple from holding a civil union ceremony on its property in 2007.

The dispute began when the Ocean Grove Camp Meeting Association stopped the couple from using its boardwalk pavilion, an area it rented out for weddings.

Administrative Law Judge Solomon Metzger wrote in Thursday's ruling that the pavilion was a public space that advertised itself as a wedding venue without any mention of religious preconditions.
...

The church had argued that its freedom of religious expression would be violated if it was forced to allow same-sex ceremonies to be performed on its property.

The Hawaii act contains language shielding from liability "any person authorized to perform solemnizations of marriages or civil unions...who fails or refuses for any reason to join persons in a civil union." The Hawaii plaintiffs are concerned that this language doesn't protect churches who refuse to allow their facilities to be used for same sex ceremonies.

I imagine we could see some interesting Article 1, Section 5 equal protection cases brought against the immunity language of the civil unions law, and some interesting Article 1, Section 4 arguments brought to bear by churches opposed to same-sex unions.

ICA: a good faith settlement under HRS § 663-15.5 does not preclude a defendant from introducing evidence that it was not the cause of the accident even though doing so will point the finger at the defendant who settled

2012-01-15T22:02:00.002-10:00

Under Hawaii law, when a plaintiff and a tortfeasor settle a claim in good faith, the settling tortfeasor is discharged from all liability for any contribution to non-settling tortfeasors. HRS § 663-15.5.

Does that mean a non-settled tortfeasor cannot introduce evidence at trial that would point to the settled defendant as the cause of the accident?

No, says the ICA. A good faith settlement made pursuant to HRS § 663-15.5 does not preclude a defendant from introducing evidence that it was not the cause of the accident even though this evidence will logically point the finger at a defendant who settled in good faith.

In Adams v. Yokooji, filed Friday, a woman got out of a cab at night, began crossing the street to catch a bus, and was struck and killed by a car. Her estate sued the driver of the car that hit her, the cab driver who dropped her off, and the DOT (for negligent design and insufficient street lighting).

The estate settled with the cab driver and the driver of the car that struck the woman. The DOT said it would introduce evidence that the lighting was sufficient and that the driver who hit her should have seen the woman. The ICA heard the case on an interlocutory appeal.

Robert Thomas on Agriculture And Property Rights

2012-01-08T13:51:00.000-10:00

Agriculture And Property Rights: Why Hawaii Matters

Robert Thomas will be at the American Farm Bureau Federation annual meeting in Honolulu Monday talking water rights, GMO, right-to-farm, eminent domain, and other issues to the lawyers who represent farmers and ranchers. He promises to record it and post it to his blog, inverse condemnation.com.

Should be worth a listen.

Coincidentally, my brother-in-law, Marty Matlock, a professor of ag engineering at the University of Arkansas, will also be speaking.

Kauai County Zoning Ordinance Updates

2012-01-08T12:15:00.000-10:00

The Garden Island points out this morning that the county is soliciting comments on phase one of the CZO update.

The phase one draft is available here. Most interestingly, it incorporates the amendments made to the CZO since its adoption in 1972, including the Transient Vacation Rental Ordinances 864, 876, and 904, the Open District Ordinance 896, the Additional Dwelling Unit Ordinances 843 and 886, the Shoreline Setback Ordinances 863 and 887, the Enforcement Ordinance 883, the Farm Worker Housing Ordinance No.903, and the Transient Accommodation Unit Certificate Allocation Program Ordinance 912.

It also contains some stylistic changes, the most evident of which involved removing the 'generally permitted uses' and 'uses requiring special permit' subsections from the various zoning district sections, and putting the information into an ostensibly more user-friendly "Table of Uses."

According to the county's web page on the update, substantive changes recommended by the consulting company hired to produce the drafts won't appear until phase two: "The second phase will show the newly reformatted document with recommended substantive changes to the code in a Ramseyered format which will be forthcoming after the first phase has been completed."

(Ramseyered formatting is a drafting convention required for administrative rule-making under HRS § 91-4.1. It involves underscoring any language being proposed to be added, and bracketing any language being proposed to be deleted from the ordinance).

Cervelli and Bufford v. Aloha Bed & Breakfast

2012-01-05T12:27:00.000-10:00

...is a suit that, according to the complaint, "involves the refusal by a for-profit, commercial business establishment to provide accommodations at a bed and breakfast to a lesbian couple because of their sexual orientation, in violation of Hawaii’s law prohibiting discrimination in public accommodations."

The complaint asks for "a declaratory judgment that Defendant’s denial of public accommodations to Plaintiffs based on their sexual orientation and its ongoing refusal to provide accommodations to lesbians and gay men on terms equal to those provided to heterosexuals violates Hawaii’s laws prohibiting discrimination in public accommodations pursuant to HRS § 489-1, et seq."

Churches' suit against Hawaii civil unions law = "premature adjudication"

2012-01-03T08:35:00.000-10:00

...according to the U.S. District Court's Order Denying Temporary Restraining Order in Emmanuel Temple, et al. v. Abercrombie et al.

Courthouse News has a piece with links to a plaintiffs' brief and to the order.

Two Christian churches lack legal standing to prevent same-sex couples from benefitting under Hawaii's new civil union law, a federal judge ruled.

...

Emmanuel Temple, the House of Praise; its pastor, Carl E. Harris; Lighthouse Outreach Center Assembly of God; and its pastor, Joel Hunkin, had claimed that they needed a restraining order and injunction "to maintain their 1st, 5th and 14th Amendment rights, without being subjected to injunctions, fines and other penalties for refusing to rent their church grounds for same-sex ceremonies and receptions."

[The Order states that] a "general intent to violate a statute at some unknown date in the future does not rise to the level of an articulated, concrete plan."

"A couple would have to ask, they would have to be denied, and they would then have to file suit"[.]

Here's a link to Act 1, recognizing civil unions in Hawaii.

New laws for the New Year

2012-01-02T20:02:00.000-10:00

via Thelma at Hawaii House Blog

The new Palsgraf v. Long Island Railroad

2012-01-02T19:48:00.000-10:00

Apologies to those who never sat through first year torts...

Chicago Trib -

Ruling in what it called a "tragically bizarre" case, an appeals court found that the estate of a man killed by a train while crossing the Edgebrook Metra station tracks can be held liable after a part of his body sent airborne by the collision struck and injured a bystander.

Ain't it the truth

2011-11-20T11:54:00.000-10:00

NY Times - What They Don’t Teach Law Students: Lawyering

Consider, for instance, Contracts, a first-year staple. It is one of many that originated in the Langdell era and endures today. In it, students will typically encounter such classics as Hadley v. Baxendale, an 1854 dispute about financial damages caused by the late delivery of a crankshaft to a British miller.

Here is what students will rarely encounter in Contracts: actual contracts, the sort that lawyers need to draft and file. Likewise, Criminal Procedure class is normally filled with case studies about common law crimes — like murder and theft — but hardly mentions plea bargaining, even though a vast majority of criminal cases are resolved by that method.

For the bloggers

2011-11-20T08:08:00.001-10:00

PC World -

If you've ever copied an excerpt from an online publication and pasted it in a public place on the Internet, you're a bit safer today from being sued for copyright infringement thanks to the Democratic Underground

.

- Posted using BlogPress from my iPad

When "shall" can mean "may"

2011-11-13T12:05:00.000-10:00

This morning, the Garden Island headline, "Rapozo asks court to define ‘shall’" caught my eye.

The County Charter states the Salary Commission “shall” do one thing, but the county attorney said “shall” could mean “may,” providing ammunition in a battle among Kaua‘i County Council members stuck between upholding the charter and freezing county officials’ salaries another year.
...
Rapozo filed a complaint with the Fifth Circuit Court, seeking a declaratory judgment on the five-letter word. Is “shall” mandatory or directory?
“If you start saying ‘shall’ is not mandatory it really weakens the charter,” said Rapozo, adding that to him the charter is just as important as the state and federal constitutions.

This is something the Hawaii appellate courts have addressed before. Under the case law, "shall" can mean "may" when

(1) it obviously doesn't mean "must" in the context of the statute's purpose;

(2) reading it as "must" would lead to unjust consequences; or

(3) reading it as "may" doesn't harm any public or private advantage, right, or benefit.

In State v. Shannon, 185 P.3d 200 (Haw. 2008), the Hawaii Supreme Court said,

[I]t is a well-established tenet of our statutory interpretation that the use of the word “shall” generally indicates the legislature’s intention to make a provision mandatory, as opposed to discretionary. See Gray v. Admin. Dir. of the Court, 84 Hawai`i 138, 150 n. 17, 931 P.2d 580, 592 n. 17 (1997) (observing that “[t]he word `shall’ is generally construed as mandatory in legal acceptation”); Voellmy v. Broderick, 91 Hawai`i 125, 129-30, 980 P.2d 999, 1003-04 (App.1999) (declaring that “[t]he word `shall’ `must be given a compulsory meaning . . . and is inconsistent with a concept of discretion’” (quoting Black’s Law Dictionary 1375 (6th ed.1990) (other citation omitted))); but see Narmore v. Kawafuchi, 112 Hawai`i 69, 83, 143 P.3d 1271, 1285 (2006) (noting that “[w]hile the word `shall’ is generally regarded as mandatory, in certain situations it may properly be given a directory meaning” (quoting Jack Endo Elec., Inc. v. Lear Siegler, Inc., 59 Haw. 612, 616-17, 585 P.2d 1265, 1269 (1978) (citation omitted)))…
Additionally, this court has interpreted the word “shall” as “directory” rather than mandatory only where a three part test has been satisfied.
In Perry [v. Planning Comm'n of Hawaii County, 62 Haw. 666, 619 P.2d 95 (1980)], this court articulated a three-prong test for determining when the word “shall” may be interpreted as directory. First, “shall” can be read in a non-mandatory sense when a statute’s purpose “confute[s] the probability of a compulsory statutory design.” [Id.] at 676, 619 P.2d at 102. Second, “shall” will not be read as mandatory when “unjust consequences” result. Id. Finally, “the word `shall’ may be held to be merely directory, when no advantage is lost, when no right is destroyed, when no benefit is sacrificed, either to the public or to the individual, by giving it that construction.” Id. at 677, 619 P.2d at 103.
Leslie v. Bd. of Appeals of County of Hawai`i, 109 Hawai`i 384, 394, 126 P.3d 1071, 1081 (2006) (emphases added).

Electronic filing coming to the lower courts in Hawaii?

2011-11-03T10:51:00.000-10:00

I sure hope so.Via Hawaii State Judiciary on facebook -

Comments wanted on proposed changes to Rules of Penal Procedure to allow for electronic filing

Copyfraud and Beachfraud

2011-10-22T17:30:00.000-10:00

An interesting intro to a new book, Copyfraud and Other Abuses of Intellectual Property Law, illustrates the author's thesis by way of an analogy to beachfront property owners claiming more than they lawfully possess -

California has 3,427 miles of shoreline. Under the state's constitution, the shoreline is available, up to the mean high-tide line, for the public to use. Owners of beach-front homes, however, would prefer to keep the whole beach abutting their properties to themselves. In Malibu, homeowners place phony "No Trespassing" signs on the public beach, and they deploy security guards on all-terrain vehicles to chase away beachgoers. In Malibu's Broad Beach neighborhood, residents have bulldozed wet sand from the shoreline up to the high-tide mark to create a giant access barrier. At Carbon Beach, gated homes spanning multiple lots from a wall that blocks access to the shoreline from the Pacific Coast Highway. Whenever public interest groups have sought to open up pathways to the beach so that the state's constitution may be honored, homeowners have vigorously fought back. In 2005, DreamWorks co-founder David Geffen's decision to give up the keys to locked wooden gates next to his Malibu home, allowing the public to enter a stretch of beach, was headline news because it followed years of litigation and daily fines imposed upon Geffen for unlawfully blocking beach access. Battles over beaches occur in other states as well. In most states, the wet sand area of a beach is held by law in public trust, meaning it exists for the use and benefit of the population as a whole, even when the adjacent property is privately owned. Yet property owners routinely attempt to make their rights go farther than they actually do by interfering with people's ability to access beaches. On the New Jersey shore, homeowners have obstructed public entry points near their properties by erecting fences, and private beach clubs have set up entrance gates that admit only paying members onto public lands. On the island of Oahu, in Hawaii, gated subdivisions have turned public beaches into private sands. And in certain New York municipalities, local voters have passed ordinances limiting the use of the beach to town residents, notwithstanding the fact that they have no legal right to do so. Increasingly, the beach - the public's playground - is subject to private claims.

Like the owners of beachfront property, owners of intellectual property regularly claim more than the law gives them.

Fed Dist Court judge allows live-blogging from trial

2011-10-21T19:59:00.000-10:00

Malia Zimmerman in Hawaii Reporter -

U.S. District Judge Susan Oki Mollway has authorized Hawaii Reporter, the Star-Advertiser and Honolulu Civil Beat to cover the trial involving human trafficking allegations against Global Horizons via live blogging this February.

Personally, I think its odd that anyone would not be allowed to blog a public proceeding from the courtroom - or that anyone should have to ask.

MarketWatch video report on Kukui'ula

2011-10-21T19:40:00.000-10:00

"Hawaiian Paradise Becomes a Ghost Town"

I like it when the reporter pronounces it "Kukuilua"

iPad apps for lawyers

2011-10-21T14:17:00.002-10:00

Here.

FERC declines to issue preliminary hydropower permits for Kekaha Ditch Irrigation System

2011-10-20T13:33:00.000-10:00

...or any other "permissive" - as opposed to "mandatory" - permits in Hawaii.

Brad Parsons was kind enough to forward me a copy of this, which I was then able to locate on the FERC website. It's the Order dismissing preliminary permit applications re Kahawai Power 4, LLC and Kekaha Ditch Hydro, LLC under P-14105 et al., filed today.

This order dismisses applications by Kahawai Power 4, LLC (Kahawai Power) and Kekaha Ditch Hydro, LLC (Kekaha Ditch Hydro) for preliminary permits to study the feasibility of a hydropower project on the Kekaha Ditch Irrigation System near the town of Waimea, Kauai County, Hawaii.

...

Kahawai Power filed the Kekaha Project 1 preliminary permit application for a site that another developer, Kekaha Ditch Hydro, was already pursuing through Hawaii’s state hydropower authorization process. Were we to issue a preliminary permit to Kahawai Power, the company would then have first-to-file priority over Kekaha Ditch Hydro, even though that entity has been working with state authorities to develop a project at the same site. This appears to us to be a type of unwarranted “claim-jumping.” Because the issuance of a preliminary permit is within our discretion, we decline to do so here. Moreover, in order to avoid similar situations in the future, we will, as a general matter, decline to issue preliminary permits for projects in Hawaii that would be subject to permissive section 4(e) licensing. This proceeding demonstrates the potential for the Commission’s preliminary permitting process to interfere with hydropower development that is proceeding in accordance with a legitimate state authorization process.

Quinn v. Facebook

2011-10-20T10:48:00.001-10:00

This was filed in U.S. District Court in Honolulu Tuesday. The class action complaint is here. From the complaint:

3. Facebook maintains personal information pertaining to each individual as well as monitors the individual online habits of its users keeping track of websites they visit.

4. Upon obtaining personal information and/or wire or electronic communications of the Plaintiff, Facebook plotted to use that information for target marketing which pertained to the Plaintiff and the individual Class members, over the Internet.

5. Such conduct was committed in violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 as amended by the Electronic Communication Privacy Act of 1986, 18 U.S.C. § 2511, et seq. (the "Wiretap Act").

(link added).

Defense bar - if your court-appointement fees are reduced...

2011-10-19T19:47:00.001-10:00

...and if you appeal, at least the appellate court will insist that the judge reducing the request set forth reasons for the reduction.

Suit against Facebook filed in U.S. District Court in Honolulu

2011-10-19T09:55:00.000-10:00

The top story on today's Star Advertiser is about a suit filed against Facebook by plaintiff Cynthia D. Quinn, U of H law school Interim Associate Dean for Student Services, and attorney, former Hawaii AG Margery Bronster. I would post a copy of the complaint, but I don't find a hint of it on Pacer. From the article:

The lawsuit is similar to those filed in recent weeks in other states, including Kentucky, California and Louisiana. They all stem from the recent revelation that Facebook placed programs known as tracking cookies on the Web browsers of its users to trace their Internet activity, even if they are not logged on to Facebook....The suits were filed under a provision of the federal Wiretap Act that prohibits interception of wire, oral or electronic communications.

Here's a recent informative PCMag.com piece on the California case.

Speaking of the 9th Circuit

2011-10-17T21:06:00.000-10:00

...Orin Kerr describes Ninth Circuit nominee Paul J. Watford as a moderate and supports his confirmation.

Another 9th Circuit taser case

2011-10-17T20:53:00.000-10:00

The court sitting en banc on a pair of cases decided today (1) that police who tasered a pregnant woman to effectuate her arrest when she refused to get out of her car after refusing to sign a citation when stopped for doing 35 in a 20 zone, and (2) police who tasered a Honolulu woman in her living room when she didn't move away from her husband when police who had entered the home without consent or a warrant moved to arrest him, had violated the fourth amendment rights of both women to be free from excessive force. However, the court also found that not every reasonable officer at the time of the respective incidents would have known beyond debate that such conduct violates the Fourth Amendment, and so the women could not sustain civil suits against the officers. In typically entertaining style, Judge Kozinski disagrees that the cops' actions offended constitutional protections.

According to the majority, “Brooks bears some responsibil- ity for the escalation of this incident.” Majority op. at 19022 (emphasis added). This suggests that the rest of the blame is with the officers. Wrong, wrong, wrong. Brooks is com- pletely, wholly, 100 percent at fault. Had she behaved respon- sibly, she’d have driven away in a few minutes with no complications. Instead, Brooks risked harm to herself, her unborn daughter and three police officers because she got her dander up over a traffic ticket. The officers, for their part, were endlessly patient, despite being called liars and other- wise abused by Brooks. They deserve our praise, not the opprobrium of being declared constitutional violators. The City of Seattle should award them commendations for grace under fire.

Hazards of law blogging

2011-10-13T21:49:00.001-10:00

Washington Post

Virginia lawyers who blog about their cases, beware: the state bar may come after you for inappropriate advertising.

At least that’s the message the Virginia State Bar seems to be sending in a case against Richmond criminal defense attorney Horace Hunter. The bar has brought a misconduct charge against Hunter, who blogs on his firm’s Web site about cases he’s worked on, as well as national and local criminal justice issues. Bar authorities contend the blog constitutes advertisement and should include a disclaimer saying it’s an ad. Hunter argues the blog is news and commentary, and the bar’s attempt to get him to tack on a disclaimer is a violation of his First Amendment rights.

So far I've avoided blogging about my own cases and, as I've increasingly integrated into the local legal ...scene? Community? Whatever... and discussed local cases with the lawyers involved, I've felt funny about divulging what I've learned in those conversations and have blogged much less about local legal issues generally.

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Free legal forms and advice

2011-10-09T10:26:00.001-10:00

...at the Lihue courthouse where the self help center opened Friday. On my way to the clerk's window Friday afternoon, I saw attorney Tim Tobin manning the desk. (Tim was featured in a Garden Island story a couple of days ago about a jury trial in which he defended a sovereignty activist charged with driving with a fraudulent license).

The Garden Island covers the self help center here.

- Posted using BlogPress from my iPad

Adjusting court rules to adapt to technological hiccoughs

2011-10-09T10:08:00.001-10:00

The Hawaii Judiciary -

On October 5, 6 and 7, equipment problems with the Judiciary Electronic Filing and Services System (JEFS) prevented e-filing of electronic documents in the appellate courts. By Hawaii Supreme Court order, October 5, 6 and 7, and each consecutive business day during which JEFS is unavailable for 4 hours or more between 7:45 a.m. and 4:30 p.m., shall be treated as a Saturday, Sunday or holiday for the purposes of computing time under Rule 26 of the Hawaii Rules of Appellate Procedure, HRS Sec. 1-29, and other similar statutes and rules.

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Know your rights

2011-10-07T06:45:00.001-10:00

...when encountering law enforcement.

Via the ACLU

For the Plaintiff's Bar: Haw.S.C. overturns Wilson v. AIG - Now, "insureds are real parties in interest in actions against insurers regarding PIP benefits"

2011-10-04T22:41:00.002-10:00

From the decision (Ahn v. Liberty Mutual Fire Insurance Company)

In Wilson v. AIG Hawaii Ins. Co., 89 Hawai5i 45, 50-51, 968 P.2d 647, 652-53 (1998), we held that unless an insurer’s non- payment of personal injury protection (PIP) benefits jeopardizes an insured’s ability to reach the minimum amount of medicalexpenses required to file a tort lawsuit, insureds are not “real parties in interest” allowed to pursue lawsuits seeking payment of PIP benefits to providers. Although a statute expressly gave insureds the right to seek court review of PIP denials, we concluded that insureds do not have legal rights under substantive law to enforce payment of PIP benefits to providers. We also stated that “preservation of the integrity of the therapeutic relationship between physician and patient” was merely an “altruistic concern,” because PIP benefit laws insulated an insured from the billing and payment process.

Due to developments after Wilson, “cogent reasons and inescapable logic” compel us to overrule its holding, and we now hold that insureds are real parties in interest in actions against insurers regarding PIP benefits.

The most important reason, according to the court: "due to Wilson, many doctors stopped accepting accident patients, making needed medical treatment unavailable to many."

ATF memo says gun dealers can no longer sell guns or ammo to registered medical marijuana users

2011-10-02T18:25:00.000-10:00

Forbes

Pro-marijuana and gun groups said the policy clarification amounts to rescinding the gun rights for the thousands of people licensed to use medical marijuana laws. And it appears to contradict a 2009 Department of Justice memo that said the Obama administration would not pursue prosecution of individual medical marijuana users who obey state laws.

Here's the ATF's legal analysis from the letter, which the ATF says is in response to "a number of inquiries regarding the use of marijuana for medicinal purposes and its applicability to Federal firearms laws" and is meant to "assist…Federal firearms licensee[s] in complying with Federal firearms laws and regulations."

Federal law, 18 U.S.C. § 922(g)(3), prohibits any person who is an "unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)) from shipping, transporting, receiving or possessing firearms or ammunition. Marijuana is listed in the Controlled Substances Act as a Schedule I controlled substance, and there are no exceptions in Federal law for marijuana purportedly used for medicinal purposes, even if such use is sanctioned by State law. Further, Federal law, 18 U.S.C. § 922(d)(3), makes it unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person is an unlawful user of or addicted to a controlled substance. As provided by 27 C.F.R. § 478.11, "an inference of current use may be drawn from evidence of a recent use or possession of a controlled substance or a pattern of use or possession that reasonably covers the present time."

Bear in mind, though, that this is the same ATF who thought it was a good idea to intentionally allow smugglers to transport large numbers of guns into Mexico and the hands of drug cartels.

Which reminds me, tonight at my house we're watching part one of Ken Burns' Prohibition on PBS.

A couple of pieces on the impact of anonymous social media in small locales

2011-09-28T10:36:00.000-10:00

A couple of days ago a pair of somewhat related pieces caught my eye. This piece in the Garden Island -

[T]he manager of Vim N’ Vigor health food store in Lihu‘e, was alerted to postings on the Craigslist Kaua‘i page last week. They were directed at her service but also at her race as an African American woman.

and this one from the New York Times, set in Mountain Grove, Missouri -

[O]f late, more people in this hardscrabble town of 5,000 have shifted from sharing the latest news and rumors over eggs and coffee to the Mountain Grove Forum on a social media Web site called Topix, where they write and read startlingly negative posts, all cloaked in anonymity, about one another.

Hawaii gun laws challenged in federal court

2011-08-28T12:07:00.005-10:00

According to this press release, Hawaii Defense Foundation founding director and president, Christopher Baker, has filed a lawsuit in the U.S. District Court for the District of Hawaii "against Honolulu Chief of Police Louis Kealoha, the Honolulu Police , the City and County of Honolulu, the State of Hawaii, and Governor Neil Abercrombie in connection with civil rights violations of the Second and Fourteenth Amendments of the United States Constitution."

The complaint (available via scribd here) specifically challenges HRS sections 134-9 (governing carry licenses), 134-16 (restricting electric guns), and 134-51 (prohibiting carrying weapons on the person or in a car).

It should be a fascinating case to watch. While the Supreme Court has issued a couple of decisions in recent years making such challenges viable, the court left open some fundamental questions about how decisions should be made.

In 2008, the U.S. Supreme Court held in District of Columbia v. Heller, 554 U.S. 570 (2008), that the Second Amendment protects an individual's right to possess a firearm for traditionally lawful purposes, such as self-defense within the home. Last June, in McDonald v. Chicago, 561 U.S. ___, 130 S.Ct. 3020 (2010), the court held that the Fourteenth Amendment incorporates against the states the Second Amendment right to keep and bear arms for the purpose of self-defense.

In neither case did the court establish what standard of review should apply when gun restrictions are challenged, though the Heller court did reject application of rational basis review. (Under such review, to successfully defend a regulation, the government need only show that the regulation is rationally related to a legitimate government interest).

The McDonald court was silent on the issue except to add that the standard pertaining to review of state regulations under the 14th Amendment is the same as that which applies to federal regulations under the 2d Amendment. This leaves open the critical question of how lower courts are to review gun regulations.

And that is the landscape on which the present gun regulation fight will take place. It will be up to the District Court for the District of Hawaii to establish the standard as well as the constitutionality of Hawaii's gun laws.

We can nevertheless predict that regulations bestowing a great deal of discretion in the administration of gun laws will be the more vulnerable to challenge. And in this case, the complaint specifically singles out the near total discretion of county police chiefs in granting or denying carry licenses.

Hawaii Reporter has a report here.

KITV has a story here.

Meanwhile, a cert. petition currently under consideration by the U.S. Supreme Court asks the court to take up the question of

Whether peaceably carrying or transporting a registered handgun outside the home, without a carry permit that is unobtainable by ordinary, law-abiding citizens, is outside of the scope of "the right of the people to . . . bear arms" protected by the Second Amendment to the United States Constitution.

Breaking news...

2011-08-26T10:31:00.000-10:00

The Hawaii Bar has an appellate section! My understanding is that Rebecca Copeland (at the link) has been instrumental.

"Today, on behalf of the Honolulu Star-Advertiser, we filed a complaint against Governor Neil Abercrombie"

2011-08-23T19:24:00.002-10:00

...blogs Mark Murakami today in his blog, HawaiiOceanLaw, "seeking to compel the disclosure of the list of judicial nominees provided to him by the Judicial Selection Commission."

Follow the link to see the complaint.

The newspaper itself reports -

His refusal, the Circuit Court lawsuit said, violates the state Uniform Information Practices Act, which mandates that government records be open to the public.

The governor has maintained that the names fall under an exemption to the law because the release would have a "chilling effect" on potential applicants.

Discussing vested rights at the County Council

2011-08-14T22:24:00.000-10:00

Léo Azambuja had an interesting piece in the Garden Island Saturday about the county's attempts at legislation to implement a 2008 charter amendment that would limit growth in transient accommodation units to 1.5% annually. At issue is "the fate of 4,650 units that have been permitted but not yet built." At bottom, the issue seems to be about vested rights. The article points out that Land Use Research Foundation Executive Director David Arakawa "said when there is a finding of vested rights, the law trumps any votes by the population on charter amendments."

The Planning Department floated a proposal addressing vested rights under which "existing resort projects qualifying for exemption from the 1.5 percent growth would have to have been approved prior to Dec. 5, 2008, and located in the zoning district designated prior to that date," and must have expended "at least 20 percent of the Real Property Assessment of the land value of a given project" on the project.

Whether the Planning Department's proposal encompasses all projects whose rights would properly be said to have vested is beyond the scope of his post, but a good place to gain some background in comprehending the issue is a 2004 University of Hawaii Law Review article by Kenneth R. Kupchak, Gregory W. Kugle, and Robert H. Thomas called Arrow of Time: Vested Rights, Zoning Estoppel, and Development Agreements in Hawai‘i.

Vested rights analysis focuses on whether an owner has made irrevocable commitments which create a property right deserving constitutional protec- tion. In other words, whether the owner possesses constitutional “property rights which cannot be taken away by government regulation. The vested rights analysis turns on whether the property owner has gone so far down the development path that the government cannot change the law or its interpretation or application of the law. The key question as posed by the United States Supreme Court regarding the due process context in Board of Regents v. Roth, is whether the owner has “a legitimate claim of entitlement” to the right to continue. As Roth also held, this question is a matter for the states to decide.

Big Island blogger Damon Tucker blogs that he was arrested for taking pictures of police

2011-08-08T06:35:00.001-10:00

He posts here and here and here.

Damon writes

I went to Pahoa Village Club to cover the concert that was happening there last night and ended up with a lot more then I bargained for! I got arrested for taking pictures and videos of cops arresting people!

According to the Notice of Court Appearance he posted, Damon was charged with interference with government operations in violation of HRS §710-1010, which states in relevant part:

A person commits the offense of obstructing government operations if, by using or threatening to use violence, force, or physical interference or obstacle, the person intentionally obstructs, impairs, or hinders:

(a) The performance of a governmental function by a public servant acting under color of the public servant's official authority;

(b) The enforcement of the penal law or the preservation of the peace by a law enforcement officer acting under color of the law enforcement officer's official authority...

Interestingly, section 710-1010 "does not apply to: The obstruction, impairment, or hindrance of the making of an arrest[.]"

I'm sure Damon will continue to keep his readers updated, and I'm looking forward to learning more. In the meantime, here's an interesting recent article on photographers' rights that might be relevant. From the abstract:

Threats to national security and public safety, whether real or perceived, result in an atmosphere conducive to the abuse of civil liberties. History is littered with examples: The Alien and Sedition Acts of 1798, the suspension of habeas corpus during the Civil War, the Palmer Raids during World War I, and McCarthyism in the aftermath of World War II.Unfortunately, the post-9/11 world represents no departure from this age-old trend. Evidence of post-9/11 tension between national security and civil liberties is seen in the heightened regulation of photography; scholars have labeled it the "War on Photography" - a conflict between law enforcement officials and photographers over the right to take pictures in public places. A simple Google search reveals countless incidents of overzealous law enforcement officials detaining or arresting photographers and, in many cases, confiscating their cameras and memory cards, despite the fact that these individuals were in lawful places, at lawful times, partaking in lawful activities.

This article examines the so-called War on Photography and the remedies available to those who have been unlawfully detained, arrested, or have had their property seized for taking pictures in public places or private places open to the public. It discusses recent incidents that highlight the growing infringement of photography rights and the magnitude of the harm that law enforcement officials have inflicted, paying particular attention to the themes these events have in common. It explores the existing legal framework surrounding photography rights and the federal and state remedies available to those whose rights have been violated. It examines the adequacy of each remedy including: (1) declaratory and injunctive relief, (2) Section 1983 and Bivens actions, and (3) state tort remedies. It discusses the obstacles associated with each remedy and the reasons why these obstacles are particularly hard to overcome in the context of photography. It then argues that most, if not all, of the remedies discussed are either inadequate or altogether impractical considering the costs of litigation. Lastly, this article will discuss the reasons why people should be concerned about the War on Photography and possible ways to reverse the erosion of photography rights.

"This is a bad way to make public policy"

2011-07-11T10:23:00.000-10:00

KHON - Hawaii lawmaker to introduce "Caylee's Law"

Radley Balco - Why 'Caylee's Law' Is A Bad Idea

Changes to Hawaii's trust code

2011-07-06T09:03:00.000-10:00

...and implications discussed at The Trust Advisor Blog

[A]s of July 1, the 1% excise tax the state tried to charge on all asset protection transfers has been eliminated.

So is the rule limiting Hawaiian trusts to 25% of a grantor’s net worth, while forbidding them from holding anything but cash or marketable securities.

Honolulu estate lawyer Ethan Okura previously considered Hawaii’s trust code “practically worthless” in an environment where plenty of other jurisdictions offer comparable or better protection and none of the active disincentives.

But now, he’s no longer actively arguing against local trusts for local clients.

Some recent items on Hawaii's new foreclosure law

2011-07-06T08:58:00.002-10:00

AP - Foreclosure overhaul leads to Hawaii housing glut
Hawaii's strong foreclosure law protects homeowners but delays getting homes back on market

totalmortgage.com - Hawaii Foreclosure Law Could Lead to Backlog in Courts

Hawaii Reporter - New Hawaii Foreclosure Law Controversial in Industry

Honolulu Civil Beat - Freddie Mac Opts for Judicial Foreclosures

The Virginia-based lender made the announcement in a June 30 bulletin, about two weeks after mortgage giant Fannie Mae made a similar announcement.

FERC supremacy over Kauai water regs overstated?

2011-06-09T21:39:00.001-10:00

Tuesday I noted that local opponents of FERC's involvement in Kauai hydro projects assert that under the U.S. Supreme Court case California v. FERC, 495 U.S. 490 (1990), FERC would supersede state water regulations. A reader was kind enough to suggest that I look at another case, PUD No. 1 of Jefferson County v. Washington Dept. of Ecology, 511 U.S. 700, 114 S.Ct. 1900, 128 L.Ed.2d 716, 62 USLW 4408, 38 ERC 1593, 24 Envt'l. L. Rep. 20,945 (1994), decided a few years after California v. FERC.

In California v. FERC, the Court established FERC's exclusive authority under the Federal Power Act to set conditions, including the stream flow levels, to be observed by a federally licensed hydroelectric project. To do otherwise, according to the decision, would vest states with "veto power" over such projects.

The Jefferson County case involved the same issue - stream flow levels - but that case, according to the dissent, "[gave] the States precisely the veto power over hydroelectric projects that [the court] determined in California v. Ferc...they did not posses."

The difference was that, while the California case was brought under the Federal Power Act (and the court decided the FPA superseded state law with respect to flow rates), the Jefferson County case was brought under the Clean Water Act. And, according to the court, under section 401 of the Clean Water Act, a state may condition the certification necessary to obtain a federal license for a proposed hydroelectric project upon the maintenance of a minimum flow rate in the river to be utilized by the project.

Under Section 401 of the Clean Water Act, a state may place conditions on the certification of a project to ensure compliance with "any...appropriate requirement of state law." 33 U. S. C. § 1341. Moreover, in the express language of section 401(d), any condition placed in a section 401 certification "shall become a condition on any Federal license or permit." The dissent in Jefferson County stated

Any condition imposed by a State under section 401(d) thus becomes a term of the license as a matter of law, regardless of whether FERC favors the limitation. Because of section 401(d)'s mandatory language, federal courts have uniformly held that FERC has no power to alter or review section 401 conditions, and that the proper forum for review of those conditions is state court. Section 401 conditions imposed by States are therefore binding on FERC.

(Citations, quotation marks, and ellipses omitted).

Thus, the dissent commented, "it appears that the mistake of the State in California v. FERC was not that it had trespassed into territory exclusively reserved to FERC; rather it simply had not hit upon the proper device - that is, the section 401 certification - through which to achieve its objectives."

Again, I'm no expert in this area, and there are lots of cases out there on this subject matter. I'm not sure what kinds of conditions qualify as section 401 conditions, or whether all the FERC-opponents' concerns could be addressed through that vehicle. Nonetheless, reliance on California v. FERC for the proposition that the federal process necessarily spells the utter abrogation of local preferences appears unwarranted.

Meanwhile, according to the Garden Island today

A Department of Land and Natural Resources representative said the state attorney general’s office plans intervene in Federal Energy Regulatory Commission proceedings involving hydroelectric development in Hawai‘i.

“The state supports renewable energy and looks forward to hydro projects in appropriate places,” William Tam, deputy director for water at DLNR, said to Pacific Business News. “However, the state does not want Hawai‘i’s in-stream flow standards to be decided by a federal agency in Washington D.C. that does not have any experience with or understand Hawai‘i’s streams.

OIP asks agencies to think up new open record laws they can ignore

2011-06-08T22:13:00.001-10:00

Civil Beat -

As more people use social media to communicate with government, Hawaii's open records agency is calling on the public for suggestions on how to update the state's open records law to take into account platforms such as Twitter and Facebook.

The Office of Information Practices is asking government agencies and public interest groups for input into how the state's 23-year-old public records law ought to keep pace with the new technology.

Rep Derek Kawakami to KIUC Board of Directors on hydro-electric for Kauai

2011-06-07T21:39:00.000-10:00

Posted to KIUC's Facebook page, via Twitter -

...This is not to say that I did not have concerns over the development of hydroelectric power on the island of Kaua‘i. My concerns included water rights and the possibility of FERC having jurisdiction over our water rights; construction of these projects without the benefit of the competitive bidding process; and large-scale hydro that would require the damming of our waterways. However, in further discussions and information gathering on these matters, I feel that these concerns have been addressed. I have been informed that the Hawai‘i State Commission on Water Resource Management is the governing body that deals with water related issues in Hawai‘i and that FERC has no jurisdiction over Hawai‘i’s water rights. My concern with not engaging other hydropower developers was addressed by the fact that Free Flow Power is only hired to assist KIUC with the FERC process and if it ultimately comes to fruition that hydropower is a viable option, a process that engages all hydropower developers in competitive bidding would be utilized. Finally, my fears of large scale hydropower projects that would require damming our rivers have been allayed by the fact that KIUC is only considering small scale hydropower projects and that the process being used for consideration of hydropower is transparent in a way that it will require all stakeholders to sit at the table to have an open and clear discussion over potential concerns that may arise.

Local opponents of FERC's involvement in Kauai hydro projects assert that under the U.S. Supreme Court case California v. FERC, 495 U.S. 490 (1990), FERC would supersede state water regulations despite language in the Federal Power Act which saves from supersedure state "laws . . . relating to the control, appropriation, use, or distribution of water used in irrigation or for municipal or other uses, or any vested right acquired therein"

In that case, FERC had issued a license for a hydroelectric project, which drew creek water to drive its generators and released it a mile later. FERC set an interim "minimum flow rate" of water that must remain in the bypassed section of the stream and is thus unavailable to drive the generators. The State Water Resources Control Board later considered minimum flow rates well in excess of the FERC rates. The licensee petitioned FERC for – and FERC granted - a declaration that FERC possessed exclusive jurisdiction to determine the project's minimum flow rates. Ultimately the Supreme Court held that the state requirements for minimum stream flows cannot be allowed to supplement the federal flow requirements.

I have no idea whether opponents are correct or to what extent or in what areas FERC would in fact supersede state regulations. I suspect a review of the cases in the annotated federal code would be instructive.

I'm thinking a friendlier business climate would be more effective

2011-06-07T12:11:00.002-10:00

Star Advertiser -

Hawaii business leaders received a “wake-up call” Thursday from the new director of the state Department of Business, Economic Development and Tourism, who told them they need to help pay for public-private projects to drive the local economy.

Businesses need to partner with state government and provide private capital to develop new industries, improve public lands and link the islands with an undersea cable to deliver broadband technology and renewable energy, Richard Lim told the Hawaii Economic Association.
...
“While we have three key priorities — making better use of our land, building a 21st-century infrastructure and supporting high-growth industry clusters — they all have one thing in common,” Lim said. “They all need public-private partnerships to be successful

Sounds kind of plan-y to me. Fewer barriers to businesses of whatever old or new industries that want to develop would be better.

Arguments in the Hawaiian Homes Commission case

2011-06-07T11:57:00.000-10:00

Record on Appeal has them - including links not only to the cert petition and the Native Hawaiian Legal Corp's response, but even to the briefs filed in the ICA.

Hawaii Supreme Court agrees to consider whether question of "sufficient funds" paid to Dept. of Hawaiian Home Lands is a nonjudiciable political question

2011-06-06T13:11:00.001-10:00

In other words, the Supreme Court will address whether levels of funding for the Department of Hawaiian Home Lands is a question the courts may address.

Plaintiffs had sought declaratory and injunctive relief in the circuit court claiming that the Hawaiian Homes Commission, The Department of Hawaiian Home Lands, and the State were obligated by Article XII (Hawaiian Homes Commission Act), Sections 1 and 2 of the state constitution to provide particular levels of funding to the Department of Hawaiian Home Lands and that the State failed in the past to provide sufficient funds.

The circuit court ruled that the political question doctrine bars justiciability of the claims (essentially, declining to consider the substantive issue on grounds that it more properly belongs before the legislative or executive branch). In a published opinion filed this past January, the ICA conducted a political question analysis, concluded that the question of the legislature making sufficient sums available to the DHHL is justiciable and therefore not a political question, and remanded to the circuit court.

Now the issue will be taken up by the supreme court.

Article on remedies available to photographers whose rights have been violated

2011-06-06T11:45:00.000-10:00

...by civil litigator Morgan Leigh Manning, downloadable here. From the abstract:

[S]cholars have labeled it the "War on Photography"- a conflict between law enforcement officials and photographers over the right to take pictures in public places. A simple Google search reveals countless incidents of overzealous law enforcement officials detaining or arresting photographers and, in many cases, confiscating their cameras and memory cards, despite the fact that these individuals were in lawful places, at lawful times, partaking in lawful activities.

This article examines the so-called War on Photography and the remedies available to those who have been unlawfully detained, arrested, or have had their property seized for taking pictures in public places or private places open to the public. It discusses recent incidents that highlight the growing infringement of photography rights and the magnitude of the harm that law enforcement officials have inflicted, paying particular attention to the themes these events have in common. It explores the existing legal framework surrounding photography rights and the federal and state remedies available to those whose rights have been violated. It examines the adequacy of each remedy including: (1) declaratory and injunctive relief, (2) Section 1983 and Bivens actions, and (3) state tort remedies. It discusses the obstacles associated with each remedy and the reasons why these obstacles are particularly hard to overcome in the context of photography. It then argues that most, if not all, of the remedies discussed are either inadequate or altogether impractical considering the costs of litigation. Lastly, this article will discuss the reasons why people should be concerned about the War on Photography and possible ways to reverse the erosion of photography rights.

ICA orders appointed counsel to brief Hawaii Sovereignty defense

2011-05-30T11:21:00.001-10:00

Judge Foley wrote the Summary Disposition Order, signed also by Judges Fujise and Leonard. Defendant was convicted in district court of of Driving While License Suspended or Revoked and Driving Without No Fault Insurance. On appeal, Defendant's court-appointed counsel stated in the opening brief

that he is providing ineffective assistance of counsel on appeal as he "is incapable of properly asserting the 'Hawaiian Sovereignty' Defenses of the Defendant, since he does not agree with the Defendant's political position[.]"

The court noted that counsel did not maintain that Defendant's sovereignty claim was frivolous or "so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client" (citing the Hawai'i Rules of Professional Conduct) and ordered counsel to provide supplemental briefing presenting Defendant's sovereignty defenses. The supplemental brief stated

The Hawaiian sovereignty defense in this particular case stems from the fact that the Appellant stated he was a citizen of the Hawaiian Kingdon and not bound by the laws of the State of Hawaii and that the vehicle was registered with the Reinstated Hawaiian Kingdom....The essence of [Defendant's] Hawaiian sovereignty defense assertion is that the Kingdom of Hawaii exists as the only legal entity capable of allowing him to drive.

Ultimately the defense was unavailing as the court did as it routinely does in sovereignty appeals of driving without license citations and quoted the oft' quoted language from State v. Fergerstrom, 106 Hawai'i 43, 55, 101 P.3d 652, 664 (App. 2004):

the State of Hawai`i has lawful jurisdiciton over all persons operating motor vehicles on public roads or highways within the State of Hawai`i. Persons claiming to be citizens of the Kingdom of Hawai`i and not of the State of Hawai`i are not exempt from the laws of the State of Hawai`i applicable to all persons (citizens and non-citizens) operating motor vehicles on public roads and highways within the State of Hawai`i.

Prosecutorial Misconduct

2011-05-25T21:24:00.000-10:00

Instructive case notes from Jill Paperno, Second Assistant Monroe County Public Defender in New York Criminal Defense Blog -

So, to sum, consider whether the prosecutor's arguments and conduct are:
Bolstering
Vouching
Injecting his/her opinion
Unfairly using strategic delay to disadvantage the defense
Crossing on matters outside the Sandoval
Arguing about defendant's character
Inflaming passion
Inflaming prejudice
Seeking to stir sympathy of the jury
Attempting to offer evidence through improper refreshing
Mischaracterizing/misstating the evidence
Testifying as an unsworn witness
Usurping the province of the jury

The anatomy of State v. Pratt: Native Hawaiian traditional practice rights from the district court through oral arguments before the supreme court

2011-05-25T10:15:00.000-10:00

I have a guest post this morning over at Record on Appeal about State v. Pratt, the case currently before the Hawaii Supreme Court involving customary, traditional native Hawaiian practice rights. It follows the case from the district court through the ICA and oral arguments before the Supreme Court. Check it out.

OHA to fund treatises on native Hawaiian burials and traditional and customary native Hawaiian rights

2011-05-24T14:56:00.000-10:00

From a University of Hawaii press release -

The Office of Hawaiian Affairs (OHA) finalized an agreement with Ka Huli Ao Center for Excellence in Native Hawaiian Law at the University of Hawai‘i at Mānoa’s William S. Richardson School of Law to produce legal primers on issues of significance to Native Hawaiians.

OHA has committed $62,000 for Ka Huli Ao to research, publish, and distribute two primers: one on iwi kūpuna (Native Hawaiian burials) and a second on traditional and customary Native Hawaiian rights. Once the materials are completed, Ka Huli Ao will collaborate with grassroots groups on Kaua‘i, O‘ahu, Maui, Moloka‘i, and Hawai‘i Island to facilitate community outreach meetings and distribute copies of the primers.

Canada surpasses Japan as biggest investor in Hawaii residential real estate

2011-05-21T09:44:00.001-10:00

(Hong Kong is number three)

...according to David Buck.

3 reasons driving foreign investment to Hawaii

1. Depressed prices from the peak of the market
2. Buyers in the countries mentioned above have a ton of equity in their home and want to diversify
3. The exchange rate with the U.S. dollar is the best it’s been in a long time for foreign investment

The difference between now and then is the Japanese back then were willing to pay 25% more than domestic buyers for most properties. Although the Canadians are whipping out their checkbooks, they are not “overpaying”

Local media on Pratt Supreme Court arguments

2011-05-20T16:37:00.000-10:00

Michael Levine in Civil Beat - Hawaiian Rights Fight Lands at Supreme Court

Ken Kobayashi in Star Advertiser - Court wrestles with cultural practices case

Challenging Prohibition of Non-Lawyer Firm Ownership

2011-05-20T14:28:00.000-10:00

Hawaii, along with most other states, has a rule of professional conduct for lawyers that prohibits practicing with or in the form of a professional corporation or association if a nonlawyer owns any interest in or is a corporate director or officer of the entity. The rule also prohibits sharing legal fees with non-lawyers.

The American Bar Association Commission on Ethics is currently seeking comments on a newly released Issues Paper entitled "Alternative Business Structures" on whether to alter the model ethics rules to allow some kind of joint ownership of law firms.

And here's a piece about a firm that is challenging the rule through litigation, suing in three states under theories that the rule violates among other things the commerce clause, the due process clause, the takings clause, the equal protection clause and the First Amendment of the U.S. Constitution.

More on Hawaii's new foreclosure law

2011-05-20T12:39:00.000-10:00

From Housing Wire -

...a sweeping foreclosure bill...that allows homeowners to move nonjudicial foreclosure actions into court as judicial proceedings.

It also enacts a face-to-face mediation program for homeowners facing foreclosure, ends dual tracking, requires mortgage servicers to be licensed and to maintain a physical presence in the state and reins in homeowners associations.

...

The law provides details on everything from the licensing of servicers to what constitutes proper foreclosure notice or an appropriate auction of property.

...

The bill also provides property owners governed by a homeowners association or condominium association 60 days to cure HOA defaults after being notified of the default in person or by certified mail before a foreclosure action could commence.

It also instructs HOAs "not to reject a reasonable payment plan," described as at a minimum the current maintenance fee and some amount owed on the past due balance.

Time to shift sectors?

2011-05-20T12:32:00.001-10:00

If you're into that sort of thing (we lawyers with self-directed IRAs, for instance), here's an interesting analysis.

Goodwin Liu fails to get sufficient cloture votes for potential appointment to 9th U.S. Circuit Court of Appeals

2011-05-19T10:48:00.001-10:00

USA Today -

The sticking point for Liu's nomination, first made by Obama in early 2010, has been his past statements and writings, in which he has suggested the Constitution be more broadly interpreted to cover the poor and disenfranchised and help solve society's problems.

Liu has defended his earlier writings as those of a scholar, not a judge.

Thursday, Sen. Orrin Hatch, R-Utah, called that a "confirmation conversion" and described Liu as part of a group of legal activists who "urge judges to make up rights."
...

Sen. Chuck Grassley, R-Iowa, said in a statement, "I am concerned about his appreciation of the proper role of a judge in our system of checks and balances. His philosophy leads to an inevitable expansion of the power of the judiciary."

Some of Liu's critics, including Lindsey Graham, R-S.C., and Mike Lee, R-Utah, cited Liu's testimony in 2006 against Supreme Court appointee Samuel Alito, particularly Liu's view that "Alito's record envisions an America where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse … where a black man may be sentenced to death by an all-white jury for killing a white man."

Liu has since said that his criticism of Alito was unduly harsh.

A couple of interesting appellate law links

2011-05-18T09:45:00.000-10:00

Via the Blog of Legal Times this morning, 182 pages of Brian Garner interviews with Supreme Court Justices on the subject of legal writing.

Closer to home, Record on Appeal posted a helpful recap of ICA Judges Reifurth's and Ginoza's comments last week at the HSBA Litigation section monthly meeting. The post includes practice pointers and a rare and interesting look at the inner workings of the ICA.

State v. Pratt arguments Thursday in Hawaii Supreme Court

2011-05-17T19:05:00.000-10:00

Arguing will be Kauai attorneys Daniel G. Hempey of Hempey & Meyers, LLP for Petitioner/Defendant-Appellant, and Tracy Murakami, Deputy Prosecuting Attorney, for Respondent/Plaintiff-Appellee state of Hawaii.

Here's the description of the case and its issues provided on the judiciary's oral arguments schedule:

The defendant in this case, Lloyd Pratt, received three citations for camping without a permit in Na Pali State Park on the island of Kauaʻi. He filed a motion to dismiss the charges, asserting a defense that his activities were constitutionally protected as native Hawaiian practices. The State stipulated that Pratt’s conduct was a traditional and customary native Hawaiian practice, but argued that the State’s interest in regulating the volume of visitors to the State Park outweighed Pratt’s interest in his practice. The Circuit Court of the Fifth Circuit agreed with the State, denied Pratt’s motion, and entered a final judgment convicting Pratt on all three counts. Pratt appealed to the Intermediate Court of Appeals (“ICA”), where a divided court reexamined the State’s concession, and ultimately affirmed Pratt’s conviction. Pratt applied for a writ of certiorari, presenting two questions:(1) when asserting a defense of native Hawaiian practices, should the court balance the defendant’s interests in the practices against the interest of the state to regulate, and if so, what are the mechanics of that balancing test; and (2) did the ICA err in sua sponte reexamining the concession made at the trial court?

I previously wrote about the ICA arguments and its fractured decision. Ben Lowenthal provides an insightful analysis of the court's approach to its decision here. Here is the ICA's decision, and here is the concurring opinion by J. Fujise and the concurring and dissenting opinion by J. Nakamura.

U.S. Supreme Court denies cert. in Doe, Jacob, et al. v. Kamehameha Schools

2011-05-16T12:29:00.000-10:00

Wendy Osher at Maui Now -

In March 2010, the 9th Circuit Court of Appeals issued a ruling that four students who anonymously challenged the school’s admissions policy, could not proceed under anonymity.

Today’s ruling essentially, lets stand that prior ruling from the lower court.

Kauai single family TVRs and late purchasers

2011-05-14T16:14:00.003-10:00

I'm reading McQuillin's Municipal Corporations on nonconforming uses today, which says:

A nonconforming use is one which lawfully existed prior to the effective date of a zoning restriction, and which is allowed to continue to exist in nonconformity with the restrictions....

The right to continue a nonconforming use is grounded in constitutional law, statutes, and ordinances...

An established nonconforming use runs with the land, and hence a change in ownership will not destroy the right to continue the use.

I was just thinking about the issue in the context of Kauai's Ordinance 904 establishing the mechanism by which single family TVRs existing outside the VDA before March 7, 2008 are grandfathered. The deadline for applying is mid-August. What - I wondered - about people who purchased an operating TVR after March 7, 2008? It appears to me that their purchase of the property after the grandfather date does not invalidate their right to apply and should have no impact on their right to have the application granted.

Apparently Blogger had a major hiccup yesterday

2011-05-13T07:23:00.001-10:00

Their statement claims that posts posted yesterday and now absent will be restored.

Update: looks like the posts are back.

Speaking of Hawaii's new foreclosure law

2011-05-12T09:39:00.000-10:00

The Advertiser has a related piece today -

Home foreclosures continued to fall in April, marking the fifth consecutive month filings in Hawaii have been below the same month in the previous year.

Experts, however, said the decline continues to be an artificial depression due to several major lenders holding back on new filings after their loan documentation practices were called into question.

also

Local foreclosure attorneys suspect that lenders will take some time to study the new law, which created new consumer protections against foreclosure, and initially might test the law with a relative few cases. That could add to the artificially depressed level of foreclosure activity.

Here's the new law (PDF).

Oral arguments heard yesterday in State v. Pflueger appeal

2011-05-12T09:29:00.000-10:00

Here's the judiciary website's description of the case and the issues on appeal

This consolidated case arises from the breach of the Ka Loko Reservoir on March 14, 2006, resulting in the death of seven persons. The State of Hawaiʻi charged Defendant-Appellant James H. Pflueger (Pflueger) with seven counts of manslaughter. The Circuit Court of the Fifth Circuit denied Pflueger's Motion to Dismiss on Grounds of Double Jeopardy and his Motion to Dismiss for Insufficiency of the Evidence, or in the Alternative, Due to Vagueness. Pflueger separately appealed the denials of the two motions, which the Intermediate Court of Appeals has consolidated.

Pflueger argues that his 2003 conviction for a 2002 grading violation at the Ka Loko Reservoir was for the "same" or "continuing" conduct as the 1997 grading violation. The grading covered the spillway and allegedly led to the breach in the reservoir. Under the "same conduct" test, reasons Pflueger, the Hawaiʻi Constitution protects him from subsequent prosecution for manslaughter on the grounds of double jeopardy.

Additionally, Pflueger contends the grand jury had insufficient evidence to establish probable cause that he acted recklessly with a conscious disregard of a substantial and unjustifiable risk that his conduct in covering the Ka Loko Reservoir spillway could result in the death of another. In the alternative, he contends the reckless-manslaughter statute is unconstitutionally vague as applied and he lacked notice that his conduct in filling the spillway in 1997 could expose him to a manslaughter conviction years later.

Here are media accounts

Ka Loko Dam case drags on in appeal
Honolulu Star-Advertiser - Ken Kobayashi - ‎7 hours ago‎
More than five years after the breach of Ka Loko Dam on Kauai led to the deaths of seven people, a state appeals court heard arguments yesterday on whether manslaughter charges against landowner James Pflueger should be dismissed. ...

Pflueger's Attorneys Successful in Delaying Client's Manslaughter Trial ...
Hawaii Reporter - ‎13 hours ago‎
Former state attorney General Mark Bennett told the Intermediate Court of Appeals on Wednesday that even if they rule in the state's favor and allow the manslaughter case against Jimmy Pflueger to go forward, Pflueger succeeded in getting something he ...

Pflueger asks appeals court to dismiss manslaughter charges
Honolulu Star-Advertiser - Ken Kobayashi - ‎21 hours ago‎
James Pflueger appeared in US District Court in October and pleaded not guilty to tax fraud charges in a case unrelated to the manslaughter charges he faces in state court. The Hawaii Intermediate Court of Appeals heard arguments this ...

Former Ag Bennett Defends State's Manslaughter Case Against Jimmy Pflueger ...
Hawaii Reporter - ‎May 11, 2011‎
Mark Bennett, who served as state attorney general under Gov. Linda Lingle, will return today on the state's behalf to argue before the Intermediate Court of Appeals. The case: James Pflueger, retired Hawaii automobile mogul, is appealing manslaughter ...

James Pflueger's Manslaughter Case Heard by Hawaii's Intermediate Court of Appeals
Hawaii Reporter - Aurora Fehring Dingwall - ‎13 hours ago‎
BY MALIA ZIMMERMAN – Bruce and Cyndee Fehring leaned close to each other as they listened to oral arguments presented on Wednesday to the Hawaii Intermediate Court of Appeals by former State Attorney General Mark Bennett and defense attorney William ...

Hawaii's new foreclosure law

2011-05-11T20:55:00.000-10:00

Ron Margolis has an analysis here.

Kauai bankruptcies

2011-05-10T17:08:00.003-10:00

This Advertiser article claimed last week that bankruptcies have averaged a 6% monthly decline state-wide over the past four months. (Actually, the Advertiser says the "first four months of 2011 have shown a 6 percent decline," but it looks to me like they averaged the month over month change to arrive at 6%). After slogging around a bit for the source of the data, I was interested to find that the U.S. Bankruptcy Court for the District of Hawaii breaks out the personal bankruptcy numbers by county and chapter (as in chapter 7 and chapter 13).

I see that Kauai has averaged about 22 bankruptcies per month over the past twelve months, with just over 19 of those being chapter 7 liquidations and just over 2 a month being chapter 13 reorganizations.

The court also provides a report of all the bankruptcies filed over the past 30 days. True to form, Kauai has 22 of them (all were chapter 7). Interestingly, it also lists the attorneys handling each case so, what the heck, let's see who's getting that business. Lawrence McCreery and Thomas Yano each filed six cases. Kurt Swinburnson filed three. Joe Moss filed two. Two were filed pro se, and Raymond Cho, Stuart Ing and W. Richard Abelmann filed one each.

Lawyers and pubs

2011-05-08T21:43:00.004-10:00

I don't know why, but it just feels like a natural combination. A couple of lawyers owned the Dead Goat Saloon in Salt Lake City, Utah where I practiced previously (a hop, skip, and a prayer from Temple Square). I'm glad to learn that the new pub at Wailua golf course across the highway from the correctional center (The Jailhouse Pub and Grill) is part-owned by attorney Mike Soong, and I definitely wish Mike and his partners good luck and a good long run. First, on top of being an accomplished lawyer, Mike is a friendly decent guy who strikes me as someone who would own a friendly, decent pub. Second, it's a good central location to happy-hour with some of the Kapaa lawyers I sometimes happy-hour with. And finally, here's hoping Mike will host some local Bar events.

Here's the pub's Facebook page.

2011-05-04T18:26:00.000-10:00

This strikes me as ill-conceived.

How to avoid being a depressed lawyer

2011-05-03T12:37:00.000-10:00

...according to Psychology Today. (A list of sensible suggestions).

The legality of killing Bin Laden

2011-05-03T11:55:00.003-10:00

...is being discussed around the internet: Jeffrey Toobin has a piece in the New Yorker; the Blog of LegalTimes has a post, What Was the Legal Basis for the Bin Laden Strike?; the Council on Foreign Relations argues on its site that "The U.S. killing of Osama bin Laden in Pakistan was lawful under both U.S. domestic law and international law."

On the other side of the debate, this Spiegel article asserts that "there are serious doubts about whether the targeted killing was legal under international law and the laws of war." Otherwise, those who have opposed targeted killing in the past are relatively quiet. The ACLU published an open letter to President Obama last Thursday objecting to "targeted killings outside conflict zones" and stating that, "the use of lethal force outside of armed conflict zones is strictly limited by international law, and at least in some circumstances, the Constitution, which permit lethal force to be used only as a last resort and only to prevent imminent attacks that are likely to cause death or serious physical injury." However, according to this piece in Politico, the ACLU "has not released an official comment on bin Laden’s death, and has no plans to comment on it."

Finally, here's a piece on NPR's site discussing the legality of releasing pictures of Bin Laden's body.

Here's a bit on the domestic laws discussed in many of the pieces linked above:

In 1976, President Ford issued Executive Order 11905 stating in part, "No employee of the United States Government shall engage in, or conspire to engage in, political assassination." It was superseded in 1978 by Executive Order 12036, signed by President Carter, which stated in part " "No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination." In 1981 President Reagan signed Executive Order 12333, stating in part, "No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination."

However, under the 2001 Authorization for Use of Military Force Against Terrorists (Pub.L. 107-40), "the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

Added: A completely different set of issues is discussed in this Blog of LegalTimes post on naming Bin Laden as a defendant in civil cases.

A win is a win

2011-04-29T12:16:00.001-10:00

...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

2011-04-28T09:05:00.002-10:00

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

2011-04-27T11:58:00.002-10:00

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

2011-04-24T21:33:00.002-10:00

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

2011-04-23T13:48:00.001-10:00

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

2011-04-23T13:16:00.000-10:00

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

2011-04-22T11:02:00.001-10:00

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

2011-04-22T10:13:00.000-10:00

Robert Thomas has the history and the law.

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

2011-04-20T22:05:00.000-10:00

Filed by the Hawaii Supreme Court today, here.

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

2011-04-19T10:46:00.000-10:00

(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

2011-04-19T08:45:00.000-10:00

...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

2011-04-17T22:27:00.000-10:00

...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

2011-04-17T20:17:00.001-10:00

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!

2011-04-14T10:13:00.000-10:00

Formation of an Appellate Section of the HSBA

Federal law and cockfighting on Native lands

2011-04-12T19:29:00.000-10:00

…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

2011-04-11T14:22:00.002-10:00

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....

2011-04-10T20:58:00.000-10:00

"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

2011-04-09T09:33:00.000-10:00

...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

2011-04-07T21:22:00.003-10:00

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

2011-04-05T16:23:00.000-10:00

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

2011-04-03T14:31:00.001-10:00

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

2011-04-02T18:58:00.002-10:00

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

2011-04-01T08:05:00.003-10:00

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.

Record on Appeal is liveblogging Hawaii AG confirmation hearing

2011-03-30T19:32:00.000-10:00

...here, Tuesday April 5, 2011 at 9:00 am.

Akaka Bill is reintroduced

2011-03-30T11:21:00.001-10:00

Here's a Maui Now article, and here's a cached piece apparently by Sen. Akaka with relevant quotes from the Hawaii delegation and the gov.

Hawaii County "lowest law enforcement priority" marijuana law suit

2011-03-30T09:24:00.003-10:00

Over on the Big Island, according to the Hawaii Tribune-Herald

Eight Puna residents have filed a lawsuit alleging that police, prosecutors and other county officials have failed to abide by the voter initiative making adult personal use of marijuana the "lowest law enforcement priority."

According to the article, the plaintiffs seek $5 million in punitive damages, and for orders that police and prosecutors "immediately desist investigations, arrests, or prosecutions of any person, or the search and seizure of any property in a manner inconsistent with the Lowest Law Enforcement Priority as defined in ... Hawaii County Code"; that the council issue semi-annual reports on marijuana related county law enforcement; and that the council stop authorizing or accepting funds for marijuana related law enforcement.

The complaint alleges that the county prosecutor stated before the council that state and federal drug laws trump the county ordinance and that adults caught with amounts of marijuana below the limit allowed by the county code ("24 marijuana plants or fewer, or the "dried equivalent" of 24 ounces of marijuana on private property," according to the article) are nevertheless still prosecuted under state law .

Here's a copy of the ordinance (pdf) - "known as the LOWEST LAW ENFORCEMENT PRIORITY OF CANNABIS ORDINANCE." I went looking for it because I was curious what could be meant by "lowest law enforcement priority." Interestingly enough, the statute defines it:

"Lowest Law Enforcement Priority" means a priority such that all law enforcement activities related to all offenses other than the possession or cultivation of Cannabis for adult personal use shall be a higher priority than all law enforcement activities related to the adult personal use of Cannabis. The Lowest Law Enforcement Priority regarding possession or cultivation of Cannabis shall apply to any single case involving 24 (twenty four) or fewer Cannabis plants at any stage of maturity or the equivalent in dried Cannabis, where the Cannabis was intended for adult personal use.

I'm trying to imagine the practical ramifications. If the police have anything else on their plate than crimes concerning the possession or cultivation of cannabis for adult personal use, then they can't pursue adult possessors or cultivators of pot - but if they get all caught up with everything else, they can?

Gov. Abercrombie’s refusal to disclose the names of judicial candidates

2011-03-27T20:27:00.002-10:00

...discussed in the Star Advertiser here.

Sunrise Capital - Kauai County settlement agreement

2011-03-27T11:29:00.000-10:00

Ken Taylor emailed me what purports to be the agreement between Sunrise Capital, Inc. and Kauai County settling the contested case before the state department of health relating to the county's application for a permit to expand the Kekaha landfill. Sunrise had sought the imposition of permit conditions claiming risks to its shrimp farm posed by the operation and expansion of the landfill. (I've put the document on a free hosting service, so it can be slow to open).

The agreement terminates the contested case and waives Sunrise's right to oppose or contest future expansions of the landfill. Sunrise also agrees to waive and release the county from claims asserting that the Kekaha landfill is the responsible source of the spread of shrimp diseases at Sunrise's shrimp operations - barring negligence or willful misconduct by the county, and providing that county operates the landfill in accordance with "all applicable regulations, protocols, and issued permits." Sunrise also agrees, "to the extent operationally possible," to work with the county in securing a twenty foot buffer area adjacent to the Coast Guard Kokole Lighthouse Road.

For its part, the county agrees to pay $250,000 to Sunrise in the form of reimbersements for completed work by Sunrise related to risk mitigation measures at the shrimp farm and hatchery to protect against diseases. Additionally, the county engineer is to submit to the county council a bill for an ordinance to ban commercial and non-residential raw shrimp from the landfill, and the county is to instruct landfill and transfer station employees to inspect for loads of raw shrimp, to urge disposers to boil raw shrimp before disposing of it, or order disposers to contain raw shrimp in double-bagged sealed containers (similar to the requirements for the disposal of asbestos, dead animals, and offal).

Star Advertiser editorial on travel guide liability bill

2011-03-22T09:29:00.002-10:00

The Star Advertiser came out today against the house bill that would assign liability to "[t]he author and publisher of a visitor guide website or visitor guide publication whose visitor guide website or publication encourages, invites, attracts, or causes its readers to commit an offense under section 708-814 on privately owned land, and injury or death occurs as a result of the reader's reliance upon the visitor guide website or guide publication's statements in entering the privately owned land." (§708-814 is the statute that defines criminal trespass in the second degree and makes it a petty misdemeanor). The paper states, in part

First, the bill is an extreme departure from constitutional law and would not stand up in court. Since a landmark First Amendment case in 1964, the U.S. Supreme Court and lower courts have strongly protected publications from lawsuits resulting from injuries blamed on what people have read.

The 9th U.S. Circuit Court of Appeals, which has jurisdiction in Hawaii, rejected in 1991 a lawsuit brought by two mushroom enthusiasts against the publisher of "The Encyclopedia of Mushrooms." They had become critically ill and required liver transplants because mushrooms they had eaten were deemed in the book to be safe to eat. A year later, the Hawaii Supreme Court ruled that Fodor's Travel Publications could not be blamed for the injury of a Texas honeymooner by failing to warn him about dangerous conditions for bodysurfing at Kauai's Kekaha Beach.