Island Breath: Kauai Sues Itself on Tax Reform

by Jonathan Jay on 7 February 2007 rev 2.0

Gosh, do we live in a litigious society, or what! Our beloved County of Kaua'i is back in court today - the Supreme Court of the State of Hawai'i - defending itself against a powerful litigant with many hired guns and a huge war chest. Who is this manxesome foe? Why, it is: The County of Kaua'i! Huh?? What is going on here! Have no fear though - we shall overcome.

In an effort to triumph in this complex smoke and mirrors lawsuit (with itself), the County of Kaua'i has spent $230,000 (of tax-payer money!) to hire lawyers to help it (sue itself) on this tax reform effort. Interestingly, the express intent of this effort is to thwart the voting (and tax-paying!) public's desire to support the Grumpy-old-men-who-don't-want-to-pay-any-taxes-bill AKA the 'Ohana Bill'. Cute name.

Perhaps the fiscal silver lining in this reflexive legal wrangling is, the County will at least save a few bucks - by having the same legal team to represent 'both' sides! Huh?? Now, I am no expert, but WTF!? Perhaps you have heard of Sioux City, or Johnny Cash's "Boy Named Sue", but Self-Sue County??!

It is particularly amusing that this lawsuit is predicated on the curious legal notion (upheld once in a lower court already!) that the voting people of the County of Kaua'i in no way constitute the County of Kaua'i. Huh?? A most intriguing world view. If not within the people of Kaua'i, where does sovereignty reside on the Garden Island? We have a charter, but perhaps it is time Kaua'i got a Constitution.

What can one say about all this? Basically, as far as I can tell, this is just one of the most back ass-ward examples of some sad sick creature trying to eat itself - a crazy Man trying to eat his own head. When I actually see this, I will truly have seen everything. In the mean time, the best name I can think of to describe this situation is 'Super-Duper Small-Time Transparent Corruption'.

What is it with this 'old math' from the old boys here on Kaua'i? In a way perhaps, it's kinda sweet. Kaua'i 'Island-style' Corruption is composed of just about the least imaginative small-time abuses of power I have ever seen. It's so lazy - "No need cover you track Brah, juss tink small!" Personally, I wish they would just keep a low profile and line their pockets with a couple hundred thousand or two each election cycle - like normal smalltime corrupt government officials. That at least would be more familiar, as well as understandable. This 'Kaua'i Korruption' is merely insipid. But I digress. Back to Ohana-Gate.

I voted against the original Ohana bill back in 2004 because I thought it was poorly conceived and poorly crafted. From a careful reading, it seemed clear it would result in an undue financial constraint on an already underfunded/under-active county with yawning sectors of unmet social need. Additionally as a 'bonus', this damage would in no way be mitigated creating any kind of progressive equity in the tax structure - it provides 'relief' for the hyper-wealthy mega-land owners, while shifting an increased tax-burden onto Renters across the island. Gee, besides a couple dozen billionaires who should vote for this? You or I? Most everyone you personally know? NO! Would the tax at the county level benefit greatly from a structural overhaul to make is more stable, equitable, and of the right size to meet pressing county needs?

Obviously, but the Ohana Bill does none of those things. the Ohana Bill was a classic 'Lose-Lose-Lose' a 'No-brainer' in my book, but evidently not enough folks have read my book. Unfortunately, 51.9% of the voters disagreed with me. This number I am certain is much bigger than the percentage of people on Kaua'i that will greatly benefit from the Ohana Bill, and reflexively, much smaller than the percentage of Kaua'i residents that will suffer from a hamstrung county government that already can't fill pot-holes or empty trash cans at the beach-parks. But, when in any of the 50 states of the US of A has anyone ever voted against something called a 'tax break' (even if it was not for them, and required 85% of folks to shoot themselves in the feet)? Like Never!

Ah yes, the people have spoken. Faced with this sobering reality, what does the County do? Take the ball and run with a mandate? Fill potholes? Pick up the trash? Begin to seriously address the many pressing long-term sustainability issues on Kaua'i? No! Instead, the County has taken a long hard look in the mirror - smack-dab - right in the eyes... and is suing itself! Hurray - this is hilarious!! Funny like flicking on the the kitchen light late at night, to see choke cockaroach scuttle-off in all kine directions. I only hope Ray Chuan is enjoying all this.

Tax Case Goes to Hawaii Supreme Court
by Pacific Legal Foundation on 6 February 2007 in HawaiiReporter.com

On February 15, 2007 from 9 a.m. to 10 a.m., the Supreme Court of Hawaii will hear oral arguments in County of Kauai ex rel. Nakazawa v. Baptiste, the appeal involving 2004's "Ohana Kauai" charter amendment.

The hearing will be held in the Supreme Court courtroom in the Judiciary Building on 417 S. King St in Honolulu. The proceedings are open to the public. Details can be found at http://tinyurl.com/yneu2e

In November 2004, the people of the County of Kauai overwhelmingly approved an amendment to their county Charter addressing property taxes.

The Charter Amendment provided that property taxes should be restored to 1998 levels for owner-occupied homes of residents who had owned their properties since at least 1998, and for homeowners who purchased after 1998, the tax level is based on purchase price. Future tax increases for all resident homeowners could not exceed 2% per year.

The Mayor and members of the County Council vehemently opposed the measure, but the people of the County thought otherwise and approved the measure by a nearly two-to-one margin.

After the election, however, the County Attorney sued the Mayor, the Council, and other county officials asserting the amendment is illegal. The County Attorney claims the county council alone has the authority to determine property tax policy.

The County Attorney represented both the plaintiff and the defendants in the lawsuit, and the litigation was backed with an allocation of $230,000 of taxpayer money, earmarked to hire private lawyers to attack the amendment.

No one was defending the legality of the Charter Amendment, so several local homeowners were forced to intervene, asserting among other things that the lawsuit was not a true controversy since government officials were the plaintiff and the defendants, with both sides represented by the same lawyers.

The homeowners argued the officials should be implementing and defending the Charter Amendment, not initiating lawsuits to strike down in court what they could not achieve in the political arena. The trial court dismissed their objections and ruled in favor of the County Attorney.

Robert Thomas, the Managing Attorney of Pacific Legal Foundation's Hawaii Center represents the homeowners on appeal. There are three issues in the appeal, as noted in the briefs:When the plaintiff and the defendants in a lawsuit do not actually disagree with each other and are represented by the same lawyers, is there a genuine justiciable controversy for a court to resolve? In other words, does the court have jurisdiction to entertain a lawsuit created by government officials in order to strike down a law they politically disagree with?

Article VIII, section 3 of the Hawaii Constitution says that "the counties," not the State, have the exclusive authority to determine property tax policy. The County Attorney argues that the term "the counties" means exclusively "county councils," and thus the people of Kauai had no authority to amend their Charter.

The Charter Amendment is conspicuously labeled a Charter Amendment, and was proposed, passed, and certified by election officials as a charter amendment pursuant to the Kauai Charter's amendment process. The County Attorney, however, argues that the Charter Amendment was intended to be an initiative or a referendum measure (the Kauai Charter prohibits initiatives or referenda that "levy or repeal" a tax).

see also:
Island Breath: Kauai vs Kauai 1/28/05
Island Breath: Property Tax Reform 10/24/04