▪ Commentary on Kauai Property Tax Decision

Charlie Foster posts "County sues self.  Wins!" at his Planet Kauai blog:

However, the Supreme Court agreed with the lower court that the amendment violated the state constitution. Article VIII, Section 3 of the Hawai`i Constitution states that "all functions, powers and duties relating to the taxation of real property shall be exercised exclusively by the counties." The county argued, and the court accepted, that by "counties" the constitution means "county councils" or "county governments."

This strikes me as an arbitrary reading of the constitution - though the court does dress it up in "original intent" garb, claiming that committee notes reveal that the true meaning of "counties" is something more specific than what the document actually says.

Here we have a case in which the county did in fact properly exercise its power concerning the taxation of real property - in this case by a ballot initiative amending the county charter. In order to take the win away from the voters of Kaua`i County, the court has invented a rule. It has said that, while the constitution says counties have the exclusive power to regulate property taxes, what the constitution really means is county councils have that power.

I think the court's reasoning is flawed and its conclusion wrong. And I base this not on any opinions I have regarding the political issues involved. I actually have no strong feelings one way or another about the tax policy that would result from the amendment and that was ultimately blocked by the court. I have no idea which would result in the best policy. Instead, I'm offended at the arbitrary (one almost suspects result-oriented) reasoning by which the court created ambiguity in the constitutional text where none really existed.

It's worth reading his whole analysis.

Comments

[Charley Foster]

Thank you for the kind words. I see in an editorial in today's Star Bulletin that the paper supports the decision because it "protects Hawaii from the disastrous free-for-all style of California politics." Clearly, confusion over the role of the judiciary is not limited to certain members the high court.

Thanks again for the mention. I was not previously aware of inversecondemnation.com which, as it turns out, concerns itself with some of my favorite legal issues. I will return often.

[inversecondemnation]

Welcome! Time to check out the editorial. Whether setting property tax policy by vote is a good idea or a bad one was never the substance of the appeal. Instead, it was who gets to make the call, and whether the Hawaii Constitution was structured in such a way to provide space for local voters to make that decision (i.e., "home rule").