The editorial in today’s Honolulu Star-Bulletin, “Court right to reject Kauai tax referendum,” reflects a pretty gross misunderstanding of the issues in the Kauai property tax decision, and of the limited role of the courts in a democratic society.
First, the editorial blows right by the fact that the case was manufactured by county officials in order to get what is in essence an advisory opinion from the courts. What does the editorial say about the most critical issue in the case, the question of whether government officials who disagree with the people’s vote can create a fictional lawsuit, funded by public money, to attack the vote in court? Merely that it was a speedbump on the road to apolitically wise result:
Kauai Mayor Bryan Baptiste and the County Council both opposed theinitiative, and the county attorney brought it to court by suing themayor, the Council and the county’s finance director. Two high courtjustices cast dissenting votes in the absence of disagreement among theofficials.
But, as the dissenting opinion by Justices Acoba and Duffy vociferously points out, the “county officials vs county officials” case was faulty from the start, and should never have survived a motion to dismiss, much less reached a decision on the merits:
In sua sponte[*] deletingDefendant-Appellee Kauai County Council (CountyCouncil) as a defendant in this case and adding it back as the putativeplaintiff in order to create a supposed controversy between the CountyCouncil andDefendant-Appellee Mayor of Kauai (Mayor) and Defendant-AppelleeFinance Director of Kauai (Finance Director), the majority does exactlythat,manipulating the lawsuit so as to create a controversy that did not infact exist when the suit was filed, when it was decided by the CircuitCourt of the FifthCircuit (the court), when it was appealed to this court, and when itwas argued by the parties before us.
[*sua sponte = the court of its own initiative]
The passage above reflects that Justices Acoba and Duffy were particularly disturbed that the majority opinion by Chief Justice Moon and Justices Levinson and Nakayama based its conclusion on arguments not raised by the parties, and which were never tested by the adversarial process:
The majority’s formulation of a controversy does not comport with any rule, statute or legal doctrine. It is not unanticipated then, that the County has not argued that it is acting “on behalf” of the County Council, or that the County Council has not maintained that it should be dropped as a defendant from the suit under HRCP Rule 21, or that the parties have not contended realignment in the manner imposed by the majority is an appropriate remedy. Nor is it unexpected that the majority does not cite to any case in which an appellate court has engaged in the methodology the majority employs in this case in order to engender a controversy.
The first sentence in Acoba’s and Duffy’s opinion asserts that by rearranging the parties and attributing to each arguments that were not made in court, the majority undermines the legal process (and, in effect, its own legitimacy):
With all due respect, our role is to protect the judicial process, notto subvert it.
Those are very strong sentiments, but were totally ignored by the editorial.
Second, the editorial concludes that the majority opinion is right because it “protects” the people from “California-style” politics:
Except for amendments to the state Constitution and state charters,voters have no direct control over state or county lawmaking, leavingthat job to elected officials at those levels. Such a representativeform of government protects Hawaii from the disastrous free-for-allstyle of California politics.
The editorial further relies on a “protectionist” philosophy when it concludes:
the state Supreme Court has acted to protect the county from apotential budget nightmare by ruling that the initiative wasunconstitutional.
The issues in the court appeal should have had nothing to do with the question of whether it is a good idea for the people to have the opportunity to directly set property tax policy, or need to be “protected” from themselves. That is a philosophical and political question, ultimately left up to the people when they enacted the current form of article VIII of the Hawaii Constitution. Justice Acoba and Duffy pointed out that courts should avoid making such decisions because “not all wisdom resides in the judiciary” —
In the absence of a controversy, the case should be dismissed.Assuming arguendo any alleged “practicality” or judicial efficiencyapplies (even in contradiction to the cases relied on by the majorityitself), neither can be a proper justification for deciding casesoutside the expressed prescription in the declaratory judgment statutethat an actual controversy or real antagonistic interests must exist inthe case as presented to us. With all due respect, the torturous routetaken by the majority to reach the merits suggests an intrusivenessbeyond the appropriate and reasoned exercise of judicial power.
Moreover, not all wisdom resides in the judiciary. In our democracy,governance is a tripartite function. We may decide the legal limitswithin which the parties may act, but what choices they should makewithin those limits and what would be in their best interest toeffectuate once the law is applied, is prudently and lawfully committedto them. Accordingly, I would dismiss the appeal.