On February 15, 2007 from 9:00 – 10:00 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 JudiciaryBuilding on King Street in Honolulu. Theproceedings are open to the public.
The facts of the case are straightforward. In November 2004, the people of the Countyof Kauai overwhelmingly approved an amendment to their county Charter addressing propertytaxes. 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. 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, publicly urging a “NO” vote, 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. The County Attorney claims the county council alone has the authority to determine property tax policy. The County Attorney represents both the plaintiff and the defendants in the lawsuit, and thelitigation has been backed with an allocation of $230,000 of taxpayer money,earmarked to hire private lawyers to attack the amendment.
Several local homeowners were forced to intervene, asserting among other things that the friendly lawsuit was not a true controversy since government officials were both 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 courtdismissed their objections and ruled in favor of the CountyAttorney.
I represent 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).
Media coverage:
- Attorneys prep for Kauai vs. Kauai (The Garden Island, 2/7/2007)
- High court to hear arguments on Kauai tax rollback (Associated Press/Honolulu Advertiser, 2/8/2007)
- Court to decide on tax revolt (Honolulu Advertiser, 2/8/2007)
- State high court to hear Kauai property tax suit (Honolulu Star-Bulletin, 2/11/2007)
More details on the case here, and here are the briefs of the parties, all in Adobe Acrobat (pdf) format:
- Opening Brief of four Kauai homeowners who intervened (2.5mb)
- Appendix to Opening Brief (2.3mb)
- Answering Brief of Kauai County Attorney (2.3mb)
- Answering Brief of Kauai Mayor et al. (300kb)
- Reply Brief of the homeowners (1.6mb)
The appeal has also generated amici interest:
- Amicus brief of Reason Foundation et al. (750kb)
- County Attorney’s Reply to Reason amicus (600kb)
- Amicus brief of Hawaii Gov’t Employees Ass’n (600kb)
- Homeowners’ Reply to HGEA amicus (600kb)
For more information, email me.