In Kawananakoa v. City and County of Honolulu, No. CAAP-16-0000366 (Feb. 21, 2018), a very wealthy heiress (often styled as a "princess") sued the City alleging that several ordinances and resolutions adopted by the City Council were void because some of the councilmembers who considered and voted on these measures either had conflicts of interest, or received gifts valued in excess of the de minimus amount permitted by the City's Ethics Code.
The circuit court dismissed for failure to state a claim, and in an unpublished opinion, the Hawaii Intermediate Court of Appeals affirmed. The court concluded that her complaint sought the wrong relief (a declaration the ordinances are void, an injunction prohibiting the City from acting on them, and a revote on the measures), and the only remedy which the city's Ethics Code allows are impeachment, actions to recover the money, cancellation of contracts, and civil fines.
The court also concluded that even if the remedies the plaintiff sought were available, the question of whether councilmembers violated the Ethics Code is a nonjusticiable political question.
Kawananakoa’s first point of error misstates the basis for the Circuit Court’s order. She contends that the Circuit Court erred when it dismissed the First Amended Complaint “on the grounds that a taxpayer can only challenge the validity of a municipal act or ordinance if she can establish the existence of a private right of action.” (Emphasis added.). In dismissing the First Amended Complaint, however, the Circuit Court was not so broad in its holding, stating only that “Plaintiff must have a private right of action to seek the relief requested in the complaint, and . . . Plaintiff does not have a private right of action to seek the relief requested in this case.” (Emphasis added.).Slip op. at 5.
The court also concluded that even if the remedies the plaintiff sought were available, the question of whether councilmembers violated the Ethics Code is a nonjusticiable political question. In our view, although the opinion casts its analysis as one of separation of powers and political questions, it really is better viewed as requiring administrative exhaustion, and first pursuing a remedy in the Ethics Commission before launching judicial action.
In other words, it doesn't really seem like a question of whether a Hawaii court is capable of (or should) get involved in these type of cases seeking this type of remedy. That barn door is already pretty wide: the Hawaii Supreme Court, for example, recently reaffirmed that the courts can make budgeting decisions -- even on a limited basis -- for executive agencies and order the legislature to provide a certain level of funding, and this matter doesn't strike us as different in kind. Is there a reason that a court being injected into the State's legislative budgeting process is ok, but that its not ok for a court to involve itself in whether municipal ordinances are adopted by councilmembers who may have conflicts of interest? We're not sure of the answer, but don't think the opinion really confronts the question.
But no matter, both of the judges on the two-judge panel (all other judges on the ICA recused) adopted the political question reasoning, and in our view it isn't clearly imprudent for a court to want to avoid invalidating ordinances for the reasons the plaintiff alleged. We caution against any broader reading, however, since process defects in ordinance adoption are not political questions, and routinely result in a court invalidating them.
Finally, this is an unpublished memorandum opinion, and we wish it would be published. It is on an important and interesting topic of public concern, is well supported and written, and doesn't seem like one of those cases where the result is so obvious under existing law that it should not be considered precedent.
Kawananakoa v. City and County of Honolulu, No. CAAP-16-0000366 (Haw. Ct. App. Feb. 21, 2018)
