HomeMy WebLinkAboutCOM 0584.004 1998-2000 oM~V os N,~
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Stephen K. Yamashiro Richard Wurdeman
Mayor Corporation Counsel
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OFFICE OF THE CORPOR$TION COUNSEL
101 Aupuni Street, Suite 325 • Hilo, Hawaii 96720-4262 • (808) 961.8251 • Faz (808) 961.8622
25 June 1998
RECEIVED
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Dal "ty Cowl-~?;-
J. Curtis Tyler, III, Member
Hawaii County Council
25 Aupuni Street
Hilo, Hawaii 96720
Dear Councilmember Tyler:
In your letter of June 4, 1998, you asked for comment on your
proposal for any ordinance relating to Campaign Contributions.
This proposal is similar to the Bill (Bill 282), which was the
subject of Opinion 96-04. In that opinion, I expressed the
belief that an ordinance which would regulate campaign
contributions or expenditures would be pre-empted by State Law.
This opinion is supported by the recent decision in Friends of
Arnold Moraado et al v. City and County of Honolulu et al. (CC
96-2844), decided on February 4, 1998. (Copy attached) A
decision which cost the City $92,607.58 in Plaintiffs' attorneys
fees and costs. I agree with the reasoning of this decision,
and continue to believe that that portion of your proposal which
would limit the acceptance of campaign contributions would be
similarly struck down.
On the other hand, as was discussed in Opinion 96-04, those
portions which relate to restrictions on voting by Council
members, while somewhat questionable could probably be sustained.
Sincerely,
i
v
RI WURDEMAN
Corporation Counsel
RDW:1890Lbre
Attachment
Comm. No. 5 ~ ~ ~
File No. N~~~M -
Ref. To:. P I~
KsE. Pate .IAN 0 ~ 1.Op0!
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_ _ _ _ _ ~~q
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NON-HEARING MOTIONS ~!A ~K~"
FIRST CIRCUIT Snt `KEN
SEC0.~1D DIVISION loR
DATE: WEDNESDAY, APRIL 1, 1498
JiTDGE: IiONORAHLE KEVIN S.C. CHANG, JUDGE PRESIDING
CLERIC
REPORTER: VIDEOTAPE
BAILIFF/LAW CLERK: L MORIKAWA
---------------------------------°------------------------------------PAGE i
0:00
CC 96-2844 FRIENDS OF ARNOLD MCRGADO ETAL DANIEL R FOLEY
vs. coLLEEN x sax~RAI
C&C HON ETAL FOR FRIENDS OF AR.^;01^ 1<0
WILLIAM C MCCORRIST~h
MF12R J BENNETT
KIMBERLY R MCCORKLE
DEAN J MYAT1'
FOR CITY AND COUNTY OF r.
MARGERY S BRONSTER
RDSSELL A SUZUKI
LYNETTE M MATSUSHIMA
FOR MARGERY S BRO^ISTcR
PLTFS' MOTION FOR ATTOR_*7EYS' FEES AWARD IINDER
CIVIL RIGHTS ATTORNEY'S FEES AWARDS ACT OF 1976
AND FOR COSTS INCCRRED (C. SAY,URAI) (FILED 3/9/98)
Pnu~'~ 9N3U TS? ']3c~-~~~ ~ :u„ ZZ95 T964 n4 Sf~ TC~6u 56 tT 'r.
NON-HE~tiL'?:G biCT-IONS
c Ik,ST CIiiCUI
S'ECO?:'D L'T_VIS.ON
DATE: WEDNESDE.`_', ~1.°RIL 1998
JUDGE: HGNORP~LE tic.VIN S.C. C'-~?1IG, JUD:~E P2ESIDING
CLERK:
REFORTER: VIDEO^_'~'1_oE
BASLIFF/LAW CLERK: L MORrAS~A
--------------------------------------------~•-------------------------PAGE
MINOTE ORDER: (0/1/93)
AFTER CONSIDE`RI_'dG THE nTRTTTEN SUBMZSSTONS OF
COUNSEL, :.-L'd COURT STATES 'I^3E FOLLOWING WITH
R_F,GARD TO ?LASNTIFS' MO'T`ION FOR ATTOR.~IEYS' FEES
AWA.RO UNDER CIVIL RIGHTS ATTORDTEYS' FEES AWARI]S
ACT OF 1976 AND cOR COSTS INCURRED FILED ON MARCIi
9, 1998 ("MOTION FCR ATTORNEYS' FEES").
FIRST, PURSUAN"' TO THE COURT'S ORDER GRANTING
THE MOTIONS FOR SUP~C~+ARY JLZGMENT FILED BY PLAIN-
TIFFS AND DEFENDANT BRONSTER, AND THE ORDER DENY-
ING THE CITY DEFENDANTS' MOTION FOR RECONSIDERA-
TION, THE COURT FINDS TrTAT PLAZ_*1'"IFFS ARE THE
PREVAILING PARTIES AND DEFENT)ANiS CITY AND COUNTY
OF HONOLULU, ~-EREDfY rIARRIS P.ND PETER 8. CARLISLE
A.RE THE LOSING PPRTIES.
SECOND, ALTHOUG3 irLE COURT DID NOT DECIDE P1~7D
RESOLVE ?LAINT_T?FS' SECTION 1943 CLP_IMS, TT3E COURT
FINDS TF1iT PLAINT_FFS' SECTION 1993 CLAIMS hIEET
THE "SUBSTANTIALI't"_~" :'EST BECAUSE TH£Y HAVE LEGAL
AND FACTUAL BASIS AtiD ARE NOT "OBVIOUSLY FRIVO-
LOUS." MAF.ER V. GAGNd, 448 U.S. 122 (2980) AND
SC'URS.OCK V, CITY OF LYi7N HA'v'EN, 858 F.2D 1521
(11TH CIR. 1988)_
THIRD, THE COURT FINDS THAT PLAINTIFFS' PRE-
EMPTION CLAIM ARISES FROM AND SHARES A "COMMON
NUCLEUS OF OPERATIVE FACT(S)" WITH PLAINTIFFS'
SECTION 1983 CLAIMS. ID.
FOURTH, THE COURT FURTHER FINDS THAT PLAIN-
TIFFS' SECTION 1983 CI1~lIMS WERE REASONABLY
RELATED TO PL.ASNTZFFS' ULTIMATE SIICCESS ON THEIR
PREEMPTION CLAIM IN THIS CIVIL ACTION. ID.
BASED ON THE FORGOING, PURSIIANT TO 42 U.S.C.
SEC. 1948, Thy COURT, ZN THE EXERCISE OF JUDICIAL
DISCRETION, GRANTS THE MOTION FOR ATTORNEYS' FEES
AND AWARDS PLAI.~]TIFFS THE FOLLOWING:
(CLERIC'S MZNIITES CONTINUED ON PHASE A.)
!00 pj H2I3'7J S19 "I3S\.L)~ d2i0J ZZ98T98808 SF3 TC~~0 88-ti-LU
NON-HEARING MOTIONS
FIRST CIRCUIT
sECONn DIVISION
DATE: WEDNESDAY, APRIL 1998
JUDGE: HONORABLE KEtiTN S.C. CHANG, JUDGE PRESIDING
CLERK;
REPORTER: VIDEOTAPE
BAILIFF/LAW CLERK:
PAGE
o:oo
CC 96-2844 FRIENDS OF ARNOLD MORGADO ETAL DANIEL R FOLEY
VS. COLLEEN H SARURAI
CSC HON ETAL FOR FRIENDS OF ARNOLD '~:0
WILLIAM C MCCORRiSTON
MARK J HENNETT
KIMBERLY R MCCORKLE
DEA_*7 J MYATT
FOR CITY AND COUNTY CF c
MARGERY S HRONSTER
RUSSELL A SUZUKI
LYNETTE M MATSUSHIMA
FOR MARGERY S BRONSTE":
CLERK'S MINUTES CONTINUED
(1) ATTORNEYS' cc^EES IN TFEr TOTAL AMOUNT OF
$41,600.00; AND (2) COSTS IN T'rL~' TOTAL AMOUNT OF
$1,007.58. TFT? AFORESAID AWARD OF ATTORNEYS'
FEES OF $41,600.00 AND COSTS pF $1,007.56 ZS ZN
FAVOR OF PLAIIv'TIFfiS AND AGASNST DEFENDANTS CITY
AND COUNTY OF HONOLULU, JEREMY HARRIS, AND PETER
B. CARLISLE. TSic COURT FINDS THAT THE AFORESAID
ATTORNEYS' TEES AND COSTS ARE REASONABLE, PROPERLY
SUPPORTED P.ND WERE NECESSARILY INCURRED IN THIS
LITIGATION.
COUIv'SEL DANIEL R. FOLEY, WILLIAM C.
MCCORRISTON, RUSSELL A. SUZURI WERE PROVIDED
WITH A COPY OF THIS MINUTE ORDER VIA THEIR
RESPECTIVE COURT JACKETS. MR. FOLEY TO PREPARE
THE ORDER.
DATE : 6 / 1 / 9 8 SY ORDER OF THE COURT : ~"i'u^-"~/ CLERK
snn~ )1831? ZI> 13c~;~~~_~ d8i-~~ «95T965n5 SF3 T1~6u 56 tT 5n
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FILcC1
1998 FF_S ~ PM 3~ 14
~,N::al'~~
c~ERx
IN THE CIRCUIT CCCiRT OF THE FIRS: r_IRCJIT
STA'_'E CF HAWAII
FRIENDS OF ?RNOLD MORGADO, ) CIVIL NO. 96-2844-07
BERT T.KOHAYASHZ, JR., AND ) (Injunctions)
ARNOLD MORGADO, JR., )
)
Plaintiffs, ) ORDER GRANTING MOTIONS FOR
SUMMARY JUDGMENT AND DENYING
VS. ) CROSS-MOTION FOR SUh4A.RY
) JUDCNx'NT
CITY AND COUNTY OF HONOLULU, )
JEREMY HARRIS, in his offic_al)
capacity as Mayor of the City )
and County of Honolulu, PETER )
B. CARLISLE, in his official )
capacity as the Prosecutor of )
the City and County of 1
Honolulu, and MARGEAY S. )
BRONSTER, in her official
capacity as the Attorney
General of the State of )
Hawaii, ) HEPRING:
Date: January 20, 1998
Defendants. ) Tirae; 9:30 am
Judge Kevin S.C. Chang '
ORDER GRANTING MOTIONS FOR SU}II~RY JUDGMENT
AND DENYING CAOSS-MOTION FOR SUMMARY JUDGMENT
Plaintiffs Fxiends of Arnold Morgado, Bert T.
Kobayashi, Jr. and Arnold Morgado, Jr, filed a Motion for Su.~nmary
Judgment on December 23, 1997. Defendant Margery S. Bronster
filed a Motion for Summary Judgment on December 26, 1997.
800® H2l3'I~ .SIB f..- 'I3S\107 d2l0J ZZ98TA6808 SF3 TC~80 BIS~tT-!0
Defendants City and County of Honolulu, Jeremy Harris and Feter
B. Carlisle filed a Cro,s-Motion for Summary Judgment on January
12, 1998. These three notions came on for hearing before Judge
Kevin S.C. Chang on January 20, 199£3, orith Aaniel R. Foley
appearing on behalf of P_airtiffs, Mark J. Bennett and Carrie K.
Okinaga appearing on behalf of Defendants City and County, Harris
and Carlisle, and Deputy Attorney Generals Russell A. Su2uki and
Lynette Matsushima appearing on behalf of Defendant Bronster.
After reviewing the file and considering the written
submissions and the argur.er.ts o: counsel, the Court makes the
following order.
Plaintiffs allege that Revised Ordinances cf Hcnolulu
("ROH") 3-8.9(c) and (d) is unconstitutional because it is
preempted by Hawaii Revised Statutes ("HRS") Chapter 11, and
because it violates the rights of freedom of speech, association
and due process under the Hawaii and United States Constitutions.
See Complaint for Declaratory Relief filed July il, 1996.
In Richardson v. City and County of Honolulu, 76 Haw.
46, 868 P.2d 1193, reconsideration denied, 76 Haw. 247, 871 P.2d
795 (1999), the Hawaii Supreme Court stated, in pertinent part,
the following.
[Aj municipal ordinance may be preempted pursuant to F'.F2S
[sec] 46-1.5(13) ii (1) it covers the same subject matter
embraced within a comprehensive state statutory scheme
disclosing an express cr implied intent to be exclusive and
'u iform throughout the state oz (2) i*_ conflicts with state
law.
L
nin 92I31~ SS.I -f- 79 SQL>> d8-i? oZ 95'596505 SFj TC~60 fib tI !0
Id. 76 Haw. at 62.
HRS sec. 46-1.5, =r.trtled "C_;.~3ral pexers and
limitation of the countias," arevidns at scbsection (13):
(13) Each county shall have t"e power to enact
ordinances deemEd necessary to protect health,
ii_`e, a^.~! property, and to preserve the order and
security of the county and its inhabitants on any
subject cr mattez not inconsistent with, or
tending to defeat, the intent of any state
statute, provided also t:~at the ordinance does not
disclose or express an implied inten*_ that the
ordinance shall be exclusive or uniform througY:out
the State.
The provisions ofr.RS Chao. it apply to all elections,
primary, special prinary, general, special general, special, or
county, held in the State of Hawaii. HRS sec. 11-3. Part XII of
HRS Chap. 11 regulates electior. expenses, and election campaign
contributions and exeenditures. see HF.S secs. ?1-181 to 11-229.
Specifically, :its sec. 11-191(7) defines campaign
"contribution," and HRS sec. 11-204 establishes the maximum
amount of contributions which a person or an entity can make ir.
any election.
BCH sec. 3-8.9(c) and (d) states, in pertinent part,
the following.
(c) A lobbyist shall not make a campaign contribution
or render campaigr. assistance to any candidate for city
office withing two years after receipt of a
discretionary approval, whether legislative,
administrative, or quasi-judicial, from the city.
(d) A candidate for city office shall not accept a
Campaign Contribution from a lobbyist wi*_hin two years
after the lobbyist receives a discretionary approval,
whether legislative, administrative, oz quasi-judicial
3
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from the city,
The court initially finds, pursuant to HRS sec. 632-1,
that an actual case or controversy exists and the case is
justiciable based, in part, upon plaintiff Bert T. Kobayashi,
Jr.'s declaration that he would like to participate in the 1998
City election by making a campaign contribution, but is
prohibited from making such a contribution or rendering campaign
assistance by ROH 3-8.0(c) and (d). See Affidavit of Bert T.
Kobayashi, Jr. and Shadowens v. Hawaii Housing Authority, 53 Haw.
213, 491 P.2d 119 ('_971).
The court finds that Part XII of HRS Chap. 11
constitutes a comprehensive state statutory scheme which
discloses an express or imp_ied intent to be exclusive and
uniform throughout the State of Hawaii. Richardson v. City 5
County, supra, 76 Haw. at 62, and Anamizu v. City 6 County, 52
Haw. 550, 980 P.2d 116 (1991). Part XII of HRS Chap. 11
specifically provides for er.°orcement and penalties for
violations of the statutory scheme. HRS secs. 11-228 and 11"-229.
fihe court finds and concludes that ROH 3-9,9(c) and (d)
is preempted because it covers the same subject matter as I'.RS
Chap. 11. ROH 3-8.9(c) and (d) deals with contributions to a
candidate for election in the State o` Hawaii. Richardson v.
C_ty b County, supra, 76 Haw. at 62.
Next, the court finds that ROH 3-B.9(c) and (d) is ir.
r
lTo f~' KL13"7~ [l2 19C ~~'._i Teri-~ 'oZ95'T 98505 CFj TL'BU 56 tT1U
conflict with HRS Chap, li because it prohibits contributions by
a person that are pez:nitted ~.:nder ;fate la•~r.
Significantly, H,RS sec. li-2G-; (a) allows aersons or
other entities to mike contributions to a candidate or a
candidate's committee, ad limits '.he aggregate of such
contributions to 52,000.CO. The tern "person" is defined as
being "an individual, par*_nership, committee, association,
corporation, or labor union and its zuxiliary committees." HRS
sec. 11-19i(18).
Thus, RCH 3-8.9;c) and (d) conflicts with HRS Chap. 11
because the city ordinance prevents a "person" who can
permissibly 'make cor.tribu*_ions to a candidate or a candidate's
committee under FIRS Chap. 11 °rom ma'<ing such a contribution.
The term "person" is broadly defined by HRS sec. 11-191(18;, r.
"lobbyist" referred to in RCH 3-8.9(c) and (d) is a "person" as
the term is used in HRS Secs. 11-191(18) and 11-209(a).
Therefore, the court finds and concludes that RCH 3-
8.9(c) and (d) conflicts with and is preempted by kRS Chap. 11.
Richardson v. Citv ~ County, su ra, 76 Eaw, at 62.
Based on the foregoing, and viewing *_he evidence and
inferences in the light most favorable to the parties being moved
against, the court finds that there are no genuine issues of
material fact and that Plaintiffs Friends of Arnold Morgado, Bert
T. Kobayshi, Jr., and Arnold Morgado, Jr. and Defendant Margery
S. Hrenster are entitled to summary judgment as a ma*_ter of law
5
CTO F~j H2I3'IJ SSJ "[3S ~1u~ d80J ZZ98T96808 l'F'd TC~80 96~~tTLO
and the judicial declaration that ROH 3-8.9(c) and (d) is null
and void because it is preempted by HRS Chapter 11. Since the
court has determined that ROH 3-8.9(c) and (d) is preempted, it
is not necessary for the court to address Plaintiffs' claims that
the city ordinance is unconstitutiorai and/or violative of
Plaintiffs' rights under the Hawaii and United States
Constitutions.
The Motion for Summary Judgment filed by Plaintiffs
Friends of Arnold Morgado, Bert T. Kobayashi, Jr. and Arnold
Morgado, Jr. on December 23, 1997, and the Motion for Suasnary
Judgment filed by Defendant Margery S. Brenster or_ December 25,
1997 are granted. The Cross-Motion for S,ia:mary Judgment filed by
Defendants City and County of Honolu_u, Jeremy Harzis and Peter
B. Carlisle filed on January 12, '.998 is denied.
IT IS SO ORDER:.D.
DATED: Hcnolulu, Hawaii FEB 0 4 1990
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'Y.
Stephen K. Yamashiro Richard Wurdeman
Major Caryoration Cau nul
h o,'Ni.
~uunt~r of ~ttivttti
OFFICE OF THE CORPORATION COUNSEL _
101 Aupuni Streer, Suite 125 Hilo, Hawaii 96720.1262 (BOB) 961825) Fax (808) 961-E62 Z. - C~
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July 26, 1996
_ cn
OPINION NO. 96-09
_ W
- 'm c
Honorable James Arakaki, Chair
and Members of the Finance Committee
Hawaii County Council
25 Aupuni Street
Hilo, Hawaii 96720
SUBJECT: COMMENT ON BILL 282 (Camoaion Reform)
Dear Chair Arakaki and Members:
This memorandum is in response to the Committee's request for
comment on Bill 282, relating to Campaign Reform.
Bill 282 provides for varied restrictions on political
activities by 'lobbyists' and ezempt officers and employees.
Among other things, a "lobbyist' can not make a campaign
contribution or render campaign assistance to any candidate for
county office after receipt of a discretionary approval from the
County. Further, a candidate for office may not accept a
campaign contribution from a lobbyist within two years after
such approval, nor may an elected official vote on any measure
involving a person who has contributed more than 6100 in
campaign contributions to that official. Ezempt employees and
elected officials are also subject to numerous restrictions on
soliciting campaign contributions from lobbyists. Violations of
this bill, should it become an ordinance, would be a
misdemeanor, punishable by a fine of x1000, and grounds for
impeachment.
II. CONSTITUTIONALITY.OF RESTRICTIONS ON CONTRIBUTIONS
The association of political contributions with the First
Amendment right of free association was firmly established in
Bucklev v. Valeo, 424 U.S. 1, 46 L.Ed. 2d, 659, 96 S. Ct. 612
(1976). In that case, which was a broad based challenge to the
c~a~. k~. !al$ 03
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R.et. ihu~ AUG U
James Arakaki and. ''embers
July 26, 1996
Page 2
Federal Election Campaign Act, the Court held that interference
with this right could only be sustained if the government could
demonstrate a sufficiently important interest and employs a
means closely drawn to avoid unnecessary abridgement of
associational freedoms.
The California Supreme Court was presented with the question of
the Constitutionality of an initiative which contained
provisions similar to this bill in Bair Political Practices
commission v. Suoerior Court of Los Angeles County, 599 P. 2d 46
(Cal. 1979). That initiative made it unlawful for a 'lobbyist'
to make or arrange any contribution to a candidate for state
office. A 'lobbyist" was defined as anyone employed or
contracted for economic consideration to communicate with State
officials. Government employees and the media were ezempted
from this definition.
Applying the test set forth in Bucklev, the court found that
this provision was not the type of closely drawn restriction
which might pass constitutional muster, in that it applied to
all lobbyists (even those who might have never dealt with the
candidate), did not distinguish between large and small
contributions, and provided an eztremely broad definition of the
term lobbyist. ~,td at 53.
The restrictions sought to be imposed by Bill 282 are arguably
even less narrowly drawn than those in. the California
initiative. Section 2(a) of the Bill prohibits any campaign
contributions by "lobbyists' within two years after receiving
any discretionary approvals from the County. Conceivably, a
discretionary approval could be granted by, for ezample, the
planning commission, yet contributions to a council candidate
totally uninvolved with that approval would be barred.
Secondly, Bill 282 in defining "lobbyists" limits the definition
to those seeking approval of a permit, and ezempts community
associations and coalitions. While eliminating the possibility
of improper linkage between lobbying activities and political
contributions may be a laudable objective, Bill 282 seems
directed only at certain kinds of advocates, those supporting
approvals and ezempts those opposing such approvals, thus making
a clear value judgement as to the kinds of ezpression that are
to be favored. While it might be within the bounds of political
correctness to favor such interest groups as the Sierra Club or
MADD, the First Amendment does not admit to such a distinction.
Thus, it is our opinion, that Section 2(c) of Bill 282, when
read in conjunction with the definitions found in Section 2(a)
fails to meet constitutional standards.
James Arakaki and `'embers
July 26, 1996
Page 3
III. Restrictions on the Use of Camvaian Assistance from
Lobbvists.
Section 2(e) of Hill 282 would bar candidates from using or
accepting campaign assistance from a lobbyist, within two years
of that lobbyist having received a discretionary approval from
the County. In Hucklev supra, the Court, found that
restrictions on campaign expenditures were even more suspect
than those on contributions.
If this Hill was enacted, this provision would, among other
things, impose a restriction on independent expenditures by
lobbyists. The Supreme Court has not looked kindly upon such
attempts to limit independent expenditures, striking down
efforts to restrict political action committees Fed. Election
Com'n v. Nat. Conserv. Pol. Action 470 U.S. 499, 105 S.CT. 1459,
84 L.Ed 2d. 539 (1986), and political parties. Colorado
RP*±!ihliran FPf~PTal Camvaian Committee v. Ped. Election Com'n,
U.S. , S. Ct. 1996 WL 345766 (1996). While
a seemingly contrary result was reached as to corporations in
Federal Election Com'n v. National Rivht to Work Committee 459
U.S. 197, 103 S. Ct. 552, 74 L. Ed. 2d. 364, (1982); this bill
would directly affect individuals on the basis of their
livelihood. "Livelihood is not a sufficient factor to warrant
less than strict scrutiny to statutes burdening the First
Amendment rights of individuals'. Harker v. state of Wis.
~:thics Bd. 841 F. Supp. 255 (W. D. Wia. 1993) (discussing a ban
on lobbyist contributions).
For these reasons, we believe that Section 2(e) of the Bill does
not meet constitutional standards to the extent that it would
prevent independent expenditures on behalf of candidates.
IV: The Ovestion of State Law
The County's authority to enact ordinances, as delegated to it
by the Legislature, is limited to subject matters not
inconsistent with, or tending to defeat, the intent of any State
statute. HRS §46-1.5 (13). In HRS §191 to §229, the
legislature has established a comprehensive scheme of regulation
of campaign contributions and expenditures involving
registration of candidates, reporting by candidates,
restrictions against transfer, contribution limits, and
voluntary expenditure limitations.
The County may exercise only such powers as are delegated to it
by the Legislature, and where the Legislature has clearly
intended to preempt the field of regulation, ordinances
attempting to regulate the same subject matters are invalid.
HGEA v. County of Maui, 59 Haw. 65, (1978) In re Avv'n of
Anamizu, 52 Haw. 550 (1971),
James Arakaki and Members
July 26, 1996
Page 4
Thus, in Citizens Utilities v. County of Kauai, 72 Haw 285
(1991), it was held that Kauai County did not have the authority
to regulate the height of utility poles, despite the legislative
delegation of both the zoning power to the height of structures,
HRS §46-4, and the power to regulate the quality of all
appliances necessary to the furnishing of light, power and
telephonic service. HRS 46-1.5 (19)(S). Hotwithstandinq the
seemingly compelling argument of Kauai, the Court found the
county zoning authority pre-empted by a purported statewide
interest in utility regulation. Similar results occurred in the
striking down of County efforts to independently define which
employees would be ezempt from Civil Service, HGEA v. Maui
supra, and to establish licensing requirements for electicians,
In re Anon of Anamizu supra.
In view of these precedents, we believe that those provisions of
Bill 282 which regulate campaign ezpenditures, and
contributions, even should they survive the test of
constitutionality, are preempted by State Law.
V. Prohibi-ion on Voting on Issues Involving Camoaian
Contributors.
Section 2(q) of Hill 282 would prohibit a council member from
voting on any issue involving applicants who had donated more
than X100 to that member.
Generally, the mere receipt of campaign contributions does not
disqualify a member from voting on such issues. In Woodland
x;11a RPa;APnMx Leann;.Finn. Inc. v. City Council of the City of
Los Angeles, 609 P. 2d 1029 (Cal 1980), a group of residents
brought an action claiming that those Council members who had
received campaign contributions from an applicant for
subdivision approval, should not have been permitted to vote on
that approval on the grounds that such a vote violated a
California statute requiring 'fair hearing`. In rejecting this
challenge, the Court found a strong public policy in favor of
the giving of campaign contributions, and noted that
representative government would be thwarted if such classes of
voters as architects and engineers were to be effectively barred
from the political process. Ibid at 1033, and that a charge
that the receipt of a campaign contribution invariably results
in an appearance of bias or favoritism is not warranted.
Notwithstanding this observation the question of when an elected
official is properly disqualified and thus should not vote on an
issue has been called a `subject of particular difficulty and
inconsistency is application even within a single
jurisdiction'. Libonati and Martinez, r.ocal Government Law §
11.10, Callaghan & Co, Deerfield I11 (1996).
James Arakaki and Members
July 26, 1996
Page 5
As a general principal, it is agreed upon that municipal
officials are deemed fiduciaries of the public interest and must
exercise judgment unfettered by any individual interest. LaRue
v East Brunswick, 72 A2d. 691 (NS 1961). Such a finding of
self interest need not be based on dishonesty, but when
circumstances show a likelihood of temptation. Bracey v. Long
Branch, 179 A. 2d 63 (N. J. Super.91, 1962). Daly v. Town
P~ann~na & Zoning Commission of Fairfield, 191 A.2d 250 (1963).
By Bill 282, the Council seeks to define the fuzzy threshhold
beyond which a council member is deemed to serve two masters.
The bill draws the line strictly, more tightly than the reported
cases in this area seem to do. Further, the Bill would present
practical problems. What mischief could be achieved by giving
$101 to one's political opponent so as to neutralize that person
in the debate over one's project? What would be the effect if
all members were disqualified? it is a well accepted principle
that when a body has a duty to act, and it is the only entity
that can; the fact that all members have a personal interest
does not disqualify them from doing their duty. Affordable
Housing Alliance v. Feinstein, 224 Cal. Rptr. 537 (Cal. App.
1986); rnnaalvws v. City of Dairy Valley 71 Cal. Rptr. 255 (Cal.
App. 1968). This "rule of necessity" permits essential
government functions to continue, even where conflicts of
interest ezist. Eldridge v._ Sierra_View Hoso. Dist. 273 Cal.
Rptr. 654 (Cal. App. 1990). Could the application of such a
rule nullify the good intent of Bill 282?
Notwithstanding these concerns, it is our opinion that Section
2(g) of Bill 282, although harsh, is legally sustainable.
VI. Penalty Clause
The penalty provisions of Bill 282, Sections 2 (i) 2 (k),
describe violations of the Bill to be misdemeanors and to be
punishable by a fine of 51,000. Under State law, the Hawaii
Penal Code, sentencing for all offenses is required to be in
accordance with Chapter 706. HRS Section 706-640(4), provides
that a fine of up to x2,000 may be assessed for a misdemeanor.
Section 706-663 provides for a prison term of up to one year for
persons convicted of misdemeanors.
It is recommended, therefore, that should Bill 282 be enacted,
the penalty section be amended, so as to be consistent with the
Penal Code. Thus, if only a fine is to be provided, the offense
should be classified as a "violation", Section 706-640(1) H.R.S.
James Arakaki and 'embers
July 26, 1996
Page 6
VII. Conclusion
Ezcept for those portions of Bill 282 specifically discussed
above, we see no legal objection to the bill. Although we
question Section 2(b), which makes the coercion and solicitation
portions of the Bill only applicable to ezempt officers or
employees, we do not find this somewhat arbitrary classification
to be constitutionally defective, despite the implication that
such activity is to be condoned when conducted by civil service
employees. While it is indeed naive to assume that civil
service employees are above such political improprieties, we
find no denial of equal protection of the laws in such a
classification. We would recommend, however, that the rationale
for such singling out of one group of employees, be stated in
either the 'purpose" section or by committee report.
Sincerely,
D. WURDEMAN
Corporation Counsel
RW:1503L/bre