HomeMy WebLinkAboutCOM 0680.002 2008-2010 +`�.•.`•• ".!yy., Lincoln S T. Ashlda
William P. Kenoi ;/ ��� Corporation Counsel
Mayor
• . • •or.r Katherine A Garson
• '�; r � Assistant Corporation
' ` " ' Counsel
COUNTY OF HAWAII
OFFICE OF THE CORPORATION COUNSEL
101 Aupuni Street, Suite 325 • Hilo, Hawaii 96720 -4262 • (808) 961 -8251 • Fax (808) 961 -8622 n ,
E -mail corpcounsel @co hawas h us
February 1, 2010 Or'.
,r- Fr
Sent via email; no hard copy will follow
Honorable Dominic Yagong '' + 1
Chair, Committee on Public Safety and Parks and Recreation
Hawaii County Council = ;
25 Aupuni St.
Hilo, HI 96720
Dear Chairman Yagong and Committee Members:
RE: Communication 680
Request from the Police Commission for the County Council
to Review and Rectify Ambiguities of Chapter 2, Article 16,
Hawai'i County Code 1983 (2005 Edition); relating to Lowest
Law Enforcement Priority of Cannabis Ordinance
On February 2, 2010, the Public Safety Committee will consider the
enclosed request from the Hawai'i Police Commission, seeking clarification on
the following three questions concerning the County's "Lowest Law Enforcement
Priority of Cannabis Ordinance ":
1. Does the ordinance make marijuana legal?
2. Is HPD prohibited from receiving funding for marijuana eradication
missions?
3. Is HPD prohibited from expending County funds for marijuana eradication
missions or other marijuana enforcement?
It was recommended the Police Commission seek clarification from the
Council, since pursuant to Article III, Section 3 -1 of the Hawai'i County Charter
2000 (2008 Edition) (hereinafter "Charter "), the Council's primary duties include
"legislation and public policy formulation." Further, Article XI, Section 11 -8 of the
Charter makes clear an initiative that passes becomes "an ordinance of the
Comm. No. 8-0 '
Hawaii County is an Equal Opportunity Employer and Provider Ref. To: P / PS pet-
Ref. Date FEB 0 2 7010
Honorable ab e Dominic Yagong
February 1, 2010
Page 2
county. "' As an ordinance, it is subject to amendment or repeal by the Council, if
the Council deems such action necessary.
After the Police Commission's letter was received by the Council, the
County Clerk questioned whether statutory construction was a matter within the
purview of the Corporation Counsel instead of the Council. In the event the
Council is desirous of filing this communication and taking no further action, I
thought it appropriate to provide the Council the Corporation Counsel's opinion
concerning the interpretation of this ordinance. We note the legal conclusions
stated here are no different than those provided the Council during the 2006-
2008 term, where the Council was advised the initiative as written was legally
defective (with respect to its ability to direct the operations of the police and
prosecutors), and where the former County Clerk had certified there were an
insufficient number of signatures to allow this measure to proceed to the ballot.
Based on the reasons set forth in this letter, it is the considered
recommendation of our office that amendment or repeal of this initiative is not
warranted at the present time. A review of the legislative history of this initiative
reveals there is no ambiguity in what was contemplated by the initiative. The
initiative simply provides an option for police and prosecutors to make adult
personal use of marijuana cases a lower priority if they so choose.
1. The initiative does not legalize marijuana.
Nowhere in the initiative does it state marijuana has been legalized. The
question posed to the voters of our County (enclosed) did not ask whether
marijuana in any quantity should be legalized. The legislative history of this
initiative supports this conclusion. The following is an excerpt from the minutes
of the August 13, 2008 meeting of the Hawaii County Council, where Adam
Lehmann, the former representative of the Project Peaceful Sky, responded to
questions posed by the Council (emphasis supplied):
Mr. Jacobson asked Mr. Lehmann to comment on the "enforcement" aspect of this
measure.
Mr. Lehmann commented that they were very careful in choosing the language
for this initiative. He said that the term "adult personal use" is continually
referred to throughout this legislation, which refers to "any individual who is 21
years of age or older ", and said that there would be the same exact enforcement
for schools or anyone under the age of 21, as the law is presently written. Mr.
Lehmann further stated that it's adult personal use of cannabis on private property
Section 11 -8, Hawaii County Charter was effectively repealed in the 2008 election and replaced
by the current Section 11 -7, which requires a two- thirds vote of the Council for repeal within the
first three years after the initiative has passed
Honorable Dominic Yagong
February 1, 2010
Page 3
by adults and does not include distribution or sale of cannabis; the distribution.
sale, or cultivation on public property; driving under the influence; or commercial
trafficking of amounts in excess of the amounts defined as being appropriate for
adult personal use. Mr. Lehmann reiterated that enforcement for schools,
children, and the public would be the same as they are now.
Mr. Lehmann stated that they're not trying to legalize or decriminalize
cannabis, but to provide law enforcement with more time and resources to focus
on serious crimes, thus making it their lowest enforcement priority. He said
that this proposes to give them more opportunities to exercise their discretion.
Chair Hoffmann again announced that the Hilo meeting site is experiencing
transmission difficulties and declared a recess.
The Chair called for a recess at 1:37 p.m
The meeting reconvened at 1:44 p.m.
Mr. Lehmann made the following comments regarding Mr. Ashida's e -mail: 1)
the issue at hand is Resolution 710 -08, which doesn't affect whether or not Bill
335 could be mandated; 2) referencing Mr. Ashida's Item No. "1." that they're
not proposing to make marijuana legal but are trying to make it law
enforcements lowest priority to provide inure time and resources for serious
crimes; and 3) states that the Council could not mandate the police and
prosecutors to snake marijuana enforcement their lowest priority but that
according to HRS 46 -1.5 14(a)(i) that each county shall have the power to make
and enforce within the limits of the county all the necessary ordinances
covering all local police natters; and said that this is in conflict with Item
No. 2.
Even if the initiative expressly made marijuana legal in the County of
Hawai'i, such an ordinance would not be enforceable since marijuana remains
illegal under state and federal law. Article VII, Chapter 2, Section 7 -2.4 of the
Charter makes clear the police shall "be responsible for the preservation of the
public peace, prevention of crime, detection and arrest of offenders against the
law, protection of the rights of persons and property, and enforcement and
prevention of violations of all laws of the state and ordinances of the county
and all regulations made in accordance therewith." (Emphasis supplied).
The doctrine of federal and state preemption was explained to the Council
in a correspondence from our office dated August 11, 2008, and does not require
reiteration here. A copy of this correspondence is enclosed for reference
purposes.
Honorable Dominic Yagong
February 1, 2010
Page 4
2. HPD is not prohibited for receiving funding for marijuana eradication
missions involving growers and distributors not covered under the
definition of "adult personal use."
Chapter 14, Article 16, Section 14- 99(d), Hawaii County Code 1983 (2005
Edition) (hereinafter "Code ") provides as follows (the newly codified initiative):
The council shall not authorize the acceptance or the issuing of any funding that is
intended to be used to investigate, cite, arrest, prosecute, search or seize property
from adults for cannabis offenses in a manner inconsistent with the county's
Lowest Law Enforcement Priority policy.
Since the definition of "adult personal use" specifically exempts (1) the
distribution of marijuana, (2) the distribution, sale, cultivation, or use of marijuana
on public property, (3) driving while under the influence of marijuana, and (4) the
commercial trafficking of marijuana or its possession in amounts in excess of that
provided in the ordinance, the receipt and expenditure of federal, state and
County funds for the purpose of investigating and prosecuting large scale
growers and distributors of marijuana may continue.
This conclusion is further supported by Mr. Lehmann's comments before
the Council on August 13, 2008 (emphasis supplied):
Mr. Lehmann commented that it does address the question of marijuana funds in
Bill 335, Section 7(b), which directs the County Council not to accept the funds
for the marijuana eradication. He said that if you have 25 plants that you could
no longer claim "adult personal use ". Mr. Lehmann stated that the State law
states that if you have 25 plants that you can no longer claim "personal use "; and
if you have 24 or few plants (at any stage of maturity) is considered a
misdemeanor.
* * * * *
Mr. Yagong asked Mr. Lehmann whether he could ease his concerns. Mr.
Lehmann replied what he has expressed to other people is that "one" plant is
still illegal; if you're a medical marijuana holder, "eight" plants are still illegal.
Mr. Lehmann said that what they're trying to do is to provide law enforcement
more time to focus on serious crimes, to provide more space in the prisons, help
the courts to run more efficiently, and save taxpayers millions of dollars.
* * * * *
Ms. Ford asked Mr. Lehmann whether it was his intent that the police can work
with the Federal government or any other State agency to go after growers and
distributors of cannabis. Mr. Lehmann replied, "absolutely ". Mr. Lehmann
said that this measure should actually give law enforcement more time and
resources to focus on trafficking and so forth.
Honorable Dominic Yagong
February 1, 2010
Page 5
Ms. Ford asked Mr. Lehmann whether he's not trying to disallow the County
Police Department from working with the Federal government as long as they're
going after those individuals or groups of individuals that are in violation of the
24 maximum rule. Mr, Lehmann replied, "right, exactly ".
Ms. Ford commented that if we have pot growers operating on generators in lava
tubes or if they have 5 -20 acres of cannabis growing in the forest, that we would
want the Federal government to come in and would want our police department to
continue to go after these people. She asked Mr. Lehmann if this was his intent.
He replied, "yes".
3 HPD may expend County funds for marijuana eradication missions
and other marijuana enforcement.
Chapter 14, Article 16, Section 14 -101 of the Code provides as follows
(the newly codified initiative):
(a) Neither the council, nor the police commissioner, nor the chief of police, nor
any attorneys prosecuting on behalf of the county, nor any associated law
enforcement staff, deputies, or officers shall spend or authorize the
expenditure of any public funds for the investigation, arrest, or prosecution of
any person, nor for the search or seizure of any property in a manner
inconsistent with the Lowest Law Enforcement Priority as defined in section
14 -98 and 14 -99 of this article.
(b) The council shall not support the acceptance of any funds for the marijuana
eradication program.
A plain reading of this provision prohibits the expenditure of County
general funds for the investigation and prosecution of persons coming under the
definition of "adult personal use." However based on the separation of powers
doctrine, HPD may nonetheless expend County general funds for the
investigation and prosecution of those persons violating Sections 712 -1247, et
seq. relating to possession and /or distribution of any quantity of marijuana.
Again, this result is supported by the legislative history of this initiative.
Despite not having the requisite number of signatures on the petition as certified
by the former County Clerk, and despite the Council being advised of the legal
infirmities of the initiative, the following is reflected in the minutes of the August
13, 2008 meeting of the Hawaii County Council (emphasis supplied):
Mr. Higa asked Ms. Jarman whether she's saying that there's no process in place
to assure that any initiatives that cone before the Council for action or before the
Clerk for sufficiency or insufficiency standards, that there's nothing which says
that the initiative is proper and legal. Ms. Jarman replied that she spoke with
Honorable Dominic Yagong
February 1, 2010
Page 6
Mr. Lehmann (Project Peaceful Sky) and that he spoke with Corporation
Counsel about this. Ms. Jarman said that they were aware of the potential legal
problems which may prevent this measure from going forward, but had chosen
to go ahead anyway. She said that they had put in provisions in this proposed
measure that they felt would immunize them from these particular legal
problems. Ms. Jarman said that in the end that it would be up w the
Corporation Counsel to make that legal call and that it would not be "Couty
Clerk's" call.
Mr. Higa confirmed with Mr. Ashida whether his statement contained in his e-
mail, "The initiative, although well intended, violates the separation of powers
doctrine ", is his legal opinion, which he's advising the Council. Mr. Ashida
replied in the affirmative along with his comment earlier regarding State and
Federal pre - emption, which is the second, but more important issue.
In fact, our office publicly advised the Council that if the initiative
proceeded to the ballot with its legal infirmities and passed, there was a distinct
possibility the police and prosecutors would not abide by it, since there were
obvious separation of powers defects as well as the aforementioned federal and
state preemption concerns. The following are reflected in the minutes of the
August 13, 2008 meeting of the Hawaii County Council:
NIr. Ashida mentioned that after it goes onto the ballot and passes that one or two
things could occur.
1. The police authority and prosecuting authority could simply not abide by
it or ignore it because it wouldn't have the force and effect of law because of the
State and Federal pre - emption issues.
3. The Attorney General or some other party or interest could seek to set
aside and invalidate the law for the aforesaid pre - emption reasons.
Concerns regarding the separation of powers and the illegality of an
ordinance (in this case an initiative) seeking to usurp the administrative powers of
the police and prosecutors and direct the allocation of resources were similarly
discussed by our office and captured in the minutes of August 13, 2008
(emphasis supplied):
Mr. Ashida said that when they analyzed this issue that they looked at it from a
different perspective or from a legal perspective. He said that this had nothing to
do with the discussion concerning marijuana itself, whether it's medicinal value,
etcetera. Mr. Ashida stated that any time there's an initiative effort, that it can
only be done by initiative (what the Council would be authorized to do by law or
2 We reiterate that Mr. Lehmann's repeated admonishment to the Council throughout the August
13, 2008 meeting was that the initiative simply "gave the police the option" of not enforcing the
adult personal use of marijuana and was not a directive.
Honorable Dominic Yagong
February 1, 2010
Page 7
by ordinance) because this is what an initiative seeks w do, is to create an
ordinance.
Mr. Ashida stated that in regards to the separation of powers issue that generally
this Council sets the policy for the County, which is expressed through the
passage of legislation or ordinances. He said that it's then incumbent and the
responsibility of the Administration to execute these laws or to carry out these
laws. Mr. Ashida said that once the Council starts dictating priorities "that you
shall rigorously investigate and prosecute this, but you shall not vigorously or
prosecute something else ", that they consider it to getting very close to a
separation of powers violation.
Mr. Ashida said that secondarily and more prominently in their analysis whether
the Federal and State supremacy or whether the Federal and State government
have already legislated in this area and have not allowed the counties to legislate.
He said that this State pre - emption issue is a more significant impediment to the
validity of this proposed ordinance or initiative.
4. Summary
The Lowest Law Enforcement Priority of Cannabis Ordinance has been
codified in Chapter 14 of our Hawai'i County Code. Examining the legislative
history of this initiative, it is clear the framers of this initiative did not seek to
legalize marijuana in any quantity, but merely sought to provide law enforcement
the option of making this a lower priority. This was not a directive to our police
and prosecutors. Instead, the initiative serves as the statutory authority to allow
our police and prosecutors to exercise their discretion in prioritizing their limited
resources.
Further, the "savings clause" found in the initiative as codified at Chapter
14, Article 16, Section 14 -104 of the Code recognizes the legal infirmities
surrounding the separation of powers and federal and state preemption
concerns, and provides as follows (emphasis supplied):
All provisions in this article shall only be implemented to the full extent that the
Constitution of the State of Hawaii and the Hawaii Revised Statutes allows, and
in the event, and only in the event, that a court of competent jurisdiction
determines that any provision in any section of this article may not he directed by
voter initiative or by action of the County Council, then that specific mandatory
provision only shall be deemed advisory and expression of the will of the people
that the provision shall be implemented into law by whichever government branch
or official who has the power to implement it, and that the Hawaii County
Council shall take all actions within their power to work with these branches of
Honorable Dominic Yagong
February 1, 2010
Page 8
government to express the will of the people and encourage, support, and request
the implementation of those provisions.
Although our police and prosecutors are not legally required to make adult
personal use of marijuana their lowest enforcement priority, internal
administrative policies may be developed to address some of the concerns
raised in the preamble of the initiative. By way of example only, a police policy
providing for the issuance of a citation in lieu of arrest for adult personal use
cases, or a prosecution policy providing for fine payments (and no jail time) for
such cases would seem to fit within the desired outcome of the initiative. Again,
as stated previously, the initiative simply provides our police and prosecutors this
option if they so choose.
Very truly yours,
Ashida, Lincoln
Feb 1 2010 3:09 PM
LINCOLN S. T. ASHIDA
Corporation Counsel
Encls.
Yoshimoto, J •
From: Ashida, Lincoln lac =`•• hJ
Sent: Monday, August 11, 2008'2:47 PM 2000 AUG 13 R(0 11 3'8
To: Hoffmann, Pete; PUago;'K. Angel; Yegong, Dominic; Yoshimoto; J; Ikeda, Donald; Higa, Stacy;
Naeole, Emily; BobJacobson;•Ford, Brenda Cr y, J,. . ;O,r
Cc: Jamian,.Casey', Rodillas, Martha COUNT' ` 'f Fi id '•.II
' Subject: Resolution 710 -08
Council Members,
On•Wednesday•he Council will considetResolution 710-08, seeking to determine the sufficiency of an initiative
petitiontsutimitted by Project •Peaceful'Sky,.
I have had 'the privilege.of meeting Project Peaceful Sky's leader, Adam Lehmann to discuss issues,related to the
legality of this proposed•legisiation. Not vithstanding.the`Iegarcondusiens ofouroffice, (;encouraged him to forge
ahead „as it would ultimatelyrbedhe'Council to'decide whether this'initiative should'procee"d to the November
ballot A's .County'Clerk Casey:Jarman has correctly_ noted, and has expressed through her. submittal. to' the
Council; it is incumbent,an the Clerk to forward` her findings to :Me Council. 'The Council must theniofficially
decide on both'the'sufficlency of signatures as well as the; tegalityofth*proposedinitiative. We provide.the
Council•withthe following observationi'an•recominendations:
•1. The initiative,.although•weil intehded,'.violates.the separation of lriowers doctrine.. You can.ofy
de via'initlative'wfiat the Council mould be authoriiedto.do unces% out laws. Clearly the Council, could
not (1) make ma ijuana'legal'in our County'(ttiis violates, State and' Federal supremacy and
'preemption doctrines), jnorcould the Council,( 2 ): rnandate 'thafthe,Poiice,and,prosecutbrs make
marijuana enforcementl' their lowest priority.' ,This•is.because ttie Couricil,-as-policymakers for our'
County, expre&sesthis poliarthrough'Ihefiorrnulation •and passing oflegislation (ordinances). It is
then,the responsibility e ftne 'admirlistration.and•departments under. its charge,to carry outand
execute'these taivs. Akbill(or initiativepseeking•to'direct the•Police and Prosecutors to manage their
.allocation of resources with respect to law enforcement'in aspecifiaway violates•theseparation of
powers doctrine; and may even constitute an illegatusurpation•of the authority vested'our Police and
Prosecutors via the.Attomey General pursuant•o HRS Chapter 28..
2: .In;the eveht,the CounciCnonetheless petition sufficient,.and;then•proceedsto certify
the initiative forplacementon the November:ballot, therels sighificanvlikelihood liligationagainst the
Councfwould.ensue ih•the form of an action seeking injunctive relief.: Note thatthe State Attorney
•General may also join such a lawsuit either as•a'real party •iminterest; - or an athicus party. Given the
position ofour office as'previously•commuhicated•to Mr. Lehmann and now being communicated to•
you,rsuch action'by,,the,Council may expose its members to personal liability, •and,there is a •enui e
,question;asto whe ie + he a ions of those Counciimembe .. -,. • ;- • • y; •.fn•1n11 -
im � i . -
3.To9fie above reasons, itis the considered recommendation of otir.otfice that the findings of the
'County Clerk be,affirmed in that there arean insufficient number of.signatures pursuant to the
•established certification process.of the'Elections Dimon, Assuming: the Councii'o4errutes.the _ Clerk's.
decision and:proceedstoahemerits of this proposed initiative, we ^recommend the •Counciffind the
initiabveyiolatesthe'separation of powers .doctrine_andaccordingiyfile the ResolutJon,withoutfu - jer
•action.
Again,- we,believe Mr. •Lehmann's motives. weltintended. The ;recommendations otouroffice are solely
on 'established iegahc`on sidaCations, and in no »way constitute an opinion as:tothe moral' implications of such an
nitiative. Please contact me imadJance•of our Wednedayrn�eting if you would like,to discuss this 'mattermore
fully. 'fwiil'be iniKona on Wednesday, andiook forward'to seeing•youall then. -
Lincoln
•
Lincoln S: T Ashlda T
Comm. No. e7 . /�
Corporation'Counsel 'Ref: To, Et t etwu:
Ref. Dote' AUG 13 7mill
8/13/2008
Dominic Yagong Guy, Enriyues, Member
Chair , ° t..c , . Brenda Ford, Member
' = \ Kelly Greenwell; Member
„t «�! ", >'f /,• Pete Hoffmann, Member
Dennis "Fresh" Onishi < r';. +'f' DonaldIkeda, Member
Vice Chair • 3 % Emily Naeole= Beason, Member
J Yoshimoto, Member
HAWAI'1'COUNTS:COUNCIL
COMM ITTEE.ON:PUBLIC'SAFETY AND.
.PARKS AND RECREATION Ci
16th S ession C
` C ry I Tl
DATE: February 2, 2010 (Tuesday), z 7 ff
,.� ,,, C7
PLACE: Councilroom -
'25 Aupuni•St. •
— a
Hilb, Hawaii
TIME: 4 ;30
(Note: .Please , turn cell'phones „pagers and Other mobile communication deviees•on•silent mode.)
• CALL TO.ORDER
,STATEMENTS'FROM THE'PUBLIC.ONITEMS ON THE AGENDA
REFERRAL.
•Comm. 680: REQUEST FROM THE'POLICECOMMISSION FOR'THE COUNTY COUNCIL
TOREVIEW AND RECTIFY AMBIGUITIES OF. CHAPTER'2, ARTICLE 16
HAWAPI COUNTY-CODE 1983( EDITION); RELATING TO LOWEST LAW
ENFORCEMNT.PRIORITYfOF CANNABIS ORDINANCE:
From Thotiias•Whittemore;,Hawai`i Police Commission,Chair, datediDecember 22,
2009, transmitting:the:above request.
UNFINISHED'BUSINESS
'Serving the Interests piffle People of Our Island
Hawal', County is an Fgval OpPortun/ry Rrovlder and Employer
PSPRC -16. Page 2 February 2, 2010
Comm. 446.7. MARIJUANA ERADICATION MISSION REPORT FOR THE MONTH OF
NOVEMBER 2009
F•rotn Police Chief Harry S, Ktibojiri, dated December 14, 2009, transnittting file above
report of missions conducted •on November 2 -3, 2009, iii •East' Hawai`i and
November 4 -5, 2009, in WesuHawai'i, pursuant to Res 46 -01. The report indicates
-the number of plants eradicated and the.number •type, and.dispositionofcomplatitts
received.
Postponed: January 5, 2011)
(Note: There is.a pending motion made by. Ms. Naeole and duly seconded by
Mr. Onishi' close file on Comm. 446.7.)
ADJOURNMENT
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