Maui wedding planners have gone to federal court to seek to enforce a 2001 agreement that prevented the state Department of Land and Natural Resources from requiring permits for beach weddings.
Lawyer James Fosbinder, representing the plaintiffs, argued that the "permanent stipulation" that settled a 2001 lawsuit prevents the state from interfering, even if the DLNR did adopt new rules in 2002 that have been used since August to require right-of-entry permits for any commercial business on state lands.
DLNR spokeswoman Deborah Ward said the department would not comment on a matter pending litigation.
But in an interview on Maui in June, department Chairwoman Laura Thielen said that the state was trying to clean up a thicket of rules, regulations and "gentlemen's agreements" that had accumulated over the years.
By an amendment to its administrative rules in 2002, DLNR treated commercial weddings the same as other businesses that use unencumbered public lands, like surf schools.
The rule says: "No person shall engage in commercial activities of any kind without a written permit from the board or its authorized representative."
Fosbinder said that's unconstitutional, that he already argued the matter and won in 2001, and that DLNR cannot renege on that agreement, which included a monetary settlement to the plaintiffs.
One of the 2001 plaintiffs, Laki Kaahumanu, is also a plaintiff in the suit filed earlier this week in U.S. District Court in Honolulu. He is senior pastor at Harvest Chapter Church of God. The other plaintiff is the Maui Wedding and Event Planners Association, which was formed last year after the DLNR announced it would start requiring entry permits.
The lawsuit quotes from the settlement agreement in Kaahumanu v. State of Hawaii, also a federal case, which says: "It is legal to have weddings on State of Hawaii public beaches. No permit is required under current law, nor was any permit required under previous state law, for wedding on any State of Hawaii beach area open to the general public, regardless of the size of the wedding or whether the wedding party uses portable chairs, folding tables, or similar items, providing that the wedding party does not fence off the beach or otherwise exclude the general public from the area."
Fosbinder said weddings come under the same First Amendment protections as other religious or political gatherings, whether or not a professional organizer is involved, and whether or not paid photographers, caterers, musicians, ministers or others are hired.
The new rules define "commercial activity" as "use of or activity on state land for which compensation is received . . . except as allowed by Chapter 13-7."
That is the key, Fosbinder said. The permanent stipulation was to Chapter 13-7, which has never been amended, so the state is in violation of the agreement, he said.
Thielen said last summer that state lawyers advised her otherwise.
However, in a second claim for relief, the suit says that the objection that led to the stipulation still applies: That wedding organizers still have a constitutional right under the First and Fourteenth amendments "to engage in peaceable assembly for the performance of religious ceremonies and the public expression of views on state property."
It adds: "The Supreme Court has firmly established that an expressive item does not lose its constitutional protection because it is sold rather than given away."
Beaches are alleged to be "traditional public forums," and besides general rights, Kaahumanu as a Native Hawaiian also asserts his Hawaiian traditional rights.
The old language - the wording the state renounced in the permanent stipulation - in Chapter 13-7 was modeled almost word for word on a federal regulation, Fosbinder said, and "at least four separate courts have found the same provisions . . . unconstitutional either as applied or on its face." That includes the 9th U.S. Circuit Court of Appeals, the circuit that includes Hawaii.
A third claim says wedding organizers are not getting equal protection of the laws because they are treated differently "from individuals or organizations engaged in other similar or different types of protected expressive activities."
The suits asks the court to enjoin the state from continued breaches of the settlement agreement, for a declaration that the agreement stands and that the permit process violated constitutional rights. It also seeks the award of attorney's fees.
* Harry Eagar can be reached at heagar@mauinews.com.
