The State of Aloha

Imagine going to a doctor’s office for a checkup or routine examination. You tell them about what ails you, the doctor’s brow furrows, runs some tests, examines your chart, and leaves the little room they put you in to consult a medical treatise. The doctor returns giddy with academic excitement and announces that you have a “fascinating” medical malady. Yikes! That’s probably not what you want to hear.

The same goes for lawyers. Clients generally don’t like hearing that their legal problem is “interesting,” “unusual” or “fascinating.” But that’s the mess unfolding like an algae bloom all over the county building these days.

It starts with sewage. Maui County has injection wells pumping sewage water into the soil out in Lahaina. Years ago, environmental groups brought a lawsuit in federal court against the county alleging that the county was violating the Clean Water Act by pumping treated sewage water into the soil that later seeped into the Pacific Ocean. The county countered that it wasn’t a violation because nothing was being pumped directly into the ocean.

After the federal court handed environmentalists some key victories, the county settled. The settlement, however, reserved the right to appeal the Clean Water Act question if the county wanted to spend the money to hire specialty lawyers and pursue its interpretation of federal legislation. (It has.)

The United States Court of Appeals of the 9th Circuit rejected the county’s argument. The Clean Water Act applied and the lower court and the environmental groups were correct. Undeterred, the county sought further review by the Supreme Court of the United States. Surprisingly, the highest court in the land agreed to hear the case.

This is where it starts to get interesting. Turns out that not everyone likes the idea that Maui County is leading the way in narrowing federal environmental law. The Supreme Court of the United States is currently made up of justices who are far from friendly to environmental causes.

When the high court announced in February that it was going to hear the case, folks around here were very upset. The county’s bedfellows became even more alarming for them. The Trump administration, Republican senators and large business interests all sided with the county and urged the Supreme Court to reverse the 9th Circuit and rule against the environmental groups.

Our elected officials, including members of the County Council, faced pressure from the same environmental groups and concerned citizens to withdraw the appeal. After days of hearing testimony and debating the matter among the members, the County Council passed a resolution and order to the mayor directing him to withdraw the appeal before the Supreme Court could issue its ruling.

He turned to corporation counsel, the municipal government’s legal department that’s supposed to provide opinions to other parts of the municipal government. Corporation counsel advised the mayor that the decision to settle the lawsuit required joint action between the mayor and the council. The council, however, had a different view. It was of the opinion that the power to settle the county’s lawsuits was vested exclusively in the council.

The mayor didn’t care. He defiantly announced that the appeal would continue and flew to Washington last week to hear the justices question the high-paid lawyers called in to represent Maui County. The justices are expected to issue their decision sometime next year.

In the meantime, another lawsuit has come out of this mess. Maui Tomorrow and a bevy of concerned and very public citizens, including Archie Kalepa and state Rep. Angus Mc-Kelvey, sued the mayor and corporation counsel. They want the courts to examine this question as to who speaks for the county when it comes to lawsuits.

The argument is fairly straightforward. The County Council is the legislative power of the municipal government; the mayor is the executive. Once the council directs the mayor to do something — in this case settle a controversial and arguably unnecessary appeal from a federal case it settled more than four years ago — he’s got to do it.

The beef has caused quite a row in the county building. And it raises fundamental questions about county government. Who has the authority to withdraw an appeal brought by the county? The mayor or the County Council? Who speaks for the county itself? What happens when one branch refuses to abide by the requests of another?

Neither the mayor nor corporation counsel has responded. It may even have to hire outside lawyers to represent them since corporation counsel is a named party in the lawsuit and cannot advise the county on this question.

At this point we must wait and see what the courts will do. It’s a lawsuit about how to settle lawsuits. It’s a question only lawyers would find “fascinating.”

* Ben Lowenthal is a trial and appellate lawyer, currently with the Public Defender’s Office, who grew up on Maui. His email is 808stateofaloha@gmail.com. “The State of Aloha” alternates Fridays with Sarah Ruppenthal’s “Neighbors.”


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