The terms “constitutional crisis” and “special counsel” have become a part of America’s vocabulary during the Trump Era, and now these words have even made their way into local politics. On Friday, Oct. 18, the Maui County Council will take up a proposed resolution to authorize the council to hire a special counsel to resolve what’s been called a “crisis of the Charter.” The County Charter is Maui County’s constitutional document which defines the powers and responsibilities within the county government.
The crisis emerged following a closely watched Sep. 20 council vote to settle the Lahaina Injection Wells lawsuit during which the county’s lawyers, Corporation Counsel, played the administration’s Trump card: They didn’t believe the council’s action had any power to force Mayor Michael Victorino to agree to the settlement terms.
In an Oct. 3 memo to Council Chair Kelly King, deputy corporation counsel Peter Hanano explained that some of the settlement terms were in the mayor’s authority and others were in the council’s authority. Therefore, in Corporation Counsel’s view, the council and the mayor would have to agree on all terms for the settlement to be authorized and the case to be pulled from the US Supreme Court docket, where oral arguments are scheduled for Nov. 6.
“It’s kind of like Trump being in his impeachment process, telling the Congress, ‘You don’t have the authority to compel me to testify in front of you,’” King told me Tuesday. She, like Maui Tomorrow president and practicing attorney in Oregon, Michael Williams, disagree with the administration and Corporation Counsel’s interpretation of the County Charter.
“What I find perplexing about Corporation Counsel’s memo is that it doesn’t mention Charter Section 2-2.” Williams told me last week. The section, titled “Exercise of Powers,” states that “if the Charter makes no provisions” then powers of the county shall be carried out “by ordinance or resolution of the County Council.” In this instance, Williams said, since the Charter doesn’t expressly give power to the executive branch to control the litigation, the County Council should be able to do so via resolution.
“Corp Counsel’s made it clear that they don’t represent us [the County Council] in court and that they are taking the mayor’s side in the issue: that we don’t have authority to do what we just did, which is settle the case,” King said.
That leaves the council without legal representation. While lawyers in the Office of Council Services may advise the council, they cannot represent the council.
“We need an attorney to file for a declaratory judgement or possibly a writ of mandamus,” King said. A declaratory judgement could answer the question of “Who’s got the power” regarding lawsuit settlements brought to the council, while a writ of mandamus would recognize the council’s authority and force the mayor’s action, she added.
The council needs a two-thirds vote (six councilmembers) to hire a special counsel. However, in voting to settle the injection wells lawsuit, the council was just short of that number, with five councilmembers approving the settlement. So to hire the special counsel, one member who voted against settlement would have to approve the outside attorney and risk undermining their position, which is to send the case to the US Supreme Court.
“It’s necessary to find out whether we have that authority or not going forward because this might not be the last time this happens,” King said. “Anybody, regardless of what side they’re on, should want this declaratory ruling because otherwise we’re just hanging out in this crisis of the Charter.”
Photo by MauiTime