[Update: On Oct. 9, Council Chair Kelly King published a letter sent to US Supreme Court clerk Scott Harris to address the “crisis of the charter.” “A resolution to appoint special counsel to represent the Maui County Council will be considered next week,” she wrote. “I respectfully request the U.S. Supreme Court dismiss Case No. 18-260, or, at the very least, postpone the hearing until Maui County can resolve our Charter crisis by determination of the Council’s authority in court within the State of Hawaii or otherwise.”]
The vote to settle the Lahaina Wastewater Reclamation Facility lawsuit has been hailed as “historic,” but fallout surrounding the case-followed-around-the-nation may prove to be just as consequential – at least for local politics. While the Maui County Council voted 5-4 on Sep. 20 to pass a resolution accepting the settlement terms offered by EarthJustice attorneys, Maui County’s attorneys in the Department of Corporation Counsel have stated that the council’s resolution doesn’t have the authority to force Mayor Michael Victorino to abide by their decision, setting the stage for a power struggle between the two branches of local government.
In an Oct. 3 memo to Council Chair Kelly King, Department of Corporation Counsel attorney Peter Hanano explained the administration’s position, concluding that “some terms of the May 9, 2019 settlement proposal require only the council or mayor’s approval, while others require both the council and the mayor’s approval. Therefore, the council and the mayor must concur in order to accept plaintiffs’ May 9, 2019 settlement proposal.”
The interpretation of powers rests on the department’s reading of the County Charter, Maui County’s constitutional document.
In essence, Corporation Counsel states that the council has authority to settle civil litigation in cases where the settlement exceeds $7,500 or requires action exclusively within the council’s power. On the other hand, the mayor has the authority to settle civil litigation in cases where settlement is less than that amount or requires action exclusively within the power of the executive branch (in this case, that mostly means actions the Department of Environmental Management, part of the executive branch, will be compelled to do). In cases, like the LWRF injection well lawsuit, where the settlement features a mixture of terms within the purview of the mayor and the council, both the mayor and the council have to concur for a settlement to be agreed upon (“Good luck with that!” said anyone who’s been watching the back-and-forth between the council and mayor this year).
The memo lists eight terms of the proposed settlement: (1) The parties will dismiss the US Supreme Court appeal and bear their own attorney’s fees, (2) the county will make good-faith efforts to acquire an NPDES permit for the injection wells, fund and implement a $2.5-million project for recycled water in West Maui, and pay $100,000 to the US Treasury as a penalty, (3) the county will cover community groups’ attorney’s fees for prior litigation in lower courts, (4) provided the county makes efforts to reduce reliance on injection wells and gets the NPDES permit, no further litigation seeking penalties based on the Clean Water Act will be brought by the community groups involved, (5) as long as the county makes good-faith efforts to reduce reliance on injection wells and get NPDES permits, the community groups involved will not seek penalties based on the CWA for the county’s use of injection wells, (6) the community groups will not seek penalties from parties using recycled water from the LWRF as long as it is done responsibly, (7) the county does not have to admit the LWRF injection wells are damaging the nearshore marine environment, and (8) the parties reserve their positions and all rights on the merits of any other case.
The memo states that terms 1, 4, 5, 6, 7, 8 are for the mayor alone to accept or reject, term 3 is for the council alone to accept or reject, and term 2 requires agreement between the council and mayor to accept.
In addition to stating that certain terms force action by the executive branch, part of Corporation Counsel’s justification for giving the mayor overwhelming authority over accepting the settlement terms is the department’s interpretation of “controlling of the litigation.” Referencing a case in Georgia Supreme Court, the memo states “[t]he executive branch generally has the power and authority to control litigation as part of its power to execute the laws.”
Maui Tomorrow president and practicing attorney in Oregon, Michael Williams, questioned Corporation Counsel’s citing of out-of-state case law, especially since he sees a provision of the County Charter as already answering this question of “who’s got the power.”
“What I find perplexing about Corporation Counsel’s memo is that it doesn’t mention Charter Section 2-2.” Williams told me. 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.
“Here’s the problem with Corporation Counsel’s memo,” Williams added, “not only do they not even mention Section 2.2 – you’d think they’d at least mention why it doesn’t apply – but they rely on two Hawai‘i Supreme Court cases, and both of them interpret the Honolulu Charter. The Honolulu Charter does not have anything like Maui Charter Section 2-2.”
Attorney Lance Collins, who’s worked with West Maui Preservation Association, one of the plaintiffs in the LWRF case, agreed that the memo inflates the mayor’s power.
“The County Code at 3.16.020 goes through the process by which the council can settle a case. It doesn’t include a substantive place for the mayor,” he said. “The Charter assigns to the mayor the duty to sign all documents for the county. That duty is itself ministerial.”
So, what if Mayor Victorino disregards the council’s resolution to settle, and continues to pursue the US Supreme Court appeal?
“If the mayor refuses to do his ministerial duty, the council, individual council members, or taxpayers could sue him to compel him to do so,” Collins said.
“Councilmembers can file their own lawsuits seeking declaratory judgement from the court to rule whether Charter provision 2-2 controls or not,” concurred Williams. “Declaratory judgements are pretty common… I think the US Supreme Court would just put the case on hold while the Hawai‘i courts figure out if the mayor has the power to control litigation or not.”
As of Tuesday, Oct. 8, Office of the Mayor spokesperson Brian Perry stated Mayor Victorino has not yet decided whether he will back the council’s settlement resolution or continue litigation. When asked about Charter Section 2-2, Perry referred me back to the Oct. 3 Corporation Counsel memo.
The lawsuit against the County of Maui brought by community groups Hawai‘i Wildlife Fund, Sierra Club, Surfrider Foundation, and West Maui Preservation Association stems from divergent opinions about the types of permits required for the Lahaina Wastewater Treatment Facility Injection Wells, which seeps treated wastewater into nearshore ocean. The plaintiffs in the case have claimed the seepage damages ocean quality and the injection wells should be regulated under Clean Water Act permits. The County of Maui and Mayor Victorino claim the current Safe Water Drinking Act permits are appropriate, and that a switch to get permits under the CWA would be infeasible and costly. After losing in the 9th Circuit Court, the County of Maui appealed the case to the US Supreme Court, where arguments are scheduled for Nov. 6. Community groups are concerned that a win by the county at US Supreme Court would degrade water quality around the nation.
Image by MauiTime