Friday, May 22, 2015

"Footloose" - Maui Style

            A while back some friends over from Honolulu came to town once. They wanted to go out. Compared to the tropical metropolis on Oahu, Maui’s night life is a bit lacking. Nonetheless, they managed to find a packed house with a big crowd, loud music, and a dance floor. When they tried to hit the floor, however, security guards came out of a dark corner and ushered them off.
            I forgot to tell them about our county's strange institution and its even stranger rules. No drinks on the dance floor. Anyone dancing outside the designated “dance floor” area, well, can't. Yes, it’s an actual rule. That's why bars have a marked off area with tape on the floor or set up a barricade of tables to make space for dancing.
If you have to work with liquor on this island, you probably know about our Department of Liquor Control. The rules they make and the way they enforce them have made just about every establishment that sells liquor to the public a potential target. It starts with a citation to the license holder. The establishment would then have to face the liquor commission and plead its case. The penalties can range from monetary fines, suspensions, and in the most extreme cases a revocation of the liquor license. In other words, bars and restaurants take liquor license violations seriously.
The no-dancing-outside-the-designated-dance-floor rule has troubled tourists, partiers, drinkers, and especially bars for years. Some folks have even organized and gotten a bit political about it.
            Maui Dance Advocates has been campaigning against the liquor commission’s rule about dancing. Their mission, according to their website, is pretty straightforward: “We have been working hard for 9 years to figure out if we can bob our heads and tap (our) toes in bars and restaurants. We like dance floors for dancing, but we want a little wiggle room while we are standing around listening to music in places that sell alcohol.”
            Last year, the Legislature got in on the act and a bill was bandied about that would require the County to define the term “dancing.” Seems easy enough, right? But then again, where do you draw the line? Is bobbing your head to music dancing? Do you need a partner in order to dance? What about music? Do you need that? What about tapping your toe? And then there’s the First Amendment’s protection of the freedom of expression. Wouldn’t dancing fall under that too? Could such a rule withstand a constitutional challenge?
            It shouldn’t be a surprise that our County’s Department of Liquor Control, along with the City and County of Honolulu, opposed the measure. The liquor commission opposed the bill because it did not cite “any liquor licensees for any dancing-related violations.” That may be true, but just because a bar didn’t cited is beside the point. The bars—often afraid of getting a citation—enforce the rule themselves. The dance advocates often argue that the bouncers and bar owners clamp down on dancing in order to avoid a citation in the first place.
            In any event, the bill went nowhere. It never made it out of the Legislature.
            This year’s different though. Maui Senator J. Kalani English introduced a new bill that basically empowers each and every county the right to enforce limitations on dancing at bars and restaurants that serve booze. Here’s the catch: if we’re going to regulate dancing, the bill requires the county to define the term “dancing.”
            Jiva Jive, the leading advocate behind MDA, has been hopeful things will change.            He and his colleagues showed up at the Capitol this session to show their support for the bill by dancing in the rotunda. Decked out in his massive afro and purple crocs, Jive was cutting a rug in support of the bill.
            Apparently it worked (the fact that the County didn’t oppose it probably helped too.). This year the Legislature passed the bill and it is awaiting Governor Ige’s signature. He has until June 29 to let us know if he intends to veto the bill. From there, he has another 10 days to actually veto it. Then the Legislature would have to figure out if it wanted to override him in a special session.

            Then again, the governor could sign the bill or let it pass into law without his signature and the County would have to come up with a definition for the word “dancing” no later than October 1. And good luck with that.

Friday, May 8, 2015

Hawaii's Weird Relationship with the Fifth Amendment

Criminal defense lawyers like the Fifth Amendment. It’s got a lot of good stuff in there like the right to a grand jury—the right to have total strangers decide if the government has enough evidence against you to even accuse you committing a serious crime. And of course we can’t forget self-incrimination. That’s when you get to refuse to answer questions from Congress or a court and “plead the Fifth.”
But at the very end of the amendment are twelve words that never get much limelight: “nor shall private property be taken for public use, without just compensation.” It’s too bad. Lawyers like to call it the Takings Clause and it’s at work in every state in the union.
You can see it at work on Oahu today as the billion-dollar rail project plows through neighborhoods, commercial blocks, and parking lots across the west side. The corridor from Kapolei to Honolulu is not entirely on public land. It’s a patchwork of privately-owned real estate.
If a landowner doesn’t want to give up his or her property to the government, the government can go ahead and take it so long as it’s for public use and so long as it gives the landowner just compensation. Taking property for public transportation is a classic example of “public use.”
But sometimes things get a little weird. Most folks agree that condemning property for a freeway or a public rail system is public use, but what happens when the government doesn’t hold onto the property and gives it to someone else? Is that public use?
When I was in law school on the mainland, I remember having to take a property class and read a remarkable a case from the U.S. Supreme Court. The opinion starts with the Polynesians who settled the Hawaiian Islands and practiced what it called “a feudal land tenure system.” Reading up on modern-day Hawaiian history for a property class in Lawrence, Kansas got my attention and I was blown away when I learned more about it.
In the early 1960s, right after Statehood, we had a very progressive State Legislature committed to addressing some very old institutional problems in the islands. One of the most controversial was what was perceived as a high concentration of land ownership by a handful of private landowners. Sugar companies and royal estates had given away to land trusts that owned enormous portions of the islands. This form of land ownership went all the way back to the days of the Hawaiian Kingdom in the 1840s.
Over the years, most regular homeowners did not own the homes they lived in. Instead, they had long leases. This, apparently, was simply un-American and the Legislature set out to remedy this problem.
It decided to implement a dramatic and arguably revolutionary form of land reform. It created the Hawaii Housing Authority. The HHA received petitions from leaseholders and, once it determined if it was in the public interest, had the power to condemn portions of land, cut it up into smaller lots, and redistribute them.
I was shocked. It seemed really radical to think that our State would go up against landed estates, take their property, and sell it to working people. Then again, countries in the developing world were doing far more revolutionary things. Hawaii’s land reform debate was occurring around the same time Fidel Castro’s took control of Cuba. Former African colonies had declared their independence and were looking for ways to address the disparity of income. Wealth redistribution was the “it” thing to do.
The big land trusts challenged the constitutionality of the HHA. They invoked the Fifth Amendment. How can this be “public use” under the Takings Clause if it’s going straight to a private landowner? The case went all the way up to the Supreme Court (not the most revolutionary institution by a long shot) and the court found the purposes behind the HHA were indeed in furtherance of public use.
“The people of Hawaii have attempted, much as the settlers of the original 13 Colonies did, to reduce the perceived social and economic evils of a land oligopoly traceable to their monarchs.” The Supreme Court was calling out the landed estates as oligarchs and the State had every right to try and break up their estates for the public good.
Of course, lofty goals don’t always pan out. The Supreme Court had condoned the legislation of 1967 in 1984. The ardor of the 1960s had cooled. Many who lead the charge against the landed estates were becoming trustees themselves.

There’s still a high concentration of land ownership and the lease-to-fee debate continues all over the islands. The HHA has been renamed and its powers are seldom exercised. So much for radicalism. At least the Fifth Amendment is still around.

Friday, May 1, 2015

Remnants of Ancient Canadians Found in North Kihei

      There is a strange site in North Kihei. It’s across the old Maui Lu and next to what now seems to be a defunct condominium. A grove of tall and skinny coconut trees surround a large boulder. The boulder is enclosed by a low rock wall under a grove of tall coconut trees.
      If you don’t know where to look, you will breeze right by it. There’s no place to park and no marker to attract visitors. It’s a memorial that’s been beaten up by the weather and faded by neglect. But I could still make out the hand-written inscriptions on the rock wall:
      “Captain George Vancouver, Maalaea Bay 1792. . . . 1793, he brought the first cattle and root vegetables. 1794 granted the right to the Hawaiian people to fly the Union Jack as part of the Hawaiian flag. Unveiled by Mayor Elmer Cravalho. Dec.-22-69.”
      The other one is even more strange:
      “Aloha and Kla-How-Ya. Canada’s [illegible] to dedication Kihei Monument to Captain George Vancouver. May the Kla-how-ya spirit/the Aloha welcome forever prosper in these climes. Pierre Elliot Trudeau Prime Minister of Canada. Dec. 22, 1969.”
      I was really puzzled. But who built it? Was this a joint effort between Maui County and the Canadian government? It sure seemed fishy. First of all, the inscription is handwritten into cement. It is not the work of something you’d normally see from a government.
      I started asking around. While many folks had never heard of it, some long-term Mauians remembered it as well as the totem pole that used to stand next to it. It’s even featured in old tourist brochures and photos from the 1970s.
      But that didn’t solve the mystery. The factual assertions are suspect. Vancouver was among Captain Cook’s crew when they first laid eyes on the Hawaiian Islands. Unlike Cook, who met his end here, Vancouver survived his visit t Hawaii and made several trips back to the islands, including Maui.
      Just like the inscription says, he introduced cattle to the islands. The cows were a gift for Kamehameha. He also added to the fledgling goats and sheep population too. He also gave other chiefs seeds for different fruits like oranges and grapes.
      As for giving Hawaiians the “right” to use the Union Jack, that’s a stretch. He ordered his carpenters in 1794 to build Kamehameha a Western-style ship complete with ironworks, masts, and sails. In the end, he named it the Britannia and left him a Union Jack with a pennant—the proto-type for our State flag. But was this a right that he conferred to the Hawaiian people? Not likely.
      The memorial is just dead wrong when it comes to root vegetables. Vancouver did not bring roots to the islands. Hawaiians did. Long before any Westerner came to these shores, the local diet revolved around taro and yams.
      So what gives? Who would be so devoted to the memory and legacy of Vancouver? I set out to find out more and stumbled across a resolution from the Maui County Council dating back to January 1970. It’s basically a letter of congratulations to a Canadian for building the monument on December 22, 1969—the same date in the inscription.
      The resolution congratulates J. Gordon Gibson, a Canadian logger, businessman, and politician. Gibson made his money in the Canadian Northwest in the logging industry. He was a politician too, but was a bit eccentric. Like Vancouver, he sailed to Maui. The rig was later re-named the Maui Lu in honor of his wife, Louise. And yes, in 1956 he bought a 28-acre property in North Kihei and opened a resort bearing the same name in 1960. The mystery was solved.
Six years later, he apparently built a home-made memorial to Vancouver. The resolution noted that Gibson led “the way for other Canadians to develop the Kihei area.”
      The County Council and Gibson might have been prescient. Would the pioneering Canadian have never dreamed that his countrymen and women would be the biggest group of foreign land buyers on Maui fifty years later?
      Last year, Canadians spent $84 million in buying properties on Maui. Their presence is obvious in Kihei. The red maple leaf flies proudly at strip malls and eateries along South Kihei Road. Canadians are all over Kihei. Many of them are from British Columbia and they all certainly know about Vancouver.
      And so the memorial still stands—long after Gibson and his aging resort, which finally came down back in February. Now that a million-dollar time-share resort will be built over what used to be the Maui Lu, perhaps the bizarre, little structure across the street can get a new totem pole to attract Canadian visitors who know all about Vancouver (and Gibson for that matter).