- Imagine you have a business dispute and the case goes to a jury trial.
- Yet that is just the travesty of justice that has occurred on Kaua’i.
- Kaua’i County has a hybrid legal system, with powers shared by the County Council and the mayor.
- The broken process has driven a massive wedge into the heart of this once peaceful island community.
[Editor's note: This story was updated on November 17, 6:00 PM ET, to reflect breaking news.]
The 5-2 vote means that Bill 2491, which requires large farms and agribusinesses to disclose pesticide use and growth of genetically modified crops, is now law. Critical government officials and bill opponents noted that the bill focuses solely on one industry and does not set spraying restrictions. disclosure requirements or buffer zones on pest control companies, homeowners, hotels, golf courses and the county itself which together use more than 85% of pesticides on Kaua’i. The county is also required to set up a committee to study whether pesticides are harming the environment or the health of residents.The regulations will take effect in nine months—if they survive an anticipated legal challenge.
The vote by Mason Chock, a favorite of the antis, who was selected on Friday to fill a vacancy on the council, was the difference maker. The council normally has seven members but has been down one for weeks since Nadine Naka-mura resigned to become Kauai County managing director.
Chock’s rushed selection on Friday and his Saturday vote capped a week of intrigue that raises numerous ethical and legal issues. The new council member was not elected by popular vote. Rather, the anti block chose him over former council member KipuKai Kualii, who came in eighth in the last election, just short of being elected. In short, a person hand selected by the fierce opponents of crop biotechnology got to cast the deciding vote on whether one of the most controversial agricultural bill’s in Hawaii’s history would become law.
For the moment, the mayor is being conciliatory. In a statement after the vote, Mayor Bernard Carvalho Jr. said, “Of course we will honor the Council’s decision and I will continue to work with my departments to determine how we will implement this new law, which is scheduled to take effect in nine months.”
What’s the backstory and the latest twists in this bizarre saga?
Imagine you have a business dispute and the case goes to a jury trial. It’s a complicated issue and takes weeks to hear all the evidence. The jury listens intently. Then, just as the jurors are about to rule in your favor, they are suddenly replaced—with new jurors who have not heard a shred of evidence. Even more unfair, your legal adversary gets to choose them.
Sounds crooked, right? It would certainly be illegal, as the substituted jurors would not have heard any testimony and would be beholden to those who appointed them. Yet that is just the travesty of justice that has occurred on Kaua’i.
Kaua’i County has a hybrid legal system, with powers shared by the County Council and the mayor. Last month when the Council passed Bill 2491 over the objections of the mayor, who pleaded for a one-month delay to review the legal nightmare the bill’s passage might conjure, it was not the final word. The mayor had a legal right to weigh in.
Two weeks later, after the Office of the Kaua’i County Attorney analyzed the bill, calling it a “legal mess,” the mayor vetoed the measure. That set off shock waves among anti-GMO activists, who were outraged that he would follow the advice of his legal council. They launched a personal and vicious ‘witch hunt’ like campaign marked by death threats, targeting the mayor and bill opponents, which prompted the county to institute extraordinary safety measures during court sessions.
The situation went downhill from that very low level. The original measure passed 6-1. But under Kaua’i law, the mayor could block any legislation. After hearing from the country’s legal staff and discussing the bill’s implications with Hawaii state officials, he decided the bill could be unenforceable even if it should survive a legal gauntlet.
His veto set off a series of legal maneuvers, complicated by the fact that shortly after the vote, one of the council members, Naka-mura, had resigned. That left only six members on the council, with five votes needed to override Carvalho’s veto. With a shrunken council, what could—what should—the members do?
Last week, the council went back into session to discuss whether adding a new member at this late juncture to vote on the mayor’s veto would be fair to the new appointee or the county—after all the new person would not have heard months of debate.
The one negative vote on the bill, Mel Rapozo, openly stated his opposition to delaying the override vote until a replacement had been chosen. “I don’t want to see the process of selecting the seventh member be hanging on to this issue, this bill,” he said. “To rest the decision on replacing a council member on one issue, I don’t think that that’s the right thing to do. I don’t think that’s fair.”
But he was not alone. A majority of the council agreed with Rapozo. “We’ve gone through thirteen weeks of exposure to the issue, from testimony and so on,” Council Chair Jay Furfaro said, explaining why he opposed delaying the override vote until a new member was selected. It would desecrate the democratic process, he suggested—akin to a legal adversary stacking a jury with new members who had never heard the evidence.
JoAnn Yukimura, a staunch bill advocate, also agreed that any new council member should not have a say in this dispute. “There are so many important issues facing this community, and what we’re looking for is a much broader set of values and character and knowledge than one issue,” she said, announcing her opposition to letting a new council member vote on the issue. She was “horrified,” she said, that the process of choosing Nakamura’s successor had to be done in the context of Bill 2491.
Even Tim Bynum, one of the bill’s introducers, declared, “If there’s not five votes to override, that’s it. The only way to address these concerns is to start all over with a new bill, which I will certainly do.”
That was fairness and democracy in action. That was last week. Then came this past Thursday, when the County Council met to discuss whether to override the veto. Further complicating the issue, the day before, the Hawaii Department of Agriculture, with the backing of the Governor, released voluntary guidelines mirroring the disclosure and buffer zones proposed in the legislation, undercutting the urgency to pass a measure that would without question end up in court with the county saddled with legal fees. The state recommend guidelines are scheduled to go into effect on December 1 and apply to the five companies mentioned in Bill 2491—DuPont Pioneer, Dow AgroSciences, BASF, Syngenta and Kauai Coffee. The companies are expected to voluntarily disclose their pesticide use to the public. The department says it also plans to establish a “Kauai Agricultural Good Neighbor Program” to provide more information and education on pesticide use on the island.
Even though the new guidelines include almost all of the provisions of the bill, and would have the likelihood of a costly legal battle, the anti block denounced the plan. “They insult me. They insult this council. They insult our community,” Hooser. “They think we’re fools. It’s ridiculous. To think they’re going to come up here on the last day and save us with a volunteer compliance. It does nothing.”
After hours and hours of emotionally laden testimony, the six council members had their say. Mel Rapozo surprised no one by declaring he would not support the override. Council members Gary Hooser and Tim Bynum, the bill’s introducers, along with Yukimura and Furfaro had all stated previously they would vote in favor of the override. It would all come down to Ross Kagawa’s vote. He concluded his ten-minute testimony, saying, “I’m going to follow my heart and my mind, and I’m going to continue to work with the state, with Mr. Rapozo, in getting some answers to those families that are suffering. I will not be supporting the override.”
Suddenly, all hell broke loose. Bill supporters in the audience began weeping and others stormed out of the courthouse. As for the anti-GMO council members, forget Bynam’s and Yukimura’s and Furfaro’s public pledges that tying the appointment of a new council member to a vote override would be divisive and inappropriate. The promises about defending democracy and insisting that ones view on this one issue should not be a political litmus test—all that went out the window. Expediency and ideology prevailed.
What happened next was one of the most troubling in this nasty melodrama. In a transparent maneuver to derail the vote, Hooser motioned for a recess—procedure normally reserved for a few minutes or hours—arguing that the council should reconvene the following day. It was clear to everyone that he was wanted the anti-GMO faction to hand select and seat the seventh council member to guarantee the veto overthrow.
Was Hooser’s maneuver legal? Maybe, that’s yet to be known. The bait and switch may very well be a violation of the due process set out in the Kaua’i County Charter. What will happen next? Don’t ever assume it can’t get worse from here. One or more legal challenges are expected, perhaps as early as this coming week. The Mayor’s office, the state and the effected businesses are all reportedly reviewing their options. Hooser downplayed the threat of legal action by trying to put the bill’s opponents on the defensive. “I cannot imagine these large corporations suing a tiny county like Kauai for the right to spray poisons next to schools,” he said.
But Yakimura appeared to say that she welcomed a legal challenge. No one really knows “until the court speaks,” she said.
“If it’s legal then we can move ahead,” she said. “I’m not sure why anybody, on either side of the issue, is opposing going to court. And the only way we can go to court is through a bill. … If it’s legal then we can move ahead. I’m not sure why anybody, on either side of the issue, is opposing going to court. And the only way we can go to court is through a bill.”
The mayor said he would move forward with enforcing the new law, while awaiting a likely legal challenge. “While a legal challenge is expected, and that may prevent us from immediately implementing 2491, I can assure the public that nothing will stop us from moving forward as quickly as possible with the public health study, working with the state to ensure the voluntary program gets off the ground in a timely manner, and lobbying the legislature for additional resources for enforcement on Kauai,” Carvalho said in a written statement issued shortly after the council’s decision.
If the override is allowed to stand—a big if—the county could be stuck in litigation for months, if not years. The broken process has driven a massive wedge into the heart of this once peaceful island community. This 11th hour maneuver has only deepened the distrust and dissension.