The Kauai County Charter provides that it may be amended by a citizens petition signed by not less that 5 percent of the county’s registered voters in the last election if it receives a majority of the votes at a general election. The Charter also provides that a citizens petition may be used, with certain exceptions, to adopt ordinances or to reject ordinances passed, when the petition is signed by 20 percent of the county’s registered voters and it receives a majority of the votes at a general or special election.
On several occasions the Charter Review Commission has considered this disparity in the requirements for the number of signers of the petitions — 5 percent for the charter amendments and 20 percent for the initiatives and referendums. Just this year, the commission considered proposals to raise the signature requirement for amendments and lower the signature requirement for initiatives and referendums, and determined to take no action.
However, that decision did not rest well with officials of the Kauai County Chamber of Commerce. Although only two petition-based amendments of the charter had been adopted by the voters in the approximately 50 years of the existence of the charter, the chamber professed distress over the fact that both were subjected to litigation as to their validity as to which the county had incurred costs.
Despite the fact that this body had never previously done so, it determined to circulate petitions for citizens to obtain the requisite number of signatures to place on the November ballot an amendment to the charter that would raise the number of required signatures for an amendment to 20 percent of the registered voters.
Fortunately, that petition drive fell short.
The basic issue which underlies and essentially constitutes the concern arising in the chamber relates to the form of government that our county should have. We elect our county mayor and council to represent us in the conduct of governmental affairs. But what is the recourse when our elected officials act or fail to act in a manner consistent with the public will. Some believe that when we have elected our representatives, citizens should have no further power while others, including the authors of our charter, believe that citizens should, with limited exceptions, have the power to change government rules, laws and regulations that do not conform to the wishes of a public majority.
This conflict also arises at other government levels. There is no power to amend the federal constitution by citizen petition. This was also the general rule for the original states, but the majority of the more recently admitted states provide for amendment of their constitutions by way of citizen petition. Hawaii is not one of them.
However, in local governments citizen petitions generally are allowed for charter amendments and initiatives and referendums.
In my view, if the right is to be afforded to citizens to affect through use of petitions the terms of our charters and ordinances that right should be one which with a reasonable effort can be achieved. Setting an unreasonably high standard for the number of signatures a citizens petition must have is tantamount to offering the right but then making it illusory and unattainable. Experience has shown that the 20 percent requirement is simply too high to be feasible in nearly all instances.
Related issues have occurred with the petitions being circulated by a group calling itself Kauai Rising seeking a charter amendment relating to GMOs. The county provides instructions to sponsors of such petitions containing detailed advice relating to signature procedures but omitting basic information about the nature of a proposal that will be approved by the county as a charter amendment.
In consequences such sponsors expend much time and effort and considerable money without receiving this valuable information. However, belatedly on July 8 the County Attorney’s office released its opinion which contends that the content of the Kauai Rising proposal is not appropriate for a charter amendment and that the procedural requirements were not met for an initiative as well as there being insufficient signatures for it. The opinion stated that the council had the authority to accept or reject the proposal. The council wrestled with the problem, but voted to receive the petitions which means that they are neither accepted or rejected. It will vote again on the matter at the July 23 meeting.
Isn’t it a sad commentary on our government when it cannot or will not answer what the county’s position is on the nature of the proposal in a timely manner.
With the evident inefficiency and uncertainties in our government, it seems to me it is the far wiser course not to deprive or unduly limit our right to act on matters where our government actions do not comply with the public will.
Walter Lewis is a retired attorney and Lihue resident. He writes a regular column for The Garden Island.
