UPDATE: Ruling Could Spell End of ‘Lowest Priority’ Law
by Dave Smith
***Updated on May 11***
The county’s top attorney said today that the dismissal of a lawsuit filed over the 2008 ballot initiative making the personal use of marijuana the “lowest law enforcement priority” could eventually result in the removal of the law.
A Third Circuit judge last year rejected a lawsuit filed against a host of county officials that accuses them of not fulfilling the requirements of the law.
County Corporation Counsel Lincoln Ashida said if a pending appeal of the ruling is unsuccessful, and the court’s ruling that the law is unenforceable remains, measures would likely be taken to remove the law from the books.
Ashida said it wasn’t clear what form that would take but it would likely involve a County Council action.
The initiative, which passed by a margin of nearly 10,000 votes, established Article 16 of the Hawaii County Code. The ordinance states that all other law enforcement activities should take precedence over the personal use of marijuana by adults on private property.
The lawsuit was filed in March 2011 by eight people acting as their own attorneys. It named 17 people as defendants including Mayor Billy Kenoi, all nine of the current members of the County Council, three former council members, and Police Chief Harry Kubojiri. The others were Jay Kimura, the county’s prosecuting attorney who later resigned, his successor Charlene Iboshi, and Deputy Prosecutor Mitch Roth.
The lawsuit accused the county officials of a “gross breach of duty” for not protecting the “rights of property, liberty as well as the right to be free from illegal search and seizure of all the citizens of Hawaii County.”
It also accused council members of ignoring “the will of the people” by appropriating funds for marijuana eradication.
The civil lawsuit sought to force the county council to stop funding marijuana eradication and to force the county’s police chief to uphold the oath of the office and the county’s laws or otherwise remove him from office.
The lawsuit also asked for $5 million to be paid to the plaintiffs for “willful malicious violation” of the US Constitution’s Fifth and Fourteenth amendments.
The 17 current and former county officials were represented by Deputy Corporation Counsel Michael Udovic. He presented a variety of defenses against the lawsuit, with the primary one being that county code is preempted by state law, making Article 16 unenforceable.
In November, Circuit Judge Greg Nakamura agreed with Udovic and dismissed the lawsuit.
According to Michael Ruggles, one of the eight who brought the lawsuit, Nakamura’s ruling has been appealed.
Ruggles told Big Island Now that he believes Hawaii to be one of three states in the nation where the doctrine of “home rule” prevails, meaning that county law trumps state law.
“In reality it’s not about marijuana at all,” Ruggles said. “It’s about the public telling the county how to spend its money.”
According to County Prosecutor Charlene Iboshi, county police are bound to honor state and federal statutes.
“We have a legal obligation to follow the law,” she said.
Iboshi said that police are not targeting marijuana users, but such arrests sometimes occur in the enforcement of other laws.
“Sometimes it comes across the radar, such as in drinking cases,” she said. She said if an officer making a traffic stop observes a drug pipe or smells marijuana smoke, “police cannot turn their head.”
She said those convicted in simple marijuana possession cases are not currently going to jail but instead are assessed fines or community service.
Besides Ruggles, those bringing the court action were the Rev. Nancy Harris, Kenneth Miyamoto-Slaughter, Wendy Tatum, David Tatum, George “Greywolf” Klare, Barbara Jean Lang and Robert Murray.
The current members of the council named as defendants were Chairman Dominic Yagong, Angel Pilago, Dennis Onishi, Donald Ikeda, Brenda Ford, Brittany Smart, Pete Hoffman, J Yoshimoto and Fred Blas. The former council members were Kelly Greenwell, Guy Enriques and Emily Naole.