Two thousand volunteers over three months collected signatures from Oahu’s registered voters wanting to vote this November on the initiative – “Honolulu Mass Transit Shall Not Include Trains or Rail Transit.” They delivered the petitions on Aug. 4 only to have them refused by the clerk. DeCosta claimed Stop Rail Now asked for a “special” election and the deadline to call for one had passed for this year. Stop Rail Attorney Earle Partington disputed her interpretation of the city charter saying the group wanted the vote during the November General Election and met the required criteria.

Partington, who asked Sakamoto for a preliminary injunction, said if the question is kept off the ballot this November it would cause irreparable harm to the petitioners.

Sakamoto agreed: "There is only one November 4th, 2008 election. The plaintiffs have an opportunity to have these matters heard on that date."

Despite City’s Attempt to Sway Him, Judge’s Mind Made Up

Sitting silent for most of the trial, Sakamoto asked the city corporation counsel Don Kitaoka for minor clarifications of the city’s position.

Kitaoka, whose opening statement was more than 20 minutes, argued on the clerk’s behalf that Stop Rail Now asked for a “special” election, and therefore the clerk was prevented from accepting the signatures until after the General Election. He blamed the organization for developing a confusing petition that asked for a special election when claiming to want to vote in the General Election.

The Stop Rail Now members can have their election, Kitaoka argued, but they will just have to wait to the right time for a special election. He added keeping the issue for a special election will not cause an irreparable harm situation.

Partington, a constitutional lawyer, briefly summed up his points. With precision, he countered that the city clerk and corporation counsel were ignoring the entire provision in the city charter on citizen’s initiatives in favor of one line that suited their purpose. He said if the charter provision was read in full, it is clear that the city is wrong in its interpretation.

After listening to both sides, Sakamoto pulled out his notes on a yellow legal pad and read a prepared statement. He had harsh words for the city for attempting to keep the question off of the general election ballot: “The voice of the people should not be suffocated by erroneous readings of the law by its own government. The city clerk shall immediately cease any continuing refusal to accept the petition," Sakamoto said.

Sakamoto ordered the clerk to accept and process the signatures within 20 days.

Legal Fight Far From Over

Outside the courtroom, Partington said the case was simple. "The language is very clear, I have to admit this is not the hardest case I've ever had.”

Partington said the dispute turned political because DeCosta is advised by the city corporation counsel attorneys who work for Mayor Mufi Hannemann, the $6 billion rail project’s biggest advocate. He called the ruling a “terrible embarrassment” for Hannemann because Hannemann "tried to suffocate the voice of the people as the judge said and prevent them from voting on one of the most important issues that the city and county is facing.”

The corporation counsel and the city clerk denied there was anything political about their case.

Stop Rail Now plaintiffs said they were relieved with the judges ruling but realize with the mayor’s avid support for rail, that the battle to put the issue to a vote this November is probably far from over.

Later in the day, Stop Rail Now volunteers delivered several file boxes containing the original 11,500 plus petitions.

Stop Rail Now volunteers carry petitions into city hall - Photo by Mel Ah Ching

City Clerk Denise DeCosta escorts Stop Rail Now volunteers and its attorney Earle Partington to a secure room where she will review the signed petitions collected by the group. Photo by Mel AhChing

DeCosta, who said she was never against a vote by the people, cheerfully accepted the boxes and began working to notarize each petition immediately with the help of volunteer notaries.

City Clerk Denise DeCosta sits with Stop Rail Now volunteer Cliff Slater to review the signed petitions submitted by the grassroots organization. Photo by Mel AhChing

But Stop Rail Now volunteers wonder how long the city’s amenability will last.

The next debate is sure to be over how many signatures of registered Oahu voters are needed to qualify for the ballot. In one section of the charter, it says 10 percent of the votes cast in the last mayoral election (2004) and another part says 10 percent of those registered to vote in the last election are required.

The final interpretation means a difference between 29,500 valid signatures and 44,500 valid signatures. Though Stop Rail Now collected 49,041 signatures, they still have to be validated. This dispute may end up in court.

Also at issue, the millions of dollars the city administration is spending on advertising and public relations to “educate” the public about the so-called “benefits” of the steel-on-steel rail that the mayor wants.

Stop Rail Now is considering a legal challenge to that use of taxpayer funds as well, saying the ads are false, misleading and illegally being funded with taxpayer money without the taxpayers’ permission.

Political Fight Heats Up

Honolulu Mayor Mufi Hannemann who was touring with Sen. Barack Obama today did not comment on the ruling, but said in the past that he believes rail will prevail in an election. He also said he doesn’t support Stop Rail Now’s version of the initiative.

Two mayoral candidates challenging Hannemann were thrilled with the ruling.

Panos Prevedouros, PhD., a civil engineer who is running for mayor this election, and is opposed to a rail system in Honolulu, said he applauds Circuit Court Judge Karl Sakamoto for his decision.

“It is appropriate for the government to listen to people's desire to vote on the largest ever project in Hawaii. I am glad that the judge did not give any credit to minor technicalities and upheld the First Amendment right of the people to petition their government. This is a major and welcome obstacle to the taxpayer financed campaign of misinformation, intimidation and railroading of the people. I look forward to the complete derailment of Hannemann's useless and exorbitant project."

City Council Member Ann Kobayashi, who is advocating for a better bus system or a rubber-on-concrete rail system rather than the mayor’s steel-on-steel, says she is thrilled that “the people have won, the people have a voice,” adding “what a victory.” She is also running for mayor.

Ann Kobayashi

Kobayashi is one of 9 council members who supported a charter amendment proposal last month put forth by City Council Member Charles Djou asking for the voters to decide whether they support a steel-on-steel rail system. That was likely going to be combined with another charter amendment asking the voters if they want a separate transit authority to run the rail system (possibly with independent taxing and condemnation powers). While all 9 members voted for both of these charter amendments, Djou and Kobayashi say they may drop the first charter provision because of the judge’s decision.

Kobayashi, for one, said she won’t support the charter amendment on the rail question because Stop Rail Now won. “I don’t want to disregard the signatures of nearly 50,000 people,” Kobayashi says.

The council will take up this debate and the transit authority’s powers at its August 20th meeting.

While the Stop Rail Now court victory is a positive step for the citizens group, Stop Rail Now volunteers know there is a great deal more to do before they can claim victory.

They have to get the 49,041 signatures validated and be certified for the November election;

they either have to challenge or tolerate the mayor’s use of millions of their own taxpayer dollars in advertising against them;

they have to counter the wave of “propaganda” that has already hit the airwaves and reeducate the public on their position with virtually no advertising budget;

they have to contend with the mayor’s power and hefty nearly $3 million war chest, which he has used to lobby and advertise for rail.

They also have to counter all of the splinter groups that Hannemann and other groups benefiting from rail contracts (such as engineers and the Carpenters Union) have started in order to flood the airwaves and news media with their pro-rail view point.

Dennis Callan, co-chairman of Stop Rail Now, who was at the court hearing, said he welcomes the judges ruling because now the public can begin to pay more serious attention to the rail issue because they know a vote is coming up. "Our job now is to educate the public to the alternatives, which we feel are far superior."

Reach Malia Zimmerman, editor of Hawaii Reporter, at mailto:Malia@hawaiireporter.com

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