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The courts, not the city of Honolulu or its voters, made one of the most important decisions that allowed the launching of Honolulu’s multi-billion dollar rail project.
Or rather, it was a decision the courts never allowed the citizens to make.
Stop Rail Now, a group that fought rail development in 2008, argued that they collected enough petition signatures for a ballot initiative that would allow Oahu’s registered voters to decide on an ordinance prohibiting development of the rail transit system.
Hawaii courts blocked the proposed ordinance from the ballot.
The Legislature has repeatedly rejected calls for a statewide initiative process. But each county — Honolulu, Kauai, Maui and the Big Island — allows for citizen initiatives to create new ordinances or policies. Kauai also has a referendum process for changing or overturning existing laws.
Citizen initiatives remain fairly rare. Much more common is for county councils to place charter amendments directly on the ballot for voter approval.
The outcome of many of the initiatives proposed by voters in Hawaii’s history, whether they passed or not, were ultimately decided in courtrooms.
“Ballot initiatives tend to tackle controversial topics, and the losers are oftentimes motivated to challenge the initiative if it passes,” said Kenneth Miller, a professor at Claremont Mckenna College who studies the effect of courts on ballot initiatives.
Ballot initiatives are often vulnerable to challenge because of their wording. Most aren’t written by legal professionals and in turn open themselves to legal challenges, he said.
The initiative process is relatively simple. Petitioners just need to gather signatures from 10 percent of registered voters from mayoral elections in Honolulu, 15 percent in Hawaii and Maui counties and 20 percent in Kauai county. The county clerk verifies the process.
But in 2008, that process wasn’t clear enough, at least in Honolulu. And it led to Stop Rail Now and the city meeting before the Hawaii Supreme Court. They argued over language in the Honolulu charter and whether or not the anti-rail group got enough signatures to place the question on the ballot.
The Supreme Court ruled in favor of the city and said it was too late to put the initiative on the ballot since those had already been sent out by the time the court filed its opinion.
In the 2008 general election, Honolulu voters passed a ballot resolution forwarded by the council for construction of the rail transit system 156,051 to 140,818.
The City Council revised language in the Honolulu Charter in 2010 to make clear the process for getting initiatives on the ballot.
While the counties grant citizens the power to get initiatives on the ballot, that power comes with some caveats.
It can’t be used to authorize or repeal taxes, appropriate money, issue bonds and approve salaries or contracts, according to the county charters. Hawaii’s Supreme Court added another limitation in the 1980s: initiatives can’t change land use and zoning laws.
The latter decision came after two initiatives were approved by voters and then invalidated by the courts.
In 1984, the Honolulu City Council approved high density development on a 5-acre tract of land between Date and Laau Streets behind Kaimuki High School. The approval generated strong opposition from residents and a citizen commission that reported to the council, according to court documents.
The late Sen. Mary Jane McMurdo lead an effort to block the developments on Date Street. Then in 1984, citizens passed an initiative to downzone the Date-Laau tract to low density development.
The Circuit Court invalidated the ballot initiative several months after it passed, ruling that the Honolulu City Council has the sole power to create zoning ordinances.
But the City Council passed an ordinance that year similar to the initiative that downzoned the tract of land, according to court documents.
Eventually, in 1989, the Supreme Court would hand down a broader ruling that made zoning by initiative illegal.
Around the time of the Date-Laau decision, a group called Save Sandy Beach formed to halt the development of properties fronting the Hawaii Kai Golf Course.
Phil Estermann, who helped to lead the Save Sandy Beach group, says the group had no problem collecting the 40,000 signatures they needed to put their initiative on the ballot. The problems came afterward in the form of lengthy court battles, he said.
“What the Supreme Court did in 1989 was to strip all four counties … of the power which allowed for land use initiative,” Estermann said.
The Supreme Court ruled that the Hawaii Constitution grants sole land use power to the counties and not to the citizens.
“Zoning by initiative is inconsistent with the goal of long range comprehensive planning,” the Supreme Court wrote in its opinion.
David Callies, a University of Hawaii law professor and a Hawaii land use expert says that the court’s decision was legally sound and acts as an important check on the initiative process.
The only two options for Hawaii voters to get the power to zone by initiative back would be amending the state constitution or the Legislature adding language to the constitution that grants citizens power to control land use, Callies said.
While the Supreme Court outlawed zoning by initiative in 1989, it made two decisions in the early 1980s that allowed it by referendum on Kauai.
Voters in 1980 stopped a 350-room resort development on a 25-acre parcel near Nukolii Beach, just north of Lihue.
Kauai County had already granted the developers building permits, and construction was underway when the referendum passed. The Supreme Court halted construction October 1982, saying that the developers continued to build at their own risk even though they knew the referendum passed.
Then Hurricane Iwa struck Kauai a month later. Former Gov. George Ariyoshi estimated damages on Kauai would cost $200 million in 1982 dollars.
A group called Kauaians for Nukolii formed the following year to reverse the 1980 ballot initiative and resume construction, arguing in court documents that the project would create much needed jobs.
The group was financed by Japanese development firm Hasegawa Komuten, which worked on the half-finished resort.
Kauaians for Nukolii collected the signatures necessary to put their initiative to continue construction on the ballot and then, with funds from the Japanese developers, offered the city council the $50,000 it needed to finance a special election for the initiative, according to court documents.
The county took the money and organized a special election in February 1984 where Kauai voters approved the development they voted against four years prior.
The Big Island has seen its share of progressive initiatives. In 1974, voters sacked a council decision to put flouride in the drinking water. In 1998, they rejected an initiative that would ban irradiated fruit.
And in 2008, voters easily passed an initiative that effectively decriminalized all but the most prolific ganja farmers by making pot laws the lowest law enforcement priority.
The ordinance would have removed criminal penalties for anyone over the age of 21 that posseses 24 ounces or less of marijuana.
Hawaii County could not enforce the ordinance because it conflicted with state law, the Supreme Court wrote in its opinion.
A federal appeals court used the same line of reasoning when it ruled against a ban on genetically modified organisms, or GMOs, in Maui County.
The court concluded that Hawaii’s pesticide law was comprehensive enough to cover the same subject matter as the initiative that just narrowly passed Maui voters by a 1,000 vote margin.
The ban could have had an adverse effect on Molokai, which relies heavily on farming. State economists estimated that unemployment on Molokai could have risen to 18 percent.
Mark Sheehan, president of the SHAKA Movement which lead the charge against GMO, said that the initiative wasn’t meant to be an attack on farming.
The moratorium, which would have affected crops on Maui, Lanai and Molokai, would have banned GMOs until the county studied their effects on the environment.
“It was a magic moment. We hit a nerve with people,” Sheehan said.
A state commissioned study on crops in 2016 called for larger buffer zones where pesticides may be applied to crops and requirements for seed companies to disclose what types of pesticides they use.
Sheehan says that though the moratorium ultimately failed, it helped bring attention to pesticide use in the state.
“This was not a one man show. It was a real community effort,” Sheehan said. “That’s the ‘wow’ of the moratorium: we lost the court case, but we got a community of activists to challenge the power of the companies.”
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