Citizens Sue Maui Mayor (Finally) To Force Him To Settle SCOTUS Clean Water Act Case - But Is It Too Late To Scuttle The Arguments?

by Robert Thomas, InverseCondemnation, October 29, 2019

Here's the other shoe that we've been waiting to drop.

Recall that in our last post on the pending Clean Water Act case (SCOTUS oral arguments scheduled for November 6, 2019 - yeah, as in one week from tomorrow), we suspected that a declaratory judgment action would be filed in a Hawaii state court to resolve the internal dispute between the various branches of the Maui County government about which branch(es)'s approval is needed to settle the case.

On one side, the Mayor claims that the settlement of the CWA case needs his approval (which he isn't giving). The Corporation Counsel's analysis backs his argument up. On the other side, the County Council -- which, by a one-member margin voted to settle the case because the CWA plaintiff's lawyers are terrified of what the Supreme Court might do with the case -- who assert that they alone have the power to settle. Their argument is backed up by their legislative counsel.  

Well, someone finally got it together and filed this complaint in the Second Circuit Court (Maui County), asserting the Mayor's check-off isn't needed to settle, and for good measure seeking to bar the Corporation Counsel from representing the County in the Supreme Court case. The timing, however, is problematic (what took them so long?) because the outcome of this case only is of consequence if it somehow prevents the U.S. Supreme Court from deciding the CWA issues. And the oral arguments are a mere week from now. 

Several points of interest.

First, the plaintiffs. No, the plaintiffs are not the County Council itself or its members, but an environmental group (surprise, surprise), and several individual Maui residents, all who claim interests in the outcome of the legal question of who gets to settle the case. If this were federal court with its Article III case and controversy standing requirements, we'd bet the court might have a difficult time finding standing. But this is a Hawaii court applying Hawaii law, and anyone who might be able to allege even "butterfly effect" linkage to the desired outcome has a very good argument for standing. 

Second, is the Council itself, or the council members, or both necessary or "indispensable" parties who can and therefore should be joined before the court resolves the case. Sure looks like it to us, at least if you apply the Hawaii Supreme Court's logic in a case we were involved in, Kellberg v. Yuen, 135 Haw. 236, 349 P.3d 343 (2015), the court held that if an absent party might have an interest that could be "impaired" by the court's judgment, then the court needs to determine whether the party can be joined. Here, you'd think that in a case asking the court to declare what the council's collective and official rights and duties are, that the council or its members need to be present. And there's little doubt that the council and members can be joined -- they're all in the circuit and amenable to service. So very likely, the analysis stops there and the plaintiff must try to join them. (Of course, if they can't be joined, then the court will also need to do an "indispensable" analysis and resolve whether the plaintiffs' claims can be determined in the absence of the necessary parties.) But on the whole, it looks to us like the right parties need to be in court before the court can do anything on the merits. 

And that brings us to our third point, the really critical question: what does all of this mean for the looming SCOTUS oral arguments? So far, despite a flurry of back-and-forth correspondence from the Maui factions, the Court has kept the OA on schedule for next week and has been silent. Will the Justices care about the internal Maui kerfuffle? Will the Supreme Court hold up while they work it out? Will the Hawaii courts be able to act in time? Can the Maui court join the necessary parties in time to even reach the merits?

We're not certain, but we're going to be following along for sure. 

PDF: Complaint, McKelvey v. Victorino, No. -- (Haw. 2d Cir. Oct 28, 2019)

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