Analysis of Chief Federal District Court Judge Susan Mollway’s June 30th decision

Shakespeare might have said, “the women doth protest too much”, reading Judge Susan Mollway’s incredulous justifications for invalidating the results of last November’s general election in Maui County. Despite her self justifying assertions to the contrary, her improper use of limited authority for a federal judge was wholly improper. 

Regretfully, it is a sad continuation of the same story of US government authority trampling the rights of the Hawaiian people in service to foreign industries. The same story of how these islands were improperly seized (annexed) by under threat of US government military force in service to the sugar industry back in the 1890s. 

In last November’s election, a majority of Maui County residents voted for a moratorium on further open air genetic engineering experiments (and the massive amount of chemical pesticides and herbicides needed to sustain the activity) until independent testing could be done proving the these practices do not cause harm. The ordinance was a wholly valid exercise of rights conferred by the Hawaii State Constitution. Private industry found a way, one more time, to get an unelected US Government official (this time a federal judge) to invalidate it.

In this instance the deployed strategy was to join with sympathetic allies in local government (including the mayor and most of the county legislators who had campaigned against the moratorium) to create a fictitious lawsuit where they asked magistrate Judge Barry Kurren for an injunction “ordering” the county to not implement the will of the people.

The same day that the fraudulent lawsuit was filed, the court record shows that the two colluding parties were already meeting to work out a deal. Any one who knows how the federal judiciary works, knows that REAL disputes between parties, brought to the courts to resolve, do not get resolved by agreement between these same parties the same day the action is filed. 

 3 days later Judge Kurren issued a Federal Court order based upon an “agreement” between the industry’s lawyers and the Maui county officials using his presumed authority to invalidate the election result stating “the Ordinance shall not be published,  enacted, effected, implemented, executed, applied, enforced, or otherwise acted upon until March 31, 2015, or until further order of this court”; Allowing the industry to continue its activities, with impunity, despite the expressed will of the citizenry, for 4 more months.

On March 15th Judge Mollway, at that point in charge of the case, extended the injunction further, after determining that the harm to the industry of lost profits was greater than the potential harm to the environment, or the health of the island residents. This decision flies of the face of well established law to the contrary.  

The Shaka Movement who had developed the ordinance and spearheaded the movement to get the ordinance approved by the voters, appealed to 9th Circuit Court who, despite the industry’s objections, agreed to fast track their review of the case. (link to 9th Circuit Appeal page).

The harms perpetrated against the people of Hawaii, with industry using US government authority as it’s corrupted agent, for now (so sadly) has seemingly been allowed to triumph once again.

There is real reason for hope that this time it may be different however, because the judicial review of Judge Mollway’s court’s abuse of discretion and legal improprieties is still on a fast track before the federal court of appeals. There remains substantial reason to believe that “we the people” will find Justice there. 

Whether or not we actually do certainly will be an indicator as to whether the government of the United States is really still of the people and for the people, or if it has fully digressed to become a government by the industrial elite and for the industrial elite; discarding all illusion of democracy and constitutional rights along the way.  

 The preamble to the Hawaii State Constitution states “ All political power of this State is inherent in the people . . all government is founded on this authority.”  Article 11 of the Sate Constitution affirms “Each person has the right to a clean and healthful environment . . . .Any person may enforce this right against any party, public or private, through appropriate legal proceedings”.

 Judge Mollway’s decision that there is some other source of political and legal authority that “pre-empts” or negates these affirmed rights is wholly invalid and obviously unconstitutional abuse of her judicial authority on it’s face. It is a reflection of the continuing misunderstanding on the part of many public officials, and certainly private industry, about what Ua mau ke ea o ka aina i ka pono ( the State motto “the life of the land is perpetuated in righteousness”) really means.

 The Shaka Movement leadership, along with our attorneys are hopeful that these errors will be corrected, and Judge Mollway’s decisions overturned by the 9th Circuit Court in San Francisco.