Maui council open to personal liability
By Christie Wilson
Advertiser Neighbor Island Editor
WAILUKU, Maui — The 9th U.S. Circuit Court of Appeals yesterday affirmed a federal court's ruling that Maui County Council members could be sued on a personal basis over the council's denial of a conditional-use permit for a commercial wedding business at a beachfront home in West Maui.
Sandra Barker and her company, A Romantic Maui Wedding, and Laki Ka'ahumanu, the pastor of Harvest Chapel Church of God, filed a lawsuit under the federal Religious Land Use and Institutionalized Persons Act of 2000 against the county and council members in their individual and official capacities after the council voted in November 2000 to deny the permit request.
The county moved to dismiss the claims against the council members in their individual capacities, arguing they had legislative immunity. A U.S. District Court judge in Honolulu denied the motion, and it was appealed to the higher court, which agreed that the council's decision to deny the permit "was ad hoc, affected only the plaintiffs and did not bear all the hallmarks of traditional legislation."
Barker already received a $29,000 settlement from the state in 2001 after filing a separate federal lawsuit charging that her constitutional rights were being violated by the state requiring her to obtain a right-of-entry permit to a public beach and to pay for a state conservation enforcement officer to be at the weddings.
Maui attorney Jim Fosbinder, representing Barker and Ka'ahumahu, who conducts some of the ceremonies, said the state acknowledged it could not require permits or fees for weddings, which should be treated no differently than birthday parties or other similar events.
Commenting on yesterday's court ruling, Fosbinder said the council's decision to deny the permit was clearly an administrative action, not one that involves lawmaking.
"This involved two people, one issue, one lot. It was not law," he said. "This should come as quite a shock to the County Council. They do this all the time."
Newly appointed Maui County Corporation Counsel Brian Moto, whose department handled the appeal on behalf of the council, said yesterday he had not seen the latest ruling and would withhold comment on how it may affect council business or whether the county would seek an appeal before the U.S. Supreme Court.
Fosbinder said the council can continue to consider permit applications on a case-by-case basis, "but they take the risk" of being held liable for actions of an administrative nature. "They always thought they were immune," he said.
Barker began arranging weddings in 1998 at her beachfront home in Mahinahina and provided beach access through her property for ceremonies on the public beach. Because the property is in a residential district, she applied for a conditional-use permit to use her home as a commercial wedding venue.
The Maui Planning Commission recommended approval but the council voted to deny the permit application Oct. 20, 2000, after neighbors opposed the business. About a month later, the county fined Barker $1,000 for continuing to conduct weddings on the beachfront property.
While it has long been legally held that legislators are immune from liability for their legislative acts, the 9th U.S. Circuit Court of Appeals pointed out that not all acts by a lawmaking body are necessarily legislative in nature. Actions could be considered executive or administrative in nature, depending on the motive or intent.
Since the council action affected only a single applicant and not the public at large, "we conclude simply that the very limited impact of the conditional-use permit at issue here weighs against absolute immunity," the court said.
The Religious Land Use and Institutionalized Persons Act is the same law cited in a pending federal lawsuit filed against the Maui Planning Commission by Hale O Kaula Church, which is seeking to expand its facilities on agricultural land in Kula.
