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James H. Fosbinder #7070 IVEY FOSBINDER FOSBINDER LLLC A Limited Liability Law Company 1883 Mill Street Wailuku, HI 96793 (808)242-4956 tel. (808)249-0668 fax Attorney for Plaintiffs
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI’I
MOLOKAI VETERANS CARING FOR VETERANS, a Hawai’i non-profit corporation; MAXIMO AGAN; DONALD ALBINO (Deceased); FRANKLIN AUGUSTIRO; BENJAMIN BALI; PATSY BIRD; GEORGE DENISON; JESSE DUDOIT; RICHARD ELLERTSEN; WENDALL DEFREITAS; MANUEL GARCIA; MELVIN HANOHANO; HILARION H. HELM; TERRACE KEKAHUNA; JOHN KEOHULOA (Deceased); ADOLPHUS LANKFORD; JOHN LOGAN; CUMINS MAHOE; FRANK MANIAGO; KELSON K. POEPOE; KAIPO RAMOS; WAYNE RAWLINS; RAYMOND SAMBUENO; MICHAEL TANCAYO (Deceased); and LASLO TOTH
Plaintiffs,
v. COUNTY OF MAUI; CHARMAINE TAVARES, Mayor of County of Maui; ROY SILVA, Executive Assistant to Mayor Tavares; MAHINA MARTIN, County Community Relations and Communications Director; DEPARTMENT OF WATER SUPPLY, COUNTY OF MAUI; JEFFREY K. ENG, Director of
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CIV NO.___________ COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF AND DAMAGES; DEMAND FOR JURY TRIAL; EXHIBITS “1”–“11”; SUMMONS (Constitutional and 42 U.S.C. § 1983 Violations; Violations of State Law as Supplemental Claims)
Department of Water Supply, County of Maui; BOARD OF WATER SUPPLY, COUNTY OF MAUI; PLANNING DEPARTMENT, COUNTY OF MAUI; CLAYTON YOSHIDA, Administrator, Planning Department, County of Maui; and DOES 1 – 5, inclusive;
____________Defendants_________
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COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF AND DAMAGES
Plaintiffs MOLOKAI VETERANS CARING FOR VETERANS, a Hawai’i
non-profit corporation, MAXIMO AGAW, DONALD ALBINO (Deceased),
FRANKLIN AUGUSTIRO, BENJAMIN BALI, PATSY BIRD, GEORGE DENISON,
JESSE DUDOIT, RICHARD ELLERTSEN, WENDALL DEFREITAS, MANUEL
GARCIA, MELVIN HANOHANO, HILARION H. HELM, TERRACE KEKAHUNA,
JOHN KEOHULOA (Deceased), ADOLPHUS LANKFORD, JOHN LOGAN, CUMINS
MAHOE, FRANK MANIAGO, KELSON K. POEPOE, KAIPO RAMOS, WAYNE
RAWLINS, RAYMOND SAMBUENO, MICHAEL TANCAYO (Deceased), and LASLO
TOTH [collectively, “Plaintiffs”] hereby allege against
Defendants as follows:
INTRODUCTION
1. Many of the 600 veterans living on the island of Moloka’i
would give their lives for what is right (pono). They are kanaka
maoli who saw heavy combat in Vietnam or Korea. They are nisei
of the 442nd, the most highly decorated regiment in United
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States history. They are sons and daughters of all the people of
Moloka’i, coming home from Iraq and Afghanistan. From every
lineage, the veterans are all koa kahiko, wise ancient warriors
of Moloka’i. Forgotten for decades, they campaigned and raised
money for a Veterans’ Center on Moloka’i, only to be caught in
an endless web of confusion and deceit, spun by government
officials who are withholding final approval of their building
permit. The koa kahiko of Moloka’i are filing this Complaint for
justice.
2. This action is brought by MOLOKAI VETERANS CARING FOR
VETERANS, a Hawai’i non-profit corporation (“Molokai Veterans”),
and the individual Plaintiffs set forth in the caption, all
United States citizens, veterans and residents of Moloka’i. On
information and belief, additional individual plaintiffs may
join this action as it develops. Plaintiffs bring this civil
rights action for prospective injunctive and declaratory relief
and damages pursuant to 42 U.S.C. § 1983, to prevent, and
recover damages arising from, Defendants’ violation of
Plaintiffs’ constitutional rights, and for retaliation for the
exercise of fundamental constitutional rights, and pursuant to
other related causes of action.
3. Despite overwhelming popular and political support,
years of senseless, relentless roadblocks by Defendants have
prevented the walls of the Veterans’ Center from rising on
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Moloka’i. After lengthy and unjustifiable delays by the Maui
County Planning Department, all County approvals were finally
granted, except for one. Defendant Eng, Director of Defendant
Department of Water Supply [“DWS”], continues to withhold the
approval required for Molokai Veterans’ building permit, even
though the Fire Department has determined that there is ample
water for fire protection at the Veterans Center.
4. Using inappropriate standards designed to force
individual consumers to pay for improvements to the County water
system, DWS requires Molokai Veterans to pay for upgrading the
line. Eng continues to hold to this position, even though there
is no fire hazard and the required upgrade would be demolished
by the County when it does its own planned improvements. DWS
Rules and Regulations are being enforced in an arbitrary,
discriminatory and unfair manner, without a rational
relationship to any legitimate government purpose, in violation
of Molokai Veterans’ rights to substantive and procedural due
process and equal protection under the Fourteenth Amendment of
the United States Constitution.
5. In addition, the costs imposed on Molokai Veterans by DWS
are illegal taxes in violation of the Constitution and laws of
the State of Hawai’i and the Maui County Charter, and a
retrospective application of new standards in violation of
Hawai’i law.
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6. Molokai Veterans appealed Eng’s decision to Defendant
Board of Water Supply, which routinely delays hearing such
appeals for a year or more. BWS has also informed Molokai
Veterans that their appeal will be further delayed if they are
represented by legal counsel. Molokai Veterans seeks an
injunction to prevent denial of its due process rights by
requiring the Board of Water Supply to hear its appeal without
delay.
7. Defendants violated Plaintiffs’ First Amendment rights
when (i) Tavares threatened Larry Helm, Molokai Veterans’
Commander, and his personal physician, in an attempt to
retaliate against Helm and Molokai Veterans and prevent them
from demonstrating in a public forum; (ii) Silva and Martin
attempted to coerce Molokai Veterans into “minimizing” their
protest and gave Molokai Veterans misleading information to
persuade them to comply; and (iii) unidentified persons on the
County staff intentionally misinformed the press and other media
by falsely claiming that the County’s dispute with Molokai
Veterans had been resolved, so that the media would not cover
the demonstration.
8. Plaintiffs also claim damages resulting from Defendant
County of Maui’s failure to train and supervise its employees,
resulting in injury to the Plaintiffs.
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9. The individual Plaintiffs suffer from permanent post-
traumatic stress disorder (“PTSD”). The stress and frustration
of an endless struggle to obtain County permits, the tragedy of
watching scores of fellow veterans die while waiting for the
Veterans Center to open, and the onslaught of Tavares’s rage
against their Commander, have caused the individual Plaintiffs
physical, mental and emotional injuries, continuing to this day.
The individual Plaintiffs seek damages from Defendants resulting
from intentional and negligent infliction of emotional distress.
On information and belief, other Moloka’i veterans may also join
in this action.
JURISDICTION AND VENUE
10. This is a civil action under the Constitution and laws
of the United States, and this Court has jurisdiction under 28
U.S.C. § 1331.
11. The individual Plaintiffs, all United States citizens,
and Molokai Veterans, a Hawai’i non-profit corporation with
members who are United States citizens, bring this action
against Defendants to redress the deprivation, under color of
state regulations, customs and usage, of rights secured by the
Constitution of the United States and by 42 U.S.C. § 1983
(1994), and to recover damages and secure equitable and other
relief under Section 1983, which provides for the protection of
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civil rights. This Court has jurisdiction under 28 U.S.C. §§
1343(a)(3) & (a)(4).
12. This Court has supplemental (pendant) jurisdiction
under 28 U.S.C. § 1367(a) to hear Molokai Veterans’ State law
claims.
13. Venue is proper in the District of Hawai’i pursuant to
28 U.S.C. § 1391(b), because the subject matter of this action
arose in Hawai’i, all defendants are subject to personal
jurisdiction here, and there is no district in which this action
may otherwise have been brought.
THE PARTIES
14. Plaintiff MOLOKAI VETERANS CARING FOR VETERANS is a
Hawai’i non-profit corporation [“Molokai Veterans”] dedicated to
caring for veterans of the United States Armed Forces.
15. Plaintiff HILARION H. HELM [“Larry” or “Helm”] at all
times relevant herein was and is a competent adult individual,
born on Maui and living on the island of Moloka’i, Hawai’i. Helm
is a heavy combat veteran of the Vietnam War, still experiencing
symptoms of PTSD. Helm is the Commander of Molokai Veterans and
has led the efforts to build a veterans center on Moloka’i for
four years.
16. Plaintiffs MAXIMO AGAN, DONALD ALBINO (Deceased),
FRANKLIN AUGUSTIRO, BENJAMIN BALI, PATSY BIRD, GEORGE DENISON,
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JESSE DUDOIT, RICHARD ELLERTSEN, WENDALL DEFREITAS, MANUEL
GARCIA, MELVIN HANOHANO, TERRACE KEKAHUNA, JOHN KEOHULOA
(Deceased), ADOLPHUS LANKFORD, JOHN LOGAN, CUMINS MAHOE, FRANK
MANIAGO, KELSON K. POEPOE, KAIPO RAMOS, WAYNE RAWLINS, RAYMOND
SAMBUENO, MICHAEL TANCAYO (Deceased) and LASLO TOTH at all
relevant times herein were and are competent adult individuals
living on the island of Moloka’i, veterans of the United States
Armed Forces, and members of Molokai Veterans, except that
Plaintiffs Donald Albino, John Keohuloa and Michael Tancayo are
now deceased. Plaintiffs will seek to amend this Complaint to
substitute appropriate representatives for such Plaintiffs.
17. Defendants MAUI COUNTY, MAUI COUNTY DEPARTMENT OF
WATER SERVICE [“DWS”], and MAUI COUNTY BOARD OF WATER SUPPLY
[”BWS”] are, and at all times herein relevant were, the local
authorities charged with responsibility for establishing and
maintaining a water system for the benefit of the public on
Maui, and for the enactment, implementation and enforcement of
the relevant written and unwritten administrative rules,
regulations and policies challenged herein.
18. Defendant MAUI COUNTY PLANNING DEPARTMENT [the
“Planning Department”] is, and at all times herein relevant was,
the local authority charged with responsibility for reviewing
development proposals, zoning requirements for building permits,
changes in zoning, and special management permits, and for the
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enactment, implementation and enforcement of the relevant
written and unwritten administrative rules, regulations and
policies challenged herein.
19. Defendant CHARMAINE TAVARES [“Tavares”] is an
individual who since 2007 has been the Mayor of Defendant Maui
County, responsible for oversight of the implementation and
enforcement of the administrative rules, regulations and
policies undertaken by Maui County and DWS, BWS and Planning
Department. Tavares acted discretionarily and arbitrarily to
threaten and attempt to intimidate Plaintiffs, despite Tavares’s
knowledge that such actions were in clear violation of
Plaintffs’ First Amendment rights.
20. Defendant JEFFREY K. ENG [“Eng”] is an individual who
since 2007 has been the Director of DWS, responsible for
oversight of the implementation and enforcement of the written
and unwritten administrative rules, regulations and policies
undertaken by DWS. Eng has acted discretionarily and arbitrarily
to deny approval of Molokai Veterans’ building permit, despite
Eng’s knowledge that his denial wrongly deprives Molokai
Veterans of permission to build the Veterans Center and imposes
an illegal tax and retrospective law on Molokai Veterans.
21. Defendant ROY SILVA [“Silva”] is an Executive
Assistant to Mayor Tavares. Silva acted discretionarily and
arbitrarily to attempt to coerce Plaintiffs into “minimizing”
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their public protest, despite Silva’s knowledge that such
actions were in clear violation of Plaintiffs’ First Amendment
rights.
22. Defendant MAHINA MARTIN [“Martin”] is the Community
Relations and Communications Director of Maui County. Martin
acted discretionarily and arbitrarily to attempt to coerce
Plaintiffs into giving up their public protests, despite
Martin’s knowledge that such actions were in clear violation of
Plaintiffs’ First Amendment rights.
23. Defendant CLAYTON YOSHIDA [“Yoshida”] is an
Administrator with the Maui County Planning Department. Yoshida
acted discretionarily and arbitrarily to unreasonably and
inexplicably delay consideration of Molokai Veterans’ permit
application, despite Yoshida’s knowledge that such actions were
in clear violation of Plaintiffs’ constitutional rights to due
process.
24. Plaintiffs, despite diligent effort to ascertain the
same, are presently unaware of the true names and capacities of
the John Doe 1-5 Defendants, but will amend this Complaint as
soon as they are ascertained.
STATEMENT OF FACTS
25. Moloka’i sends more of its sons and daughters to serve
in the United States Armed Forces than any other island in
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Hawai’i, on a per capita basis. An estimated 600 veterans of all
wars live on Moloka’i. Until recently, veterans on Moloka’i
received only minimal care from the government.
26. In 2001, veterans [“Vets”] formed Molokai Caring for
Veterans, a Hawai’i non-profit organization that advocates for
and supports veterans’ rights. Now the Vets have their own
physician on Moloka’i, a psychologist, a psychiatrist and social
service benefits counselors seeing some 200 Moloka’i Vets
weekly. Over 359 Vets are members of Molokai Veterans, which
operates out of a small rented storefront that holds only six
people comfortably. Vets gather on the sidewalk or out back,
with no other place to call their own.
27. Many of the Vets are disabled, some with permanent
PTSD, which can worsen under duress.
28. Molokai Veterans acquired 16,182 square feet of
property on Kaunakakai Place (also known as Wharf Road) in
Kaunakakai (Tax Map Key No. (2) 5-3-001:001)[referred to herein
as the “Property”] to build a Veterans Center. The property was
formerly used by Molokai Ranch and had structures on it, which
were demolished. Adjacent properties include an array of
commercial businesses, restaurants, offices, civic clubs and
homes, all on the same 4” water line as the Property.
29. Molokai Veterans’ plans for the Veterans Center call
for a 1,890 square foot prefabricated building, with a 1,100
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square foot covered lanai (pavilion), to be purchased from Big
Island Packaged Homes. The Center will include a meeting area, a
small kitchen, space for benefits counselors and a museum. The
Center will provide a permanent space to welcome all Molokai
Veterans, visiting Veterans, counselors, Veterans Administration
representatives and the community.
30. In 2007, Molokai Veterans received a grant of $250,000
from the Hawai’i State Legislature to make their dream of a
Veterans Center come true. Maui County turned the dream into a
nightmare, triggering flashbacks and other symptoms of PTSD in
the Plaintiffs, as the Veterans Center was held up by endless
roadblocks and Plaintiffs were caught in a web of political
manipulation and deceit. The former Treasurer of Molokai
Veterans, Michael Tancayo, and 44 other members of the
organization, have died waiting for the County to approve the
Veterans Center, as the Plaintiffs watched in anguish.
31. Danny A. Mateo, Chair of the Maui County Council has
acknowledged that Molokai Veterans “jumped through all the hoops
required by Maui County.” See Exhibit 1, attached, Letter dated
May 24, 2010 from Danny A. Mateo to Jeffrey Eng. Yet the Vets
have been arbitrarily denied approval for the Veterans Center
and have been harassed and threatened for protesting. Plaintiffs
are bringing this action because all else has failed, and their
constitutional rights have been blatantly violated.
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32. Molokai Veterans has received commitments from
volunteers to do most of the work on the Veterans Center, under
the direction of a licensed general contractor, and several
vendors and subcontractors have offered materials and services
at a substantially reduced cost. Because of Defendants’
unjustifiable delays, these commitments are now at risk of being
lost, and Molokai Veterans and Commander Helm have been made to
look like they are not pono (righteous). In addition, Molokai
Veterans has expended more than $30,000 on materials and
services for the project.
33. Shortly after receiving the grant from the State,
Molokai Veterans consulted with the Maui County Planning
Department to determine what permits would be required for the
Veterans Center. In November 2007, Nancy McPherson, Maui
Planning Assistant, told Molokai Veterans that because the
structure would cost less than $125,000, a public hearing would
not be necessary, and that because the Property is in an Interim
Light Industrial zoning area, all that was needed was a minor
Special Management Area (SMA) Permit and paperwork required by
the Molokai Planning Commission. Molokai Veterans applied for a
minor SMA Permit in November 2007.
34. The Maui County Planning Department did not respond
for almost a year. In September or October of 2008, Nancy
McPherson told Molokai Veterans that they needed an
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environmental impact exemption from the Department of Defense,
but DOD told Molokai Veterans they did not need this. In October
2008, Yoshida, an Administrator with the Planning Department,
told the Molokai Veterans’ architect that the organization had
to apply for a zoning change, because there was an inconsistency
between the Maui Zoning Code and the Moloka’i General Plan.
Yoshida waited another two months to send a letter imposing this
requirement.
35. Although the zoning change appeared arbitrary and
unreasonable, Molokai Veterans paid over $1,000 for a survey and
a rezoning application. After the Vets went through this effort
and expense, the County amended the Zoning Code in 2010 to make
the rezoning unnecessary.
36. As part of the agency review process for the SMA
permit, Staff Planner Nancy McPherson received a letter dated
May 4, 2009 from DWS, signed by Eng, stating that the Property
was serviced by an 8” water main. See Exhibit 2, attached,
Letter dated May 4, 2009 from Jeffrey Eng to Nancy McPherson.
Molokai Veterans relied on this letter in making their plans and
commitments.
37. In October 2009, Molokai Veterans submitted plans to
the Maui County Building Department to obtain a building permit.
Molokai Veterans’ SMA Minor Use Permit was approved on December
2, 2009, with the Conditions of Approval stating that the
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Property was serviced by an 8” water main located on the east
side of Kaunakakai Place.
38. In April, 2010, as the building permit process neared
completion, DWS suddenly produced a letter that it had written
in 2006, when DWS installed a water meter on the Property at a
cost of $6,700 to Molokai Veterans. DWS had vaguely noted in
2006 that water service would need to be “upgraded” for future
development, without specifying the nature of the upgrade.
39. DWS forgot about this for three years, while it
assured Molokai Veterans and all County agencies that the
Property was serviced by an 8” water main. Out of the blue at
the eleventh hour, DWS declared that the 8” main was in fact a
4” line. It turns out that there is an 8” line, but it
terminates approximately 463 feet north of the Property.
Apparently unable to read their own maps, DWS and Eng had misled
Molokai Veterans and all of the agencies involved in the permit
process.
40. In Maui County, the Fire Department determines whether
there is adequate water for fire protection: “An approved water
supply capable of supplying the required fire flow for fire
protection shall be provided to all premises upon which
facilities, buildings or portions of buildings are hereafter
constructed or moved into or within the jurisdiction.” See
Exhibit 3, attached, Maui County Code [“MCC”] § 16.04B.130.
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41. On the other hand, DWS’s primary concern is
“Preservation and maintenance of water services to existing
users without undue reduction in amount of water received or
services rendered . . . .” Exhibit 4, attached, DWS Rules and
Regulations [“R&R”] § 1-1.
42. The Fire Department and DWS have different mandates
and different concerns. The Fire Department is concerned with
fire flow and fire protection. DWS is concerned with the
quality of service for all users.
43. Looking at the Veterans Center, the Fire Department
concluded that there is sufficient water for fire protection
because there is enough water to put out a fire. DWS concluded
that there is not enough water, because the quality of service
for some residents might be temporarily disrupted when the fire
department extinguishes a blaze, with sediment producing brown
water. See Exhibit 5, attached, Water Resources Committee,
Council of the County of Maui, Minutes of Meeting, August 3,
2010 [hereinafter referred to as “Water Committee Minutes”],
p.24.
44. Eng also stated that “negative pressure” could pull
toilet water into the system. Id. Even if such a thing were
possible, Eng did not explain why the alleged risk to the
community was acceptable if it was caused by a fire at one of
the many businesses and residences currently served by the 4”
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line, but not acceptable if it was caused by a fire at the
Veterans Center.
45. The mismatch of interests and objectives between the
Fire Department and DWS has caused endless chaos and confusion,
interdepartmental battles and conflicting requirements. Since
2008, the Water Committee has tried seven times---
unsuccessfully---to make fire flow and fire protection solely
the purview of the Fire Department and remove DWS from fire flow
determinations. See Water Committee Minutes, p.30.
46. The residents of Maui County are victims of this
administrative chaos, which could be resolved either by the
County Council or by the exercise of reasonable discretion by
Eng and DWS. This does not happen because the DWS requirements
are designed to supplement the County budget without legally
imposing higher taxes.
47. After DWS discovered its negligent misrepresentation
about the 8” line, Molokai Veterans’ architect received a letter
dated May 11, 2010 from Herbert Chang, DWS Engineering Program
Manager, stating that Molokai Veterans would be required to
replace the 4” line on the East side of Kauanakakai Place with
an 8” line (and to install a new fire hydrant). See Exhibit 6,
attached, Letter dated May 11, 2010 from Herbert W.L. Chang to
Arthur H. Parr, AIA.
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48. Molokai Veterans’ engineering consultant estimates
that upgrading the water line would cost Molokai Veterans
approximately $38,000. However, the County has plans to remove
the water line on the east side of Kaunakakai Place and install
a new line on the west side of the street. In a move right out
of Joseph Heller’s Catch-22, a novel about the insanity of war,
DWS has required Molokai Veterans to install a 8” water line on
the east side of Kaunakakai Place, which the County would then
demolish.
49. Molokai Veterans attempted to appeal DWS’s upgrade
requirement. More than two months after Chang’s determination,
Eng returned the Vets’ appeal documents to them, stating that
Chang’s decision could not be appealed because it was not a
“decision of the Director.” See Exhibit 7, attached, Letter
dated July 22, 2010 from Jeffrey K. Eng to Larry Helm. The very
next day, Eng “affirmed” Mr. Chang’s determination and informed
the Vets that they could now appeal. See Exhibit 8, attached,
Letter dated July 23, 2010 from Jeffrey K. Eng to Larry Helm.
50. The Vets re-filed their appeal, which is pending
before BWS. On information and belief, BWS routinely takes one
year or more to hear such appeals, and the hearings can go on
for lengthy periods without a resolution. There are no
administrative procedures to require a prompt review of appeals.
Moreover, BWS on two occasions informed Dr. David Hafermann, a
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member of Molokai Veterans, that the appeal process will take
longer if Molokai Veterans are represented by legal counsel.
51. The Fire Department initially approved fire
protection services for the Veterans Center based on Eng’s
misrepresentation that the Property was served by an 8” line.
When DWS’s misrepresentation was discovered, the Fire Department
did several tests to determine whether the existing water supply
was sufficient to provide fire protection for the Property.
52. Fire Department Lt. Scott English determined in May
2010 that there was “more than ample water” for fire protection
for the Property, using the existing hydrants to draw from the
existing 4” water main. See Water Committee Minutes, p.20.
53. DWS uses the Insurance Service Office Guidelines
(“ISO”) to set the required number of gallons per minute (gpm)
for fire flow. Large portions of the existing water system in
Maui County do not meet these standards, and the County has not
budgeted sufficient funds for upgrades. See Exhibit 9, attached,
Water Resources Committee of the Council of the County of Maui,
Report to County Council dated February 19, 2010 (without
attachment)[hereinafter referred to as “Water Committee
Report”].
54. Councilmember Bill Medeiros recognized that it should
not be incumbent upon Molokai Veterans to pay to upgrade the
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County water line. See Water Committee Minutes, p.25. But this
is what happens in Maui County.
55. Public outrage over DWS upgrade requirements as a
condition of receiving building permits has reached such a pitch
that the County Council recently amended the County Code to
require partial reimbursement for some (not all) required
upgrades. See Water Committee Report. While some Maui County
property owners are now partially reimbursed for paying for
water system upgrades, others still bear the full burden of
improving the County water system--not just for their own
benefit but for everyone on the line.
56. As the controversy with DWS regarding the Veterans
Center heated up, Lt. English re-tested the water system
adjacent to the Property, to see whether it met DWS’s ISO
requirement of 1,250 gpm. Although the right way to test is to
flow a 2.5” hose, then make calculations based on that flow and
the residual pressure in the area, Lt. English decided to flow
the big 4.5” hose, the one that would actually be used in
fighting a fire. See Water Committee Minutes, p.20. Lt. English
reported that the actual flow was 1,630 gpm and concluded,
“After we did those tests, we felt very confident that the
system had enough water.” Id.
57. In its test, the Fire Department flowed Hydrant 76 in
front of the Property, and took the residual off of Hydrant 70,
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where the 8” line supplies the flow. As Lt. English explained,
“I’m testing the hydrant that we’re going to use for fire
protection.” See Water Committee Minutes p.48.
58. DWS did different tests. They began with Hydrant 76,
but they took the residual off of Hydrant 4, at the end of the
water flow. See id. This hydrant would naturally be the worst
performing one, at the end of the line. See id. DWS tested the
worst performing hydrant because they do not test fire
protection. DWS tests the whole loop, to determine the effect
that fire protection might have on other customers, if there
were a fire.
59. Using this test, DWS determined that the County water
system is inadequate to provide fire protection for buildings
along the existing 4” line, without in some way diminishing the
quality of service after a fire---for example, by causing a
temporary flow of brown water caused by sediment. This is true
for all of the businesses and homes along the 4” line. None of
them has adequate water flow according DWS’s standards.
60. The Department of the Corporation Counsel, County of
Maui [“Corporation Counsel”] has determined that it is illegal
for DWS to require owners of a vacant lot in a previously
approved subdivision to upgrade the water service for the whole
subdivision as a condition of obtaining a water meter. See
Exhibit 10, attached, Memo dated March 29, 2005 from Brian T.
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Moto, Corporation Counsel, to George Y. Tengan, Director of DWS.
DWS was doing this, and it had to stop. Corporation Counsel told
DWS, “Notwithstanding DWS’ legitimate concerns regarding health,
safety, and/or fire protection issues associated with such non-
conforming subdivisions, the retrospective application of new
standards and/or requirements in the subject instance would
violate Section 1-3, Hawaii Revised Statutes [prohibiting
retrospective operation of laws].” Id.
61. Nevertheless, DWS is requiring Molokai Veterans to
upgrade the water line in its area as a condition of obtaining a
building permit. This is not about fire protection. The Fire
Department determined that there is ample water to protect the
Veterans Center. This is about DWS leveraging some---but not
all—--customers to pay for upgrades to the County water system.
62. Molokai Veterans have friends. They have the
signatures of 1,000 people on Molokai who support the Veterans
Center. Newspapers on Maui and in Honolulu, and Akaku, Maui’s
community access cable channel, have closely followed this
dispute. Molokai Veterans have the support of the State
Legislature and the Veterans Administration. They have the
support of Maui Council Chair Danny Mateo and former Planning
Director Jeff Hunt, who recommended that that Eng use his
discretion to grant an exception for the Veterans Center. See
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Exhibit 11, attached, Memorandum from Jeffrey S. Hunt to Jeffrey
K. Eng (without attachments).
63. As in Catch-22, no amount of good will or common sense
can stop Eng and DWS. Plaintiffs have watched in helpless
frustration as dozens of property owners on Moloka’i obtain
building permits without being required to upgrade the water
lines, while the permit for the Veterans Center is withheld. On
information and belief, a 3,500 square foot home was built
within the past year that is serviced by the same 4” water line
that is allegedly insufficient to protect the 1,890 square foot
enclosed area of the Veterans Center.
64. Of all the painful twists in this case, perhaps the
strangest is that the County’s plan to install a water line
along the west side of Kaunakakai Place called for a new 4-inch
line. See Water Committee Minutes, p.16. The standard that Eng
defends as a necessary safety measure was going to be violated
by the County itself. Only after the Molokai Veterans protested
DWS’s upgrade requirement did the County re-design its plans to
include an 8-inch line. See id.
65. Having jumped through all the hoops, Molokai Veterans
turned to the County’s chief executive, Mayor Charmaine Tavares.
It was there that they encountered the greatest betrayal of all.
Molokai Veterans heard a lot of talk from the Mayor’s office,
but no action. So after all the tests were done and all the
23
letters written, after everyone but DWS had approved the
Veterans Center, Molokai Veterans planned an action of their
own---traveling from their homes on Moloka’i to demonstrate in
front of the County building.
66. The Mayor and her staff know that no speech receives
greater protection under the First Amendment to the United
States Constitution than political speech in a public forum. Yet
Tavares and Silva asked Paul Laub, President of the Maui County
Veterans Council, to stop Molokai Veterans from protesting; Laub
replied that he could not do this.
67. Then the Mayor called Commander Helm herself, on
Monday, June 28, 2010, at around 5:30 p.m. Tavares told Helm
that she had met with the County Council and come up with a
resolution, but she needed to talk with some department heads,
and that either Silva or she would get back to him the next day.
68. Tavares did not call Helm until after 9 p.m. on
Tuesday, June 29, 2010. She called not to tell him about the so-
called resolution, but to attack him personally and threaten
him. Helm had written an email to his psychologist and his
doctor, describing symptoms of PTSD, revealing flashbacks to
Vietnam and his feelings of betrayal, even “treason,” and
expressing his anxious concern about the situation and the
demonstration, “in case shit happens”.
24
69. When Mayor found out about the email, it was Tavares,
not Helm, who flipped out. Phoning Helm at his home on Tuesday
night, Tavares threatened to withhold the building permit for
the Veterans Center unless Helm wrote a letter of apology.
Tavares warned Helm that he better not come to Maui to protest,
or he would make a lot of people angry.
70. Tavares then demanded that Helm allow her to talk with
Helm’s psychologist and his physician. Under pressure from
Tavares, Helm acquiesced to this extraordinary demand.
71. Psychologist Kathleen McNamara, Ph.D, had cautioned
the Mayor at the outset of the Veterans Center project that
prolonged delays could have serious consequences for Vets with
PTSD. Speaking with Tavares after the Mayor threatened Helm, Dr.
McNamara offered to come to the Mayor’s office to educate
Tavares and her staff on PTSD.
72. Councilmember Michael J. Molina recognized that “the
sooner the building . . . gets expedited, this will help to
alleviate additional stress and trauma that a lot of our
veterans, especially over on Molokai, have had to go through.”
Water Committee Minutes, p.14. When Councilmember Molina asked
Dr. David Hafermann [“Hafermann”], Molokai Veterans member and
physician, whether the delay in building the Veterans Center has
caused additional stress for the veterans, Hafermann replied,
“Yes, it has.” Id.
25
73. Dr. Hafermann, who is Helm’s personal physician, spoke
with the Mayor on Wednesday, June 30, 2010, the day before the
planned demonstration. Hafermann is a retired Air Force officer
and a member of Molokai Veterans. The Mayor repeated her demand
for an apology from Helm and warned Hafermann that “It would not
help the cause to have a demonstration.” In fact, Tavares said,
if the veterans were to protest, they “could lose everything.”
Tavares also told Hafermann that if Molokai Veterans brought a
lawsuit against the County, it would be “harassment”.
74. Facing down these threats from Tavares, Helm,
Hafermann and other Molokai Veterans including Plaintiffs Jesse
Dudoit, Richard Elleretsen, Manuel Garcia, Melvin Hanohano,
Adolphus Lankford, Frank Maniago and Kelson K. Poepoe, arrived
in Lahaina on the morning of July 1, 2010 for the demonstration.
75. As he came ashore, Helm received a call from a
reporter from the Honolulu Star-Bulletin, congratulating Helm on
the resolution of the Veterans Center dispute. The Mayor’s
office had falsely notified the press that a settlement had been
reached, so that the press would not cover the demonstration.
76. While the demonstration was happening, Defendants
Silva and Martin met with Molokai Veterans representatives
Hafermann, Plaintiff Kelson (Mac) Poepoe [“Poepoe”] and Arthur
Parr [“Parr”], Molokai Veterans’ architect. Silva asked the men
to persuade Helm to “minimize” the protest. Martin made veiled
26
threats, wondering aloud, if the dispute became more “public”
and went into “attack mode,” where “we” would go from there.
77. The Mayor’s dubious plan was to ask the County Council
to transfer decision-making authority for fire protection from
DWS to the Fire Department alone. Silva explained to Hafermann,
Poepoe and Parr that the Veterans Center dispute offered the
administration a chance to move on this issue. He assured the
Molokai Veterans that “We cannot see any council member voting
against it.” Silva also made it clear that this was the only way
the Veterans Center would be approved in the near future. Silva
did not tell the Veterans that this proposed transfer of
authority had been defeated six times in the past two years.
78. Silva did, however, propose a second alternative: The
Veterans Center water line could be included in the construction
of a 12-inch water main by the Hawai’i State Division of Land
and Natural Resources [“DLNR”] as part of its proposed harbor
improvement project on Moloka’i. As the Mayor’s office well
knew, this proposal was opposed by the Moloka’i Planning
Commission and many veterans. Perhaps the Mayor had called DLNR
and brokered a deal---if DLNR would provide a water line to the
Veterans Center, the Mayor would deliver the veterans.
79. Not realizing that the proposal to transfer authority
from DWS to the Fire Department would be dead on arrival,
Hafermann, Poepoe and Parr agreed to this plan, and the Mayor’s
27
office again announced a settlement, concealing the fact that
they could not deliver on their side of the proposed agreement.
80. Hearing what the Molokai Veterans thought was good
news, Helm joined in announcing an agreement in principle.
However, when Molokai Veterans received the written agreement
from the Mayor’s office and consulted with an attorney, they
discovered that the deal was a bad one for the Vets. They could
build the Veterans Center, but they could not occupy it until
either (i) DWS no longer had authority over fire protection or
(ii) the County installed an 8” water line. Moreover, the
agreement required Molokai Veterans to indemnify the County in
the event than anyone (the Vets or any third party) sued the
County over its refusal to allow the Vets to use the building;
and there was no assurance that the County would not put up new
obstacles down the road. Molokai Veterans refused to sign this
Agreement.
81. On August 3, 2010, the Water Resources Committee
declined to endorse the transfer of fire protection authority
from DWS to the Fire Department, deferring the issue yet again.
See Water Resources Committee Minutes, p.64.
82. At present, the County claims that it will solve the
problem “soon,” when it constructs an 8” line on the west side
of Kaunakakai Place. However, this project has been in the works
28
for years and came to a dead halt when contaminated soil was
discovered, requiring a delicate remediation process.
83. Molokai Veterans do not know whether the project
(which until a few weeks ago called for a 4” line, not an 8”
line) has been funded by the County Council. They do not know
when it will actually begin, or how long it will take. In the
meantime, they are left high and dry, even though there is
already plenty of water for fire protection at the Property. The
Molokai Veterans do not trust the County’s promises anymore. The
individual Plaintiffs are dealing with the physical, mental and
emotional consequences of PTSD aggravated by years of confusion
and delay, culminating in personal attacks by Mayor Tavares.
84. The Vets don’t want to be in federal court in
Honolulu. They want to be in the Veterans Center on Moloka’i.
Defendants have backed the Plaintiffs into a corner, and this
Court is the only avenue that remains. The Moloka’i veterans are
fighting for justice. As koa kahiko, they want to protect others
from suffering what they have suffered. Molokai Veterans stand
for what is pono---for themselves, for the fallen comrades who
are watching, and for the kids, who are also watching.
///
///
///
29
FIRST CLAIM FOR RELIEF
(Deprivation of Plaintiffs’ Rights Under the First and Fourteenth Amendments by Maui County, Tavares, Silva and Martin;
42 U.S.C. § 1983)
85. Plaintiffs incorporate by reference all of the
allegations in paragraphs 1 through 84 above. Plaintiffs have
been deprived of their constitutional rights to assemble and
speak publicly, to the media and otherwise, on issues of
political concern without fear of reprisal and retribution, all
as a direct and proximate result of the unlawful actions of Maui
County and Defendants Tavares, Silva and Martin, who were acting
under color of state law and also discretionarily and
arbitrarily, with knowledge that they were violating Plaintiffs’
constitutional rights. Plaintiffs have been subjected to
harassment, intimidation, coercion and retaliation by such
Defendants, depriving Plaintiffs of their First and Fourteenth
Amendment rights in violation of 42 U.S.C. § 1983 [Hereinafter
referred to as “Section 1983”].
86. As a further direct and proximate result of the
unlawful actions described above, the individual Plaintiffs
suffered severe physical and emotional stress and pecuniary and
non-pecuniary damages, entitling them to compensation under
Section 1983, according to proof, as well as reasonable
30
attorneys fees incurred in pursuing these claims under Section
1983.
87. The conduct of the County of Maui and Tavares, Silva
and Martin was not only shocking and outrageous, it was
intentional and malicious, or at the least grossly negligent,
exhibiting a reckless disregard for the rights of the individual
Plaintiffs, causing them to suffer humiliation, mental anguish,
stress and emotional and physical distress, injuring them
mentally, emotionally and physically. The individual Plaintiffs
are entitled to punitive damages against the County of Maui,
Tavares, Silva and Martin, according to proof.
SECOND CLAIM FOR RELIEF
(By Plaintiffs Against County of Maui for Failure to Train and Supervise/
Maintenance of Unlawful Customs and Policies)
88. Plaintiffs incorporate by reference all of the
allegations in Paragraphs 1 through 87 above.
89. At all relevant times herein, County of Maui
developed, encouraged, tolerated and approved the above-
described conduct of Tavares, Silva and Martin, thereby causing
the deprivation of Plaintiffs’ First Amendment rights as
described above.
90. County of Maui is fully informed and aware of the
First Amendment rights of organizations and individuals to
31
gather and express their views on political issues in a public
forum. Nevertheless, County of Maui allowed Tavares, Silva and
Martin to harass, threaten and retaliate against Plaintiffs for
exercising their First Amendment rights and to attempt to coerce
Plaintiffs into minimizing or otherwise not fully exercising
their First Amendment rights.
91. County of Maui intentionally or with gross negligence
failed to train and supervise its officials and employees to
prevent violations of Plaintiffs’ First Amendment rights,
establishing a custom and policy of harassment and retaliation.
92. County of Maui was deliberately indifferent to and
demonstrated a reckless disregard toward the violation of
federal constitutional rights which was likely to occur and did
occur from its policies and customs, all in violation of Section
1983. County of Maui is therefore liable for all injuries and
damages sustained by Plaintiffs resulting from deprivation of
their First Amendment rights, as set forth in this Complaint.
93. County of Maui’s policies and customs were the driving
force behind the actions of individual Defendants, supervisors,
agents and/or employees of County of Maui, resulting in
pecuniary and nonpecuniary injury to Plaintiffs. Such damages
were incurred as a direct and proximate result of the acts and
omissions of County of Maui in failing to properly train and
32
supervise its officials and employees and in maintaining
unlawful customs and policies.
THIRD CLAIM FOR RELIEF
(Intentional or Negligent Infliction of Emotional Distress on Individual Plaintiffs by County of Maui, Tavares, Silva and Martin)
94. Plaintiffs incorporate by reference all of the
allegations in paragraphs 1 through 93 above.
95. The conduct of the County of Maui and Tavares, Silva
and Martin described above, individually and as agents of the
County of Maui, was shocking, outrageous, intentional and
malicious, or at the least grossly negligent, exhibiting a
reckless disregard for the rights of the individual Plaintiffs,
causing them to suffer humiliation, mental anguish, stress and
emotional and physical distress, as a result of which the
individual Plaintiffs were injured mentally, emotionally and
physically. The individual Plaintiffs are entitled to damages
against the County of Maui, Tavares, Silva and Martin, for
intentional or negligent infliction of emotional distress,
according to proof.
FOURTH CLAIM FOR RELIEF
(Deprivation of Plaintiff Molokai Veterans’ Rights to Procedural and Substantive
Due Process by Defendants; 42 U.S.C. § 1983)
33
96. Plaintiff Molokai Veterans incorporates by reference
all of the allegations in Paragraphs 1 - 95 above.
97. Defendants arbitrarily, with knowledge that they were
violating Plaintiffs’ constitutional rights, purport to enforce
the ordinances, rules and regulations of Maui County and its
departments, but they are in fact perpetuating an illegal
practice of arbitrary and unfounded delays, preferential
treatment, harassment and coercion, depriving Molokai Veterans
of its right to procedural due process in obtaining a building
permit, to which it is lawfully entitled upon fulfilling
legitimate, non-discretionary requirements, such right to
procedural due process being guaranteed by the Fourteenth
Amendment to the United States Constitution and Section 1983.
98. Defendant BWS, without any legitimate reason,
continues to delay the appeal of Plaintiff Molokai Veterans from
Director Eng’s decision to require Molokai Veterans to install
an 8” water line adjacent to the Property, and is conditioning
the timing of such appeal on whether or not Molokai Veterans is
represented by counsel, depriving Molokai Veterans of its right
to procedural due process under the Fourteenth Amendment to the
United States Constitution, in violation of Section 1983.
99. DWS Rules and Regulations and provisions of the Maui
County Code concerning permits for building the Veterans Center
on the Property, to which Molokai Veterans is lawfully entitled
34
upon satisfaction of legitimate, non-discretionary requirements,
are being applied by Defendants to Molokai Veterans in an
arbitrary and irrational manner, unrelated to any legitimate
government purpose, knowingly depriving Molokai Veterans of its
right to substantive due process under the Fourteenth Amendment
to the United States Constitution, in violation of Section 1983.
100. As a direct and proximate result of Defendants’
arbitrary and unfounded delays, preferential treatment,
harassment, coercion, and arbitrary and irrational application
of ordinances, rules and regulations, Molokai Veterans has been
unable to obtain the building permit to which it is entitled, or
to keep its commitments to workers and suppliers, or to build
the Veterans Center on the Property with funds granted to it by
the State of Hawai’i, resulting in damages according to proof.
FIFTH CLAIM FOR RELIEF
(Deprivation of Plaintiff Molokai Veterans’ Rights to Equal Protection by
County of Maui and DWS; 42 U.S.C. § 1983)
101. Plaintiff Molokai Veterans incorporates by reference
all of the allegations in paragraphs 1 though 100 above.
102. County of Maui’s adoption, and DWS’s enforcement, of
provisions of MCC § 14.05 which partially reimburse some--but
not all--real property owners for their expenses in complying
with DWS requirements that they upgrade the County’s water
system as a condition of receiving water service or a building
35
permit, are not related to any legitimate government purpose and
have a disparate impact on Molokai Veterans and others similarly
situated, who are subject to DWS’s upgrade requirements but do
not receive such reimbursement. County of Maui’s and DWS’s
continuing differential treatment of real property owners
required to upgrade the County water system deprives Molokai
Veterans of its right to equal protection of the law guaranteed
by the Fourteenth Amendment to the United States Constitution,
in violation of Section 1983.
103. As a direct and proximate result of County of Maui’s
adoption, and DWS’s enforcement, of provisions of MCC § 14.05
which partially reimburse some--but not all--real property
owners for their expenses in complying with DWS requirements
that they upgrade the County’s water system as a condition of
receiving water service or a building permit, Molokai Veterans
has been unable to obtain the building permit to which it is
entitled, or to keep its commitments to workers and suppliers,
or to build the Veterans Center on the Property with funds
granted to it by the State of Hawai’i, resulting in damages
according to proof.
SIXTH CLAIM FOR RELIEF
(Imposition of an Illegal Tax by County of Maui and DWS in Violation of the Hawai’i Constitution; and Retrospective Application of Law by County of Maui
and DWS in Violation of HRS § 1-3)
36
104. Molokai Veterans incorporates by reference all of the
allegations in Paragraphs 1 though 103 above.
105. County of Maui’s and DWS’s requirement that Molokai
Veterans pay to upgrade the County’s water line adjacent to the
Property is (i) an illegal tax in violation of the Hawai’i
Constitution, Art. VIII, § 3 and the Maui County Charter, and
(ii) a retrospective application of law in violation of HRS § 1-
3.
106. As a direct and proximate result of County of Maui’s
and DWS’s requirement that Molokai Veterans pay to upgrade the
County’s water line adjacent to the Property, as a condition to
receiving a building permit, Molokai Veterans has been unable to
obtain the building permit to which it is entitled, or to keep
its commitments to workers and suppliers, or to build the
Veterans Center on the Property with funds granted to it by the
State of Hawai’i, resulting in damages according to proof.
SEVENTH CLAIM FOR RELIEF
(Injunctive Relief)
107. Plaintiffs hereby incorporate by reference all of the
allegations in paragraphs 1 through 106 above.
108. As a direct and proximate result of Defendants’
actions described above, Plaintiffs have suffered and continue
to suffer irreparable harm. Plaintiffs’ protected First
37
Amendment activities and constitutional rights to procedural and
substantive due process and equal protection, and Molokai
Veterans’ right to be free of illegal taxation and retrospective
laws, remain a target for Defendants and are subject to
violation by Defendants at any time. Defendants must be
enjoined from further unlawful interference with Plaintiffs’
rights.
109. Plaintiffs have no plain, speedy or adequate remedy at
law, making preliminary and permanent injunctions necessary to
protect Plaintiffs’ rights. Money damages will not adequately
compensate Plaintiffs for the deprivation of their
constitutional and legal rights. Without injunctive relief, a
multiplicity of lawsuits may be required because Defendants’
violations of Plaintiffs’ rights are continuous and ongoing and
not only affect Plaintiffs but also other similarly situated.
EIGHTH CLAIM FOR RELIEF
(Declaratory Relief)
110. Plaintiffs hereby incorporate by reference all
allegations in paragraphs 1 through 109 above.
111. An actual, present, and substantial controversy exists
between the parties. Plaintiffs contend that Defendants, and
each of them, intend to enforce, and have enforced the rules,
regulations and policies more specifically described above which
threaten to deny, have already denied, and do deny to
38
Plaintiffs, and to others similarly situated, rights guaranteed
to them under the First and Fourteenth Amendments to the United
States Constitution and under the Constitution and laws of
Hawai’i.
112. Defendants deny that their rules, regulations,
policies and/or conduct are illegal or unconstitutional or cause
injury or harm to Plaintiffs. A declaration as to whether said
laws and/or conduct is unconstitutional or otherwise unlawful is
therefore necessary and appropriate to determine the respective
rights and duties of the parties, pursuant to 28 U.S.C. §§ 2201
and 2202.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs pray for the following relief as to
the herein alleged violations of their rights:
A. Injunctive and declaratory relief to prevent further
violation of Plaintiffs’ constitutional and legal
rights, retaliation for Plaintiffs’ exercise of those
rights, and the ongoing violation of infliction of
intentional and negligent emotional distress;
B. Injunctive and declaratory relief as to the
constitutionality and legality of (i) the actions of
the County of Maui, Tavares, Silva and Martin in
threatening Plaintiffs and attempting to coerce
Plaintiffs to minimize or abandon their exercise of
39
First Amendment rights; (ii) County of Maui’s failure
to properly train and supervise its officials and
employees; (iii) Defendants unreasonably delaying and
impeding Molokai Veterans in their efforts to obtain a
building permit for the Veterans Center; (iv)
Defendants’ intentional and negligent infliction of
emotional distress on the individual Plaintiffs; (v)
DWS’s requirement that Molokai Veterans upgrade the
County water line as a condition of obtaining a
building permit; (vi) BWS’s delay in hearing Molokai
Veterans’ appeal and making the length of the delay
depend on whether Molokai Veterans is represented by
counsel; (viii) Molokai Veterans’ right to equal
protection regarding partial reimbursement of upgrade
expenses for some but not all property owners; and
(ix) the illegality of imposing an upgrade tax on
Molokai Veterans and subjecting it to a retrospective
law.
C. For an award of general, special, consequential,
continuing and/or per se damages plus prejudgment
interest thereon according to proof or by operation of
law;
D. For punitive damages against each individual Defendant
in an amount to be proven, to the extent available for
40
41
each cause of action and claim for relief;
E. For costs of suit and attorney's fees as authorized by
law; and
F. For such other and further relief as is just and
proper.
DEMAND FOR JURY TRIAL
Plaintiffs, and each of them, hereby demand trial by jury
on all issues triable by right to a jury.
DATED: Wailuku, Hawai’i, this 16th day of September, 2010.
IVEY FOSBINDER FOSBINDER LLLC A LIMITED LIABILITY LAW COMPANY By________________________________ James H. Fosbinder
Attorneys for Plaintiffs