More than a decade after Geoffrey Molfino bought — and sold — a 49-acre parcel of Hawaii Island land, the case he brought against the county for allegedly failing to maintain accurate records was heard before the state’s highest court.
In an unusual move — for the first time on record — the Supreme Court justices met in West Hawaii, in a courtroom convened in the Kealakehe High School gym, to allow Molfino’s attorney, Peter Esser, and Deputy Corporation Counsel Laureen Martin to make their oral arguments.
The essence of the case, according to arguments by Esser and Martin, as well as the court’s own summary, is whether the county has a legal obligation to maintain records. A 3rd Circuit Court judge in Hilo and the state’s Intermediate Court of Appeals said no. Molfino has appealed those decisions.
Martin, under questioning by Associate Justice Sabrina McKenna and Chief Justice Mark Recktenwald, maintained the county’s position that the county has no legal duty to preserve any records, despite provisions to do just that in the state’s Uniform Information Practices Act.
“What about public health and safety,” Recktenwald asked, offering an example of records that show a house is situated in a flood plain. “There’s no duty (to preserve records) in that?”
That’s right, Martin said.
“I don’t think you can pick and choose,” she said.
Martin argued — and the lower courts previously agreed — that creating a legal duty to preserve records, even ones the county makes available to the public for review, opens the county up to too much liability.
McKenna also raised questions about whether the Legislature provided the county and other government entities immunity in the UIPA statutes.
“Hasn’t the Legislature drawn that balance?” she asked.
The discussion then went to whether Molfino could have gotten the information he sought — in this case it was about the number of lots permitted on the parcel and Yuen’s denial of a subdivision he later approved, because new documents were discovered showing the lot had already been divided — from another source.
Martin also said if the court started making decisions regrading how the executive branch should be keeping records, it would be treading on the executive branch’s duties. She also addressed the lengthy time period over which the situation and case have continued.
“This case has been pending for several years,” Martin said, and questioned whether ruling on just one issue and returning the case to a lower court would be a good use of the court’s, plaintiff’s and county’s time.
Esser continued his argument Tuesday noting that he wasn’t asking the county to keep perfect records, and that former Planning Director Christopher Yuen admitted to having a procedure by which records were supposed to be kept.
“I never used the word perfect,” Esser said, adding he has argued that the county should take “reasonable care” to maintain records. “There is record of evidence to support negligence and therefore summary judgment was inappropriate.”
Esser and several justices discussed at length the state’s Uniform Information Practices Act, which includes provisions requiring the state to preserve records.
Not keeping those records — or investigating when county officials discovered the record was incomplete — was the basis for bringing the negligence suit, Esser said.
The court will issue its ruling at a later date.
