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American Idol for Lawyers

The most interesting story of the year.

December 27, 2012
Susan Halas - Senior Contributing Writer ( , The Maui Weekly

This year, my favorite story was the soap opera called the Kihei shopping mall --a large, controversial retail development proposed for South Maui that would also include apartment housing.

This story asks the question: How could $200 million worth of new construction start off as a 123-lot fee simple light industrial subdivision in 1994 and emerge like a zombie from the dead 17 years later as 700,000 square feet of leased big-box retail? And how could it be that we--the public--only knew about the change when the project was ready to break ground?

I followed this story all year. I interviewed all the principals. I sat through all the proceedings. I was there--live and in person--with my skinny little reporter's pad and my clunky digital camera.

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Guest Editorial
Susan Halas
Senior Contributing Writer

Though early in the year it was announced that the malls had received their grading permits, almost before you could say "I'd like to restate that," there was litigation pending and ten or more lawyers were soon involved.

They were mostly guys, so they had good haircuts, nice suits, shiny shoes, and they all could talk--and most of them did.

If American Idol is a singing contest, then a multi-phase quasi-judicial proceeding before the state Land Use Commission over whether one thing can morph to something entirely different without any further scrutiny is a talking contest.

The lawyers sat in a long row at a table lined up by affiliation. Left to right there were developers' lawyers Jon Steiner and Joel Kam. Next to them were county lawyers Jane Lovell and Mike Hopper--this quartet said the project was fully legal and good to go.

At the other end of the table were the state's lawyers, Bryan Yee and Jesse Souki, and the interveners' lawyers Tom Pierce and Mark Hyde. These four thought differently.

The lawyers faced a U-shaped table where the commission members and their staff were seated, including their own lawyer, Sarah Hirakami, a deputy state attorney general.

Hirakami advised the members of the commission. Officially there are nine though the number attending varied from six to seven. Unlike the other lawyers, she was silent and the members present mostly listened.

If the commissioners played the part of the American Idol judges, it was the lawyers who took the role of contestants.

Just like American Idol, when the time came, each one got up and did a solo. They all gave different riffs on the identical tune. They used the same set of facts to reach totally opposing conclusions.

My favorite lawyer was Bryan Yee from the state AG's office, who spoke effectively during the show cause hearing in the summer. Yee had a knack for making complicated things easy to understand. He spoke in a calm, reasonable tone with no trace of judgment. He said the project currently proposed was different from the project approved in the 1990s and needed further review.

Despite his presentation, I never thought that the LUC would vote to reopen the docket. That was because only six of the nine commissioners were present, and all six votes had to be in favor of the motion if the case was to be reviewed.

I thought the vote would split. Surprise--the vote was unanimous. The commission ruled there was sufficient reason to look at this again.

And trust me folks, we have looked and looked hard.

But let's get back to the lawyers.

The developers retained legal counsel in the form of Jon Steiner and Joel Kam. They had all the paperwork chopped, sliced, diced, underlined, highlighted and diagrammed.

Sitting next to them and siding with the developers were the two lawyers for the County of Maui, Jane Lovell and Michael Hopper. Hopper was the listening lawyer; Lovell was the talking lawyer.

Next came the lawyers for the state, already mentioned, and next to them, at the far end were Pierce and Hyde, the arguers for the intervener, who asserted that what is being proposed now is different from what was approved then.

Hyde is a retired attorney living in South Maui and a founder of South Maui Citizens for Responsible Growth. The gist of what Hyde said outside the hearing room was that he didn't like the transformation this development underwent without the benefit of review. He thought it didn't conform to the law, the conditions or the rules.

So he objected, and in doing so demonstrated that little pushback can cause a major delay and--oh, my goodness--that can be expensive and time-consuming.

Rounding out the cast was the press and also from time to time members of the public, including a representative from a construction trade union who wandered in and out muttering "I'm sick of all of this already."

The meeting rooms varied from broiling hot when filled with witnesses and public testifiers to freezing cold when the crowd dwindled to just the singing lawyers and the hard core masochist listeners. I sat there by the hour and wrapped a sweater around my head when my ears started to freeze. I know it looked a little weird, but I stayed.

Some of it was tedious, but most of it was fascinating. What I really thought was, "Jeez, the meter is running for all of this and it must be costing a fortune."

Though proceedings have been recessed for the holidays the LUC will reconvene for the oral arguments in January. These will be longer summaries: think Wagner and the Ring Cycle followed by commission deliberation and a written opinion.

Some say that the public doesn't give a hoot about this civic stuff and it's just the hardcore wonks (or wonkettes) who think it is revelatory and deeply absorbing.

But I think this lawyer's version of American Idol is addictive.

So to all you attorneys out there who may be reading this critique of your oratorical skills: I admire your diligence, ability to entertain and enthrall. The spoken English word still has the power to persuade--as all of you have so amply demonstrated. And if it was a wee bit tedious in places or you repeated yourself a few times, well, nobody's perfect.

I hope to see more Mauians turn out for the final arguments coming up in 2013. Not that it will make a difference in the outcome, but just like in American Idol finals, it all comes down to the last song and who does it best.

Or as they say in baseball, "It's not over until it's over."



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