Or is it unintended consequences?
I don't know why the Hawaii Supreme Court couldn't content itself with citing Act 2 for violating the specific constitutional provision requiring laws exercising powers over state lands to be general in nature. Why on Earth was Justice Duffy compelled to venture further and say that the "constitution prohibits laws which provide disparate treatment intended to favor a specific individual, class, or entity"?
Now every law that provides disparate treatment to favor - or disfavor - a specific individual, class, or entity is under attack.
17 comments:
This is just a scare tactic by people who have not read closely enough Act 2 and the Supreme Court's decision on it. It is amazing how many people are commenting on the decision without having assimilated it and how many more will listen to them and allow themselves to be misled on it. It reminds me of people who like to go into a "Haunted House" on Halloween. They almost want to be scared.
After the PASH Native rights decision came down in 1995, there was an organized propaganda campaign to convince the public that Hawaiians would now be claiming a "customary and traditional" right to pick the bananas in your back yard or to set up a lunch wagon on your property. "No outsider will ever invest another nickel in Hawaii real estate." Totally bogus, of course, and ultimately it didn't work. We've been seeing the same reaction to the Kahana Sunset line of cases (holding, for example, that installation of a golf cart underpass beneath a public highway triggers Chapter 343 review), and no doubt the Gov and others will latch onto the Superferry case and others as another excuse to gut our environmental review laws. The simple truth is that this whole problem could have been avoided if Lingle's DOT had followed the law in the first place, rather than trying to accommodate a powerful business's unreasonable demand that it be allowed to ignore the law.
Like I said earlier, I think Justice Duffy just got carried away with the Important Decision he was delivering. I really doubt that the excessive language signals anything more than that.
After the PASH Native rights decision came down in 1995, there was an organized propaganda campaign to convince the public that Hawaiians would now be claiming a "customary and traditional" right to pick the bananas in your back yard or to set up a lunch wagon on your property. "No outsider will ever invest another nickel in Hawaii real estate." Totally bogus, of course, and ultimately it didn't work.
I guess the word "Hokulia" doesn't mean anything to you, eh?
Brad, I don't think you need to worry. I don’t think anyone seriously supposes the court will reverse itself. Rather, there is a desire for clarification on the issue of whether the clause granting the state immunity from liability survives, and also on the court’s odd pronouncement that the state “constitution prohibits laws which provide disparate treatment intended to favor a specific individual, class, or entity.”
John, again I agree with you that the concluding verbiage is dicta, but I still hold that this court affirmatively embraces an activist, policy setting role and that today's dicta will very likely be cited tomorrow as affirmative law.
As to the PASH comment, I'll pass along an email I received this morning on that subject:
the post-PASH commentary about traditional and customary gathering rights in your backyard wasn't merely "hype" and "fearmongering" since the PASH ruling, like HSF, was broad enough to cover such activities. So much so that the court (apparently realizing the mistake it made) crafted a new rule in a subsequent case (Kalipi, I think) that limited PASH to less than fully developed residential properties, i.e., your home is safe.
Hokulia wasn't really a PASH case, more a land use and burial protection (Chapter 6E, HRS) controversy with a little water pollution thrown in for good measure. Land use was the most controversial issue; the circuit court agreed with the plaintiffs' view that the developer and the county had ignored the restrictions Chapter 205, HRS, places on the use of lands classified within the Agriculture District. As with Superferry, if the parties had followed the law from the beginning, no problem.
The post-PASH narrowing came in Hanapi, not Kalipi (which preceded PASH).
That broad language in the opinion would rule out all state programs that benefit native Hawaiians only, like OHA. I really don't expect the Hawaii Supreme Court to be invalidating any pro-Hawaiian programs any time soon. The only conclusion is that they didn't really mean it.
If you look at Article XI, Section 5, the "constitution prohibits laws which provide disparate treatment intended to favor a specific individual, class, or entity." It is the propaganda machine that is taking this single statement out of 100 page legal opinion context to scare people. Article XI, section 5 only implicates a limitation on the legislature's power in dealing with state lands and that limitation "prohibits laws which provide disparate treatment intended to favor a specific individual, class, or entity."
I don't think Duffy got carried away at all. I think its just a bunch of weekend legal scholars who are analyzing the opinion through half-sentence slogans and its being repeated out by overworked journalists who copy and paste press releases sent out by the governor's office.
This is why we have a Supreme Court with experienced jurists and not career politicians who hold only a high school diploma, like Lingle.
For example, John Powell's comments on OHA, what does a constitutional limitation on the power of the state legislature to make laws respecting state lands have to do with the constitutional establishment of OHA? Absolutely nothing. Again, this is the danger of doing legal analysis for half-sentence slogans originally circulated by the governor's office.
Yes, we've been discussing Article XI, Section 5 on this blog since long before the decision was filed. We're fully apprised that, Justice Duffy's dicta notwithstanding, there's nothing per se unconstitutional (at least textually) about laws that provide disparate treatment intended to favor a specific individual, class, or entity.
Nevertheless, Justice Duffy made the claim. The question is, what to make of it?
My overall point is that you took his statement out of context and its hard to discuss the implications of what it means in context unless you mean, what are the implications if its taken out of context? But you didn't say that. You said "now every law ... is under attack." Who is going to be doing the taking out of context and launching the attack?
I'm outraged that you characterize my ill-informed opinion as ill-informed! I confess that I still don't have the heart to wade through 113 pages of legal prose. In my defense, my instinct, and the thrust of my comments, was that this is nothing to get worked up about.
John, I'm outraged that you're outraged or that you thought I thought that your thoughts were ill-formed. I just think they inadequately capture the problem as I see it but I'm not on any Supreme Courts anywhere, so what do I really know.
The context of the Justice's comments was well covered in past posts. My point here is that the justice's odd concluding comments venturing outside the confines of Art. XI have resulted in a barrage of attacks on other laws whose intent are to benefit individuals, classes, and entities. The link leads to a newspaper story that illustrates the point.
I'm in no way interested in taking things out of context in the service of any policy preferences - my own and certainly not anyone else's. (My view of the law is that its 'proper' application is sure to lead to outcomes contrary to my actual policy preferences from time to time).
We've (myself and commenters) been discussing the law of this case for a long time. I'm not playing hide the ball, but I suppose posts do sometimes assume exposure to posts that have come before. Your comments are greatly appreciated. I encourage you to come over and share your thoughts more often.
I do not regularly read this blog. I have been studying "special law" jurisprudence AND public trust jurisprudence in Hawai'i for the last decade -- hoping one day Councilman Bulgo would be vindicated by some kind of repudiation by the Hawai'i Supreme Court of that awful decision. I still believe that your point has taken the sentence out of context. The sentence you pick describes the constitutional mandate -- but what mandate is that? It's the mandate that limits the legislature's otherwise unbridled power.
If, as Justice Duffy contends, there is a broader constitutional prohibition against laws which provide disparate treatment intended to favor or discriminate against a specific individual, class, or entity, and this prohibition is a fundamental principle of the democratic nature of our government: equal rights and treatment for all persons under the law, then there is no longer any need for the court to rely any specific constitutional clauses such as Art. XI s. 5 requiring laws exercising power over lands be general in nature.
This language is Justice Duffy's "penumbras, formed by emanations" or Kennedy's more recent "right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." What can't a court do with such a mandate?
It is not a question of whether or not Justice Duffy is an activist jurist. Line of Flight's promise that the court will not in some future case spring his dicta as justification for invalidating legislation when there is no specific clause, such as Art. XI, s. 5, on which to base the court's preferred outcome, relies too much on the kindness of strangers.
Recall that this is a court which in the "Ohana Kauai" property tax Charter Amendment case first rearranged the parties so that friendly government officials would have standing to manufacture a lawsuit against each other to challenge a popular charter amendment, and then made up out of whole cloth that the term "counties" in article VIII of the Hawaii Constitution means "exclusively county councils," and that the voters of the counties do not have the power to amend their county charters to establish property tax policy.
Going back and reading the quote in context (not the whole opinion, though; I'm no masochist!) Justice Duffy calls the general law requirement of Article XI, section 5 a corollary of equal protection. I'm not sure what he intended, beyond emphasizing the general righteousness of the decision. I think my original take, that this was a rhetorical flourish that got a little out of hand, is correct.
I'm still agreeing with John that it could be nothing more than an out of control rhetorical flourish. But I'm also saying it is a rational response to force the court to disavow the dicta's potential import by challenging a law that runs contrary to it.
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