Friday gecko blogging

Other views of yesterday's ceded lands arguments

Matthew L.M. Fletcher, Michigan State Univ. Associate Professor of Law & Director of the Indigenous Law & Policy Center, blogged about yesterdays ceded lands oral arguments and his thoughts about how the court might come down on the issues -

The petitioner’s argument started right off with the moderate wing of the Court assuming that the apology resolution has no legal effect. They pressed the Hawaii Attorney General for reasons why the Court should do anything more than simply vacate and remand. In short, the question presented is already answered, probably 9-0.The only real question is whether to allow the Hawaii SCT to reconsider their decision under state law grounds alone, or whether to foreclose even that possibility by holding that federal law prevents the State from having a trust relationship to Native Hawaiians vis a vis this land.

At one point Justice Breyer suggests that the Court issue a 3-sentence per curiam opinion vacating the Hawaii SCT opinion and remanding for determination on the question of whether there are independent state law grounds for the trust responsibility (p. 33). I imagine Ginsburg, Stevens, and Souter, JJ. will agree. But Justice Scalia and Chief Justice Roberts don’t see how there could possibly be any trust relationship because the US granted the land free and clear to the State (pp. 38-39). Alito and Thomas, JJ. are with them.

Justice Kennedy may have betrayed his hand a little on page 10 when he seems to side with the moderates:

It seems prudent for us to confine our decision to the effect of the Apology Resolution and whether or not the Hawaiian Supreme Court got that part of that right.

If so, then a small victory for the Native Hawaiians. We’ll have to see what the opinion looks like. No doubt a 9-0 vacature on the question presented, though.

My thoughts on ceded lands arguments

It's axiomatic that predicting what the Supreme Court or its justices are thinking by divining their questions to counsel from the bench is a fool's game. Having said that, here are my thoughts after reading through the transcript of today's ceded lands case oral arguments before the U.S. Supreme Court.

None of the justices appeared in the least persuaded by the OHA's argument that the state supreme court decision barring sale of the lands was not based on the federal Apology Resolution. Rather, the discussion seemed to focus on whether the Court should disabuse the Hawaii court of the notion that the Resolution had any substantive effect and then remand the case to them, or whether instead the Court should address the state's argument that the Newlands Resolution and the Admission Act settled once and for all the state's perfect, unclouded title in the lands.

Counsel for OHA indicated that OHA could live with the first choice. But I'm not sure it makes the state court's job any easier if it wants to arrive at the same ends on remand but based entirely on state law grounds. Whether or not the Supreme Court addresses them, the Newlands Resolution and the Admission Act are still potential obstacles. They purport to grant clear title to the state, and any claim that the state doesn't have clear title is going to have to run a gauntlet of those laws and the Supremacy Clause. In other words, any claim that the state doesn't have clear title to the ceded lands is likely to end up back in the federal courts.

It reinforces my thought expressed at an earlier date on this blog that this is a question best addressed by the legislature. If the political branches were to pass legislation under which the state would forgo selling any ceded lands until some condition is met I think it would be relatively immune to challenge (so long as the legislature doesn't base it on a finding that the state lacks good title). But if the court tries to duct-tape and bailing-wire together some sort of ban based on the equities and various laws, there's no end to the potential challenges.

(The post below this one is a sort of "live blogging" of my thoughts while reading the transcript. It includes quotes from the justices and my impressions).

Ceded lands oral arguments

...are posted here.

What follows is my "live blogging" of my own reading of the transcript.

Early in the AG's arguments the justices indicated an inclination to rule that the Apology Resolution did not change the legal landscape and remand to the state supreme court. This is in contradiction to what the state would prefer which is, as argued by AG Bennet, that the court rule that the Newlands Resolution and the Admission Act provide the state with perfect title to the lands.

Update: The state legislature in crafting a moratorium bill and, if the case is remanded, the state supreme court, should note the following colloquy between the AG and Justice Scalia -

JUSTICE SCALIA: ...Let's assume that the legislature does not say, we want to give it to the Native Hawaiians because we like the Native Hawaiians or because we think they deserve it; but, rather, we think we have to give it to the Native Hawaiians because it's theirs.

MR. BENNETT: I think that would be contrary to Federal law, Your Honor.

JUSTICE SCALIA: I think it would be.

Update: It's clear that the justices are pretty well convinced that the state supreme court erroneously based its decision on the Apology resolution. Justice Ginsburg essentially calls the state court on insulating its decision from being overturned in the legislature by basing it on federal law.

JUSTICE GINSBURG:...[W]hat's worrisome about this is they are fastening on a piece of Federal legislation and said, we are compelled to do this because of Federal law. What that does is it removes it from the Hawaii political process.

The argument now seems to be over whether the Supreme Court should reverse the state court on the Apology Resolution and remand the case in which the state court will arrive at the same outcome but based on state grounds, or whether the Supreme Court should go further and rule that the Admission Act and the Newlands Resolution once and for all settle the land claims in favor of the state.

Justice Scalia seems inclined to follow the second course:

JUSTICE SCALIA: As I read the Federal law, it extinguished all property rights in these lands; the lands were transferred to the Federal Government; and the Federal Government transferred them in absolute fee without any encumbrances to the State of Hawaii. Now if you are telling me the Hawaii Supreme Court is now finding as a matter of State law that there is a property interest on the part of the Native Hawaiians --I don't care what you call it, equitable or whatever --it seems to me that is flat contradiction of Federal law, and probably is an issue that we ought to address in this opinion.

A little later, the chief justice clarifies how such an approach would impact the state court's task if it is to maintain a bar on sales of the land:

CHIEF JUSTICE ROBERTS: But if we told them that these various Federal resolutions, including the Apology Resolution, conveyed title to the State in a particular way that precluded the burdening of the State's title on the basis of Federal law, then they would have to find a basis under State law that was not inconsistent with the Federal law's conveying of perfect title.

And, actually, this is the case whether the Supreme Court rules on the impact of the Newlands Resolution and the Admissions Act or on just the Apology Resolution. The fact is, the federal laws on the subject are emerging as something of a mine-field that the state court will have to negotiate - whether they are addressed or even mentioned in a final Supreme Court decision or not.

Again, the chief justice:

CHIEF JUSTICE ROBERTS: And if the Hawaiian Supreme Court wants to create, under State law, a particular type of fiduciary obligation grounded on the status of the land prior to admission, then it has to run -- under the Supremacy Clause, it has to be consistent with the Federal provisions.

Kauai Springs last permit - Might conditions be an attempt to overcome jurisdictional defects?

Generally, when one would like to circumvent a court's order, one ought not announce it in a public meeting.

But that appears to be what Planning Commissioner and former Chair Steven Weinstein did at yesterday's meeting approving Kauai Springs' final permit as ordered by the 5th Circuit court.

As the GI's Michael Levine pointed out in his report, "[Judge] Watanabe’s ruling essentially made clear that the commission has no jurisdiction in water disputes."

Commissioners aren't happy with the court's holding regarding the commission's lack of jurisdiction in the matter and, according to the GI -

Commissioner and former Chair Steven Weinstein said to his colleagues, “You may have some reservations but the court order (ties our hands). ... You got to do it. The only way is by attaching as much conditions as we can.”

This quote leaps out at me as an excellent candidate to be included in a future plaintiff's brief if Kauai Springs were to challenge the conditions mentioned by Weinsten, or to challenge any denial of some future request that the conditions be modified in order, say, for the company to expand operations.

After all, Weinstein has arguably just publicly announced that the purpose of the conditions is to accomplish to the extent possible an end run around the court's order.

David Shapiro notes some cognitive dissonance in the OHA's multi-prong ceded lands approach

...over at Volcanic Ash -

By asking the Legislature for a moratorium on ceded land sales, however, OHA possibly undermines its legal case that such sales are unlawful by tacitly conceding that the Legislature and the state have the right to sell the lands or not as they see fit.

And by rejecting OHA's request for a moratorium in favor of the two-thirds vote to approve ceded land sales, the Senate is hanging onto the state's right to sell ceded lands — just setting a higher bar for approval.

Turnout for civil unions hearing larger than Superferry hearings 2007 special session

So Tweets Derrick DePledge.

Civil unions debate live tweet

Senate Majority Caucus blog and Derrick DePledge are live-Twittering the Senate JGO hearing on civil unions.

Update: And so is the Star-Bulletin. (Thanks, Nancy).

Happy birthday Marbury v. Madison

The case in which the U.S. Supreme Court first asserted that it has the power to nullify as unconstitutional acts of the other branches is 206 years old today. It was an extremely controversial move at the time. As Jefferson said of it, "Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches."

The Jeffersonian Republicans, who favored states' rights over the Federalists vision of a strong, national government, won out in the short run by dismantling large chunks of the judiciary put in place by the Federalists who, as a party, had enjoyed a monopoly on political power since the founding. The Supreme Court never nullified another act of government for the remainder of Chief Justice Marshall's 35 year tenure. In fact, it wasn't until decades after it was decided that Marbury was recognized as the seminal case we know it as today. But in the end, as we all know, the power of the judiciary to review the acts of the other branches is rarely questioned, and national government has grown in power to a degree that would cause even the High Federalist Alexander Hamilton to blush.

There's a new book on the subject that's been sitting in my Amazon shopping cart since last week and that I'm looking forward to reading. One of its authors (Cliff Sloan, an attorney and the former publisher of Slate.com) is featured in a short interview at SCOTUSblog. Apparently, he will also be on The Colbert Report tonight.

Update: another short but interesting interview with author Cliff Sloan, on WSJ's Law Blog.

All ceded lands, all the time

...today.

Via Twitter, the Hawaii Senate passed with 24 votes SB 1677 restricting sale of ceded lands -

Notwithstanding any law to the contrary, no sale of lands under subsection (a) in fee simple, including land sold for roads and streets, shall occur without the prior approval of the sale by the legislature by concurrent resolution to be adopted by each house by at least a two-thirds majority vote of the members to which each house is entitled in a regular or special session at which a concurrent resolution is submitted for approval of the sale

Also, Derrick DePledge Tweeted earlier today:

Senate passes symbolic resolution urging Gov. Lingle to drop ceded lands appeal to SCOTUS.

Emphasis on the "symbolic."

And KITV4 Tweeted,

KITV.com OHA Wants Lingle To Pull Ceded Lands Appeal: Native Hawaiians prepare for the state's appeal at.. http://tinyurl.com/cfwtbp

Acting Solicitor Gen can argue on bahalf of state in ceded lands case

According to the Advertiser -

Acting Solicitor General Edwin Kneedler will be allowed to speak on behalf of the state of Hawaii in its ceded land case against the Office of Hawaiian Affairs on Wednesday, the U.S. Supreme Court decided today.

The paper points out that

OHA and its supporters had hoped that President Barack Obama's new solicitor general, Elena Kagan, would drop Kneelder's support of the state's position on the case.

But, you know, it was just a bad idea for everyone - from the OHA in the original case, to the state Supreme Court - to make the federal apology resolution (at least appear) so central to the issue of freezing sales of the ceded lands. (Of course, I make that observation with the benefit of hindsight). Had the OHA's arguments and the Supreme Court decision been more clearly based in state law, then arguably the outcome would not have had such broad implications for the interests of other states and the federal government. Whether or not it could have been foreseen and avoided (I think it could have been), the OHA and the state Supreme Court created by their own arguments all the opposition they are now experiencing.

SCOTUSblog previews ceded lands case

SCOTUSblog provides a lengthy and helpful synopsis of the various briefs filed in the ceded lands case to be argued next Wednesday.

The State begins its petition for certiorari by emphasizing the practical impact of the decision below, which limits the State’s ability to manage virtually all of the state-owned land in Hawaii.
...
Next, the State argues that the Hawaii Supreme Court incorrectly interpreted the Apology Resolution as limiting Hawaii’s sovereign authority to sell its own land.
...
Opposing certiorari, OHA does not address the merits of the Hawaii Supreme Court’s interpretation of the Apology Resolution. Instead, the OHA argues first that the decision rests on adequate and independent state grounds, because the Hawaii Supreme Court’s decision was grounded in state trust law and the State’s fiduciary duty to Native Hawaiians, as established by the four state laws cited by that court.
...
In any event, OHA argues, this case does not warrant review by the Supreme Court because the holding is limited to Hawaii’s unique circumstances.
...
Turning to the merits, the State makes three primary arguments. First, it again contends that the Hawaii Supreme Court erroneously interpreted the Apology Resolution. Second, the decision conflicts with other federal laws besides the Apology Resolution....Third, constitutional avoidance requires the Court to reverse the decision below...
...
In its brief, the OHA again argues the Supreme Court lacks jurisdiction to review the decision below because it was based in state law...
...
OHA next argues that the Court should not consider the State’s argument that the decision below conflicts with federal laws such as the Newlands Resolution and the Admission Act. Such an argument, OHA contends, is not properly within the scope of the question presented.
...
In its reply brief, the State contests OHA’s claim that the Hawaii Supreme Court relied on the Apology Resolution merely as factual support.
...
Similarly, the State dismisses OHA’s arguments that the Newlands Resolution and Admission Act do not bear on the decision below because it rested on the political and moral claims of Native Hawaiians rather than their legal claims to the land. Although, in the State’s view, OHA is oversimplifying the basis for the decision below, the state courts in any event are only entitled to issue injunctions on the basis of legal (rather than moral) claims, and federal law bars Native Hawaiians’ legal claims to the land.
...
The Solicitor General filed a brief for the United States as amicus curiae in support of the State. The United States focuses on the State’s argument that long-established federal law bars Native Hawaiians’ claims to the land. It argues that the Newlands Resolution and Organic Act confirm that the federal government took absolute title to the land, without any constraints on alienation. The federal government then transferred its unencumbered title to the State, subject only to a federal (not state) trust in the Admissions Act. Because the Apology Resolution neither repealed those acts nor intruded upon Hawaii’s sovereign authority, the Hawaii Supreme Court’s injunction cannot stand.

That's just a minimal taste. Read the whole thing. As mentioned, Wednesday the 25th is the big day. Robert Thomas at Inversecondemnation.com promises to have something to say after oral argument transcripts are posted (often later the same day). And I'll have something to say as well, I'm sure.

Friday gecko blogging

Thanks to Sheila at Go Visit Hawaii for sharing this one via Twitter.

But why do they need a moderator?

Via the Hawaii House Blog -

Rep. Mele Carroll, chairwoman of the Hawaiian Affairs Committee, will be a panelist in a live discussion on ceded lands airing on KITV4 Friday, February 20, 2009 at 7 p.m. Other guests include former Gov. John Waihee, Senate President Colleen Hanabusa, and Office of Hawaiian Affairs President Haunani Apoliona with moderator Skylark Rossetti. The show will also be broadcast online at www.kitv.com.

Sound interesting, but wouldn't it be more so if it included a broader range of opinions? I'm sure there are some variations of degree, but I think Carroll, Waihee, Hanabusa, and Apoliona are all roughly in agreement with the state Supreme Court decision banning the sale of ceded lands until a settlement is reached.

Extending Act 2

Pacific Business News has a piece on Senate Bill 989 and House Bill 1171 that would amend Act 2, extending until June 2010 its provisions allowing operation of the Superferry during completion of an EIS.

Which reminds me to wonder when the Hawaii Supreme Court might issue a decision in Sierra Club v. Hawaii DOT argued in December.

Governor nominates ICA Chief Judge Mark Recktenwald to replace Levinson on Supreme Court

So reports the Advertiser.

This, of course, provides the governor with two appointments as she now gets to replace the Chief Judge.

From the judiciary page bio:

Mark E. Recktenwald served as Director of the Hawai`i Department of Commerce and Consumer Affairs from 2003 to 2007. He was also an Assistant U.S. Attorney for the District of Hawai`i from 1991 to 1997 and from 1999 to 2003, serving as a prosecutor in the office's criminal division and handling civil fraud cases. He specialized in the prosecution of white collar fraud cases and environmental crimes. Judge Recktenwald also worked as a partner at Marr Hipp Jones & Pepper (1997 to 1999), and as an associate with Goodsill Anderson Quinn & Stifel (1988 to 1991). He also served as a law clerk to the late Chief United States District Judge Harold M. Fong (1986 to 1987).

Judge Recktenwald received his J.D., with honors, from the University of Chicago Law School and his A.B. from Harvard University, magna cum laude with highest honors in anthropology.

Update: Chief of Media Relations for the office of the governor, Russell Pang, has a piece on the nomination in Hawaii Reporter.

Kauai Ponzi scheme

From the facts in the Star-Bulletin story, one would think this should have raised red flags all over the place for potential 'investors.' The accused advertised on Craigslist; he allegedly guaranteed 5 and 5 1/2% return per month trading stock options; he told 'investors' that because he is not a licensed stockbroker everyone had to pretend they were loaning him money and he would make out notes to them indicating the return he was guaranteeing; and new 'investors' had to go through earlier investors who received a finders fee. How does that story not make anyone slam the door in the guy's face and immediately call the authorities?

Associate Justice Steven Levinson Star-Bulletin interview

The Star-Bulletin features a longish piece today highlighting an interview with Retired Hawaii Supreme Court Associate Justice Steven Levinson who authored the 1993 decision Baehr v. Lewin. That decision remanded to the circuit court the question of whether the state Dept of Health's interpretation of Hawaii's marriage law as prohibiting same-sex marriage was constitutional.

The decision announced that the inquiry on remand was to be made in accordance with the "strict scrutiny" standard, the burden resting on the state to overcome a presumption that the marriage law, "HRS §572-1, is unconstitutional by demonstrating that it furthers compelling state interests and is narrowly drawn to avoid unnecessary abridgments of constitutional rights."

(The lower court had ruled that homosexuals do not constitute a "suspect class" for purposes of equal protection analysis under article I, section 5 of the Hawaii Constitution; that the classification created by HRS §572-1 is not subject to "strict scrutiny," but must satisfy only the "rational relationship" test; and that the marriage law satisfied the rational relationship test because the legislature designed it to "promote the general welfare interests of the community by sanctioning traditional man-woman family units and procreation.")

Baehr was effectively overturned when the state Legislature placed on the 1998 ballot a constitutional amendment that became Article I, Section 23 of the state constitution and provided that, "[t]he legislature shall have the power to reserve marriage to opposite-sex couples."

In another related piece, Justice Levinson denies accusations in "Broken Trust" and former Gov. Cayetano's new book that messages Levinson left with the secretary for then-Bishop Estate Trustee Gerard Jervis "left little doubt that Levinson was providing Jervis with information about the court's deliberations about Bishop Estate," constituting "an obvious and egregious violation of the Judicial Code of Professional Ethics."

Happy birthday, Mr. President...

drawing credit

Oh, well that's okay then

Hawaii to get $942M from federal stimulus bill

Friday turtle blogging

Mrs. Foster and I encountered this turtle on an early evening walk last month. I wasn't carrying a camera so this was shot with the Blackberry.

Proposed unauthorized practice of law rule

Outgoing Hawaii State Bar Association president Jeffrey Sia defends it in today's Pacific Business News.

Opposition to the proposed rule by the state attorney general and some of the erroneous reporting of the purpose of the UPL rule may leave the public bewildered. To cut through the haze, let us make both intent and scope of the proposed rule as clear as possible....

Ceded lands debate online

Good news for those of us unable to watch the live stream of today's ceded lands debate at the U of H law school. Kapu`aina Coalition has posted video here.

Today's ceded lands debate at the University of Hawaii Law School

The Hawaii Federalist Society sponsored a debate today at the University of Hawaii Law School on the ceded lands case. Robert Thomas has provided a summary, including select questions and answers at Inversecondemnation.com.

On one side, U.H. lawprof Carl Christensen, arguing that the Hawaii Supreme Court's decision enjoining the State from doing anything with the ceded lands until such time that a political settlement is reached with Native Hawaiians is correct. On the other, Ilya Shapiro, a Senior Fellow at the Cato Institute's Center for Constitutional Studies and Editor-in-Chief of the Cato Supreme Court Review, arguing that the Apology Resolution was hortatory and had no legal effect.

An economic aside

I wasn't going to post it when I saw this chart on Reason.com taken from a January 23 New York Times op ed purporting to show that, historically, government anti-recession efforts are generally initiated too late to do any good:



But this morning I saw via twitter.com/KGMB9 that "U.S. retail sales jumped 1 percent in January, reversing six months of declines. It was the biggest increase reported by the Commerce Department in 14 months....Sales of autos and parts rose 1.6 percent. Total retail sales excluding autos and parts still rose 0.9 percent, which again easily beat estimates by economists who expected a decline of 0.5 percent."

The first glimmer of a turnaround? Who the heck knows? Not me. What timing, though! We can at least hope that the stimulus package to be voted on tomorrow will in the long run serve as further evidence of the government's craptitude at predicting markets.

Intermediate Court of Appeals FAQ

Here (PDF), via Dan Seto.

Hawaii ICA summarily affirms dismissal of 1000 Friends of Kauai challenge to Superferry

In a summary disposition order filed today, the Hawaii Intermediate Court of Appeals said HEPA's 120 day statute of repose was a jurisdictional time bar to the petitioners' claims.


Besides challenging the 5th Circuit's findings that it lacked jurisdiction as the claims were time barred, the petitioners had also challenged the court's findings that Sierra Club v. Dept. of Transportation, which had effectively stopped Superferry operations to and from Maui, applied only to Maui and not to the entire state, and that the presumption of harm relating to HEPA violations did not apply to petitioners' claims. The petitioners had also argued that Act 2 is unconstitutional.

The appellate court did not reach these questions since they were essentially mooted by their being time barred.

via http://twitter.com/invcondemnation

Can the Hawaii State Teachers Association bargain away its 'search and seizure' protections?

I don't see why not.

As I recently said, I've been watching with interest the fight brewing over the agreement between the teachers' union and the state regarding drug testing. A piece in Sunday's Star-Bulletin rekindled my interest. The piece is mostly concerned with the potential constitutionality - or lack thereof - of requiring random drug testing among teachers. But I'm not sure that's the real issue. The teachers bargained for a pay raise and in exchange agreed to negotiate a random drug testing policy. The issue then would seem to be whether a bargaining unit can bargain away a right against random drug testing. I would think that it can.

Individuals can always consent to an otherwise illegal search. If an officer without any reasonable suspicion asks you in a traffic stop, "Do you mind if I look in your trunk?" and you say go ahead, and the officer finds, say, drugs, then they are admissible as evidence in your trial on the grounds that you consented to the search, essentially waiving your right against unreasonable search and seizure.

Can a bargaining unit consent en masse to random searches? I don't know why not. But I'm certain we will hear more about the issue as events develop and I'll be eager to report the arguments.

Admittedly my position is not a strongly researched opinion. If anyone has a more informed assessment, by all means, comments are always welcome.

AmLawDaily: Who Owns 1.2 Million Acres in Hawaii?

A very interesting piece on the ceded lands case that begins, "The Am Law Daily is almost guaranteed to write about any U.S. Supreme Court case in which the briefs mention the Louisiana Purchase and the western world's first approaches to Hawaii in the late 1700s."

The state appealed to the U.S. Supreme Court and retained Seth Waxman, the former solicitor general and current Wilmer Culter Pickering Hale and Dorr partner, to argue the case. The Office of Hawaiian Affairs, the agency fighting for the native peoples, has retained Williams & Connolly partner Kannon Shanmugam, who served as assistant to the solicitor general after Waxman's tenure ended. (Interesting fact: Shanmugam was Williams & Connolly's first lateral hire in 22 years when he moved to the firm last October.)

Waxman and Hawaii's attorney general, Mark Bennett, claim that the U.S. took rightful ownership of all public Hawaiian land when they annexed Hawaii as a territory in 1898--five years after a group of American businessmen orchestrated the overthrow of Hawaii's last monarchy. Congress restated that claim when the U.S. admitted Hawaii as a state in 1959, the Waxman-Hawaii brief says. (This is the brief that details how the U.S. claimed ownership of lands in the Louisiana Purchase--catnip to history nerds like us).

The Williams & Connolly team says the state constitution, amended in the late 1970s, guarantees the Native Hawaiians' rights to a claim on the land. A quick sale, even for one of the five approved purposes (such as building more public housing), would cut short an ongoing state process of sorting out Native claims--and possibly short change the native population.

Also at issue: The U.S. officially apologized to Hawaii for the government's role in the 1893 coup; the apology, issued in 1993, recognized the right of Native Hawaiians to the land. Whether that apology has any legal impact is part of the argument.

Interestingly, the Obama administration filed papers last week supporting Hawaii's position and asking the court for ten minutes of argument time. Obama, of course, was born in Hawaii. The brief, filed by acting Solicitor General Edwin Kneedler, says the U.S. has key interests (including military bases) on the disputed land; there appears to be some disagreement over whether the Pearl Harbor base is on the 1.2 million acres at issue.

Friday gecko blogging

Former Chief Justice Herman Lum and some fascinating Hawaii judicial history

Ian Lind has a great post recounting an era in which the Hawaii judiciary operated as a "political machine." Be sure to click through to the 1985 Advertiser story and to the Common Cause news clip collections. It's like stumbling upon a Hawaii judiciary history treasure trove. Thanks, Ian.

[U]nder Lum’s predecessor, the Judiciary had grown by becoming thoroughly politicized, engaging in heavy lobbying, and becoming dangerously tied to Democratic Party leaders and individual legislators of both parties.

Lum, faced with calls for investigations of the allegations, named an independent “blue ribbon” panel and began a process of depoliticizing the courts and dismantling the empire built up by the popular court administrator, Tom “Fat Boy” Okuda.

Okuda had carefully cultivated friendships with key political figures and they struck back with a vengeance, punishing Lum and the courts using a variety of pretexts to show their displeasure with what they saw as the scapegoating of Okuda.

Forbes Supreme Court Cheat Sheet on ceded lands case

Forbes has some interesting analysis this morning on the ceded lands case -

When the Supreme Court takes a case directly from a state supreme court and there isn't a conflict among lower courts over the same legal issue, experts say it usually means the high court thinks its state counterpart got it wrong.

That may be the situation with another history-laden case that pits Hawaii against groups representing native Hawaiians over the status of 1.2 million acres of land, 20% of the island state. In a 2008 ruling, the Hawaii Supreme Court blocked the sale of some of that land to a private developer, saying the state couldn't transfer any property until the Hawaii legislature resolved the question of whether native Hawaiians actually owned it.

The fight stems from the 1898 annexation of Hawaii, which Congress authorized and President McKinley signed after an earlier coup dethroned Queen Lili'Uokalani. Hawaii became a state in 1959, but the Hawaii Supreme Court ruled that a 1993 "Apology Resolution," in which Congress called the overthrow of the monarchy "illegal," reopened the question of who owns the land.

This is a tough one to call. The Supreme Court in 1984 upheld Hawaii's aggressive land-reform law, which forced large landowners to sell to homeowners at court-mandated prices to end, in the words of then-Justice Sandra Day O'Connor, the state's "feudal land tenure system." That contributed to the Roberts court's contentious Kelo decision in 2005, upholding a Connecticut city's condemnation of private property for a commercial project.

Ceded land sale moratorium - legislative vs. judicial

Nancy Cook Lauer has a good post in All Hawaii News updating movement in the legislature toward a ceded lands bill. If there is to be a change in the state's power with regards to the ceded lands, the legislature is definitely the place it should occur. Better for a deliberative body with political accountability to craft a rule through debate, compromise and agreement than for the judiciary to pull a rule out of its...hat and impose its policy preference on the other branches.

Hawaii legal news updates

I've been too slammed by work to blog recently. This is, of course, good in an important sense. But it also has drawbacks in that there's been quite a bit of legal news I've wanted to comment about.

Ceded Lands case

Robert Thomas at inversecondemnation.com has been doing an admiral job of posting updates. Notable news lately has been the filing of a raft of amicus briefs in support of Respondents, Office of Hawaiian Affairs -

Brief for the Alaska Federation of Natives, Inc., in Support of Respondent Brief for the Equal Justice Society, and the Japanese American Citizens League in Support of Respondent Brief for Abigail Kinoiki Kekaulike Kawananakoa in Support of Respondent Brief for the National Congress of American Indians in Support of Respondent Brief for the Hawaii Congressional Delegation in Support of Respondent Brief for Current and Former Hawaii State Officials in Support of Respondent Brief for The Native Hawaiian Legal Corporation, the Association of Hawaiian Civic Clubs, Hawai‘I Maoli, the Native Hawaiian Chamber Of Commerce, the ‘Ilio‘Ulaokalani Coalition, the Council for Native Hawaiian Advancement, and I Mua Group in Support of Respondent Brief for the Asian American Justice Center, the National Coalition for Asian Pacific American Community Development, Inc., Organization of Chinese Americans, Inc., the Asian Law Caucus, the Asian American Institute, the Asian and Pacific Islander American Health Forum, and the Asian Pacific American Legal Center in Support of Respondent Brief for the Sovereign Councils of the Hawaiian Homelands Assembly, Na ‘A‘Ahuhiwa, the Native Hawaiian Bar Association, Hui Kako’o ‘Aina Ho’o Pulapula, and ‘Ahahui O Hawai’i in Support of Respondent Brief for Native Hawaiians, Samuel L. Kealoha, Jr., Virgil Emmitt Day, Jr., Patrick Kahawaiolaa, Josiah L. Hoohuli, and Mel Hoomanawanui in Support of Respondent

Regrettably, I haven't yet had a chance to look at a single one of them.

Also of note is this motion by the Obama Administration to participate in oral arguments supporting petitioners, the State of Hawaii. Thanks again to Robert for hosting the document. Here's his post on the newest development.

Hawaii Reporter has an interesting piece today discussing the big guns hired by both sides to craft the arguments.

Kauai Springs Water permits

Having followed the Kauai Springs bottled water case on this blog I was interested to see in Monday's Garden Island that the planning commission approved two of three permits 5th Circuit Judge Kathleen Watanabe had ordered the county to grant to the water bottling firm. The article made mention of an appeal by the county and "the potential of an assist from the Office of Hawaiian Affairs." However, "An inquiry made of OHA Thursday seeking comment on the possibility of joining the proceedings did not yield a definitive answer."

My understanding of potential OHA interest in the case is that it stems from the legal rule that surface water in the state is a "public trust resource" in which Native Hawaiians have certain traditional and customary rights. The water used by Kauai Springs is ground water, which does not fall under the public trust doctrine. However, the OHA has publicly argued that under state supreme court precedent, where surface water and underground water mix and become part of a single system, the public trust doctrine applies to the whole of it and traditional Hawaiian water rights can be asserted.

I don't know what case the OHA relies on for that proposition. But if the OHA files a brief and raises the issue I'll certainly dig it up and we'll discuss it then. Until then, I'd just remark that the theory has large ramifications state-wide, since under it the public trust doctrine would expand to apply to all waters in the state.

Drug testing state teachers

I've been watching with interest the fight brewing over the agreement between the teachers' union and the state regarding drug testing. A piece in Sunday's Star-Bulletin rekindled my interest. The piece is mostly concerned with the potential constitutionality, or lack thereof, of requiring random drug testing among teachers. But I'm not sure that's the real issue. The teachers bargained for a pay raise and in exchange agreed to negotiate a random drug testing policy. The issue then would seem to be whether a bargaining unit can bargain away a right against random drug testing. I would say, absolutely it can.

However, in an example of horrible, ineffective contract drafting, what the sides really agreed to was that in exchange for concessions from the state, the teachers would "agree to negotiate reasonable suspicion and random drug and alcohol testing procedures." So it's no wonder there's been no resolution. They agreed to negotiate on some vaguely defined issues. Good luck with that.