Senate President Hanabusa doubts state law supports a ceded lands injunction

At least that's how I interpret her comments to KGMB9's Steve Uyehara and Grace Lee. Watch the whole thing, but at about the 3:20 mark, when answering a question regarding the extent of the state supreme court's reliance on the Apology Resolution in enjoining the state from selling ceded lands, Senator Hanabusa remarks that -

Prior to this point in time, when you look at the decisions by the Hawaii Supreme Court, I never saw a reference to injunctions being offered. They've already and always felt that the resolutions with the Native Hawaiians was always a political issue and would always throw it back to the legislature for determination. So I would be relatively surprised if there's a basis in Hawaii law they're going to rely on.

Ceded lands - what next?

Judge-made law is special legislation. The judge is human, and feels the bias which the coloring of the particular case gives. If he wishes to decide the next case differently, he has only to distinguish, and thereby make a new law. The legislature must act on general views, and prescribe at once for a whole class of cases.

- Robert Rantoul, Oration at Scituate (July 4, 1836)

Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary controul, for the judge would then be the legislator.

- James Madison, The Federalist No. 47 (quoting Montesquieu).

Having held that the Apology Resolution did not strip Hawaii of its sovereign authority to alienate the ceded lands, the U.S. Supreme Court has remanded the case "for further proceedings not inconsistent with this opinion."

While the state ostensibly won the round, one imagines the administration is nervous about what the Hawaii Supreme Court will do with the case on remand. Of all the courts around the nation, Hawaii's must be one of the least shy about elbowing its way into the policy-making arena and essentially legislating new rules of law. It's an open question (to my mind, anyway) whether the Hawaii court really thought the Apology Resolution foreclosed the state's right to alienate the ceded lands, or whether instead the court found in the Resolution a stepping stone toward the policy outcome it wished to enact.

Of course, the answer will be revealed on remand and it will be interesting to see whether the court disavows its reliance on the Apology Resolution and constructs a new rationale based instead on state law. That is certainly what the OHA will strongly urge. However, the court does not have free range even of state law to announce a legal, or even an equitable, interest in the lands by Native Hawaiians (or by anyone, for that matter, other than the state). Recall Justice Scalia's comment during oral arguments:

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.

It's not surprising, given Chief Justice Roberts's preference for narrowly drawn decisions, that the court did not venture to address that point but rather followed Justice Ginsburg's counsel "just to say that this resolution has no substantive effect, period[.]" Still, even though not directly asserted by the Supreme Court, that point still remains as a warning guide to the state court - as does the Chief Justice's advice, also given in oral arguments:

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 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.

So any rationale for locking up the ceded lands based on a prior moral claim that they were taken from native Hawaiians without consent or compensation would seem vulnerable on appeal, the counter-argument being something like: Be that as it may, it does not act to cloud the perfect title passed by the federal government to the state.

But having based its decision that the lands are inalienable pending resolution of native claims on a holding that Hawaiians possess a prior moral claim that represents a cloud on title, the state court may have limited room to maneuver. Any different rationale to get to the same outcome will be obviously and patently a post-hoc improvisation to justify the court's imposition of its own policy preferences. The decision would be revealed as not an honest assessment of the law's requirements, but rather as an unprincipled assertion of 'the unfettered wisdom of a majority of the court.'

Although those agreeing with the court's policy preference in this issue would applaud such a decision, it would come with a cost to the court's credibility. If there is to be a change in the state's power with regards to the ceded lands, the legislature is 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.

Supreme Court ceded lands decision

Via scotusblog:

The Court has released the opinion in Hawaii, et al. v. Office of Hawaiian Affairs, et al. (07-1372), on the state’s authority sell state lands. The decision below, which held for the Office of Hawaiian Affairs, is reversed and remanded in a unanimous opinion by Justice Alito, available here.

From the Opinion:

When a state supreme court incorrectly bases a decision on federal law, the court’s decision improperly prevents the citizens of the State from addressing the issue in question through the processes provided by the State’s constitution. Here, the State Supreme Court incorrectly held that Congress, by adopting the Apology Resolution, took away from the citizens of Hawaii the authority to resolve an issue that is of great importance to the people of the State. Respondents defend that decision by arguing that they have both state-law property rights in the land in question and “broader moral and political claims for compensation for the wrongs of the past.” Brief for Respondents 18. But we have no authority to decide questions of Hawaiian law or to provide redress for past wrongs except as provided for by federal law. The judgment of the Supreme Court of Hawaii is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

Sen. Akaka's statement, via KGMB9.com:

I will continue to monitor the case as it is taken back up by the state courts. I still believe the best way forward is through direct negotiations between the state and federal governments and a federally recognized Native Hawaiian government. For these issues to be resolved, Native Hawaiians need a seat at the table. Mainland indigenous people have this opportunity and Native Hawaiians deserve the same chance.

Iolani Palace takeover update

Advertiser: Felony charges dismissed for 6 of 7 arrested in Iolani Palace takeover

Circuit Judge Richard Pollack ruled the state had insufficient evidence to sustain second-degree burglary charges against any of the defendants except James Akahi, leader of the group Free Hawaii.
...
...[T]he six still face petty misdemeanor trespassing charges.

Hawaii election law

From Ballot Access News -

Ralph Nader’s 2004 Hawaii ballot access case has been in the 9th circuit since last year. The chief issue is whether it is constitutional for Hawaii to require six times as many signatures for an independent presidential candidate as for an entire new party. Last year the 9th circuit put the case on hold, to see if the legislature would alter the law for independent presidential candidates....The Hawaii legislature adjourns May 7. At that time the lawsuit will be active again.

Here's some background from a March 2008 Advertiser piece.

Hawaiian sovereignty and traffic court

As I've discussed before, claims that the state courts lack jurisdiction over Native Hawaiians are often raised and are routinely and summarily dismissed. It is well settled as far as Hawaii courts are concerned that the state has jurisdiction to enforce its criminal and traffic laws within the boundaries of the state, regardless of whether the defendant in question is Native Hawaiian and claims immunity from such jurisdiction. It is also well settled that the state’s criminal jurisdiction encompasses all areas within the territorial boundaries of the State of Hawaii, including on Hawaiian home lands.

An interesting piece by Kai Landow in Indian Country Today asserts that, while sovereignty advocates would prefer that the courts directly address their sovereignty arguments, Native Hawaiian plaintiffs are nevertheless scoring wins through dismissals of cases in which arresting officers essentially claim to have insufficient memory of the incidents to testify. The piece does not venture any theories to explain the selective amnesia. It would seem to raise the question, if their testimony is entirely uncoerced, why the officers issue the tickets in the first place. It would also seem to raise equal protection concerns for anyone not similarly benefited.

“Your Honor.” Interjects the Prosecutor, who stands awkwardly on one high heel. “I have to inform the court that officer Kealoha informs me that he cannot remember the defendant and I move to dismiss those tickets.”

“You mean to tell this court that the officer cannot reconstruct from his ticket or notes of the traffic stop to go ahead with trial?”

“He so informs me.”
The judge looks exasperated and impatiently asks.

“Are you ready to go ahead with the other Officer to try that case?”

“I am your Honor”...
...
officer Choi states on the stand he too cannot remember the defendant. The prosecutor asked him to review the summons. He reviews the ticket carefully and admits it is his handwriting. He returns the ticket to the prosecutor and she asked him “What did you charge the defendant with?”

“I am sorry I cannot remember.”

“I just showed you the ticket officer Choi!”
...
[Attorney] Gary Zamber doesn’t know how he won Rocky’s case and how we get all of these cases dismissed. We must have gotten 25 cases dismissed so far and for us that is a failure. We want the court to rule on these issues.

New Hilo Judiciary Complex

Passing along a judiciary media release -

The new Hilo Judiciary Complex, named "Hale Kaulike" (House of Justice), opens for business Monday, March 30 at 7:45 a.m. A building and artwork dedication ceremony will be held at the courthouse on Wednesday, April 1 at 2 p.m.

Perhaps Damon Tucker will go take pictures of it for us.

Court grants state extra time to file motion to reconsider Superferry decision

The state has until April 13 to file its motion and arguments.

With luck, some kindly soul will do the public a service and trek down to the courthouse, get a copy of the state's memorandum, and post it online (or, email to me and I'll post it).

Superferry reconsideration motion procedural update

Derrick DePledge tweets:

State asks the Supreme Court for more time to file a motion of reconsideration on Superferry ruling. Deadline is 10 days from the ruling.

Hawaii Rules of Appellate Procudure
Rule 40. MOTION FOR RECONSIDERATION.
(a) Time. A motion for reconsideration may be
filed by a party only within 10 days after the filing of
the opinion, dispositional order, or ruling unless by
special leave additional time is granted during such
period by a judge or justice of the appellate court
involved.

Friday gecko blogging

Outside the kitchen window earlier this week.

Backlash

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.

Ceded Lands panel on PBS tonight

Insight on PBS Hawaii
Thursday, March 19th at 7:30 PM

The State of Hawaii and the Office of Hawaiian Affairs argued opposite sides of the Ceded Lands case at the US Supreme Court a few weeks ago and are awaiting the Court's decision. Key players on both sides of the debate join host Dan Boylan to look at this issue from many angles - not only legal & historical - but social, moral & cultural. Guests include:

MARK BENNETT
State Attorney General

BEN CAYETANO
Former Hawaii Governor

HAUNANI APOLIONA
Chair, OHA Board of Trustees

SHERRY BRODER
OHA Attorney

What it means to ask the Superferry court to reconsider

Derrick DePledge -

Gov. Linda Lingle will ask the state Supreme Court to reconsider a decision that led to the shutdown of Hawaii Superferry, because the ruling could threaten other laws aimed at assisting particular groups.
...
"The decision, we feel, was too broad," Lingle said. "It basically concluded that the Legislature can never do anything that favors one group over another. But that's what they do every day."
...
"The decision, we believe, infringes upon our rights to pass legislation," [State Senate President Colleen] Hanabusa said.

Under Hawaii Rules of Appellate Procedure, Rule 40, Motion for Reconsideration, a party can file a motion for reconsideration stating the points of law or fact that the party contends the court has overlooked or misapprehended, together with a brief argument on the points raised.

The court has 10 days to either grant or deny the motion, and failure on the court’s part to respond one way or the other is deemed a denial of the motion.

Superferry decision seems to claim too much judicial authority over legislative acts

Hawaii House Communications Director Georgette Deemer Tweets:

House/Senate amicus brief will ask HAWSCT to clarify pts of Superferry decision that seem overbroad, misinterpret ledge power and authority.

The legislature's concern is hardly surprising. As I said previously, while the court grounds its decision in the specific constitutional requirement that the "legislative powers over the lands owned by or under the control of the state and its political subdivisions" be exercised only by "general laws," by the decision's conclusion, Justice Duffy is painting in exceedingly broad strokes the court's authority over acts of the legislature.

By the decision's conclusion, the court's analysis veers away from the specific constitutional section regarding the legislature's power over state lands and invokes the more general doctrine of equal protection which, under the court's expansive description of its requirements, would seem not to depend on any particular constitutional provision at all. Rather, the court seems to assert, any law providing benefit for a particular individual, class, or entity, is in violation of this sweeping constitutional doctrine.

***

"[O]ur constitution prohibits laws which provide disparate treatment intended to favor a specific individual, class, or entity..."

Sierra Club v. State Dep't of Transportation, No. 29035 (March 16, 2009).

***

But that can't be right. What of last year's legislative attempts to smooth the way for Aloha Airlines as it lurched into insolvency? Under the court's equal protection analysis propounded in the Superferry decision, any such legislation could well be contrary to the court's new reading of constitutional restraints on the legislature's power to act.

And the court's new equal protection jurisprudence would seem on its face to preclude legislation that benefits Native Hawaiians (an obviously unintended ramification; and doubtless the court would decline to follow its own logic in such a case. And this points up another weakness in the court's equal protection doctrine: it lacks principle).

The other branches are right to be concerned. In the decision's conclusion the court can arguably be seen as unhinging from specific constitutional clauses the limits of the legislature to act, and instead making the legislature's power contingent on very broad and nebulous doctrinal constraints which are subject only to the court's own definition.

Maybe Justice Duffy's conclusion is merely a soliloquy - a decorative finial capping off of 113 pages of analysis. Or maybe it's a judicial branch power play. It seems fair for the legislature to ask for some clarification on that point.

New Judiciary History Center website

Check out the new King Kamehameha V Judiciary History Center website.

Via Dan Seto.

Other legal blogs on the Superferry decision

Professor of Law Emeritus Gideon Kanner at his blog, Gideon's Trumpet -

As far as we are concerned, the 216-page Hawaii Supreme Court opinion, plus the 11-page dissent, amount to a case of never-has-so-much-been-said-by-so-many-in-defense-of-so-little, to paraphrase Winston Churchill, and maybe someone should sue the Hawaii Supreme Court for contributing to global warming certain to increase after laying waste to the forests that had to be chopped down for the paper used thus far in that controversy.

In case you aren’t keeping this in mind, Hawaii is an island archipelago in the middle of the Pacific Ocean, which means that most of the stuff the Kanakas and their Wahines consume has to be brought in by ship. And, though claiming no seafaring expertise, last time we looked, transpacific freighters were pretty hefty vessels, probably bigger that that ferry. So why they would pose no threat to the environment as they shuttle from the mainland to the islands or among islands to unload their cargo, while the Superferry would do so is beyond our meager intellectual capacity to parse.

But, hey man, this is 21st century America where nothing of substance can get done without judges’ say so. What the hell, it keeps lawyers gainfully occupied.

Attorney Robert Thomas, who has been covering this case extensively on his blog, inverscondemnation.com -

The saga of the Hawaii Superferry has always seemed to be touched by George Lucas.

A certain segment of Hawaii's population has from the get-go considered the interisland vehicle ferry as nothing less than the Death Star: a whale-killer, a transporter of invasive alien species, and harbinger of a militarized imperialist government. (Others don't view it so malignantly, just as a much needed and long overdue alternative to interisland transportation, or as a refutation of Hawaii's reputation as a horrid place to conduct a business...but work with me here).

Attorney Benjamin Lowenthal's Hawaii Legal News -

The Spectre of Populism? The Hawai'i constitution limits the exercise of legislative power to exercise only "general laws" rather than special legislation. The majority concluded that this limitation was intended to prevent the inherent dangers in passing special legislation that favors specific individuals or entities. This, according to the HSC, was a corollary of the constitutional prohibition against governmental discrimination against persons or entities. By comparing the equal protection with the "general laws" limitation, the HSC has hit upon an older, long-abandoned interpretation of the Fourteenth Amendment. If that is the case, then the Hawai'i Constitution neither permits legislation favoring entities and legislation discriminating against entities.

This latter principle actually began in a piece of dictum from Santa Clara County v. Southern Pac. R. R. Co., 118 U.S. 394 (1886), in which the U.S. Supreme Court announced that the 14th Amendment forbids a State from denying corporations as well as persons equal protection under the laws. This sparked the beginning of personhood for corporations, a concept well established in the law today (and subject to much scholarly debate). Of course, there was no balance in the federal constitution, which does not have a "general laws" limitation. That meant that a large corporation, like Jay Gould's railroad company, could lobby a state legislature for special laws and attack state railroad regulations and taxes on the grounds that they were in violation of the 14th Amendment.

The opponents of special interests and railroads were the Populists, a political party that was prevalent in Western States like Nebraska and Colorado. Perhaps this "general laws" limitation is their lasting legacy? So if the Superferry is a modern day railroad company, then the HSC's analysis, which relied heavily on cases from states with similar limitations would have made the Populists proud.

New federal environmental suit

Advertiser -

Earthjustice filed the lawsuit against the National Marine Fisheries Service in U.S. District Court in Honolulu on behalf of three environmental groups yesterday.

The complaint, citing 2007 federal data, alleges longline fishing vessels are accidentally ensnaring false killer whales off Hawaii at twice the rate the species' population can sustain.
...
The agency's failure to take steps to protect the whales violates the Marine Mammal Protection Act and the Administrative Procedure Act, the lawsuit said.
...
The suit said the National Marine Fisheries Service is required by law to develop a plan to reduce the bycatch of false killer whales.

The lawsuit asks the court to declare the agency has violated the law, and issue an injunction to compel it to comply.

Earthjustice filed the lawsuit on behalf of Hui Malama i Kohola, the Center for Biological Diversity and the Turtle Island Restoration Network.

The nice thing about following federal suits is the briefs, when they are filed, will be available online if one has a Pacer account.

Enjoying the inter-branch contest that the Superferry case has become

I have to say, I'm enjoying the inter-branch contest that the Superferry case has become. It's become like a game of chess. Or baseball. I see that the Lingle administration "is reviewing various courses of action in light of the court's decision, including a legislative remedy, possible mediation and an appeal to the U.S. Supreme Court." As a disinterested observer and legal blogger without a dog in the fight one way or the other, I look forward to the other branchs' next move.

One of the things I found fascinating about yesterday's decision was Justice Duffy's discussion of special legislation. As I've discussed previously, there's nothing inherently illegal about special legislation that benefits a particular entity. Rather, there are specific state constitutional provisions that require some kinds of laws to be "general laws." In this case, that state constitutional provision was Art. XI, s. 5 requiring that the "legislative powers over the lands owned by or under the control of the state and its political subdivisions" be exercised only by "general laws."

And indeed the court hangs its decision directly on sect. 5 of Article XI and spends many pages analyzing the facts of this case against the section's requirements. But then, in the conclusion, Justice Duffy waxes poetical about the deeper mysteries of Equal Protection - a much broader, more general constitutional doctrine that Justice Oliver Wendell Holmes once famously called "the last resort of constitutional arguments." (Buck v. Bell, 274 U.S. 200, 208, for the law nerds among you).

This would seem to leave the door open - in case the legislature and the governor are able to construct an act that effectively "fixes" the Article XI sect. 5 problem - for the court to invoke the broader protections of Equal Protection to put down the law.

But Equal Protection comes with a lot of baggage. Of course, the state court is free to craft its own equal protection doctrine, but under federal constitutional law, courts are very deferential when applying Eq. Prot. analysis to economic legislation - of which Act 2 decidedly is. That is, if it is economic legislation in question, courts will leave the legislation alone so long as it is conceivable that the law bears some rational relationship to some legitimate governmental end. Basically, under rational review, laws are almost never overturned on equal protection grounds.

So who knows what the court, or the legislature, or the administration have in mind. But it's shaping up to be an exciting spectacle for law wonks. The whole thing excites me all the more because I've recently been immersed in some new books on three famous conflicts between executive administrations and the Supreme Court -

FDR v. The Constitution, by Burt Solomon about Roosevelt's ultimately failed court packing plan. By the jurisprudence of the day, most of the New Deal legislation was clearly unconstitutional, in violation of various clauses (commerce, contracts...) and FDR, incensed that his programs were being torpedoed by the court, devised a plan that would allow him to appoint additional justices. The plan failed spectacularly, but Justice Roberts - a more or less non-ideological fence sitter who had been voting against the programs - had, just prior to Roosevelt's court packing plan, switched sides and the closely divided court suddenly began upholding the new economic regulations.

Cliff Stone's and David McKean's The Great Decision; Jefferson, Adams, Marshall, and the Battle for the Supreme Court. When Jefferson and the Jeffersonian Republicans swept into power they faced a judiciary loaded with Federalists holding lifetime appointments and resistant to Jefferson's policies. Although shortly after Jefferson took office the court claimed for itself for the first time the power to determine the constitutionality of the other branch's acts, it declined out of a sense of self preservation to do so for several more decades.

Lincoln and the Court, by Brian McGinty. This one is actually on its way and so I haven't read it yet. However, I know that Lincoln and the Court clashed over a number of constitutional issues as Lincoln pressed his executive authority to fight the Civil War. For instance, when the court declared unconstitutional Lincoln's suspension of the right of habeas corpus, the president ignored its order.

Act 2 violates Article XI, section 5

The Hawaii Supreme Court has concluded that Act 2 violated Article XI, section 5 of Hawaii's Constitution. This is sort of personally gratifying in that last December I wrote:

Article XI, Section 5 of the state constitution requires that the "legislative powers over the lands owned by or under the control of the state and its political subdivisions" be exercised only by "general laws." This presents a closer call.

The state denies that Act 2 exercises any power over state lands. The Sierra Club says it does. I am (foolishly) predicting that if the court invalidates Act 2 it will base its decision on this section and hold that the law exercises power over state lands

How the legislature screwed up Act 2: Section 15 of Act 2 provides:

Any state lands previously authorized to be used to facilitate or support the operation of a large capacity ferry vessel, shall be authorized to be used to effectuate the provisions of this act.

Act 2 ruled unconstitutional

Sierra Club v Superferry decision

Was just posted on the judiciary website, here.

If you're going to avoid a DUI checkpoint, at least use your signal

Part of the fun of being a lawyer is reading all the new appellate opinions as they're posted by the Hawai‘i Supreme Court Law Library. It's true. It really is fun. It's kind of like reading gossip.

In a case posted last week, a driver came upon a DUI checkpoint. Before reaching it he pulled over to the side, waited for the traffic behind him to pass, then executed a U-turn and beat it out of there. Of course, the cops chased him down, pulled him over, made him submit to a battery of field sobriety tests, which he flunked, and arrested him.

Interestingly, you can do that. In 2007 the Hawaii Supreme Court held that avoiding a police checkpoint does not provide sufficient reasonable and articulable suspicion of criminal activity to stop a vehicle. In that case, State v. Heapy, 151 P.3d 764 (HI 2007), a guy in a Mustang came upon a checkpoint, took a hard right and went tooling down a road that police knew led to nowhere. The court held it was illegal for police to stop him as long as his driving was legal.

Oops, I gotta go. The Superferry decision just got posted, speaking of posted cases...

Med-mal bill update

Thanks to Derrick DePledge who, using one of the cool Twitter features, messaged:

FYI: The House medical-malpractice reform bill does not contain any caps on noneconomic damages. A task force will recommend caps later.

Friday they-can't-all-be-geckos gecko blogging

Mrs. Foster and I came across this anole(?) on a walk last weekend.

WSJ on the meaning of the Apology Resolution

The Wall Street Journal has a piece today, Regrets Only? Native Hawaiians Insist U.S. Apology Has a Price, that makes an interesting point about why some who are probably sympathetic to Native Hawaiian claims, disagree with their assertions regarding the Apology Resolution -

In recent years, government apologies for official wrongs have proliferated. In 1988, Congress apologized to Japanese-Americans for their internment during World War II, and in 1990 approved an expression of "deep regret to the Sioux people" for the 1890 Wounded Knee Massacre. Seven states have apologized for forced sterilization of disabled, poor and minority residents in the early 20th century. Five states have apologized for slavery.

But the Hawaii case might be the first where an apology resolution received legal weight, says Eric Miller, a law professor at Saint Louis University who has worked on campaigns seeking redress for African-Americans. Governments on rare occasion have paid restitution, but only through separate legislation.

Prof. Miller worries that if the Hawaii opinion stands, future apologies might be rarer still. The "process doesn't necessarily get off the ground if people are going to be punished for it," he says.

Rep. Steve Cohen (D., Tenn.) says the Bush administration raised fears of legal liability over the slavery apology he introduced into Congress. He is considering adding language stating that the apology isn't intended to affect the debate over possible slavery reparations, a step that might be "politically necessary to pass such a resolution," he says.

Hawaii tort reform bill

Pacific Business News -

A measure to cap awards in medical malpractice lawsuits against doctors has advanced to the Hawaii Senate.

[House Bill 1784] limits non-economic damages to $250,000 in malpractice claims against certain physician specialists who practice in areas such as emergency medicine, neurological surgery, obstetrics and gynecology, orthopedic surgery and general surgery.

It also caps at $3 million the award for gross negligence.

Dave's not here, man

Star-Bulletin - Cheech & Chong plan Hawaii shows

Kamehameha admission policy plaintiffs appeal court's refusal to let them proceed anonymously

Star Bulletin -

Four non-Hawaiian students who believe Kamehameha Schools' admissions policy violates their civil rights are appealing to the 9th U.S. Circuit Court of Appeals to allow them to pursue their legal case anonymously.
...
U.S. Magistrate Barry Kurren directed the plaintiffs in October to reveal their identities if they wished to pursue the case. They declined, and another federal judge dismissed their case [last Thursday].
...
The students' claims echo those of a 2003 lawsuit filed by a separate plaintiff, who remained anonymous and was known only as John Doe. The U.S. District Court and 9th Circuit rejected his claim and upheld Kamehameha's admissions policy. The suit was settled out of court for $7 million last year before it could be appealed to the U.S. Supreme Court....

I don't know whether anonymity of the plaintiff was ever an issue in the ultimately settled 2003 case. Nevertheless, the Ninth Circuit has elsewhere addressed the issue of anonymous plaintiffs. In 2000 the court heard one such case involving foreign garment workers who feared that if their identities were disclosed they would be fired from their jobs, deported, and arrested and imprisoned by the People's Republic of China.

What follows is a summary, sans citations, of the court's discussion in that case of the relevant law.

Plaintiffs' use of fictitious names runs afoul of the public's common law right of access to judicial proceedings and the Federal Rules of Civil Procedure's command that the title of every complaint "include the names of all the parties." Nevertheless, many federal courts, including the Ninth Circuit, have permitted parties to proceed anonymously when special circumstances justify secrecy.

The Ninth Circuit has held that a party may preserve his or her anonymity in judicial proceedings in special circumstances when the party's need for anonymity outweighs prejudice to the opposing party and the public's interest in knowing the party's identity. The court held that in cases where pseudonyms are used to shield the anonymous party from retaliation, the district court should determine the need for anonymity by evaluating the following factors: (1) the severity of the threatened harm; (2) the reasonableness of the anonymous party's fears; and (3) the anonymous party's vulnerability to such retaliation. The court must also determine the precise prejudice at each stage of the proceedings to the opposing party, and whether proceedings may be structured so as to mitigate that prejudice. Finally, the court must decide whether the public's interest in the case would be best served by requiring that the litigants reveal their identities.

Is it Friday already?

Searching students' lockers; disagreeing with Prof. Van Dyke on the meaning of the 9th Circuit's student search decision

Prof. Jon M. Van Dyke (Richardson Law School, co-author Checklists for Searches and Seizures in Public Schools, author, Who Owns the Crown Lands of Hawaii?) argues in the current Hawaii Bar Journal against proposed administrative changes to Hawaii's school searches and seizures administrative rules.

Under current rules, searches and seizures in public schools require reasonable suspicion, and random searches are prohibited. In more general terms, the rules state that "Students have a legitimate expectation of privacy in school," extending to "school property assigned for their individual use."

Under proposed language approved by the 2008 Bd. of Ed., school lockers would be subject to opening and inspection and external dog sniffs any time, with or without cause.

Nationally, the case law on the subject is all over the map (the Fifth and Seventh Circuits, for instance, have taken opposite positions on the question whether a dog sniff of a student's person is a search) as are the various fact patterns.

In support of his argument, Professor Van Dyke cites to a 9th Circuit case (which is where a federal challenge of the proposal would end up) which ruled that the random and suspicionless dog sniff search of a student's person was "unreasonable in the circumstances" and therefore infringed on the student's expectation of privacy in violation of the Fourth Amendment. (The case is B.C. v. Plumas Unified School District, 192 F.3d 1260 (9th Cir. 1999).

In Plumas, school officials paraded students past a drug sniffing dog stationed outside the classroom door. The dog was then led into the empty classroom to sniff among the students' belongings. The students were then again led past the dog as they reentered the classroom.

Professor Van Dyke asserts that "The court's majority opinion in B.C. does not separate the two aspects of the search - the students passing by the dog and the dog's subsequent search of the belongings of the students - but concludes that the event, taken as a whole, 'constitutes a search,' because it 'infringed B.C.'s reasonable expectations of privacy.'"

However, I disagree with Professor Van Dykes characterization. The court did separate the two aspects of the search, saying by way of introduction that, "This case involves a dog sniff of students..." and noting that the plaintiff "does not contend that the dog sniff of the inside of the unoccupied classroom was a search."

Furthermore, the court stated, "The Supreme Court has held that the use of a trained canine to sniff unattended luggage is not a search within the meaning of the Fourth Amendment. But neither the Supreme Court nor the Ninth Circuit has addressed the issue whether a dog sniff of a person is a search. The Ninth Circuit has recognized, however, that the level of intrusiveness is greater when the dog is permitted to sniff a person than when a dog sniffs unattended luggage." (Citations omitted). The court then launched into a lengthy analysis of other circuits' treatment of "the question whether a dog sniff of a student's person is a search," before ultimately concluding: "Because we believe that the dog sniff at issue in this case infringed B.C.'s reasonable expectation of privacy, we hold that it constitutes a search."

So I disagree with Professor Van Dyke that Plumas lends support to opponents of random dog sniffs of students' lockers. If anything, the case provides dicta supporting the opposite view that the random sniffing of belongings is less likely an unreasonable search than the sniffing of persons.

This is not to comment on the ultimate legality of the Board's policy, or on whether such a policy is a good or bad idea. (As a frequent drafter of suppression memoranda, my job is made easier by expansions, not contractions, of search and seizure doctrine). Professor Van Dyke further analyzes the issue under Hawaii's constitution and the state courts' treatment of its right to privacy. He also makes some policy arguments. And I agree with the professor that such a change in policy is sure to lead to litigation (not that that's necessarily a bad thing). The entire article is a good read for anyone interested in the issue. Unfortunately, it appears to be unavailable online.

For the legal history nerds among us

Legal History Blog has posted its biannual New Books in U.S. Constitutional/Legal History list.

Lawyers behaving badly

The last place an attorney wants to see his or her name in print - Evil Esq.

How not to behave at a DUI stop

...if you can help yourself, that is. This is from a Washington case referenced in a local ICA decision I came across while doing some work last night.

During the course of Officer Boyle's interactions with Stalsbroten at the scene, Stalsbroten introduced himself to the officer approximately 10 times, each time repeating "Hi. My Name is Loyd Stalsbroten, what is yours."
...
Officer Boyle arrested Stalsbroten for driving under the influence, handcuffed him, and escorted him to the police car. Stalsbroten insisted that he could get into the car without assistance, but he eventually ended up "wedged . . . in the car with his feet above his head."

Twittering in the courtroom

Recall Robert Thomas's liveblogging of the last Superferry supreme court arguments. He used a very slick program - CoveritLive - which allowed readers not only to follow along but also to comment, interject, and ask questions. I bring it up because the Citizen Media Law Project blog has an interesting piece about new communications technology and coverage of court proceedings -

The fights over whether blogging ought to be allowed during trials -- and whether it's good journalism -- aren't even over, and a new front has opened in the war over technology and its proper role in coverage of the justice system.

Last week, a federal district judge granted permission to a reporter from the Wichita Eagle to report on a trial using Twitter, the mini social network that allows users to shout out their whereabouts -- and anything else they can fit in a 140-character post -- quickly and easily.

Read the rest (and follow the links).

Free Pacer?

That would be nice. Although it's a lot cheaper than it costs to get copies of documents from the state court system where, on top of the steep per-page price, you also have to trek to whichever courthouse has them on file (and that means a flight to Honolulu if you want to look at an appellate file).

From Wired -

The head of a powerful Senate committee wants the federal courts to explain why its online database still charges 8 cents a page for court documents, and why many of those documents still contain Social Security numbers and other sensitive information.

Sen. Joe Lieberman (I-Connecticut), who helms the Senate's government affairs committee, is annoyed enough that he bypassed the administrators of the system and sent a letter Friday straight to the Judicial Conference of the United States.

He's asking Judge Lee H. Rosenthal to explain why in the age of Google the Public Access to Court Electronic Records, or PACER, system isn't free for citizens. He'd also like to know why federal courts still aren't blacking out sensitive information in court documents as required in the 2002 E-Government Act (a piece of legislation dear to Lieberman).

Via FutureLawyer

Dang.

Hawaii proposes to collect taxes on Internet sales