HAWSCT On Sufficiency Of Hawaiian Homes Commission's Legislative Funding: Quality Work, But There's Too Many Notes
by Robert Thomas, Inverse Condemnation, February 9, 2018
Like Amadeus' Emperor Joseph, today's 4-1 ruling from the Hawaii Supreme Court in Nelson v. Hawaiian Homes Comm'n, No. SCAP-16-0000496 (Feb. 9, 2018), pretty much tells the lower courts (and, by extension, the state legislature) that the court thinks the HHC is underfunded and that the Legislature can do a much better job, but the courts aren't going to actually determine how many dollars will count as "sufficient sums" in the agency's budget, other than the bare minimum amounts which the constitution's drafters considered in 1978. But just add a few, "and it'll be perfect."
This is Chapter 2 of the story, the first being the 2012 opinion in which the court concluded the issue of whether the HHC is sufficiently funded by the Legislature isn't a "political question" and is subject to judicial scrutiny. See Nelson v. Haw'n Homes Comm'n, 277 P.3d 279 (Haw. 2012). As the majority opinion in today's decision put it, "Limited judicially discoverable and manageable standards existed to interpret the term 'sufficient sums,' based on the 1978 Constitutional Convention delegates’ estimate that DHHL’s administrative and operating costs were $1.3 to 1.6 million at that time, and, going forward, that figure could be adjusted for inflation." Slip op. at 2.
The case was sent back to the trial court, which apparently took the Nelson I opinion at its word and held a trial on what the Commission need for funding, and whether the amounts the legislature budgeted were "sufficient." The result of the trial was the court concluding that the agency needs $28 million per year, and that the Legislature has a constitutional obligation to appropriate that amount, upon pain of violating the court's injunction. The State of Hawaii asked the trial court to reconsider that ruling, and it did. The court revised its judgment to conclude only that the Legislature didn't budget enough, and that it has an obligation under the Hawaii Constitution to budget enough. Back up the chain the case went, skipping the Intermediate Court of Appeals.
The Supreme Court concluded the trial court should not have "engag[ed] in a comprehensive inquiry into the amount [the agency] needed for its administrative and operating expenses." Slip op. at 4. The court held that its holding in Nelson I was only that the drafters of the constitution established judicially manageable standards regarding what amounts are sufficient, and the drafters set that amount at $1.3 to $1.6 million (adjusted for inflation). Thus, the courts' only ability is to determine the rate of inflation. The determination of any amounts over that, the court concluded, are political questions. Id. Thus, the trial court should not have delved in to how much the agency actually needed, and therefore should not have commanded the Legislature to do more than budget a maximum of $1.6 million, adjusted for inflation.
The sole dissenting opinion, a 67-pager by Justice Wilson, argued that the Nelson I opinion meant what it appeared to have said. Justice Wilson would have concluded that the trial court was correct when it examined how much the agency needed, and when it ordered the Legislature to budget that amount. The $1.4 to $1.6 million adjusted for inflation was a minimum -- a floor, not a ceiling -- which the constitution's drafters established, not a determination of what would be a "sufficient" amount. Thus, in Justice Wilson's view, the Legislature could not budget less than that amount, and a court could determine that "sufficient sums" actually could mean a whole lot more money in the budget in any given year.
So what to make of this latest development, in which the majority seems to turn away from at least the "vibe" of the Nelson I opinion, if not its actual language? Does this signal that the court had second thoughts about the wisdom of the judicial branch getting involved in determining how much the legislature must budget for an agency? Was this decision the result of experience kicking in and after the trial court giving it a go, the Supreme Court balking once it understood what a trial to determine a legislative budget actually looks like? Was it the court reacting to the Legislature's less-than-veiled threats to cut retired judges' benefits? In the end, we really can't say, and must take the opinion at face value: the courts can determine that any less than $1.4 to $1.6 million adjusted for inflation is an unconstitutional amount for the legislature to budget, but the courts can't order more. That, the majority concluded, is up to the political process. In short, the judicial function is limited to determining the rate of inflation.
That seems about right, and just the sort of thing that a court is competent to do. And something, we presume, which won't need to tie up the courts' time much down the road.
Anything more seems like a morass in which the courts should not get entangled.
PDF: Nelson v. Hawaiian Homes Comm'n, No. SCAP-16-0000496 (Haw. Feb. 9, 2018)