U.H. Lawprof: HAWSCT's 1993-2010 Record On Private Property Rights "Appalling"

by Robert Thomas, InverseCondemnation.com

You know how we're always saying that certain parties have an enviable record of success in the Hawaii Supreme Court? Well, now the statistics are official.

The latest edition of the University of Hawaii Law Review published an article by lawprof David Callies summarizing the decisions of the court during the tenure of now-retired Chief Justice Ronald Moon The article sets forth the stark numbers (83% win rate, 65% reversal of the intermediate appellate court), and contains a sharp comment about the often-lengthy nature of the court's opinions:

Second, the Moon Court decided some of the state’s most important property and related environmental and Native Hawaiian rights cases in favor of the various non-governmental organizations bringing them (Sierra Club, Earthjustice, Hawaii’s Thousand Friends, and the Native Hawaiian Legal Corporation) approximately eighty-two percent of the time, sixty-five percent of which reversed the Intermediate Court of Appeals (ICA). Third, the court increasingly rendered lengthy opinions, many triple the length of those from the Lum Court and often describing the context in which the case arose procedurally even when the process was not an issue. That said, the court certainly set a high bar for thoroughness and explanatory analysis. For example, its decision in Save Sunset Beach Coalition v. City & County of Honolulu is a model of clarity and organization reminiscent of the style of opinions written by retired ICA Judge Walter Heen and retired ICA Chief Judge James Burns.

David L. Callies, Emily Klatt, and Andrew Nelson, The Moon Court, Land Use, and Property:A Survey of Hawai‘i Case Law 1993-2010, 33 U. Haw. L. Rev. 635, 636-37 (2011).

While we recommend you read the entire article, if you don't have time, here's the Conclusion, which shows these statistics have real-world consequences:

In sum, the Moon Court has made many useful contributions to the law of property in Hawai‘i. It has taken care to preserve the rights of landowners to freely use property in the face of private restrictive covenants limiting that use if such covenants are the least bit vague or poorly defined. It has amplified and extended basic principles in the areas of coastal zone management,  condominium, easement, and leasehold law. Its record on preserving private property rights guaranteed by the U.S. Constitution’s Fifth and Fourteenth Amendments in the face of regulatory challenges is, on the other hand, appalling, particularly given the increasing emphasis on preserving such rights in our nation’s highest court. In case after case, the Moon Court has strained to apply general and often vague goals pursued by select interest groups and factions regardless of statutory law to the contrary. The result, coupled with Hawai‘i’s increasingly well-known penchant for lengthy, often decade-long land use permitting processes, is a climate that increasingly discourages both local and foreign investment in land development, because it is widely perceived as too risky for the private sector to undertake. In particular, the effect on the availability of housing that is affordable at any but the most astronomical levels has been great. In short, the Moon Court has made a considerable negative impression on the land development aspect of property law, virtually converting the use of land into a privilege rather than a constitutional right subject only to regulation for the health, safety and welfare of all. Whether that impression becomes indelible is a matter that the Recktenwald Court should address at the earliest opportunity.

Id. at 667-68. Is this part of the reason why Hawaii is the most expensive housing market in the nation?

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More From U.H. Lawprof On 1993-2010 HAWSCT's "Appalling" Record On Property Rights

By Robert Thomas, InverseCondemnation January 11, 2013

Here's a follow-up to our recent post about the U. Hawaii Law Review article authored by lawprof David Callies which summarizes the land use and property decisions of the Hawaii Supreme Court during the tenure of now-retired Chief Justice Ronald Moon. You know, the article setting out the stunning success rates of certain parties in the court, which chides the Justices for their often-lengthy opinions, and labels the Moon Court's record on property rights "appalling." Download the article here.

Today's Honolulu Star-Advertiser has a follow-up interview with Professor Callies, most of which is behind a paywall. But if you don't have an e-subscription (a real deal for those with mainland zip codes, by the way), here are the choice parts:

• "Callies says he isn't against planning in general, but thinks there must be legitimate police powers involved for the right of development to be abrogated."

• "QUESTION: A recent law review article of yours came to the strongly worded conclusion that, overall, the Hawaii Supreme Court's record on preserving private property rights guaranteed in the U.S. Constitution has been "appalling." Why did you come to that conclusion? ANSWER: It struck me sort of anecdotally that the cases seem to be largely favoring groups like the Sierra Club, Earthjustice, Hawaii's Thousand Friends and so forth that generally sue when development permits are granted almost anywhere. So I asked a couple of my research assistants to do a survey, and they came out with the figures that over 80 percent of the cases that the state Supreme Court decides find against either the county or the state or the landowner -- whomever the decision-maker is and who owns the property. And in a substantial number of those cases -- I think in the neighborhood of 70 percent -- it overturned the Intermediate Court of Appeals."

• "Q: Why is that a disturbing trend? A: Well, the U.S. Constitution protects the right to use property unless there are police-power reasons not to. And in Hawaii sometimes we get the impression that it's the other way around. But it's not. The right to use property is a right that the Supreme Court has held to be virtually co-terminus with other rights, a civil right. So if you can't ground it in police power, then you can't regulate it. Development of land is not a privilege, it's a right. And so, if that's the case, for the (Hawaii) Supreme Court to find -- over and over again -- that the right does not seem to exist, that strikes me as a lopsided view."

• "Hawaii also goes overboard in the percentage of low- or moderate-income housing it requires. Maui for several years required a 50 percent mandatory workforce housing set-aside, and the state has often been in the 25, 30, 35 percent category. ... But much over 30 percent, it doesn't pencil out. You can't do it."

• "Q: You've written about Hawaii's many layers of land-use controls. How many layers are there? A: Ooooh, there's a bunch -- about eight or nine."

For real entertainment, check out the reader comments at the end of the interview. Which, like many comment sections on the internet, range from reasonable to bizarre to downright racist ("Callies is a Caucasian, Chicago born and raised foreigner who can go back to the land of overbuilt skyscrapers, ghettos and murder capital of America. Why is he even here?"). Oh my. Another comment argues that the delays in development common in Hawaii are not signs that the laws are failing as Professor Callies suggests, but the reverse: that development delay is indication is that Hawaii's laws are working exactly as intended. On that point, the commenter may be right.