Let me -- let me be clear about this, Justice Ginsburg, if the Hawaii Supreme Court's opinion is read to construe the Apology Resolution as creating some affirmative duty or obligation as a matter of Federal law, we agree that that would be erroneous....
Tr. at 31. Later, Shanmugam again conceded the point:
And it's for that reason, Justice Ginsburg, that we freely concede that if the Hawaii Supreme Court had relied on the Apology Resolution as creating some Federal duty, that would be problematic....
Tr. at 36. These ready concessions were somewhat of a surprise since they reduced the issue before the Supreme Court to a factual question, easily resolved against OHA: was the Hawaii Supreme Court's opinion based on the Apology Resolution? It is a factual question OHA is almost certain to lose since the court's opinion could not be clearer. It plainly and repeatedly stated the result was compelled by the Apology Resolution, which recognized Native Hawaiian claims to the ceded lands. For example, the Hawaii Supreme Court framed the issue as:
The primary question before this court on appeal is whether, in light of the Apology Resolution, this court should issue an injunction to require the State, as trustee, to preserve the corpus of the ceded lands in the public lands trust until such time as the claims of the native Hawaiian people to the ceded lands are resolved.
Office of Hawaiian Office of Hawaiian Affairs v. Housing and Community Dev. Corp. of Hawaii, 117 Haw. 174, 210, 177 P.3d 884, 929 (2008). Naturally then, every Justice -- with the possible exception of Justice Stevens -- voiced strong skepticism with OHA's claim the Hawaii Supreme Court based its decision only on state law, and Shanmugam only halfheartedly attempted to defend it. He acknowledged the Hawaii Supreme Court repeatedly referenced the Apology Resolution, but argued the court's citations were only background (the "factual predicate" to the state law duty), or were merely additional support for the state law supporting the injunction. If their questions and comments were any indication, however, the Justices weren't buying it.
OHA's tepid defense of the argument appears all the more unusual after considering the arguments in its brief, a recent resolution from the Hawaii legislature, and two Honolulu Advertiser op-eds by OHA's attorneys and amici (posted here and here), which all strongly asserted the Hawaii Supreme Court based its decision only on state law, and not the Apology Resolution. Why would OHA stake its entire case on an issue it is willing to only lukewarmly defend, is easily rebuttable, and which it is almost certain to lose?
Damage control, most likely. It appears that somewhere along the line OHA reached the difficult conclusion that the Supreme Court is going to rule against it -- most likely by a wide margin -- and in response crafted an interesting strategy: ask the Court to limit the consequences of the decision by ruling against it on the narrowest rationale possible even though it means conceding a loss -- the legal version of "don't taze me, bro!"
The predicament OHA finds itself in is one almost entirely of its own making. Its unusual U.S. Supreme Court strategy was made necessary by its overwhelming victory in the Hawaii Supreme Court (the court ruled unanimously against the State), where it argued successfully that the Apology Resolution provided all of the answers. But in prevailing on that basis, OHA opened the door to the state and federal government's arguments which -- if accepted by a majority of the Supreme Court -- at the very least will shift the venue for resolution of land claims from OHA's preferred forum, state courts, to the political branches of state government. As a general proposition, it may be simpler to prevail in litigation where you only need to convince three Justices, than in the legislative and executive branches, especially when those branches are subject to public control by the electorate.
It is speculation, of course, but a reasonable inference is OHA calculated that when it prevailed in the Hawaii Supreme Court, either the Lingle Administration was unlikely to seek further review or that the U.S. Supreme Court was unlikely to agree to take the case. While the second calculation is always a good bet given the fact the U.S. Supreme Court agrees to review only a handful of cases each term, the first assumption seems somewhat more reckless because of the amount of land involved (29% of the total land area of Hawaii are ceded lands). With those kind of stakes, the state, supported by the federal government, really had no choice but to seek to remove the cloud placed on the state's title by the Hawaii Supreme Court's decision by seeking further review, and to urge the U.S. Supreme court to look beyond the narrow issue of whether the Hawaii court relied on federal law.
While it seems that most everyone is predicting a win for the state, the real question lies in the scope of the Court's eventual ruling, and whether it will address any of the issues OHA appears fiercely to want to avoid -- even if it means losing the case.
We know this is a departure from our usual avoidance of predicting the results of appellate oral arguments, but are not alone; other more august commentators agree here, here, and here.
Disclosure: I helped author an amicus brief supporting the State's arguments.
A summary of the oral argument, the merits and amici briefs in the case, and links to media reports and commentary are posted on our ceded lands page.