My commentary this week on Hawaii Public Radio examined a pending lawsuit against the state and the Department of Hawaiian Home Lands over the issue of funding, which is now before the Intermediate Court of Appeals. I wrote about the case a couple of years ago, and that short article is still a good summary of the underlying issues.

But the issue on appeal is different. The appeal focuses on the 1978 constitutional amendment that, among other things, requires the legislature to provide “sufficient sums” to operate DHHL.

The state and DHHL contend the term “sufficient sums” is just too vague, and lacking in specific standards, to be enforced by the courts. Although Con Con records show delegates wanted to take away the legislature’s discretion and require it to fund the department, the state’s lawyers say the amendment should be read simply as a “moral appeal” to legislators and not as a legal requirement.

Plaintiffs respond that while there may not be immediate agreement on just what level of funding would be “sufficient”, it is certainly obvious that zero dollars, the current level of general funding, is not sufficient. They also argue that, based on the Con Con record, “sufficient sums” would be a level that obviates the need to lease land to non-Hawaiian corporations in order to raise necessary operating funds.

You can listen to a recording of the oral arguments before the Intermediate Court of Appeals, which took place on September 8. Attorney David Kimo Frankel of the Native Hawaiian Legal Corporation argued for the Hawaiian plaintiffs in the case. He is the son of retired Star-Bulletin editor Chuck Frankel.