Another disappointing editorial from the Star-Advertiser, this time staking out a position rejecting the opinion of the Intermediate Court of Appeals regarding the constitutional provision requiring funding for the Department of Hawaiian Home Lands (“Ruling on DHHL misses the mark“).

The editorial attacks the court’s decision, but that’s not what I find so disappointing. It’s that the editorial ignores or misstates key facts, mischaracterizes and trivializes the court’s analysis, and then misstates the impact of the decision.

I looked at the decision in an entry last week.

Here are a few of the editorial’s statements that strike me as particularly ill-informed. The editorial begins with this statement:

• “A three-judge panel of the state Intermediate Court of Appeals has ordered the state to pay what could mean tens of millions of dollars that it cannot possibly afford.”

Actually, the Intermediate Court did not order any payments by the state.

This appeal and the resulting opinion dealt narrowly with a legal question of whether there are sufficient standards that a court can refer to in order to enforce the constitution’s requirement that the legislature provide sufficient funds for DHHL. That legal question precedes the question whether the state is already providing “sufficient” funds and, if not, what that level would be. Those questions were simply not before the court, and the editorial errs by leading readers to believe that they were not only considered but decided. Not so.

• “The state routinely pays to operate the Department of Hawaiian Home Lands, since it is a state agency.”

This sounds logical enough. It’s a state agency and so the editorial writer assumes the state pays to operate the department.

The problem is here is that, again, it wasn’t part of the court’s findings and, further, is contrary to fact. The state does not routinely pay to operate DHHL.

This isn’t a secret. Check then-DHHL director Micah Kane’s testimony on the departments 2009-2011 budget.

Kane testifies DHHL’s “administrative and operating costs will essentially be wholly funded by its special and trust funds.” So the department didn’t request and the legislature didn’t grant public funds for administrative costs.

The editorial’s assumption appears to be wrong.

The editorial went on.

• “Arguing that the amendment is not a political question to be answered by a flexible state Legislature, the plaintiffs cited the 1962 Baker v. Carr landmark ruling by the U.S. Supreme Court that invalidated a Tennessee legislative reapportionment because it didn’t consider losses of population in some counties and increases in others.

The comparison is twisted: Providing proper legislative representation to heads counted in Tennessee is different than doling out money in Hawaii without legislative approval.”

Again, the editorial writer again misunderstands the court’s action.

The decision’s primary citation is to the Hawaii Supreme Court decision in Trustees of the Office of Hawaiian Affairs v Yamasaki, which in turn cited Baker v Carr. The relevance is that these cases set out a multi-part test to be applied to determine whether a case is purely “political” and, as a result, not subject to judicial review. The issue of reapportionment the editorial refers to so dismissively was never at issue and never part of the “comparison” made by the Intermediate Court. The relevant matter was the procedure used to determine whether a question is subject to judicial review or something purely “political” to be handled by the political process.

In Yamasaki, the Supreme Court applied the tests and ruled that the question of whether the Office of Hawaiian Affairs should receive 20% of ceded land revenues was a political issue to be settled by the legislature. Applying the same tests in the current case, the Intermediate Court followed precedent by applying the same multipart legal test and held that the DHHL funding provision in the constitution is not ultimately political in nature.

The tests are summarized by the legal blog, Record on Appeal.

The ICA disagreed based on the six factor test articulated by the Hawaii Supreme Court in Trustees of the Office of Hawaiian Affairs v. Yamasaki, 69 Haw. 154, 737 P.2d 446 (1987): (1) the text of the constitutional provision, (2) the fact that there was no lack of standards for resolving the question of what are sufficient funds, (3) the policy of the framers in setting certain goals for evaluation of DHHL, (4) that there is “no lack of respect to the legislature in a court’s addressing the question of sufficient sums,” (5) the lack of unusual need to adhere to a prior political decision, and (6) that there is “no potential for embarrassment due to multifarious pronouncements by various departments on one question.”

It’s hard to figure how the editorial writer can justify the view that the application of these legal criteria is a “twisted comparison.”

And the editorial misses the point that this was a procedural ruling that did not address whether additional state funding is necessary. The question was referred back to the Circuit Court for further proceedings, which presumably will include consideration of evidence about the sufficiency of current state funding.