Are Hawaii State Constitutional Public Trust obligations enforceable? And if so, by whom?

Those were the questions state Senator Laura Thielen addressed in a post on her legislative blog this week.

Her questions were prompted by the Supreme Court’s ruling that the state has violated its constitutional obligation to provide sufficient funding for operations of the Department of Hawaiian Home Lands, and the announcement that the state would be appealing the decision, with support from the legislature.

The state is expected to argue that the “separation of powers” prevents the Supreme Court from imposing a duty on the legislature.

Thielen asks what happens if the legislative and executive branches just blow off their constitutional duties? She says some suggested that the response is to vote those who fail in the duties out of office.

Thielen then pointed out the limits of this idea.

But what happens when the public trust is an obligation to a group who happens to be a minority of voters (for example, current and potential DHHL beneficiaries)? Even if they band together, they can’t vote out officials because they’re a minority. And isn’t one of the purposes of elevating a matter to the constitutional level to ensure the majority doesn’t infringe on the constitutional rights of the minority?

What happens when the public trust obligation is to future generations – who aren’t around today to vote? Ask any youngster, and they would gladly vote for more protection of our public trust natural and cultural resources. Sorry! No remedy for you until you turn 18 (if those resources are still around then).

I would suggest two places to find answers. First, there’s the earlier 2012 decision by the Hawaii Supreme Court in an earlier round of this same case involving funding for the Hawaiian Homes Commission and DHHL.

That decision rested on whether the separation of powers would prevent the court from intervening in the funding question. The court concluded that one part of the larger case–the question of whether the state had provided “sufficient sums” for administrative and operating expenses of DHHL as mandated by the state constitution–was subject to judicial interpretation.

So reviewing that court decision may provide sufficient answers to the current controversy.

And then I started looking to the State of Washington, where its Supreme Court not only ruled that the state’s system of school funding is unconstitutional, but found the legislature in contempt of court for failing to implement changes to comply with the state constitution. The case obviously raises similar “separation of powers” issues.

Documents filed in the long running case are publicly available on the Washington state court system’s website.

There’s also a Harvard Law Review article that is on point (“McCleary v. State/Washington Supreme Court Holds Legislature in Contempt for Failing to Make Adequate Progress Toward Remedying Unconstitutional Education Funding Scheme“).

The Washington Supreme Court has long recognized the power to work cooperatively with the legislature in vindicating the constitutional right to education.

McCleary made clear that the judicial role in that project is twofold: first, the court draws a baseline to ensure that the legislature has “done enough” to fulfill its constitutional duty; and second, once the legislature has defined the specifics of its duty through education policies, the court enforces the legislature’s self-drawn standards. The court’s approach thus stands as a modest judicial principle: a legislature must keep its promises regarding constitutional duties. This judicial posture toward legislative discretion is unlike the federal separation of powers scheme, in which constitutional grants of legislative or executive discretion weigh heavily if not absolutely in favor of judicial forbearance.

For Washington’s education clause jurisprudence, the opposite is true. Standing “idly by” even at the remedy stage would “abdicate the court’s own duty.” Accordingly, each “unfulfilled promise” by the legislature in the McCleary litigation prompted further mistrust from its Article IX partner, and thus appropriately triggered increasingly aggressive judicial enforcement.

The law review article includes footnotes to additional commentaries on the separation of powers issues.

It looks to me as if the state is simply stalling to put off the need to provide the constitutionally mandated funding. But perhaps some of the lawyers out there could provide some suggestions on how we should be interpreting these earlier rulings.