Tag Archives: Native Hawaiian Legal Corporation

Monday reading: The first two rail-related lawsuits

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Two recent cases are the first to be filed relating to Honolulu’s rail project.

The first, filed by the Native Hawaiian Legal Corporation, is relatively straightforward. It argues that state law regarding burials and historic resources requires an inventory to be done where burials can be expected to be found. And the law also requires that this be done before decisions are made so that the information can be taken into account in a timely fashion.

Here’s a link to the full complaint.

The legal argument appears to hinge on one point. The lawsuit argues that the rail project can’t be arbitrarily divided into segments or construction phases in order to delay or defer the required archaeological survey until well after construction is started on the project.

The complaint argues that all four phases “are connected and part of a single project,” and none of the individual phases “has independent utility.”

The failure to complete a survey of burials along the route is a clear violation of law, according to the complaint.

The second lawsuit challenges city contracting policies for the rail project. Here’s the link to the full 51-page complaint, some of which is taken up with listings of rail contracts.

It’s a bit technical, but also straightforward. State procurement law originally allowed contracts to be awarded even if fewer that three bids were received. The law was later amended to delete this provision, making it clear that a minimum of three bids are required. However, city rules were never updated to reflect the amendments to the law, and some city contracts, including lucrative rail contracts, have been awarded without the legally required competition.

The lawsuit argues that the city does not have the authority to issue rules that are contrary to state law.

It cites a 2005 city audit.

“…our audit reveals that certain sole source, emergency, and professional services purchases approved by the city have either violated the state procurement code or city policies. THere are indications of a pervasive level of procurement code violations. ANti-competitive practices are contrary to law and costly to taxpayers.”

I have a feeling Mayor Carlisle’s bravado (“We’re confident we can successfully address these arguments in court”) is going to be seriously challenged in these two cases.

Intermediate court: Hawaiian funding provision can be enforced

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The Hawaii Intermediate Court of Appeals ruled this week that courts can enforce a constitutional requirement to provide “sufficient” funding for the operations of the Department of Hawaiian Home Lands.

The decision could further complicate the state’s budget picture by requiring the legislature to substantially increase its support for DHHL.

The ruling overturned an earlier decision by Circuit Court Judge Bert Ayabe, who had agreed with state attorneys that the question of DHHL funding is essentially “political” and must be left to the legislature’s discretion. The state argued that there are no clear standards for judging whether any particular level of funding is “sufficient” and, therefore, the funding decisions must rest with the legislature.

The lawsuit was brought by the Native Hawaiian Legal Corporation on behalf of six Hawaiian beneficiaries of DHHL. David Kimo Frankel argued the plaintiff’s case before the Intermediate Court in September.

The lawsuit focuses on a 1978 amendment to the State Constitution. Article XII, Section 1 of the Constitution was amended to read:

The legislature shall make sufficient sums available for the following purposes: (1) development of home, agriculture, farm and ranch lots; (2) home, agriculture, aquaculture, farm and ranch loans; (3) rehabilitation projects to include, but not limited to, educational, economic, political, social and cultural processes by which the general welfare and conditions of native Hawaiians are thereby improved; (4) the administration and operating budget of the department of Hawaiian home lands; in furtherance of (1), (2), (3) and (4) herein, by appropriating the same in the manner provided by law. [emphasis added]

The 1978 amendment substituted the word “shall” for the previous phrase, “may, from time to time, make additional”.

Plaintiff’s relied on the records of the 1978 Con Con to show delegates intended to take away the legislature’s discretion and instead require adequate funding of DHHL.

Even after passage of the amendment, the legislature appropriated no general funds for DHHL until 1987. The funding peaked at over $4 million in 1997, and has fallen since. During the Lingle administration, DHHL pursued an ambitious program of commercial development and leases to private parties in order to raise the funds necessary to operate the department and its programs.

It was exactly the practice of relying on income provided by leases to non-Hawaiian corporations that prompted the 1978 amendment, according to Con Con minutes cited by the plaintiffs.

The lawsuit faults DHHL for failing to submit budget requests for sufficient funds, and the state for failing to provide such funds.

The appeals court agreed with plaintiffs that the record of the 1978 Constitutional Convention provides numerous standards that can be applied to determine whether a particular level of funding is “sufficient.”

The decision sends the case back to the Circuit Court for further proceedings to determine whether actual funding levels are “sufficient” to meet the suggested standards.

Pending legal case could undermine ability to enforce the state constitution

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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.