BY ROBERT THOMAS – According to the coconut wireless, Hawaii Supreme Court for Associate Justice Simeon Acoba officially retired last week. State court justices and judges face mandatory retirement at age 70, and Justice Acoba’s birthday is coming up in March.

While time marched on, so did the process for selecting his successor on the court. Gov. Neil Abercrombie has nominated a circuit court (trial) judge, and the Senate Judiciary has scheduled a hearing on the confirmation for next week. Le roi est mort, vive le roi.

While his body of work is large, we didn’t want to let this moment pass without singling out three opinions authored by Justice Acoba: the first a 3-2 majority opinion in favor of property owners, the other a 2-justice dissent in a case involving a municipality’s power to sue itself, and a final stand-alone dissent. The first two, as you may already suspect, are in cases in which we were counsel.

  • County of Hawaii v. C & J Coupe Family Ltd. P’ship, 119 Haw. 352, 198 P.3d 615 (2008). A case in which Justice Acoba, writing for a 3-justice majority over vociferous dissent, upheld the right of private property owners who are on the business end of an abuse of the eminent domain power, concluding that “although our courts afford substantial deference to the government’s asserted public purpose for a taking in a condemnation proceeding, where there is evidence that the asserted purpose is pretextual, courts should consider a landowner’s defense of pretext.” One of the rare cases in which the Hawaii Supreme Court came down on the side of property owners.
  • County of Kauai ex rel. Nakazawa v. Baptiste, 115 Haw. 15, 165 P.3d 916 (2007) (Acoba, J. dissenting). Justice Acoba, joined by now-also-retired Justice Duffy, entered a magnificent dissent in a case about whether the people of Kauai had the right to control their property taxes by amending their County Charter. The issue in the case was one of procedure, with the primary question being whether Kauai officials (who had opposed the charter amendment) could bring a county-funded lawsuit against the county to invalidate it. While we lost that case, the opening paragraph of Justice Acoba’s dissenting opinion was a salve which lessened the sting: “With all due respect, our role is to protect the judicial process, not to subvert it. In sua sponte deleting Defendant-Appellee Kauai County Council (County Council) as a defendant in this case and adding it back as the putative plaintiff in order to create a supposed controversy between the County Council and Defendant-Appellee Mayor of Kauai (Mayor) and Defendant-Appellee Finance Director of Kauai (Finance Director), the majority does exactly that, manipulating the lawsuit so as to create a controversy that did not in fact exist when the suit was filed, when it was decided by the Circuit Court of the Fifth Circuit (the court), when it was appealed to this court, and when it was argued by the parties before us.” He called them out, and rightly so.
  • Rivera v. Dep’t of Labor & Indus. Relations, 100 Haw. 348, 60 P.3d 298 (2006) (Acoba, J., dissenting). In this dissent, Justice Acoba reaffirmed the need for appellate oral argument and explained why it is important, even if it may not change the outcome (“Justice must be seen to be done.”). This was a time when the Hawaii Supreme Court conducted orals in only the most rare of cases. We can now say that not having oral arguments was a huge disservice to the public, to the litigants — and, we think, to the court itself — and the court, thankfully, has since reversed course and regularly holds orals, we believe in no small part due to Justice Acoba’s influence and pressure to do so.

We first appeared before Justice Acoba when he was Judge Acoba on the circuit court bench, and was assigned as the motions judge for the First Circuit. This was back in the days before the managerial system, where you pretty much drew whatever judge was available on your day, and all major motions in civil cases were assigned to a single judge. He was stern, but tolerant of young lawyers flailing about in his courtroom, and would sometimes offer practical advice from the bench. In our last argument before the Supreme Court that was still true, and Justice Acoba was always an active questioner who could be counted on to get to the heart of the issue in your case and press you hard on it. And his on-bench demeanor and questioning was no indication of where he’d end up — he’d press both sides equally.

We never felt it right during Justice Acoba’s active tenure to thank him for these rulings. It just felt inappropriate to “thank” a sitting judge or justice for doing the thing you believe is legally required. But we’re going to take this opportunity of his retirement, and despite the painful parting shot which he joined in Kauai Springs, to do so now.

Mahalo, Justice Acoba. You will be missed.

– See more at: http://www.inversecondemnation.com/#sthash.uTi0w5SS.dpuf

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Robert H. Thomas is one of the preeminent land use lawyers in Hawaii. He specializes in land use issues including regulatory takings, eminent domain, water rights, and voting rights cases. He has tried cases and appeals in Hawaii, California, and the federal courts. Robert received his LLM, with honors, from Columbia Law School where he was a Harlan Fiske Stone Scholar, and his JD from the University of Hawaii School of Law where he served as editor of the Law Review. Robert taught law at the University of Santa Clara School of Law, and was an exam grader and screener for the California Committee of Bar Examiners. He currently serves as the Chair of the Condemnation Law Committee of the American Bar Association’s Section on State & Local Government Law. He is the Hawaii member of Owners’ Counsel of America, a national network of the most experienced eminent domain and property rights lawyers. Membership in OCA is by invitation only, and is limited to a single attorney from each state. Robert is also the Managing Attorney for the Pacific Legal Foundation Hawaii Center, a non-profit legal foundation dedicated to protecting property rights and individual liberties. Reach him at rht@hawaiilawyer.com He is also a frequent speaker on land use and eminent domain issues in Hawaii and nationwide. For a list of upcoming events and speaking engagements.