Robert Thomas
Robert Thomas

BY ROBERT THOMAS – The other shoe has dropped, and in “Environmental Lawyers Off Target With Criticism Of Callies,” U. Hawaii law professor David Callies responds to and rebuts an earlier op-ed by the Director of the Sierra Club and an Earthjustice lawyer which criticized Professor Callies’ recently-published law review article (and follow-up interview) detailing the stunning success rates certain parties such as the Sierra Club and Earthjustice enjoyed in the Hawaii Supreme Court from 1993-2010.

In that article, Callies labeled the record of the court on property issues “appalling” (80% overall success rate, 65% of cases reversing the Intermediate Court of Appeals).

As Callies said in an earlier presentation, “Ninety percent of the time, government and the private sector are wrong? Give me a break.” (Remember, this is the court that held “western concepts” of property law such as exclusivity “is not universally applicable in Hawaii.”)

The responsive op-ed by the environmental lawyers upped the ante by calling Callies a liar (“a lie told often enough [that it] becomes the truth”), and a sell-out (listing all of the “bad” clients he’s represented).

We believed the response in the law review to Callies by his U.H. Law colleague Professor Denise Antolini that defended the Supreme Court’s record on an opinion-by-opinion basis was a more effective comeback than ad hominems, but what do we know.

Given the attack, it shouldn’t be surprising that Callies has offered up an response, writing in Honolulu Civil Beat:

There they go again, vilifying and attacking the messenger rather than sticking to the issues. In response:

I have never ever suggested that the Hawaii Supreme Court is corrupt, as Harris and Moriwake clearly imply. Previously biased, yes. Consistently ruling in favor of the Sierra Club, Native Hawaiian Legal Corporation and Earth Justice and similar NGO interest groups and against property owners and government nearly 90 percent of the time speaks for itself.

I make no apologies for attempting to defend the rights of all landowners to use their property. The U.S. Supreme Court has equated protection of such rights with civil rights like freedom of press, expression, and security against unreasonable search and seizure. I agree. The use of land is not a privilege but a right subject to governmental exercise of its police power for the protection of the health, safety and welfare of its citizens. That does not mean any landowner can develop at any level or density anywhere, and for Harris and Moriwake to suggest otherwise is a gross mischaracterization of my position, as I expect they know.

Read Callies’ entire rebuttal here.

Will this prompt a sur-reply? We doubt it, since, as we noted earlier, perhaps the best response when you have a 90% Supreme Court success rate is no response at all. But we were wrong before, so maybe this is one of those “stay tuned” stories.

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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.