Photo: Emily Metcalf
Photo: Emily Metcalf
Photo: Emily Metcalf

BY ROBERT THOMAS – Here’s a follow up to last week’s story on the “sit-lie” and “don’t use the bathroom in public” ordinances now being considered by the Honolulu City Council (see “As Judge Kozinski Said, It’s A Sidewalk, Not A Sideseat Or A Sidebed“).

Today’s Star-Advertiser reports in “Sit-lie ban sought for all Oahu” that the scope of the ban may be expanded from Waikiki, and that the prohibition on urinating and defecating in public in Waikiki is also being proposed to include the entire City and County. In other words, island-wide. The sit-lie ban is also being considered as an all-day thing, not just the limited hours in the initial bill.

While limiting the hours and geographic scope of the sit-lie ban would seem to tacitly encourage this behavior in the off-hours and in other parts of town, the Seattle ordinance on which these things are patterned was so limited, so it seemed like a good starting point for thwarting any legal challenges. Expansion of the scope may leave a slightly wider opening for challenge.

Although the Ninth Circuit upheld the Seattle ordinance on the grounds that the prohibited conduct was conduct and not speech and the limited geographic and temporal scope of the ordinance was not dispositive, see Roulette v. City of Seattle, 97 F.3d 300 (9th Cir. 1996), a later decision by a different panel of the Ninth Circuit, Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006), concluded that a 24-hour city-wide sit-lie prohibition was tantamount to the criminalization of the homeless when there was proof that the plaintiffs has no access to shelter, and thus was cruel and unusual punishment. The Jones reasoning has never been adopted by another court, and the panel opinion was later vacated by agreement of the parties after they settled the case, but the arguments presented remain.

Robert Thomas, a Hono­lulu attorney who specializes in land use and government law, said he believes the Wai­kiki sit-lie bill likely would pass constitutional muster because a 9th Circuit Court of Appeals ruling determined in 1996 that the Seattle law regulates conduct, not free speech.However, homeless advocates have argued successfully, in a 2006 9th U.S. Circuit Court of Appeals case, that Los Angeles laws disrupting the homeless on public sidewalks serve to criminalize homelessness, Thomas said. Attorneys opposed to the LA ordinances successfully argued that because homeless shelters in the area were turning away people, those on the street had nowhere to go.

“That turned these into status offenses,” Thomas said, noting that the U.S. Supreme Court has ruled in other cases that laws cannot be imposed against people based on their status.

As a result, he said, expanding the sit-lie bill to geographically include all of Oahu “makes it more likely to be challenged.”

One uniquely Hawaii angle on this issue has not been explored in the courts, as far as we can tell. In our state constitution, there’s a provision that enshrines “the law of the splintered paddle” as a constitutional concept. According to the wikipedia entry (which is in accordance with our admittedly anecdotal understanding of the LOTSP):

It was created when Kamehameha was on a military expedition in Puna. His party encountered a group of commoners on a beach. While chasing two fishermen who had stayed behind to cover the retreat of a man carrying a child, Kamehameha’s leg was caught in the reef. One of the fisherman, Kaleleiki, hit him mightily on the head with a paddle in defense, which broke into pieces. Kamehameha could have been killed at that point but the fisherman spared him. Years later, the same fisherman was brought before Kamehameha. Instead of ordering for him to be killed, Kamehameha ruled that the fisherman had only been protecting his land and family, and so the Law of the Splintered Paddle was declared.

Here’s article IX, § 10 of the Hawaii Constitution in full:

The law of the splintered paddle, mamala-hoe kanawai, decreed by Kamehameha I — Let every elderly person, woman and child lie by the roadside in safety — shall be a unique and living symbol of the State’s concern for public safety.The State shall have the power to provide for the safety of the people from crimes against persons and property.

So can old folks, women, and children ignore the sit-lie ordinance under this provision? The punishment for those who break this command is “Hewa no, make” (“Break this law, and die”), which makes the whole declaratory judgment and injunction remedy kind of minor league. At least one recent op-ed made the case (“Law of the Splintered Paddle should apply to Hawaii’s homeless“).

The whole homeless issue has become the hot topic of the moment, even getting our town splashed on the pages of the New York Times recently: “Honolulu Shores Up Tourism With Crackdown on Homeless.” In other words, more to come.

– See more at: http://www.inversecondemnation.com/#sthash.mQsE5Due.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.