Final Brief In Case Challenging Hawaiian Homes Property Tax Exemption As Racial Discrimination: SG’s Assertion That HAWSCT Decision Was One Of State Law “Dead Wrong.”

Robert Thomas
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Robert Thomas

BY ROBERT THOMAS – Here is the final brief (Petitioner’s response to the SG’s inviation amicus) in Corboy v. Louie, No. 11-336 (cert. petition filed Sep. 15, 2011), the case asking the U.S. Supreme Court to review the Hawaii Supreme Court’s dismissal of a challenge to the property tax exemptions conferred on lessees of Hawaiian Homesteads. The petitioners claim this is an unconstitutional race-based classification, but the Hawaii Supreme Court dismissed for lack of standing (the petitioners had not applied for a Hawaiian Homestead lease).

The case was originally scheduled for the Court’s conference on December 12, 2011, but the Court postponed consideration of the case and invited the Obama Administration to weigh in with a brief, because the petition draws into question the constitutionality of the Hawaiian Homes Commission Act and the constitutionality of a part of the Hawaii Admission Act. The SG’s brief asserted that the Hawaii Supreme Court decided the standing issue as a matter of state law, and thus was grounded in “independent and adquate” state law, meaning that it is immune from Supreme Court review under Michigan v. Long, 463 U.S. 1032 (1983). The petitioners’ brief responds:


A. The Solicitor General’s assertion that the decision below rests on an independent and adequate state ground is dead wrong. Although he repeats the Hawaii Supreme Court’s claim that its decision rested on state law (U.S. Br. 9-11), saying it is so does not make it so.

1. As we have explained (Pet. 20-22), this Court routinely reviews decisions in which a purported state-law reason for declaring a case nonjusticiable is intertwined with the merits of the underlying federal question. The Solicitor General does not dispute that fact. Indeed, he never really grapples with the fact that the ostensible state-law basis of the decision below is inextricably bound up in whether the native Hawaiian classification is permissible

The Hawaii Supreme Court ruled that petitioners could not challenge the racially discriminatory taxation scheme because they did not also seek to participate in the racially discriminatory leasehold program. But that is just an indirect way of saying that use of a transparent proxy for race (lessee status) is permissible and that the only potentially cognizable constitutional injury is the additional and separate leasehold benefit that is explicitly conditioned on an applicant’s race.

Br. at 1-2 (emphasis original).

Here is the Court’s docket entry. The case is now scheduled for the Court’s June 21, 2012 conference. Stay tuned.

Supplemental Brief for Petitioners, Corboy v. Louie, No. 11-336




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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 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.


  1. If they have tax exemptions, why can't us expats have them too? Anyways, they also accused the proposed tax exemption as motivated by income brackets as defined by economy.

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