More on the Hawaii Supreme Court’s Appalling Record on Property Rights

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Robert Thomas

BY ROBERT THOMAS – Here’s a follow-up to our recent post about the U. Hawaii Law Reviewarticle authored by lawprof David Callies which summarizes the land use and property decisions of the Hawaii Supreme Court during the tenure of now-retired Chief Justice Ronald Moon. You know, the article setting out the stunning success rates of certain parties in the court, which chides the Justices for their often-lengthy opinions, and labels the Moon Court’s record on property rights “appalling.” Download the articlehere.

Today’s Honolulu Star-Advertiser has a follow-up interview with Professor Callies, most of which is behind a paywall. But if you don’t have an e-subscription (a real deal for those with mainland zip codes, by the way), here are the choice parts:

  • “Callies says he isn’t against planning in general, but thinks there must be legitimate police powers involved for the right of development to be abrogated.”
  • QUESTION: A recent law review article of yours came to the strongly worded conclusion that, overall, the Hawaii Supreme Court’s record on preserving private property rights guaranteed in the U.S. Constitution has been “appalling.” Why did you come to that conclusion? ANSWER: It struck me sort of anecdotally that the cases seem to be largely favoring groups like the Sierra Club, Earthjustice, Hawaii’s Thousand Friends and so forth that generally sue when development permits are granted almost anywhere. So I asked a couple of my research assistants to do a survey, and they came out with the figures that over 80 percent of the cases that the state Supreme Court decides find against either the county or the state or the landowner — whomever the decision-maker is and who owns the property. And in a substantial number of those cases — I think in the neighborhood of 70 percent — it overturned the Intermediate Court of Appeals.”
  • Q: Why is that a disturbing trend? A: Well, the U.S. Constitution protects the right to use property unless there are police-power reasons not to. And in Hawaii sometimes we get the impression that it’s the other way around. But it’s not. The right to use property is a right that the Supreme Court has held to be virtually co-terminus with other rights, a civil right. So if you can’t ground it in police power, then you can’t regulate it. Development of land is not a privilege, it’s a right. And so, if that’s the case, for the (Hawaii) Supreme Court to find — over and over again — that the right does not seem to exist, that strikes me as a lopsided view.”
  • “Hawaii also goes overboard in the percentage of low- or moderate-income housing it requires. Maui for several years required a 50 percent mandatory workforce housing set-aside, and the state has often been in the 25, 30, 35 percent category. … But much over 30 percent, it doesn’t pencil out. You can’t do it.”
  • Q: You’ve written about Hawaii’s many layers of land-use controls. How many layers are there? A: Ooooh, there’s a bunch — about eight or nine.”

For real entertainment, check out the reader comments at the end of the interview. Which, like many comment sections on the internet, range from reasonable to bizarre to downright racist (“Callies is a Caucasian, Chicago born and raised foreigner who can go back to the land of overbuilt skyscrapers, ghettos and murder capital of America. Why is he even here?”). Oh my. Another comment argues that the delays in development common in Hawaii are not signs that the laws are failing as Professor Callies suggests, but the reverse: that development delay is indication is that Hawaii’s laws are working exactly as intended. On that point, the commenter may be right.



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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.