SCOTUS Asks For Fed Input In Case Asking Whether Hawaiian Homes Property Tax Exemption Is Racial Discrimination

The US Supreme Court AP PHOTO
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The US Supreme Court - AP PHOTO

BY ROBERT THOMAS – Monday, December 14, 2011 was the day we were to have found out whether the Supreme Court would review Corboy v. Louie, No. 11-336 (cert. petition filed Sep. 15, 2011). That’s the case seeking review of the Hawaii Supreme Court’s opinion which concluded that challengers to the property tax exemptions conferred on lessees of Hawaiian Homesteads lacked standing to bring suit. More from today’s Star-Advertiser report Court might hear case testing state benefits for Hawaiians.

On Monday, however, the Court released an order inviting the U.S. Solicitor General to express the views of the federal government, usually a sign that the Court has some interest in a case. No doubt the Court asked for the SG’s views because the cert petition draws into question the constitutionality of the Hawaiian Homes Commission Act and the constitutionality of a part of the Hawaii Admission Act. When federal laws are so questioned, the federal government is required to be notified. The petitioners did, but the SG did not weigh in with a brief. Now he will (yes, it is an “invitation” but it’s one of those inviations that is never turned down).


Although the SG is often referred to as “the tenth Justice” because the Court pays close attention to his or her arguments, it is by no means certain that the Court will accept those arguments, nor is it certain on which “side” the SG will weigh in on. For a recent example, see the PPL Montana case in which the Court invited the SG to file an amicus brief. He filed a brief urging the Court to deny the Petitioner’s requrest for certiorari. The Court rejected that argument and agreed to review the case. The SG then filed a merits brief in support of the Petitioner, and presented oral argument supporting the Petitioner.

Some background in the Corboy case. Only “native Hawaiians” are eligible to lease homestead land, and thus only those possessing the appropriate blood quantum are entitled to the property tax exemptions. The Hawaii court dismissed the case for lack of jurisdiction, holding the petitioners lacked standing to challenge the exemption since they had not sought homestead leases (leases for which they were ineligible because they are not native Hawaiians).

The cert petition asked the Court to review this Question Presented:

In Rice v. Cayetano, 528 U.S. 495 (2000), this Court held that a state classification of voters according to whether they are “any descendant of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands previous to 1778” was an impermissible racial classification under the Fifteenth Amendment. Respondents have employed the same classification to determine whether a taxpayer is eligible for certain long-term leases that entitle lessees to significant tax exemptions. No equivalent exemption is available to petitioners because they do not fall within that racial classification.

Petitioners paid their taxes under protest and then sought refunds from their respective counties on the ground that their tax bills resulted from a racial classification inconsistent with the Constitution. The Hawaii courts declined to apply Rice or subject the classification to strict scrutiny. The question presented here is:

Whether the Hawaii courts erred in failing to recognize that petitioners have standing to seek a refund of their own taxes and that the Equal Protection Clause precludes a State or municipality from creating tax exemptions that are available only to members of a certain race

Here are all of the briefs filed in the case:



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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. Hey, well one has just gotta love the Mobius strip on which the Hawaii Supreme Court put the petitioners. Is this sort of judgment for real?

    It’s got to be reversed on its gamesmanship alone even if not on its overwhelming merit — assuming we all speak the same language and its words mean the same in Honolulu and DC as they do anywhere else in the English-speaking world.

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