The Empire Strikes Back: Reaction To UH Lawprof’s Study Of Success Rates In Hawaii Supreme Court Cases

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Robert Thomas
Robert Thomas

BY ROBERT THOMAS – Here’s the inevitable reaction to U. Hawaii law Professor David Callies’recently-published law review article (and follow-up interview) about the stunning success rates certain parties enjoy in the Hawaii Supreme Court. In that article, the good professor labeled the record of the 1993-2010 Hawaii Supreme Court on property issues “appalling,” so it should come as no surprise that two of the beneficiaries of those rulings have now rallied to that court’s defense.

In “Hawaii Court Upholds Public Responsibility In Environmental Cases,” an opinion piece in Honolulu Civil Beat, an Earthjustice lawyer and the Director of the Hawaii Sierra Club jointly write:

Callies complains that the Supreme Court “created out of whole cloth” the requirement that the Turtle Bay Resort supplement its 25-year old Environmental Impact Statement. He was on the losing end of that argument before the Court, and he’s still wrong now. Supplemental EISs are a well-established requirement under the law, and the Court correctly rejected his argument that an EIS is valid forever, no matter how much circumstances change.

Fundamentally, Callies’s bone of contention stems from the mistaken belief that property owners should be entitled to build when and where they want to. On the contrary, developers have no God-given “right” to build large urban sprawl projects on land set aside for agriculture or conservation. Hawaii wisely distinguishes between industrial/urban, where development is generally free to occur, and conservation/agricultural, where land more closely regulated. We created this careful management process because of our experiences in the 1960s, when development ran amok and people realized the need for some restraint.

This sounds like “infill” and “smart growth,” and the notion that “we” should live in the urban core, even though many people would prefer not to raise their families in Hong Kong-style apartment buildings. But to us, the question is not so much whether “developers” have a “God-given ‘right’ to build large urban sprawl projects” (indeed, when you frame the issue thusly, will you accept any answer but a negative one, especially in a jurisdiction where the Supreme Court holds that the “western concept of exclusivity is not universally applicable”?), but whether other property owners are subject to the authors’ same assumption: that their constitutional rights to make reasonable use of their land are not “rights” at all, but mere privileges doled out by the state. We think you know our answer to that one.

The piece is definitely worth a read, even though we’re not sure the Hawaii Supreme Court needs defending, and often the best strategy when you are ahead is to keep running rather than look backwards and call your former professor a liar (the piece starts off painting Callies’ conclusion as “a lie told often enough [that it] becomes the truth”). Or is this a case of the lady doth protesting too much?

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