University of Hawaii Law Professor: Hawaii Supreme Court’s Record On Private Property Rights “Appalling”

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Hawaii Supreme Court
Hawaii Supreme Court (Photo: Emily Metcalf)

BY ROBERT THOMAS – You know how we’re always saying that certain parties have an enviable record of success in the Hawaii Supreme Court? Well, now the statistics are official.

The latest edition of the University of Hawaii Law Review published an article by law professor David Callies summarzing the decisions of the court during the tenure of now-retired Chief Justice Ronald Moon. ((The Moon Court, Land Use, and Property:A Survey of Hawai‘i Case Law 1993-2010, 33 U. Haw. L. Rev. 635, 636-37 (2011) by David L. Callies, Emily Klatt, and Andrew Nelson))


The article sets forth the stark numbers (83% win rate, 65% reversal of the intermediate appellate court), and contains a sharp comment about the often-lengthy nature of the court’s opinions:

Second, the Moon Court decided some of the state’s most important property and related environmental and Native Hawaiian rights cases in favor of the various non-governmental organizations bringing them (Sierra Club, Earthjustice, Hawaii’s Thousand Friends, and the Native Hawaiian Legal Corporation) approximately eighty-two percent of the time, sixty-five percent of which reversed the Intermediate Court of Appeals (ICA).

Third, the court increasingly rendered lengthy opinions, many triple the length of those from the Lum Court and often describing the context in which the case arose procedurally even when the process was not an issue. That said, the court certainly set a high bar for thoroughness and explanatory analysis. For example, its decision in Save Sunset Beach Coalition v. City & County of Honolulu is a model of clarity and organization reminiscent of the style of opinions written by retired ICA Judge Walter Heen and retired ICA Chief Judge James Burns.

While we recommend you read the entire article, if you don’t have time, here’s the Conclusion, which shows these statistics have real-world consequences:

In sum, the Moon Court has made many useful contributions to the law of property in Hawai‘i. It has taken care to preserve the rights of landowners to freely use property in the face of private restrictive covenants limiting that use if such covenants are the least bit vague or poorly defined.

It has amplified and extended basic principles in the areas of coastal zone management, condominium, easement, and leasehold law. Its record on preserving private property rights guaranteed by the U.S. Constitution’s Fifth and Fourteenth Amendments in the face of regulatory challenges is, on the other hand, appalling, particularly given the increasing emphasis on preserving such rights in our nation’s highest court.

In case after case, the Moon Court has strained to apply general and often vague goals pursued by select interest groups and factions regardless of statutory law to the contrary.

The result, coupled with Hawai‘i’s increasingly well-known penchant for lengthy, often decade-long land use permitting processes, is a climate that increasingly discourages both local and foreign investment in land development, because it is widely perceived as too risky for the private sector to undertake. In particular, the effect on the availability of housing that is affordable at any but the most astronomical levels has been great.

In short, the Moon Court has made a considerable negative impression on the land development aspect of property law, virtually converting the use of land into a privilege rather than a constitutional right subject only to regulation for the health, safety and welfare of all.

Whether that impression becomes indelible is a matter that the Recktenwald Court should address at the earliest opportunity.

Is this part of the reason why Hawaii is the most expensive housing market in the nation?



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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.


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