Saturday, August 17, 2013

Many Different Hawaii Supreme Courts

This month, the Hawaii Supreme Court heard arguments for a case at Baldwin High School. This was the first time the court ever left Oahu. It's part of a community outreach program from the Judiciary designed to show students what the justices actually do.
This was a big deal. After all, from a lawyer's perspective, Maui is one of the Neighbor Islands. (The phrase itself is new and politically correct. When I was younger, we were simply known as the "outer islands." The old term always reminded me of the outer rings of Saturn or Outer Mongolia.)
This newspaper, and other media, ran a story about it and noted that this was the first time the court had convened on Maui since the middle of the 19th century. These reports of an earlier instance, however, are wrong.
It's a common misunderstanding. The Supreme Court drapes itself in a lot of tradition. Look at the building. Ali'iolani Hale is a sandy-colored palatial building with columns, a large clock, and massive bricks straddling King and Queen streets in downtown Honolulu. It serves as the stately backdrop for the famous statue of King Kamehameha I and is in thousands of snapshots by tourists from around the world.
That's where the Hawaii Supreme Court usually hears arguments. Inside there are white-with-marble floors and staircases, a museum, and official oil portraits of the chief justices from the recently retired Ronald Moon to William Little Lee, the New Yorker who was appointed to the Supreme Court of the Hawaiian Kingdom in 1857. Every session begins with a strange cry: Oyez! Oyez! Oyez!
But don't be fooled by ancient French, white marble steps, or 19th-century oil portraits. The Supreme Court that sits on King Street today isn't all that old. The Hawaii Supreme Court is only as old as the state itself. It was created by the Hawaii Constitution in 1959. The court that came out here in the 1800s was very different institution with a similar name. The difference is far from technical.
The various constitutions for the Hawaiian Kingdom created a Hawaii Supreme Court. So did the brief, oligarchic Republic of Hawaii. These courts are very different institutions with the same name.
This is exactly what caused the problem and scandal with the Bishop Estate. Bernice Pauahi Bishop's will expressly states that trustees are to be appointed by the "Justices of the Supreme Court." The will also added that trustees had to be Protestant.
Long after statehood and after the Protestant-trustee requirement, the Hawaii Supreme Court continued to appoint trustees. It somehow did not matter that probate courts normally appointed trustees and received reports for charitable trusts.
The territorial Supreme Court was probably the most different animal of them all. Territorial justices were appointed by the president of the United States with the consent of the U.S. Senate - people who had no ties to the islands. But statehood changed all that.
Our court today has almost no federal oversight. It's created by the state constitution, not a piece of congressional legislation. Our justices are appointed by the governor of Hawaii and their tenure is reviewed by a state commission, the Judicial Selection Commission. Most importantly, the state Supreme Court is free to interpret state laws and the state constitution as it sees fit. Its decisions cannot - unless they violate federal law - be overturned by any other court.
This is not a technical nicety. Early justices of the new Supreme Court were cognizant of their break with the past. When Gov. John Burns appointed his former lieutenant governor, William Richardson, in 1966 to head the court, the institution was ready to depart from not only federal precedent, but from the laws and decisions of older Hawaii supreme courts.
The Richardson Court started to really distinguish itself from its territorial antecedent. Its rulings were much more sensitive to the rights of Native Hawaiians. It ruled that beaches and waters were held in the public trust. In criminal cases, the court has regularly departed from federal cases and created more protections for the accused.
The justices themselves were different too. In less than 10 years, the court went from presidentially appointed justices to a group of local lawyers from vastly different backgrounds, ethnicities and religions. Today, the court continues to be one of the most diverse courts in the nation.
Even though the Hawaii Supreme Court still hears cases in the same building as the courts of past governments, it's not the same court. This court has the freedom to make a clean break from the precedents of the past whenever it feels the time is right. When that time comes depends on the consciences of the justices themselves.
- December 28, 2012

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