Friday, May 8, 2015

Hawaii's Weird Relationship with the Fifth Amendment

Criminal defense lawyers like the Fifth Amendment. It’s got a lot of good stuff in there like the right to a grand jury—the right to have total strangers decide if the government has enough evidence against you to even accuse you committing a serious crime. And of course we can’t forget self-incrimination. That’s when you get to refuse to answer questions from Congress or a court and “plead the Fifth.”
But at the very end of the amendment are twelve words that never get much limelight: “nor shall private property be taken for public use, without just compensation.” It’s too bad. Lawyers like to call it the Takings Clause and it’s at work in every state in the union.
You can see it at work on Oahu today as the billion-dollar rail project plows through neighborhoods, commercial blocks, and parking lots across the west side. The corridor from Kapolei to Honolulu is not entirely on public land. It’s a patchwork of privately-owned real estate.
If a landowner doesn’t want to give up his or her property to the government, the government can go ahead and take it so long as it’s for public use and so long as it gives the landowner just compensation. Taking property for public transportation is a classic example of “public use.”
But sometimes things get a little weird. Most folks agree that condemning property for a freeway or a public rail system is public use, but what happens when the government doesn’t hold onto the property and gives it to someone else? Is that public use?
When I was in law school on the mainland, I remember having to take a property class and read a remarkable a case from the U.S. Supreme Court. The opinion starts with the Polynesians who settled the Hawaiian Islands and practiced what it called “a feudal land tenure system.” Reading up on modern-day Hawaiian history for a property class in Lawrence, Kansas got my attention and I was blown away when I learned more about it.
In the early 1960s, right after Statehood, we had a very progressive State Legislature committed to addressing some very old institutional problems in the islands. One of the most controversial was what was perceived as a high concentration of land ownership by a handful of private landowners. Sugar companies and royal estates had given away to land trusts that owned enormous portions of the islands. This form of land ownership went all the way back to the days of the Hawaiian Kingdom in the 1840s.
Over the years, most regular homeowners did not own the homes they lived in. Instead, they had long leases. This, apparently, was simply un-American and the Legislature set out to remedy this problem.
It decided to implement a dramatic and arguably revolutionary form of land reform. It created the Hawaii Housing Authority. The HHA received petitions from leaseholders and, once it determined if it was in the public interest, had the power to condemn portions of land, cut it up into smaller lots, and redistribute them.
I was shocked. It seemed really radical to think that our State would go up against landed estates, take their property, and sell it to working people. Then again, countries in the developing world were doing far more revolutionary things. Hawaii’s land reform debate was occurring around the same time Fidel Castro’s took control of Cuba. Former African colonies had declared their independence and were looking for ways to address the disparity of income. Wealth redistribution was the “it” thing to do.
The big land trusts challenged the constitutionality of the HHA. They invoked the Fifth Amendment. How can this be “public use” under the Takings Clause if it’s going straight to a private landowner? The case went all the way up to the Supreme Court (not the most revolutionary institution by a long shot) and the court found the purposes behind the HHA were indeed in furtherance of public use.
“The people of Hawaii have attempted, much as the settlers of the original 13 Colonies did, to reduce the perceived social and economic evils of a land oligopoly traceable to their monarchs.” The Supreme Court was calling out the landed estates as oligarchs and the State had every right to try and break up their estates for the public good.
Of course, lofty goals don’t always pan out. The Supreme Court had condoned the legislation of 1967 in 1984. The ardor of the 1960s had cooled. Many who lead the charge against the landed estates were becoming trustees themselves.

There’s still a high concentration of land ownership and the lease-to-fee debate continues all over the islands. The HHA has been renamed and its powers are seldom exercised. So much for radicalism. At least the Fifth Amendment is still around.

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