Political Questions: all six or just two?
Nelson v. Hawaiian Homes Commission (ICA January 12, 2011)
Background. Richard Nelson and six others filed a lawsuit against the State seeking declaratory and injunctive relief. In their complaint, the Plaintiffs alleged that there were thousands of people on the waiting lists for Hawaiian Home Lands lots and that some have waited for decades. Plaintiffs also alleged that the State did not appropriate any funds from the general revenue to the operating budge for the Department of Hawaiian Home Lands (DHHL) until 1987. In 1994, the legislature enacted a law authorizing payment to DHHL of $30 million per year for 20 years. However, between 1989 through 2007, the State funding for the DHHL never exceeded 0.5% of the State budget. The Plaintiffs argued that the Hawai'i Constitution required funding for the DHHL and that as trustees, the Hawaiian Home Commission breached its fiduciary duty in not seeking appropriations from the legislature. The circuit court granted the State's motion for summary judgment and concluded that the political question doctrine prevented the lawsuit from progressing.
The Hawai'i Constitution. Before its amendment in 1978, the Hawai'i Constitution stated that "[t]he proceeds and income from Hawaiian home lands shall be used only in accordance with the terms of [the Hawaiian Homes Commission] Act, and the legislature may, from time to time, make additional sums available[.]" Haw. Const. Art. XII, Sec. 1. In 1978, this section was amended:
The legislature shall make sufficient sums available for the following purposes: (1) development of home, agriculture, farm and ranch lots; (2) home, agriculture, aquaculture, farm and ranch loans; (3) rehabilitation projects . . .; (4) the administration and operating budget of the department of Hawaiian home lands . . . by appropriating the same in the manner provided by law.
The ICA, therefore, had to examine whether funding by the legislature or the State constituted "sufficient sums" could be reviewed by the court or whether it was a political question.
The six Political Questions. Political questions arise in different ways:
Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
Trustees of the Office of Hawaiian Affairs v. Yamasaki, 69 Haw. 154, 170, 737 P.2d 446, 455 (1987). Any one of these six renders a case a political question. Id.
Answering all six in the Negative. First, the ICA examined if the text of the provision shows a " constitutional commitment of the issue to a coordinate political department[.]" According to the ICA, the provision was clearly directed toward the legislature. However, the amendment clearly departed from the old language of the provision that gave the legislature unfettered discretion by stating it must provide "sufficient sums" for particular purposes. Courts cannot "ascribe to the constitutional framers the intent to enact laws devoid of any real substance and effect." In re Water Use Permit Applications, 94 Hawai'i 97, 142, 9 P.3d 409, 454 (2000). According to the ICA, if there was no way to determine "sufficient sums," then the amendment would be essentially the same as the old language.
Judicially Discoverable and Manageable Standards were Present. The ICA disagreed with the circuit court and held that there were indeed judicially discoverable and manageable standards in resolving Plaintiff's issue. The ICA delved deeply into the proceedings of the 1978 Constitutional Convention and concluded that the amendment was designed to end DHHL's practice of leasing its lands "in order to generate revenues to support its administrative and operating budget." Comm. Rep. No. 56, at 631. In doing so, this would make more lands available for settlement and beneficiaries of the DHHL program. Convention delegates also pointed out that the term "sufficient sums" were defined in the general plan, which was approved by the Hawaiian Homes Commission and signed into law by Governor Ariyoshi in 1976.
The Court Need not make Policy Decisions in Resolving this case. The ICA held that in resolving what constituted "sufficient sums," courts are not making policy decisions. The General Plan of 1976 set forth the goals and objectives in the DHHL. The plan itself states that the goals and objectives must be reevaluated every five years. According to the ICA, the DHHL, therefore, has a fiduciary duty to reevaluate its goals and objectives and request that the legislature provide "sufficient sums" to meet these goals and objectives. Ahuna v. DHHL, 64 Haw. 327, 337-40, 640 P.2d 1161, 1168-69 (1982).
No Disrespect, Politics, or Embarrassment Either. The ICA held that the other three political questions were not in this lawsuit either. The court was not "disrespecting" the legislature in interpreting the term "sufficient sums" under the constitution. The "courts, not the legislature, are the ultimate interpreters of the Constitution." State v. Nakata, 76 Hawai'i 360, 370, 878 P.2d 699, 709 (1994). The issue in this case does not require "adherence to a political decision" either. Finally, there is no embarrassment in government due to different pronouncements by various departments on the question. According to the ICA, DHHL has a duty to seek funds from the legislature. The legislature is obligated to provide "sufficient sums" available. If there is a dispute as to whether these sums are sufficient, the courts must decide that.
Chief Judge Nakamura's Concurrence. Chief Judge Nakamura agreed with the majority, but decided to write separately in order to narrow the analysis. Rather than examine each of the six possible political questions, Chief Judge Nakamura limited himself to analyze the two political questions argued by the State: the lack of judicially discoverable and manageable standards for resolving the issue; and the impossibility of deciding the claims without an initial policy determination of a kind clearly for nonjudicial discretion. According to Chief Judge Nakamura, the State argued that there were no judicial standards available to calculate what funding by the legislature constituted "sufficient sums" pursuant to the Hawai'i Constitution. Chief Judge Nakamura rejected this argument. The history of amendments behind this particular provision in the constitution signify some intention to limit the discretion of the legislature. Just because there is no indication exactly how much money is "sufficient" does not render the entire case nonjusticiable. As Chief Judge Nakamura wrote, "[w]hat is necessary for a court to fulfill its role is not precision, but discoverable and manageable standards."
Six to two. There are six different political questions that would render a lawsuit or dispute nonjusticiable. The defendants in this case only raised two. However, the majority went through all six--even though it was not part of the State's argument. Does this matter? Probably not. Does it provide guidance for future litigation? Even less so. Some of the analyses by the majority was only a single paragraph or two.