There’s a War of Words in Hawai’i

Don’t look now, folks but the Hawaiians are at it tooth and nail. Our old friend Professor David Callies of the University of Hawaii published an article in which he took critical note of the Hawai’i Supreme Court’s record of . . . Well, there is no wholly polite way of putting it, so we may as well say it plainly: Callies makes the point that in the 1993 – 2010 period, the Hawai’i Supreme Court displayed an unseemly degree of bias by ruling in favor of environmentalists 80% of the time. Since those are hard figures, one would think that there couldn’t be much dispute about this — a case ends one way or another; you win or you lose, so it shouldn’t be a big deal to count affirmances and reversals and toting up the wins and losses of each side in environmental/land-use cases. Right? Not according to them Sandwich Islanders. You might think that being the happy, barefoot folks they are, they shouldn’t have too much trouble counting, resorting if necessary to toes as well as fingers. But it turns out that things in Alohaland aren’t that simple. This is the place where the local supreme court took the position that western concepts of property law such as exclusivity “is not universally applicable in Hawaii,” and never mind  what the U.S. Supreme Court held in the Kaiser Aetna case (in case you don’t remember, it said that the right to exclude is fundamental and constiturionally protected.

Professor Callies charges that 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.” That, in turn has affected the “availability of housing that is available at any but the most astronomical levels.” And these are the people who back in the 1980s went whining to the U.S. Supreme Court in the Midkiff case, kvetching about the high cost of Hawai’i housing which, after getting their way in court, they goosed upward so that within a few years it doubled.

Our other Hawai’ian friend, Robert H. Thomas who runs the  blog reports that the environmentalists reponded not so much by challenging Professor Callies’ figures and factual conclusions, but by an ad hominem attack on him. And so it goes. You can find a link to Professor Callies’ reply in the same Thomas blog post (dated Marh 7, 2013). Check it out.

What all those Hawai’ians may not know is that we Californians are way ahead of them. We went through this sort of crap back in the late 1970s (California is usually ahead of everybody when it comes to bizarre government stuff). Michael M. Berger, a well known and distinguished appellate lawyer in this field, wrote an article entitled You Can’t Win Them All — Or Can you? 54 Cal. St. Bar Jour. 16 (No. 1) (1979), in which he demonstrated that the California Coastal Commission, by far the most draconian land regulatory body in California, that often tended to confuse the state police power with the power of a police state, has been winning in court to an astonishing degree. Our own view is that the Commission was (and for all we know still is) run by the Marx Brothers — Karl and Groucho. There is lots of printed material on the Commission, its arrogance, and its rulings, so for now you’ll have to take our word for it. But do check it out. Suffice it to say, that in the Nollan case the U.S. Supreme Court charged the Commission with out-and-out extortion, and the California courts with following a rule no other state did, because with the California courts’ approval, the Commission had ruled that if Mr. Nollan rebuilt an old, decrepit beachfront bungalow, that act would erect a “psychological” barrier and somehow would cause the drivers on the nearby Pacific Coast Highway to lose their understanding that the Pacific Ocean was out there to the west. So to remedy that imminent environmental horror, the Commission demanded that the Nollan family “dedicate” their back yard (up to the seawall) as a public easement.

But let’s not digress. Back to the Bergrer article. In it Mr. Berger demonsrated that in the formative years of the California Coastal Act, the Commission had a winning record as an appellant before the California courts of — are you ready? — 88.9%. Quoth Mr. Berger:

“Examine that last statistic slowly. Taste it, as you roll it around on your tongue. Try to say it with a straight face. Nearly nine times out of ten, the Coastal Commission succeeds in reversing a trial judge. . . . “

If you don’t happen to practice appellate law, check with some folks who do, and you’ll learn that an appellate lawyer who has a reversal rate of 50% in civil appeals — if you could find one — would be considered a magician. Yet the Commission guys, mostly young and with limited experience were batting almost 900. Possible? By our lights, no. Not unless someone was placing a fat thumb on the scales of justice. You can take it from there.

The result of such judicial attitude was pretty much the same as in Hawai’i. Before long, California housing was the priciest in the continental United States, in spite of Justice William P. Clark’s prescient warning in his 1978 Agins dissent, that the court’s attitude would lead to an economic climate in California that would produce a cleavage between the rich and others, in which good housing would de facto cease to be available in California to ordinary people, and would become the turf of the rich. Judicial attitudes do not go unnoticed, and before long that is just what happened. As Richard Babcock, the nation’s late dean of the land-use bar put it, in California the courts have elevated government arrogance to an art form. Only they did it ahead of Hawai’i. So these days, homes in Kailua (on the windward side, traditionally the part of Oahu more modestly priced than Kahala or Diamond Head) go for a median price of over a million dollars.

Bottom line: What is going on here is that the enviro folks are pressig on with their decades-old campaign to destroy or at least delegitimate property rights in America. They’ve got theirs, and screw you. What they want is the system that was tried (and failed) in England, in which property rights in land do not really exist except to the extent they are created ad hoc by the government issuing some sort of permit to put it to new uses. Old, existing uses would be OK. And if you think that this statement is itself an ad hominem slam, do read Gladwin Hill, Authority to Develop Land Is Termed a Public Right, N.Y. Times, May 20, 1973. You’ll get the picture.

So the fight goes on, except that property owners — the schmucks! — too often don’t realize they are in one, whereas the “progressive” enviro types never forget that.

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