Bruce Davidson

Today's New York Times (Which we buy for the book reviews, honest, nothing else) featured a piece on Bruce Davidson, a photographer I've admired for many years. So here's one of his photos I've always liked -

Un-slaughtering the Privileges or Immunities Clause

What a great title for a symposium:

"A Vain and Idle Enactment: Could McDonald v. Chicago Un-Slaughter the Privileges or Immunities Clause?"

The Privileges or Immunities Clause is part of the Fourteenth Amendment passed, of course, after the Civil War. It says, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." While the Amendment's Due Process clause has led over time to the incorporation of certain guarantees in the Bill of Rights against state encroachment, the Privileges or Immunities clause was rendered a dead letter just a few years after its enactment by the Slaughter House Cases.

In dissent, Justice Field wrote:

The amendment does not attempt to confer any new privileges or immunities upon citizens, or to enumerate or define those already existing. It assumes that there are such privileges and immunities which belong of right to citizens as such, and ordains that they shall not be abridged by State legislation. If this inhibition has no reference to privileges and immunities of this character, but only refers, as held by the majority of the court in their opinion, to such privileges and immunities as were before its adoption specially designated in the Constitution or necessarily implied as belonging to citizens of the United States, it was a vain and idle enactment, which accomplished nothing, and most unnecessarily excited Congress and the people on its passage.

Back to the present, The Volokh Conspiracy recently pointed out:

...McDonald v. Chicago involves a constitutional challenge to the Chicago handgun ban, which raises the issue of whether the individual right to keep and bear arms, which was recognized by the Supreme Court in DC v. Heller also applies to the states. Somewhat amazingly, the Court announced that this was the question presented:

Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses.

This indicates that the meaning of the long-ignored Privileges or Immunities Clause is now in play, and that the Court wants to squarely address this constitutional question, as Justice Thomas has long been urging it to do. Rarely do constitutional law cases involve the isolated issue of the original meaning of the text. Heller is one such case; McDonald could be another. Is it really possible that the court will restore not one, but two clauses of the Lost Constitution?

An exciting moment for Constitution geeks.

Ironical post script: Re-reading, it occurs to me I didn't expound sufficiently. The really interesting aspect of this case, in my estimation, is that, ultimately, it potentially broadens the expansion of individual rights in a way that will be appreciated by social libertarians of a leftist bent - that is, it potentially reaches a lot of liberties not currently protected under constitutional law. But the argument is asserted by proponents of the Second Amendment right which is traditionally thought of as a right wing interest. And, the argument  rests on an originalist textual reading of the Constitution, which is also a traditionally conservative point of view, but which nevertheless potentially broadens the landscape of individual rights, which is traditionally a leftist interest.  As I say, an exciting moment fo Constitution geeks.

No furloughs for state judges

It would violate the state constitution. Paul Curtis has a related piece in the Garden Island this morning -

Article XVI; Section [3.5]. There shall be a commission on salaries as provided by law, which shall review and recommend salaries for the justices and judges of all state courts, members of the legislature, department heads or executive officers of the executive departments and the deputies or assistants to department heads of the executive departments as provided by law, excluding the University of Hawaii and the department of education....

Any salary established pursuant to this section shall not be decreased during a term of office, unless by general law applying to all salaried officers of the State.

Would you freak

...if you were an attorney and a deputy walked up and rummaged through your case file behind your back and took a document while you were at the podium addressing the court?



Here's a related article from Heat City ("Hard News in the Public Interest from Metro Phoenix")

A Maricopa County detention officer tried to explain Friday why he and a fellow sheriff's office employee swiped a document from a defense attorney's file in a bizarre scene that was caught on courtroom videotape.

New furlough lawsuit

This one based on a due process argument according to the Star-Bulletin -

The latest complaint contends that shortening the school year by 17 days without giving adequate notice and opportunity for public comment violated students' rights to due process of law.

"We have a constitutionally created educational system and a mandatory school year," said Carl Varady, one of the attorneys for the students, who were not named publicly. "Why is that different from any other state-created benefit like welfare or public health? The Supreme Court has recognized that you cannot take away health care and other social welfare benefits without due process. Why can you take away school?"

Another landmark in long-running Hawaiian Homelands case

The Advertiser -

The class-action lawsuit Kalima v. State of Hawaii was filed on behalf of more than 2,700 DHHL beneficiaries. It alleged that DHHL did not provide homes in a timely and prompt manner as required by the Admission Act.

The Star-Bulletin -

The decision yesterday came in a class action lawsuit filed in 1999 on behalf of about 2,700 native Hawaiians who claimed they were not promptly awarded homesteads between 1959 and 1988.

The beneficiaries filed claims under a 1991 law passed to compensate them for their losses resulting from the delays. But the state shut down the administrative process in 1999, prompting the lawsuit.

The case went up to the state Supreme Court before being sent back down to Circuit Court for trial

The Supreme Court decision, Kalima v. State, 137 P.3d 990 (Haw. 2006)(slip opinion here), contains a thorough history of the Hawaiian Homelands Trust and a lengthy history of the state's efforts to provide redress for breaches of the Home Lands Trust.

Plaintiff's attorney comments on Kaloko Dam settlement

Philip R. Brown -

The Kaloko Dam flood was a terrible tragedy, about which I previously posted in September of 2007. I am happy to report that we have reached a successful settlement, which will allow our clients to restore their idyllic property.

Mortgage ind. trade journal: HUD threatens FHA revocation against Hawaii-based reverse lender

"The Board was particularly concerned about one case in which the Company steered an 88-year-old borrower into purchasing an annuity which would not mature until she reached her 104th birthday."

Ceded Lands case last man standing dismissed

Today the Hawaii Supreme Court filed what should be the final order in the ceded lands case, OHA v. Housing and Community Development Corp of Hawaii. Recall that the state supreme court had held that the federal Apology Resolution gave rise to a fiduciary duty on the part of the state to preserve the ceded lands until "such time as the relinquished claims of native Hawaiians have been resolved." The case then went before the U.S. Supreme Court which held that, on the contrary, the Apology Resolution did not create a cloud over the state's title to the ceded lands.

The parties (that is to say, all but one of the plaintiffs) subsequently reached a settlement in the form of Act 176 requiring a 2/3 majority vote of the legislature and notice to OHA before any state agency may alienate ceded lands.

The state filed a motion to dismiss the lone remaining plaintiff, Professor Jonathan Osorio's appeal. Today the Hawaii Supreme Court held that Professor Osorio's claims are not ripe for adjudication because there has been no final action under Act 176 with regard to any ceded lands. The court remanded the case to the circuit court for entry of a judgment dismissing Professor Osorio's claims against the state without prejudice.

This would appear to leave the door open for Professor Osorio to bring a claim once there is state action under Act 176 to sell or otherwise transfer ceded lands.

Furlough Fridays law suits

An article in yesterday's Star Bulletin describes "two federal lawsuits that seek to block Furlough Fridays in Hawaii's public schools, one representing nine students with autism and the other on behalf of regular and special education students."

Today's Advertiser covers the denial by the court of an 11th hour motion for a temporary restraining order by the plaintiffs to force the state to keep schools open.

On Nov. 5 there will be a hearing on a request for a preliminary injunction.

It's not all work all the time...

With my son and friends at a school dive club event last week

Jones Act challenge updates from around the web

Here's Mark Murakami's (HawaiiOceanLaw.com) description along with a link to the complaint.

The suit notes that because the Jones Act requires cargo to be transported on U.S. flagged ships between U.S. ports, Hawaii residents pay more for their goods. It purports to be class action on behalf of all persons impacted by the Jones Act's application to Hawaii maritime trade.

Mark also points out that "There may be some jurisdictional problems with these claims, so it will be interesting to see if the plaintiffs can survive the government's inevitable motion to dismiss."

Here's Malia Zimmerman's Hawaii Reporter piece yesterday with more from the plaintiffs' perspective.

Honolulu personal injury attorney Wayne Parsons opposes the suit on the InjuryBoard.com blog.

Looming appeal - lower court rules first degree murder not appropriate under law where Family Court defendant murders witness

According to this Advertiser piece, fifteen year old Vernon Bartley had burglary charges pending against him in family court when he allegedly murdered his 51 year old neighbor who would have been a witness against him in the burglary case.

Under Hawaii law, A person commits the offense of murder in the first degree if the person intentionally or knowingly causes the death of a person known by the defendant to be a witness in a criminal prosecution and the killing is related to the person's status as a witness. HRS §707-701(c). So, the state charged Bartley with first degree homicide which, as the article points out, "carries the strongest punishment under Hawai'i criminal law: life in prison without the possibility of parole."

However, under HRS §571-1, family court proceedings are not deemed criminal prosecutions. Therefore, Bartley's attorney argued, the first degree homicide charge is unsupported and must be dismissed. The judge agreed on the grounds that the juvenile proceeding was not a criminal prosecution.

Arguing that this flies in the face of the legislature's intent in drafting the first degree murder statute the state says it "is considering appealing the decision to the Hawaii Supreme Court, as well as seeking a clarification of the law by the Legislature next year."

That'll be one to watch.

Police arrest 10 year old girl for assaulting her brother

This seems like something we could be hearing more about. According to a minimalist Advertiser report, in its entirety -

A 10-year-old girl was arrested yesterday morning after her 8-year-old brother reported being assaulted.

The children live together in Kalihi and got into an argument, police said. The girl then picked up a weapon and hit the boy, causing him pain, police said.

Police were called at about 7 a.m. and arrested the girl on suspicion of second-degree assault. Police did not disclose the nature of the boy's injuries or what weapon was allegedly used by the girl.

"They want to create a whole new animal - the guilty bystander."

In a comment to the previous post, Big Island attorney blogger John Powell reminded me of the Seinfeld finale in which Elaine, George, Jerry, and Kramer are charged with violating a Good Samaritan statute after standing by and ridiculing the victim during a mugging. Their Cochran-esque attorney, Jackie Chiles, says -

Good Samaritan Law? I never heard of it. You don't have to help anybody. That's what this country's all about. That's deplorable, unfathomable, improbable.

And later, at opening arguments -

Have you ever heard of a guilty bystander? No, because you cannot be a bystander and be guilty. Bystanders are by definition, innocent. That is the nature of bystanding. But no, they want to change nature here. They want to create a whole new animal - the guilty bystander. Don't you let them do it. Only you can stop them.

No duty of crime witness to call the police

This case ought to take any lawyer back to first year law school torts class where we learned the common law “no duty to rescue rule” under which, so long as you were not responsible for placing someone in danger or risk, you have no obligation to help them even if you could save their life with little cost or inconvenience to yourself.

According to the Star Bulletin,

The issue surfaced this week with the revelation in court documents that three hotel workers saw a man on top of someone who was kicking on Waikiki Beach about 3 a.m. Oct. 2. There is no mention in the court documents that the employees called police. About three hours later, police were called when the nude body of a woman was found in the ocean nearby.
...
According to the court documents, a cook at the Royal Hawaiian Hotel told officers investigating the death he watched for 10 minutes as a man choked or shoved a woman 30 times, while the woman was kicking.

Shortly afterward, he saw a couple in the ocean, but was unsure if it was the same couple.

Two fellow workers joined the cook, who told them he saw a man choking or shoving a woman, and the two told police they saw a man on top of someone who was kicking. One of those two employees was unsure if the person underneath was a man or a woman, according to the court documents.

The case used to illustrate the doctrine in my torts casebook was Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959) in which Bigan dared Yania to jump into the hole full of water and then stood by watching as Yania drowned.

The article points out -

Ohio is possibly the only state where a person who witnesses a felony being committed or has knowledge of a crime is required to report it to law enforcement.

But in Hawaii, as in most states, people are generally not required by law to report a crime, with some exceptions such as social workers, teachers and medical professionals, who must report suspected child abuse.

Right of citizens to sue to challenge council member's eligability goes to state Supreme Court

According to the Advertiser and the Maui News, the Hawaii Supreme Court will hear an appeal by plaintiff-appellant Lanai residents asking that Council Member Sol Kaho'ohalahala be blocked from serving on the Maui County Council on grounds that he is not a resident of the council's Lanai residency district as required under Mauai Charter Sect. 3-3.

In March, Judge Joseph Cardoza of the Second Circuit dismissed the suit, agreeing with Kaho'ohalahala that citizens seeking removal of an elected county official are limited to impeachment or recall.

I saw the court's order come across the rss feed the other day, but it presently seems to be absent from the judiciary web site for some reason.

National Book Award Finalists

...are here.

Another factual twist to challenge Hawaii's native burial laws

In this case involving native burials, the plaintiffs allege...

...that trenching work [for Kawaiaha'o Church's new $17.5 million multipurpose center] disturbed the graves of [Plaintiff Abigail Kawananakoa's] ancestors — Queen Kapiolani and her family. The suit names the church and various state agencies as defendants. It alleges a violation of public trust, along with manipulation of state law, desecration of graves and gross negligence, among other charges.

In a motion decided today church attorney, Crystal Rose, argued that the disturbed site is a widely known cemetery and, according to the article linked above, "historic burial laws therefore do not apply." The article goes on to report that "George Van Buren, Kawananakoa's attorney, filed a response last week, saying Kawaiaha'o Church's history as an ancient native Hawaiian burial site subjects it to the [historic burial] laws."

Today the First Circuit Court denied the motion without prejudice.

I haven't read any of the filings, but it appears to me the sides argued over whether the applicable statute is HRS §6E-43 governing prehistoric and historic burial sites, or the less restrictive §6E-41 concerning cemeteries, their removal or redesignation.

inversecondemnation.com live blogs HAWSCT oral arguments this morning: Are State Zoning Laws "Environmental" Statutes?

Robert Thomas again brings the court to the people (he previously live blogged the HAWSC Superferry oral arguments with great success).

Today's blog of the Hawaii Supreme Court oral arguments in County of Hawaii v. Ala Loop Homeowners, No. 27707 (cert. granted Sep. 2, 2009) will go live at approximately 9:45 a.m., Hawaii Standard Time.

Go here for the streaming updates.

The court is considering whether Haw. Rev. Stat. § 205-1 et seq., gives rise to a private right of action. The core issue in the appeal is whether Hawaii's statewide zoning laws are "laws relating to environmental quality" which may be privately enforced, or whether they are classic Euclidean zoning laws which can't. The Hawaii Constitution (art. XI, § 9) provides that "any person may enforce" the "right to a clean and healthful environment, as defined by law relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources."