Ka Wai Ola - Office of Hawaiian Affairs, Volume 1, Number 5, 1 June 1984 — Waves of Judicial Change Cited [ARTICLE]

Waves of Judicial Change Cited

By H. K. Bruss Keppeler (Editor's Note: Attorney H. K. Bruss Keppeler prepared the "amicus curiae" brief submitted by the Officeof Hawaiian Affairs in support of Bishop Estate's appeal to the United States Supreme Court on the question of the constitutionality of Hawaii's "Land Reform Act.'1

" We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, providefor the eommon dcfense, promote the general Welfare, and sccure the Blessings of Liberty to ourselves and our Posteritv, do ordain and cstablish this CONSTITUTION for the Unitcd States of America." (Preamblc to the United States Constitution.) "... nor shall private property be taken for puhlie use, without just eompensation. " ( Final clause of the Fifth Amcndment to ihe United States Constitution.) The basic law surrounding the power of eminent domain or condemnation, held by government is as expressed in the final clause of the Fifth Amendment to the United States Constitution. In short. the private property owner is to be protected from the arbitrary acts of government whieh constitute the taking of his property for other than "public use" or for less than "just compensation".

Many court decisions have sought to define the phrases "public use"and "just compensation". Where just compensation is concerned, modern appraisal techniques have been approved standardly by courts as acceptable methods for valuing property to decide how mueh compensation or payment is just and fair. "Public use"has been harderforcourts to define. The legal definition of these two words has broadened over the years. The use of eminent domain for the acquisition of public roadways, parks, schools, harbors and like facilities, used and enjoyed by the public at large, has long passed the constitutional test. The taking of land for public housing or slum clearance or the clearing of swamps or other unhealthy conditions more narrowly achieved a passing grade.

A wise man onee said that the Constitution of the United States is no longer simply that revered parchment the Forefathers drafted, but a library full of books commenting on the scarce words written on that parchment. And, so many of those books in that library contain opinions of the courts of our land. The courts often expand the meaning and content of the body of law like the waves that wash our beaches. A set of strong waves comes and foams up to the top of the beach, only to recede, followed by more gentle waves washing over less of the sandv surface.

On Wednesday, May 30, 1984, the headline of the Honolulu Star-Bulletin shrieked: COURT UPHOLDS LAND REFORM. Justice Sandra Day 0'Connor had pushed a wave across the beach and into the far reaches of ka 'aina ma ke kai (the most seaward part of the land). She quotes earlier court decisions and says: "In short, the Court has made it clear that it will not substitute its judgment for a legislature's judgment as to what constitutes a public use 'unless the use be palpably without reasonable foundation"' and "... deference to the legislature's 'public use' determination is required 'until it is shown to involve an impossibility'" and "... where the exercise of the eminent domain power is rationally related to a conceivable public purpose, the Court has never held a compensated taking to be prescribed by the Public Use Clause." Then she says: "The people of Hawaii have attempted mueh as the settlers of the original 13 Colonies did, to reduce the perceived social and eeonomie evils of a land oligopoly traceable to their monarchy." (see Id. at page 11). Finallv. the ooinion states:

"The State of Hawaii has never denied that the Constitution forbids even a compensated taking of property when executed for no reason other than to confer a private benefit on a particular private party. A purely private taking could not withstand the scrutiny of the public use require-

ment; it would serve no legitimate purpose of government and would thus be void. But no purely private taking is involved in this case. The Hawaii Legislature enacted its Land Reform Act not to benefit a particular class of identifiable individuals but to attack certain perceived evils of concentrated property ownership in Hawaii — a legitimate public purpose." (see ld. at page 15). So that's what it is, eh? Well, let's see for ourselves. The preamble of the socalled Hawaii Land Reform Act states that "present-day land ownership in the State [of Hawaii] is characterized by a concentration of fee title to lands in the hands of a few." It expounds that "[a]t least three-fourths of all privately held land in the State are currently owned by this small group of owners," and opines that "[m]uch of this land is in the rapidly developing urban areas of the State, where the need for single family residential lots is critial." Finally, the preamble confidently asserts:

"The population growth and the increase in demand for residential lots, and the concentration of ownership of private lands in the hands of a few and their practice of leasing, rather than selling in fee simple, the residential lots developed on their lands, have led to a serious shortage of residential fee simple property at reasonable prices in the State's urban areas and have deprived the people of the State of a ehoiee to own or to take leases to the land on whieh their homes are situated." (Session Laws of Hawaii 1967, Act 307, 1(0)This justification for the challenged statute is spurious. The Act applies only to land whieh is already "leased as residential lots," occupied as residential property and contained within a "development tract." (See 516-2, H. R. S.). The scarcity of supply spoken of in the preamble of the Act is the scarcity of developed residential lots. The statute, by

its own terms, cannot cause the development of one new residential lot! The only purpose that the Act ean fulfill is to convert already existing leasehold residential lots to fee simple residential lots. It is submitted that those results will do absolutely nothing to reduce the cost of housing in Hawaii.

Actually, after acquiring fee simple title under the Act, the lessee will have substantially more invested in his lot. He will have to demand an even higher pnee for it when and if he should sell it. Thus, it would seem the process provided for under the Act will have the tendency to increase the cost of residential property, not decrease it. Taking a lessor's private property in eminent domain simply to convey it to his lessee is not a "public use" under anyone's definition . . . even Justice 0'Connor's. That is the only result assured by the Act. In eaeh case, (he lessee, desirous of owning the fee simple interest in the land, applies under the statute to the Hawaii Housing Authority whieh condemns the interest from the lessor and sells the interest to the lessee. That is the total effect of the statute. There is no other effect. lronically, Justice 0'Connor believed the spurious arguments contained in the preamble to the Act. Ironically, I say, because it was drafted and passed by the greatest culprit of them all when it comes to a scarcity of developed residential land in Hawaii.

lf the scarcity of developed residential property has in fact been caused by a eoncentration of ownership . . . in the hands of a few," then the largest land owner of all must be the greatest culprit of all. And, who is that culprit? The state government of Hawaii owns the most land of anyone . . . 36.5 percent of all the lands in Hawaii nei. Its the State of Hawaii who's the largest land owner — of course. And, that's who Justice 0'Connor believed? The judicial wave washes up far onto the land, then pauses . . . to begin its receding. We'll all be here at low tide, too.