Carts Before Horses, And Pearls Before Swine: The Hawaii Supreme Court's Fractured Rationale For Invalidating The TMT Permit

Space. The final frontier. These are the voyages of the telescope Thirty Meter. It's five year continuing mission: to explore strange new worlds. To seek out a Conservation District Use Permit from the Board of Land and Natural Resources, and navigate the treacherous waters of Hawaii administrative law. To boldly go where twelve other telescopes have gone before!

by Robert Thomas, Inverse Condemnation, December 4, 2015

The "the cart before the horse," is what the majority opinion authored by Chief Justice Recktenwald which invalidated the CDUP held the BLNR did when it "issued the permit before the contested case hearing was resolved and the hearing was held." But the same might be said about the court's procedural due process reasoning, because it could have reached the same result by employing a much narrower -- and in our view, a much less opaque -- statute-based rationale.

Dead Man Walking

Ironically -- given the huge public interest in the question of whether to build another telescope atop Mauna Kea -- the least interesting part of the Hawaii Supreme Court's opinion invalidating the CDUP obtained by the University of Hawaii, Hilo from the BLNR was the result, about which there was no suspense at least to anyone paying attention.

As we noted in our earlier post on the case ("Not Quite Where No Man Has Gone Before: Hawaii Supreme Court Considers Mauna Kea's 30 Meter Telescope"), the legal issue of whether the BLNR could issue a permit (even a permit that did not allow actual construction) and then later conduct an evidentiary hearing to consider the objections of those who consider the state-owned land sacred, wasn't a close call. We don't make decisions and only then have the fair trial. It's true in court as well as in quasi-judicial agencies like the BLNR. Not only was the issue very clear cut, a majority of the justices telegraphed their feelings at the oral arguments. And any doubts remaining vanished after the court recently took the somewhat extraordinary step of enjoining TMT's activities "until Wednesday, December 2, 2015, or until further order of the Court." So we even knew the date the opinion was going to come down, another rarity in Hawaii appellate procedure.

At that point, the CDUA was dead man walking, and the only question was how the Hawaii Supreme Court was going to get there.

The Takeaway

All five justices agreed that the permit was invalidly issued. Three justices (Chief Justice Recktenwald, and Justices Nakayama and McKenna) concluded that permit-then-trial was a due process no-no, and the BLNR couldn't do that because it might allow actual prejudgment of the result, or, equally importantly, would give the appearance of having prejudged the result. Administrative contested cases are like trials, and agencies are like judges.

Two justices (Pollack and Wilson) issued a separate concurring opinion which based their conclusion on Native Hawaiian rights, the public trust, and due process. Justice McKenna joined one part of their opinion (part IV, starting on page 42), which concluded that government agencies aren't like judges, but more like prosecutors. That they don't act as a "passive actor or a neutral umpire, and [their] duties are not fulfilled simply by providing a level playing field for the parties." Concurring Op. at 45. The agency's job is to be the "representative of the public interest," and not just a caller of "balls and strikes."

So here's the takeaway from the case:

• We have all five justices agreeing that Due Process prohibits cart-before-horses, and that once an agency receives a valid request for a contested case Due Process requires the agencies hold off on making a decision until the contested case process is completed.
• We have a majority of the justices (Recktenwald, Nakayama, McKenna) who conclude that a contested case is a trial-like process in which the agencies serve as the neutral decisionmakers.   
• We also have a majority (McKenna, Pollack, and Wilson) who conclude that agencies have a duty to not be neutral, but to take sides by protecting certain interests. 
• We have two justices (Pollack and Wilson) who argue that Native Hawaiian rights and the public trust also form an independent basis for invalidating the BLNR's actions, although their rationale is less than clear. So far, no one else is willing to join them and form a majority.
• Noticing anything about the split in the court? McKenna, Pollack, and Wilson are all three (and the only three) appointees to the court by failed Governor Neil Abercrombie, who was so disapproved of by the notoriously incumbent-friendly Hawaii voters that he got tossed out of office after his first term. He's gone, but his legacy continues. Elections do matter, and we're not talking about the election he didn't win.

Which leaves this question: since Justice McKenna joined both opinions, what does this mean about the roles of agencies? On one hand, she joined the opinion which views agencies like neutral judges; but she also joined the opinion which viewed agencies in an entirely different role, as advocates and prosecutors. We're not sure what this means, except that in a future case to on this issue, we know which Justice we're pitching our arguments to.

On to the opinions.

Due Process

"Decisionmakers cannot decide matters on the merits before taking evidence." Slip op. at 33. That's the money quote from the Recktenwald majority opinion, and if all that interests you is whether the TMT can move forward and be built, you can stop right here and go read the media reports and internet comments about the decision and predictions about TMT's ultimate success or failure. But if you want to understand the court's various rationales for reaching that result, read on.

The Recktenwald majority opinion comes down squarely on the view of contested cases being virtually the same thing as a trial by a court:

A contested case hearing affords parties extensive procedural protections similar to those afforded parties in a civil bench trial before a judge. These protections include the opportunity to issue subpoenas for witnesses to testify under oath or produce documents, to cross-examine witnesses under oath, and to present evidence by submitting documents and testimony under oath in support of their positions. See HAR §§ 13-1-32(c), (g); 13-1-33(a), (b); 13-1-35. Moreover, a contested case hearing affords parties the opportunity to obtain and utilize the assistance of counsel, comment on how a site visit by the hearing officer should be conducted, review the written decision of the hearing officer, and challenge the hearing officer’s decision both in writing and verbally at a hearing before BLNR.

Slip op. at 32.

All five justices agreed that Due Process prohibits even the appearance of prejudging. But notably missing from the opinion is a description of the property interest at stake. The objectors are not the permit applicant. They are not neighboring landowners. So what's their stake such that they have constitutional right to notice and an opportunity to a meaningful hearing? Yes, they have a cultural interest in what gets built on state-owned property they allege is sacred to them, but procedural due process rights are generally triggered by a legitimate claim of entitlement to something. Owning land. Filing a permit application. Even "new property."

The court doesn't tell us what the property interest is here, and assumes (we assume) that the objectors possessed it, somewhere in this.

A Narrower Ruling?

Which takes us to our next point. The Hawaii Supreme Court is not known for its narrow rulings, and this one is no different. In our view, the court could have avoided the property issue, and reached the same result based on the text of the contested case statute, which defines the proceeding in the agency as "a proceeding in which the legal rights, duties, or privileges of specific parties are required by law to be determined after an opportunity for agency hearing.” Haw. Rev. Stat. § 91-1(5) (emphasis added). So the court could have concluded that the statute requires that the hearing come first, followed by the determination, and this was enough to doom BLNR's cart-before-horse process. We're not sure why the court didn't take that much simpler route, except that the justices were truly offended by the practice, and the way it appears to the public. That certainly was the flavor of the oral arguments.

What Was BLNR Thinking?

All of this raises the question of if putting the cart before the horse was so obviously wrong, why would the BLNR do such a thing? As our colleague Greg Kugle pointed out, it was to avoid the Möbius strip procedure which allowed someone to show up at a public BLNR hearing at which a permit application was on the agenda and request a contested case (which would halt any decisionmaking), and then not follow up by actually filing a motion to intervene, or otherwise prosecute the contested case. Which would put the application back on the BLNR's public hearing agenda. And then someone else could show up at that public hearing and demand a contested case. Etc., and possibly ad infinitum. To avoid that, the BLNR would do what it did here: issue a permit, and then if someone objected and demanded a contested case, wait for them to follow up and actually prosecute it. If they did, then the BLNR would consider their objections like it did here. But if they didn't show up, the process would not be delayed or stuck in a loop.

A practical solution perhaps. But after the Supreme Court's decision, a procedure that is not available. How this will be handled down the road "remains to be seen," as they say.

Native Hawaiian Rights and Public Trust

The concurring opinion reads like it was meant to be a majority opinion that came up one vote short. It starts off by waxing poetic about the "majestic" Mauna Loa, and if you were to read nothing else in this 49-page opinion, you'd know where the authors were going to end up. As we noted above, Justices Pollack and Wilson argued for two triggers to procedural protections, Native Hawaiian rights, and the public trust, both of which they view as property interests.

As far as we can tell, this theme started with a dissent by now-retired Justice Acoba in the Kilakila case, where he, joined by Justice Pollack, argued the same thing. They couldn't get a third vote there, and Justice Pollack and Wilson couldn't here, either. We won't go into the opinion's details but if you want to, they're all there, from pages 3 to 42. Here is what we think is the money quote from this part of the opinion: "the Board violated Article XI, section 1 of the Hawaii Constitution as a matter of law by deciding the merits of UH's application before conducting a contested case hearing in which the public trust doctrine, and the obligations it imposes on the State, could have been duly considered." Concurring op. at 29-30.

No Balls and Strikes

They were able to muster a third vote for Section IV of the concurring opinion, the section titled "Constitutional Responsibilities of an Agency," starting on page 42. As we noted above, this different majority viewed the purpose of contested cases, and the role of the agencies who conduct them, in a profoundly different light than the other majority opinion, which characterized them as trial-like proceedings, with the agency not prejudging. By contrast, Justices Pollack, Wilson, and McKenna concluded that contested cases are record-building procedures in which the agency doesn't simply sit as a neutral umpire, and actually does somewhat prejudge because its role is to represent the public interest. Concurring op. at 45. They base this on the public trust doctrine, a theory with its footings in Hawaii's Constitution. The agency's job is to be on the "frontline" of the  issues, and not just a caller of balls and strikes.

If that is so, then what about other parts of the Hawaii Constitution, which also expressly protects agriculture, for example, in Article XI, section 3: "The State shall conserve and protect agricultural lands, promote diversified agriculture, increase agricultural self-sufficiency and assure the availability of agriculturally suitable lands." Does this mean that agencies have a role to treat agricultural issues, and farmers and ranchers the same way the concurring Justices would have them approach Native Hawaiians and public trust issues? We don't see why not.

Final Thoughts

We've been asked what this opinion might mean for the TMT down the road. Will be it "death by a thousand days" like the Hawaii Superferry? Or will this have a different outcome because the applicant is a state university which can hold on longer because it is publicly and not privately funded? And this is science and star trek that is asking for the CDU permit, not a corporation pursuing filthy lucre. We'll see.

Finally, what we see here goes much deeper than the policy question of whether another telescope up on Mauna Kea is a good thing or a bad thing. The court technically didn't decide that, and the opinions were grounded in process only. But the "flavor" is definitely there, especially in the concurring brief opinion. And if agencies have a constitutional duty to not be neutral, then what about judges, or even Justices -- doesn't that same constitutional command apply to them, as well?

We'll see about that, and whether another member of the court in the future comes around to Justices Pollack and Wilson's theory.

PDF: Mauna Kea Anaina Hou v. Bd. of Land and Natural Resources, No. SCAP-14-0000873 (Haw. Dec. 2, 2015)