Are Hawaii State Constitutional Public Trust obligations enforceable? And if so, by whom?

News release from Senator Laura Thielen, January 12, 2016

A Hawaii court recently found that the State has a constitutional trust responsibility to support some of the functions of the Department of Hawaiian Home Lands, and ruled that we have to allocate $28 million to DHHL this year.

The Governor’s proposed budget did not include the $28 million request for DHHL.

Last week I read in the paper that the Attorney General will be appealing this decision on behalf of the Governor, and the Legislature would be a party to the appeal.

I had seen an email from Speaker of the House notifying House members of the appeal. But I hadn’t seen any communication within the Senate.  Today I called around, and found out the Senate is also taking some action, but I’m not yet clear what.  I’m asking for some clarification.

But in the meantime, the Nelson case raises HUGE questions.

I believe the Governor’s position is that funding any State responsibility – public trust or otherwise – is subject to the “separation of powers” doctrine, and therefore the Judiciary has no authority to order the Executive or Legislative branches to issue funding.

I understand this argument for matters that are not constitutionally elevated to the public trust status.

But if it’s true for public trust matters, then what is the remedy in case a public trust obligation is ignored by the Legislature and Executive?

If you are a beneficiary of a private trust, and the person or organization charged with carrying out the trust responsibilities is not doing their job, you can sue in court, and certain remedies are available to you: removing the Trustee; fining the Trustee; ordering the Trustee to meet their responsibility.

But if the Judiciary doesn’t have the authority to order a remedy in cases of a violation of a public trust, how do you enforce public trust responsibilities that are enshrined in our State Constitution?

I’ve been asking this question to a prominent local trust attorney, and the answer I get is “by voting out officials who don’t meet their responsibilities.”

But what happens when the public trust is an obligation to a group who happens to be a minority of voters (for example, current and potential DHHL beneficiaries)? Even if they band together, they can’t vote out officials because they’re a minority.  And isn’t one of the purposes of elevating a matter to the constitutional level to ensure the majority doesn’t infringe on the constitutional rights of the minority?

What happens when the public trust obligation is to future generations – who aren’t around today to vote? Ask any youngster, and they would gladly vote for more protection of our public trust natural and cultural resources.  Sorry!  No remedy for you until you turn 18 (if those resources are still around then).

This is a really sticky question. Every Legislator is elected to office to represent a broad constituency in a specific district.  My trust attorney friend questions whether we can place the needs of a special constituency above others.  But on the other hand, we’ve all sworn to uphold the constitution, and that document, ratified by Hawaii residents, specifically elevates certain matters to a higher status.  So how can we not elevate these matters to a higher status or priority?  Aren’t we then violating the constitution and our oath?

And what happens if we don’t? Who decides if we’re right?  What is the remedy, if any, when we fail to protect the public trust?

Anyone?

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VIDEO: Rep Gene Ward Questions Hawaii AG on DHHL Case

VIDEO: Representative Ward addresses funding to DHHL

Full Text: Court Orders State to Fund Hawaiian Homelands

ILind: Sen. Thielen questions “separation of powers” argument in case of Hawaiian funding

DHHL ‘Disappointed’ by State’s Appeal of Court Ordered Funding