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State Supreme Court: Is Gov't Imposed "Church Purposes" Deed Restriction Void?
By Robert Thomas @ 3:36 PM :: 953 Views :: Hawaii County , First Amendment, Land Use, Religion

Argument Preview: Is Gov't Imposed "Church Purposes" Deed Restriction Void?

by Robert Thomas, InverseCondemnation, June 25, 2024

Today (June 25, 2024) at 10am Hawaii Time (1pm PT/4pm ET), the Hawaii Supreme Court will hear oral arguments in a case asking whether a 1922 deed restriction imposed by the Territory of Hawaii on a land patent conveying fee simple title to a private owner, subject to the land always being used for "church purposes" (i.e., a fee simple determinable) void under either the Hawaii Constitution's Establishment Clause, the U.S. Constitution's Establishment Clause, or a Hawaii statute declaring that "[e]very provision in ... a written instrument relating to real property that purports to forbid or restrict the conveyance ... to individuals because of .. religion" is void? 

Here's how the Judiciary's web site describes the case:

In 1922, the Territory of Hawai‘i sold property to Heber J. Grant, trustee for the Church of Jesus Christ of Latter-Day Saints, pursuant to a Land Patent.  The Land Patent contained a restriction requiring the property be used “for Church purposes only” and a reversionary interest to the Territory if the property is “used for other than Church purposes” (Deed Restriction).

Plaintiffs-Appellants Hilo Bay Marina, LLC and Keaukaha Ministry LLC (Petitioners) are the current owners of the property.  Petitioners sued Defendants-Appellees State of Hawai‘i and Board of Land and Natural Resources, State of Hawai‘i (State) in the Circuit Court of the Third Circuit (Circuit Court) asserting the Deed Restriction is void under Hawai‘i Revised Statutes (HRS) § 515-6(b), it violates article I, section 4 and article VII, section 4 of the Hawai‘i Constitution, and it violates the Establishment Clause of the First Amendment to the United States Constitution.

The parties filed cross-motions for summary judgment and the Circuit Court granted summary judgment for the State.  Petitioners appealed and the appeal was transferred to this Court.

Petitioners assert the Circuit Court erred by concluding:

(1) The practice of selling government lands with deed restrictions was an early form of use-zoning and is interpreted as a historical practice of zoning;

(2) HRS § 515-6(b) does not void the deed restriction;

(3) the deed restriction does not violate article I, section 4 of the Hawai‘i Constitution for the same reasons that it does not violate the Establishment Clause of the First Amendment to the United States Constitution, and even if article I, section 4 of the Hawai‘i Constitution is not coextensive with the Establishment Clause in the United States Constitution, the deed restriction passes constitutional muster under Lemon v. Kurtzman, 403 U.S. 602 (1971);[**] and

(4) the deed restriction does not violate the Establishment Clause in the United States Constitution. 

[**Hawaii still applies the Lemon test for establishment cases under the Hawaii Constitution.]

Here are the briefs (a reminder that this case was fast-tracked to the Supreme Court by transfer from the court of appeals, so the Opening and Answering Briefs were filed in the appeals court before transfer, while the Reply was filed after, and thus has a slightly different caption:

The case is worth following. Check it out.


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