Critics of the Hawaii Supreme Court
Price of Paradise · Hawaii Public Radio · aired 1996-08-04
Guests: Daniel H. Case (senior partner, Case Myrdal Bigelow & Lombardi; former president, Hawaii State Bar Association); Clinton R. Ashford (senior partner, Ashford & Wriston; former president, Hawaii State Bar Association)
Duration: 1:09:10

[00:00:00] Randall Roth: Randy Roth, Price of Paradise radio show. We're broadcast live each Sunday morning at 8:00 on KHPR, that's 88.1 FM, and KKUA 90.7 FM, and then rebroadcast Sunday evenings at 8:00 on KIFO 1380 AM. The goal of our show is lively and informed public conversation about the issues and events that are shaping the future of Hawaii. We're sponsored by the Hawaii Community Foundation, an organization that supports grassroots efforts to improve the quality of life in Hawaii, and that administers charitable funds with efficiency and compassion.
[00:00:34] Randall Roth: I suspect that many people don't fully realize how much their lives have been, and continue to be, affected by decisions of our State Supreme Court, or just how much of an activist court we've had for the last 30 or so years. Clearly, the court has played a major role in Hawaii's political revolution, and many of its decisions have been off the charts by comparison to decisions, to decisions in other states. Despite that, or maybe because of it, most of our court's decisions have been popular with a majority of people in Hawaii.
[00:01:06] Randall Roth: My guests today are two distinguished attorneys who think it's fair to say, or I think it's fair to say, are are mostly critical of these court decisions. Just as an aside, I would uh tell you that I invited three different retired justices to be guests on a show discussing the Hawaii Supreme Court and all declined. Uh they did so for varying reasons, but I think a common thread was a feeling that their decisions pretty well speak for themselves. So even though we usually have different points of view reflected here in the studio, uh today our guests in the studio are are really pretty much critical of those decisions.
[00:01:42] Randall Roth: The decisions, I think, pretty much speak for themselves. That's the voice on on the other side, and I think we can depend upon our callers as usual to uh raise some interesting questions, make some good comments and hold our our studio guests feet to the fire. My guests in the studio are Clinton Ashford and Dan Case. Dan was born and raised in Lihue, Kauai, attended Williams College in the University of Denver Law School, joined the law firm known as Pratt, Tavarez, and Cassidy in 1952 and is now senior partner of successor firm, Case, Murdle, Bigelow and Lombardi.
[00:02:19] Randall Roth: He served as president of the Hawaii State Supreme, uh the Hawaii State Bar Association in 1978 and his main areas of practice are corporate law, trusts and estate planning. Clint Ashford also was born and raised in Hawaii. His degrees are from the University of California at Berkeley and the University of Michigan Law School. He served in 1972 as the president of the Hawaii State Bar Association and currently is serving as president of the Hawaii Justice Foundation. He is of counsel to the law firm of Ashford and Riston and until just a few months ago was the Chief Justice of the Supreme Court for the Republic of the Marshall Islands.
[00:02:56] Randall Roth: Uh Clinton and Dan, good morning.
[00:02:58] Daniel H. Case: Good morning.
[00:02:59] Clinton R. Ashford: Good morning.
[00:03:00] Randall Roth: For those of you who haven't yet seen it on the op-ed page of this morning's paper, page B3 of the Honolulu Advertiser, uh the headline says, "No Order in the State High Court," and I know Clint and Dan, you didn't have anything to do with that headline. But uh the article below the headline is mostly critical of decisions that have come out of the State Supreme Court over the last 30 or so years. Uh Dan, why don't you begin by by telling me what you think the main theme of the article is, or or the main reason that you wrote it?
[00:03:32] Daniel H. Case: Well, I think first it should be clear that both Tink Ashford and I are traditionalists and believe in the in the system of law. Uh where we differ perhaps from the Supreme Court and hence the basis for our criticism is we believe the legislature should make law, develop policy. We believe the court should interpret the law, so that people know what the law is always. They can foresee what the law will bring if they act in a certain way, and there will be no guesswork about it.
[00:04:03] Daniel H. Case: Our concern is when the courts, as we believe the Supreme Court has done, particularly in the area of the Richardson Court, made law, what we call judicial legislation. And we uh we think that's the wrong way to approach it.
[00:04:17] Randall Roth: Well now, the the legislature makes law. What's the difference between the legislature making law and the Supreme Court making law?
[00:04:24] Daniel H. Case: I think the main difference is if whether you believe in the democratic process. Uh the legislature is made up of people who are elected by the people and their purpose is to make law. The courts are people, the justices and the judges are appointed. And we believe, I think I believe, that they are appointed to administer the law and in the Supreme Court, to interpret the law, but not to become quasi legislators.
[00:04:50] Randall Roth: Okay, and I guess this is generally referred to as judicial activism?
[00:04:53] Daniel H. Case: Yes.
[00:04:54] Randall Roth: Okay. Uh Clinton Ashford, uh any thoughts that you might add to that in terms of of the reason for writing the article in the first place or or the main theme that you hope people will get from reading it?
[00:05:05] Clinton R. Ashford: Well, just building on what Danny said, uh Randy, there's another important distinction between a legislature making law and a and a court uh announcing law uh rather than uh determining law by uh interpretation of statutes and so forth. And that is that the not only are the members of the legislature elected, but uh for the most part, there is a good deal of public debate that goes into uh the making of statutory law.
[00:05:35] Clinton R. Ashford: The committees hold hearings, uh they get input from the public uh both written and oral, and they deliberate, uh they uh argue about it. People have a chance to explore the pros and cons and there's a uh a community or communal if you will product out of all of this. Whereas with the court, uh you have one or two or more parties uh to a particular case. Uh their counsel uh write briefs and they argue the case in the Supreme Court, but that's the only input that you get and that's very limited input as compared with uh the public input in the legislative process.
[00:06:11] Randall Roth: Okay. Well Dan, I know you just mentioned the Richardson court, but it's it's interesting. Uh there are some cases involving insurance companies in your article, and uh and all of those cases plus another case that got edited out, uh were decided by either the Lum court or or the Moon court. Um could you tell us just a little bit about what what the cases say and and why they're in this particular article?
[00:06:36] Daniel H. Case: Well, first I uh the article suggested that the Richardson court was activist and the Lum court continued this and the Kim court continued it further. I I disagree with the headline. I think the Lum court was a pretty traditional court trying to interpret the law as the cases came before it. I don't believe that the present court is as activist uh as the Richardson court is, but I do believe they in in a number of cases that have come down, which happened to be cases against the insurance company, uh in my judgment, they've strained to come up with a decision that would permit a recovery against insurance companies.
[00:07:19] Daniel H. Case: And I'm not a insurance company defense council or anything like that, but I think people should realize that there's a cost. And for every winner there's a loser, and if the loser happens to be insurance company in a single case, we still all pay for it in our insurance premiums over a period of years, and sometimes we pay for it with less competition from insurance companies because as time goes on, insurance companies go out of business or say I don't want to write any insurance in Hawaii anymore. And that's a risk, I think.
[00:07:50] Randall Roth: So the the the couple cases specifically mentioned in the article, one had to do with a fellow who was in his uninsured truck and he was in an accident with somebody in an uninsured car, and yet an insurance company had to pay damages because the fellow in the uninsured truck was living with his brother who had car insurance, but not on the truck.
[00:08:09] Daniel H. Case: Right. And that's the kind of case that stretches my imagination and I think is wrong because it seems to me uh when an insurance company and an insured like us buy a policy, we should know what the law is. I doubt very, very much if any of the parties the in insurance contracts over the past years would have believed that insurance should have covered that particular case or the others that were cited in the article.
[00:08:36] Randall Roth: And and I guess looking at those cases and and others that I've talked to you about, um if one wanted to be, speaking hyperbole but make a point, they might say that the common theme running through these cases involving insurance companies is that the insurance company loses.
[00:09:11] Daniel H. Case: Yes. And I think the reason you say it's popular and it's a correct statement is people say, "Oh well, it's just the insurance company. It's a deep pocket." But in effect, any case that is other than balanced and fair and one in which you can foresee the consequences, usually has the consequence of the public being hurt in the long run. And that's what I believe the result of some of these cases is.
[00:09:40] Randall Roth: Another batch of cases that you referred to in in the article was in the the property area, and uh none of these cases were referred to by name, but uh Mr. Ashford on my left over here, I know one of them is called the the Ashford case. Um in your article, you quoted from a dissenting opinion some years ago where one of one of the justices was having trouble reconciling the legal analysis that had uh been used in these various property law cases, but eventually the opinion uh concluded by saying that the the one common element was that in all the cases the state always wins.
[00:10:11] Randall Roth: And and I think that was a point you were making in these property cases?
[00:10:15] Clinton R. Ashford: Yes, Randy, uh uh things are very different. I was a deputy attorney general for a number of years and uh uh in in those days uh before the activist court, the state didn't always win. Uh the balance seemed to be tipped more in the favor of uh private property owners, not so these days.
[00:10:39] Clinton R. Ashford: And you're right. I I was the target of the first uh property decision that that started to reverse that trend uh I was trying to register the title to my beach lot on Molokai, and uh the court decided that uh high watermark was not where it had traditionally been by surveyor's calculations and the cases for 100 years, but it was it was further inland at the line of either the oh, pull up on the shoreline, the the line of debris, or at the vegetation line. And uh uh my ox was the one that was gored. I I've come to uh uh I've come You own less land than you thought you owned, right?
[00:11:15] Clinton R. Ashford: Well, I've come to accept that. And you'd be surprised how the uh uh beach morning glory on the Nao Paka has uh grown makai.
[00:11:24] Randall Roth: I I think your point uh on this is that for over a hundred years, people were buying and selling real estate based on what they thought the law clearly was and then based on quote public policy, the Supreme Court all of a sudden says, "No, it's very different," and the result was that a lot of private property owners lost property without compensation. And I think your point is that somehow that's that's not right.
[00:11:45] Clinton R. Ashford: Well, correct. I mean that's taking private property without paying for it. Uh merely by changing the rules on under which the makai boundaries are set and this change of rules came about abruptly and and without any notice or warning. Uh and uh the the court in the Sodomore case uh did very candidly acknowledge that that the decision was based on public policy, saying something to the effect that the court interpreted public policy to be uh making public as much of the shoreline as possible.
[00:12:30] Randall Roth: Okay. Dan Case.
[00:12:33] Daniel H. Case: Yeah, I think the uh thing that impressed me or at least uh concerned me, I guess, is when Chief Justice Richardson really was appointed to the Supreme Court, he had an agenda, a popular party agenda. And two of the items he believed uh should be changed is the the land, there should be more beach land for the people and that the water should belong to the state. Uh and he accomplished that, but he accomplished it through decisions and he waited until a case or two or three came before him in which he could make law this way, and that's what he did.
[00:13:17] Daniel H. Case: And in Clint's case, that's exactly what he did with his high watermark. That's why I say it's a good example of judicial legislation.
[00:13:27] Randall Roth: Okay, and by Tinky's referring to you, Clint Ashford.
[00:13:30] Clinton R. Ashford: Um well, again uh I I might say that uh that agenda was also the governor's agenda. Uh sometime after the Ashford decision was announced, I happened to be in the governor's office on another matter I forgotten the nature of it, but um he said to me uh, "Mr. Ashford, I want you to know that I have instructed all of my department heads to implement the Ashford decision to the fullest extent possible." And that certainly has been done in the 30 years since then.
[00:14:04] Randall Roth: Okay. Well, another uh series of cases referred to in your article this morning is um uh an area having to do with with land use and and native Hawaiian traditional cultural practices and that sort of thing. Um, Clint Ashford, also known as Tink, uh very quickly, what's going on in that area?
[00:14:19] Clinton R. Ashford: Well, the most recent um we we've mentioned already this morning the uh seashore boundary cases and the water rights case uh in which the court again without uh in the McBride case, uh without notice or warning and on its own initiative uh awarded most of the water that the the parties were fighting over to uh the state, even though the state hadn't claimed it.
[00:14:40] Clinton R. Ashford: Uh more recently, in the last several years, the emphasis has been upon uh allowing non-owners to use another person's private property uh for uh gathering uh practices, uh ancient Hawaiian gathering practices and more recently for uh cultural and religious practices if they can establish that these uh practices uh have indeed survived over the years and been exercised. And this applies now not only to undeveloped land, as it did maybe 14 years ago when they were first talking about this, but uh any developed uh any land is now subject to uh uh being invaded for the exercise of these claimed quote rights unquote.
[00:15:24] Randall Roth: Uh Dan Case, any thoughts on that?
[00:15:26] Daniel H. Case: Yeah, I think the thing that I believe the public must focus on is cases like this initially sound popular, if we'll use that expression, meaning uh they're giving rights to people and uh people must recall that every time somebody gets a right, somebody is has one taken away from them. And when you're talking about large tracts of land, particularly when it was undeveloped lands at issue, uh the public didn't particularly get excited. But if you take these cases in the direction of the law, uh it's headed right for our own homes.
[00:16:04] Daniel H. Case: No longer will our homes be our castles, if uh as uh I think one prominent attorney once said the uh cases like this will be a matter whether somebody can come into my yard and pick my mangoes and my lychees. This cases like this could affect all of us where we really don't know if our homes are our own homes.
[00:16:27] Randall Roth: And I think the fellow who said that he was very prominent attorney, I think he was serious, wasn't he?
[00:16:34] Daniel H. Case: He was certainly was, he's an excellent lawyer.
[00:16:36] Randall Roth: Okay. Um, Tink Ashford, uh any additional thoughts about that group of cases?
[00:16:42] Clinton R. Ashford: Well, yes, there there's another cost here, Randy, and and that is uh uh this is a different type of insurance, but uh title insurance companies are now uh writing their policies with such broad exceptions uh that you no longer have complete assurance against uh risk being assumed by the title company. The title companies have put the risk of what the courts will do uh onto the property owner. And that's going to stifle uh development. Maybe it's a good thing that we don't have any more development, but I I don't think that this is the way to accomplish it.
[00:17:15] Randall Roth: But it's kind of putting title problems onto the shoulders of the owner, which which title insurance is supposed to shift that onto the insurance company.
[00:17:23] Clinton R. Ashford: Correct. And uh one of the biggest losers in all of this uh coincidentally could be the Bishop Estate, because Bishop Estate is the owner of uh probably uh the the largest, well, it's the largest private land owner in the state uh and it's got hundreds of thousands of acres of undeveloped land. And Bishop Estate and its beneficiaries are the ones who are greatest at risk from this latest series of decisions opening up private property to uh strangers use.
[00:18:06] Randall Roth: Well, and I guess one of the points made in in the article, Dan, is that um, Hawaii is always dependent upon outside capital, and right now we see banks, insurance companies, and other providers of capital like Bishop Estate and Campbell Estate shifting resources out of Hawaii, and you evidently think that it's at least in part, in reaction to some of these cases that are putting a cloud on title to property here in the state?
[00:18:21] Daniel H. Case: Yes, I do, and it's only fair to say it's only a factor, certainly not the the factor. But I think there's a concern about the economy, that's a realistic concern, that's something. There's a concern to diversify their investments, and that's a legitimate thing. And I think there's some concern uh about the the nature of the law, of what they do have here. And so, it's just one more factor, but we need all of this capital and we need it to develop our economy. And uh from the governor on down, everybody wants more jobs, businesses provide more jobs, we need to encourage businesses and not deter them with concerns about what the law is.
[00:19:00] Randall Roth: 8821, if you're on a neighbor island, just add 1-800 to that, so it would be 1-800-955-8821. We're talking about the Supreme Court of Hawaii, its decisions and the impact that those decisions have had on the people of Hawaii. Well, let's start with Jack in Niu Valley. Good morning, Jack. Okay. Well, folks, you're listening to the Price of Paradise Radio Show. My name is Randy Roth. I'm here in the studio with Clinton also known as Tink Ashford, who is of counsel to the Ashford and Riston law firm, and Dan Case, who's a senior partner with uh, oh, I put down here Case and Lynch, that's the old firm, uh, Case, Murdle, um, Bigelow and Lombardi.
[00:19:20] Jack: Good morning. I'd like to ask a question regarding the activist court, on a, well, you might say non-economic issue, I think it'll have severe economic consequences. And that's in May of 93 in a somewhat shocking decision, the State Supreme Court reversed the trial court, the circuit level, remanding a case back on same-sex marriage. The court did not conclude that the marriage law does permit, prohibit the couples from obtaining a marriage license based on the sex of applicants, which may deny the equal protection under Article 1, Section 5, and also the Supreme Court held discrimination based on sex of an individual is a suspect category and now the AG's office has to prove a compelling state interest. And what I was wondering, it seems to me that the nation, including Congress, is getting very concerned about this. 75% of the people in Hawaii are concerned about it. It seems like that's another decision that was made that was not popular with the people of Hawaii.
[00:19:35] Randall Roth: I'm, I'm slow to to adjust. Both are former presidents of the Hawaii State Bar Association and both are generally critical of decisions that have come out of our State Supreme Court over the last 30 or so years. This is the time in the show that we invite people to call in and to ask questions or make brief comments. Your opportunity to hold our guests feet to the fire, and they smile widely as they hear me say that. Our number is 955
[00:20:32] Randall Roth: Okay. Well, Jack, I'm going to take that as a comment, and I really appreciate. We're we're going to move on. You know, I think what what Jack's pointing out is that a lot of people recognize that the same-sex marriage case was really quote out there, that it's just very different from what has come out of other states or other US Supreme Court. Um, and I guess what you guys are saying is it's it's just part of a trend that's that's been with us over a long time, Dan.
[00:20:56] Daniel H. Case: Yeah, I'd say one comment, and I'm not an expert in same-sex law, uh, but I think the comment that the that I would make is I think the media has somewhat encouraged the Supreme Court to to be on the far far outside of things. They compliment them when they stretch the law and in a case like the same-sex marriage, I think they like the controversy for the papers, perhaps, but I think even themselves, I think they they like the idea that Hawaii is the first in making law. My view is I I don't share that at all. I think we ought to stick with the law we are comfortable with and interpret it, but I think you'll have to find that that's egging them on.
[00:21:37] Randall Roth: Okay, well, let's move to Ruth in Makiki. Good morning, Ruth.
[00:21:41] Ruth: Good morning. Uh, your presenters are obviously saying that the court should not be making law. I would like to ask them to comment on the fact that the legislature seems to be unable to make law related to same-sex marriage, and this is left to the court. Would they please comment on that? What happens when the legislators don't make laws?
[00:22:05] Clinton R. Ashford: Okay, Clint Ashford. Well, uh I think that's a a problem that has to be addressed uh by the electorate with uh its legislators and in the legislature itself. Uh when one branch of government falls down, uh I don't think it's the it's the court's uh assignment or or right to step into that breach. Uh Courts are supposed to uh interpret and apply law and, uh, according to the conservative philosophy, not to make it. So that's a problem that still has to be addressed in the political and not the judicial process.
[00:23:03] Daniel H. Case: Dan Case. Yeah, I would only add that uh we have to be more trusting and more idealistic about the legislature. Uh I don't always like what comes out of there, but that's our process. If they cannot agree on a law, they I believe they shouldn't enact the law. And if it takes another two years or four years for them to come in agreement and and make law on this policy and other policies, then I believe we have to stick with it. I I think that it leads me to comment that those of us that criticize the Supreme Court for judicial legislation are more idealistic, I believe, and more appreciative of the democratic process than those that believe in judicial legislation. We think we trust the legislature, we don't always agree with it, but we believe in the process, and we don't think the judges should uh be incautious and move ahead, and rather we believe the legislature should be given their turn.
[00:23:37] Randall Roth: Uh I know there are a lot of uh people that I run into who were really quite happy with how active the judiciary was on a federal level for a number of years, but then all of a sudden there were a lot of Reagan appointees and uh they were judicially active in some cases and and people weren't quite so happy. And so, uh what do you think, Dan? Does it just kind of depend upon whether they reflect your political thinking or not?
[00:24:00] Daniel H. Case: Well, I think that that's that's true. That it's true in the sense that whether you like the decisions or not. I have to say I still would wish that even the Reagan appointees would stick to the traditional decision.
[00:24:11] Randall Roth: Okay. Well, let's go to Lloyd in Waikiki. Good morning, Lloyd.
[00:24:14] Lloyd: Yes, aloha. I'm usually very interested in your program, but I'm think you're one sided here by only having one side to this court issue. Uh these two gentlemen seem to be on the one side.
[00:24:25] Randall Roth: It's very much one-sided, right?
[00:24:26] Lloyd: Yes, and I feel that we have a law here in the state and it's called the life of the land is preserved rated in righteousness. And that means that the land does not belong to anyone. It belongs to all the people. And then I think the court has been interpreting this correctly, and I think these gentlemen are all all one-sided and I'm very upset with your program today because I feel we should have another program on the other side of it for the people's side.
[00:25:10] Randall Roth: Lloyd, I'm curious if if the court decided that your home should belong to the people, how would you feel about that?
[00:25:17] Lloyd: Depends on how it is, if as long as long as it's not something that we're trying to change. I think that the land belongs to all the people in this country in this uh especially here in this state, and I think that the courts are trying to follow the rules, and I'm very upset with your program today because it seems to be a one-sided big land big operation uh type of program and I'm I'm very upset and I know that I just want to bring that comment.
[00:26:20] Randall Roth: That's a fair comment. Let's get some reactions to it. Tink Ashford.
[00:26:23] Clinton R. Ashford: Um Lloyd, uh your point of view uh was the the prevailing point of view uh here 150 years ago uh prior to the Mahele and the and the awards of the land commission that followed it, uh which converted the land holding system in Hawaii uh into the the current uh Western fee simple uh ownership concept. The land was quote owned unquote by all of the land by the king not for his personal benefit, but for the people as a whole and all of the citizens, uh commoners and chiefs uh alike had what we lawyers now call undivided interest in the land. Uh that's that system was found to be unsatisfactory and it was voluntarily changed uh by the chiefs and the people through their own legislation uh into the current land holding system where uh you and I can own uh we thought uh exclusively our own pieces of land, and we didn't have to share that land with the rest of the citizenry. That is our current system uh and it was achieved by a voluntary change.
[00:27:31] Daniel H. Case: Yeah, I'd only uh comment uh to Lloyd on this fact that I believe in the power of condemnation by a governmental authority and in and when the public should needs a piece of property of any sort, the government has a power to go take it, and what we call a public purpose. Using Mr. Ashford's case as an example, if the the government determined that they wanted the high-water mark a little higher than the law had previously said, all they had to do is condemn and and do it. But then under our constitution, they would have had to pay Mr. Ashford something.
[00:28:04] Lloyd: Okay. All right. I agree on that. That part of it, but if we haven't had these laws with some of these large developments, these residents, these resorts, uh have to bring a special uh beach access. That was also one of the things you gentlemen did not bring up about the courts, they brought in the uh access to all public beaches are all there are no private beach. Everyone has to have an access to the beach here in Hawaii. That was also done by the court.
[00:28:36] Daniel H. Case: Well, I think they the Lloyd was really adding the fact that the access to to the beaches was provided or at least cemented by the Supreme Court. I believe that's true. I believe there were access rights before. I believe the government could always take access rights where they hadn't uh been available. So, Lloyd, I'd have to say once again, the government has a perfect right to do that by using the right of condemnation, not necessarily by decision by the courts.
[00:29:05] Lloyd: That's why I mean it's all one-sided. There are many good things that that Supreme Court has done for the people and for these islands.
[00:29:11] Randall Roth: Well, two things. One is I really appreciate your presenting the other side and two, I don't know if you heard but I had invited some former justices and and they declined and I I think they're I think their feeling was that their decisions pretty well speak for themselves, and they recognize that most of these decisions have enjoyed popular support. And and you know, your voice is not only a a a good voice, but I think uh you're speaking for an awful lot of people out there, Lloyd.
[00:29:35] Lloyd: Okay. Great. Thank you. Aloha.
[00:29:38] Randall Roth: Aloha. Let's go to Ken in Waikiki. Good morning, Ken.
[00:29:40] Ken: Good morning, sir, gentlemen. Uh it's very fascinating to see the in-fighting between the legal brotherhood. Uh after all, from the legislatures all the way up to the Supreme Court, politicians and uh legal in individuals are in mess in that areas. And now when we hear about this company called the Perfect Title Company, it raises some fascinating questions. After all,
[00:30:09] Randall Roth: You know Ken, hang on just a second because and I want you to finish, but I just found out about this for the first time a night or two ago when I read the Star Bulletin's article on this. Dan, can you very briefly tell us what what Ken's referring to, and then I want to come back and let Ken finish.
[00:30:24] Daniel H. Case: Well, I can only repeat what the Star Bulletin stated a couple of days ago, a company called a Perfect Title Company is telling everybody where the title will be, and that most of our titles, my own home, for example, it has no good title.
[00:30:39] Randall Roth: In fact, the homes of most listeners.
[00:30:41] Daniel H. Case: Right. Everybody since 19 uh since the Revolution. They're basically saying it's it's all uh, you know, unfair or not legal.
[00:30:49] Clinton R. Ashford: Right. Well, the perspective one is forgetting is that the monarchy in Hawaii is the one and only representative up until the continental US decided to invade the palace and deprive her of her rights and the Hawaiians, of which I am not, but still, I was raised and born here, so I have the same philosophy. And that everything that followed thereafter is irrelevant.
[00:31:22] Randall Roth: I think that's the whole, that's the whole basis of what this title insurance company is doing. And, and company is and it was not real clear from the article, but the impression I got was that what they are doing, they're filing various papers with the courts, and that it's sooner or later, potentially, going to create some real problems. Dan Case?
[00:31:54] Daniel H. Case: Well, the President of the United States watched his hands of the affair just like Caesar with Jesus. Something smells in this whole thing, and the problem is the in-bickering between the legal people is making it very complex and confusing, and the people on the outside, you know how they are. Anything harder than fifth grade mentality, they're not going to get involved.
[00:32:14] Randall Roth: Well, you've raised a a fascinating aspect of this. Let me get Tink Ashford's comments and and then we're going to have to move on, but the very interesting element that you've raised.
[00:32:33] Clinton R. Ashford: Well, as I as I understand it, Randy, and again, I know nothing other than having seen that article in the newspaper and heard a comment by a John Jabinski, an attorney for a title company on it, but the article suggests that the this new title company uh is filing the results of its searches in the Bureau of Conveyances, and it has in effect on all 40 cases it's where it's researched the title has concluded that uh everything that has happened since the overthrow in 1893 uh has been without legal uh justification or foundation, and therefore, all titles, all transactions since 1893 uh are invalid.
[00:33:26] Daniel H. Case: I agree. Uh, my my response to that as well, uh, if if that thesis is true, we are in we are in terrible trouble because uh under that reasoning, everything in the United States having to do with land, uh, subsequent to the American revolution, uh, following the declaration of Independence, has been invalid and illegal.
[00:34:23] Clinton R. Ashford: But the problem of the continental US is their problem. The problem with Hawaii is our problem. You know, Ken, you've you've your point is related to what we're talking about today, but you're getting into something that we're going to have a show on real soon. Yes, sir. And so, I would encourage you to to tune in and and call us in and call in again at for that show. I'm going to have to move on just because we want to hear some more folks uh on the phone. Thank you. Um, you're listening to the Price of Paradise Radio Show. My name's Randy Roth and with me in the studio, are two critics of the Hawaii Supreme Court or at least uh a number of their decisions over the last 30 or so years. Clinton Ashford and Daniel Case are both senior members of the bar here in Hawaii, uh both uh we're born and raised in Hawaii and and come from families that have been here for many, many, many years. Uh each is a former president of the Hawaii State Bar Association, and as I mentioned, each is critical of a number of decisions that have come from the Supreme Court over the last 30 or so years. If you haven't looked at this morning's advertiser, on page B3, there's an article written by the two of them that I think is is quite interesting and at and at a minimum is is provocative and we're expecting a lot of additional calls from folks who who want to present uh what I'll call the other side to this. If you tuned in late and you'd like to hear the entire show, tonight at 8:00 on KIFO 1380 AM, you can hear the re-broadcast. Our number is 955-8821, and we do have some open lines. We got a few folks who have been waiting patiently, we're going to get to them in a second, but if you'd like to call and get in line, it's 955-8821, or from a neighbor island 1-800-955-8821.
[00:38:00] Speaker 1: 21. Let's go to Dick Miller from Kailua. Good morning, Dick. Dick, are you there? Oh, we've got a bad connection, Dick. You're going to have to hang up and and try again. Let's move to Dave uh in Kailua. Good morning, Dave.
[00:38:16] Dave: Uh, good morning. I'd like to uh uh comment or sort of support the other callers' uh comment about balance in the program. Uh, the the but more specifically address the issue of or the comment that was made about the uh when one group gets rights, they're taking away taken away from another. Uh, the problem I see in the whole scenario that's laid out before us is that, you know, these gentlemen aren't considering the initial rights and the traditional rights that were more communal rights. And uh now there is a a shift back in that that direction to accommodate some of the uh major problems that have grown out of it.
[00:39:00] Dave: Uh, these gentlemen seem to suggest that we should leave the status quo and and not really address it or leave it to legislative process, which uh is very much controlled by large land owners who want to maintain the status quo.
[00:39:16] Speaker 1: So, uh Dave, can I ask are are you in basic agreement with our last caller who is saying that all of the rights that existed before the overthrow are are the only valid rights?
[00:39:26] Dave: I wouldn't say that they're the only valid rights. I do believe there needs to be an interface of rights, but what I'm hearing here is a uh uh, you know, just maintain the status quo. We got what we need. Uh, we got a system that works for us. And uh basically, uh when it there's an effort to change it, I hear this uh gloom and doom and fear being spread by both the audience or both by by the uh your commentators and yourself.
[00:39:55] Dave: Uh taking of houses and and uh you know, the the fear-based comments that are being made. Do you want somebody taking your house? Uh I mean there are issues that need to be worked out, but uh the alarmism and uh overreaction I think uh is uh doesn't do justice to the discussion.
[00:40:14] Speaker 1: Well, let's get a reaction to that uh Dan Case.
[00:40:16] Daniel H. Case: Well, I think you correctly state my position anyhow that the policy like that should be coming from the legislature. Uh you if you're saying sounding alarm is a bad thing, I guess we disagree. I think our purpose of being here today was merely trying to inform people of the fact that with some of these decisions, there are results and some of those results are going to hurt the public. I I happen to believe that's true and so the best I can say is uh that's that's where I stand.
[00:40:49] Speaker 1: Tink Ashford.
[00:40:50] Clinton R. Ashford: Yes, I uh the the problem with the judicial legislation or judicial activism is that it is unpredictable. Um and I think any ordered society needs to be able to uh be informed and to predict with reasonable certainty uh what uh what the consequences are of certain conduct uh what the uh what what rights and what obligations uh you have as a citizen uh with respect not only to your conduct, but also with respect to your property and with respect to government owned property.
[00:41:25] Clinton R. Ashford: And that predictability uh with reasonable certainty leads to uh order uh and uh a an ordered civilized society. When a court announces something off the wall that that was unpredictable, that nobody could have anticipated, not even the best of the legal scholars, then that uh puts a degree of uh chaos and un certain uncertainty into the picture which uh can have uh consequences which are negative for everybody.
[00:41:55] Speaker 1: Okay. David, thank you for your call.
[00:41:57] Dave: Oh, you're quite welcome. Uh just one one follow-up comment that uh you know, we are at a state and time uh historically where we're trying to interface uh some of the uh traditions and customs of of uh the pre-existing sovereign nation that that did exist here and there's been really no mechanism uh that I've been able to see uh since I've been in Hawaii that uh would allow that uh process to occur.
[00:42:29] Dave: I think that these Supreme Court rulings uh whether we agree with them or disagree with them is certainly open up the discussion about how to interface these which is pretty well canned up and bottled up uh in the legislative process. So to rely on legislative process for certainty, uh I think only allows the the parties that are essentially in control now to maintain the existing level of certainty that they would wish to enjoy and exercise control over.
[00:42:59] Speaker 1: Okay. Dave, I I'm going to let Dan Case respond to that and then I have to move on, but I do appreciate the call.
[00:43:03] Daniel H. Case: A very short comment, uh as I I have announced the fact I believe in in a process in a regular process, a predictable process as far as the the rights of Hawaiians go, bear in mind that Chief Justice Richardson was is Hawaiian and Governor Waihee was Hawaiian. I mean that is the way the process works in a democracy and those people have risen to the top and have led in effect our state in these areas. I believe that's the way it should go.
[00:43:32] Speaker 1: Okay. We go to uh Dick Miller. Do we have a better connection this time, Dick?
[00:43:35] Dick Miller: I hope so.
[00:43:36] Speaker 1: Okay. Dick is uh former Dean of the University of Hawaii William S. Richardson School of Law and and a colleague of mine.
[00:43:45] Dick Miller: Uh hi Dan and Tink and Randy, good morning.
[00:43:48] Speaker 1: Morning, Dick.
[00:43:48] Dick Miller: Uh I I just want to make a a few points. Uh uh there are there are some decisions of the of the court which I've disagreed. I think the McBride case, for example, not the not the substance, but the way the case was handled. That is I understood that on appeal the issue of whether the state owned the water was raised uh for the first time, had not been raised in the lower court, so I sort of objected to that procedurally. Uh but let me make a few points. Uh first of all, the common law has always been judge made. I mean that's how we have it.
[00:44:25] Dick Miller: And uh so it doesn't surprise me when judges make law because they've been doing that uh since we got the common law from England. And uh I'm not surprised that they continue to do that. Uh, secondly and I think an important point is, that except where a decision is based on a constitutional principle, and that would be the same-sex marriage case, uh the legislature has this has the last word. If they want to, if they don't like the decisions, if our popularly elected uh uh officials don't like the decision, they can overturn them.
[00:45:02] Dick Miller: And so that the legislature is out there and if the decisions seem to be inappropriate for whatever reason, uh there is a potential for people who dislike it to go to the legislature and try to get it changed. And thirdly, my recollection is that our statutes, that is uh from a long time ago, have said that Hawaiian custom is made a part of our law along with the common law. Uh so unlike other states of the Union, we do specifically look to Hawaiian custom uh for our law.
[00:45:39] Dick Miller: And maybe I ought to add that the lastly, the question of whether the Supreme Court makes law or finds law is a complex philosophical uh issue. And uh treating the Supreme Court as if it were just another legislature and saying it shouldn't make law seems to me is uh is a little oversimplistic. But I enjoyed the column. I'll get off and let you guys go forward.
[00:46:06] Speaker 1: Thank you, Dick. Thank you, Dick. You know something that I was thinking about as as I was listening to Dick is that I I think you guys would agree that the Supreme Court of Hawaii over the last 30 years has has been a part of of the political revolution as it's been referred to, which has generally been quite popular with the people of Hawaii. Um any other thoughts
[00:46:27] Clinton R. Ashford: No, that's true. I think the only I I have great respect for Dick Miller, so I and he spoke well on on the on the problems we have. The middle point, Dick, I I guess I'd only say it differently, uh when you talk about why not start with the court and have the legislature correct it, little bit like dancing, no matter who leads, I happen to believe the legislature should lead.
[00:47:02] Speaker 1: Okay. Tink, any thoughts on on Dick's comments?
[00:47:05] Clinton R. Ashford: Well, uh Dick is right in his in his thoughtful comments that the common law has been judge made and it will continue to be judge made, but the the the point that Dan and I are trying to get across here is that uh generally the law is a uh including judge made law is an evolutionary process that that flows rather slowly. Uh and the there are good reasons for that, among other things the predictability that I mentioned. And the the our point here is that is that with a lot of these decisions of our Supreme Court uh are in effect uh decisions that come just out of the blue, and that and and that is the problem with this kind of judge-made law.
[00:47:33] Speaker 1: Okay. You're listening to the Price of Paradise Radio Show. My guest in the studio are Clinton Tink Ashford and Dan Case, both senior members of the uh bar here in Hawaii, each is a former President of the Hawaii State Bar Association. We're talking about the Supreme Court of Hawaii and uh we do have some open lines if you'd like to call and ask a question or make a brief comment. Our number is 955-8821, or on a neighbor island, 1-800-955-8821. And if you'd like to catch the show in its entirety tonight at 8:00 on KIFO 1380, you can do just that. Well, let's go to Mark in Moiliili. Good morning, Mark.
[00:48:09] Mark: Uh I've been listening to the to the discussion for a while and perhaps maybe one thing that you folks could do that would help a lot of us out here would be to speak to some of the implications of this of this case law.
[00:48:35] Mark: Like I understand in in terms of the property property case law and the in the pie case the real situation where um you can be a property owner as I understand it be paying taxes, be be you know required to pay taxes on it, and individual can present themselves and say, well, I had a cultural tradition that occurred on this land and they can determine the use of your land while you're still responsible for for the taxation of the land. And you know, perhaps maybe some of these implications can be explored a little bit further. Okay.
[00:48:55] Speaker 1: Let me get Let me get a reaction to that. Stay on the line, Mark. I'll get a reaction first from Dan Case.
[00:49:00] Daniel H. Case: Well, I think you've stated it very well. Uh I think the concern that Tink Ashford and I are expressing really is that these cases have implications and the implications affect all of us. We have no agenda on this topic. We're we just happen to have practiced for a long time and and worry about these things. But if people cannot be assured of of the sanctity of their home, for instance, uh they're going to have trouble selling it.
[00:49:29] Daniel H. Case: And if the market gets concerned about it, just like this perfect title case problem, it's going to cause a lot of chaos in the in the title market. We need uh predictability. People have to know when they come to buy your house for instance that there are no problems there, that there's nobody You don't have a mango tree or lychi tree somebody's going to want from from and cross it in the middle of the night. That's the sort of thing that we worry about. It's not the, you know, uh catastrophic kind of problems, it's the kind that causes concern to the general public.
[00:50:06] Clinton R. Ashford: One one of the uh other consequences and and effects on the public at large of of uh these kinds of things, it seems to me, is is that uh the these decisions which uh come with uh complete lack of expectation, uh encourage what I would call aberrant and sometimes irresponsible uh behavior. We we've had a number of cases recently in which uh uh on the basis of some claimed rights, uh individuals in court have refused to recognize the authority of the court.
[00:50:39] Clinton R. Ashford: I think that's a serious problem when when you have uh a more than just one uh exceptional individual uh asserting to a court whose authority the public in general recognizes that that court has no authority over him. Or uh that individual choosing to recognize what laws uh he wants uh are going to apply to him and and what aren't. Whether he has to have a license plate on his car or none at all.
[00:51:08] Clinton R. Ashford: Uh whether he is entitled to uh take possession of land and and occupy it on on a claim that's based on something that happened 200 or 300 years ago, uh where that land has been bought and paid for uh by the government or by an individual. Seems to me that that that these kinds of uh unanticipated uh decisions regulating property rights and conduct uh can can lead to uh be behavior that is not consistent with the good of of the public in general.
[00:51:43] Speaker 1: Mark, is that the sort of thing you were interested in?
[00:51:45] Mark: Yeah, absolutely. See, I I kind of believe that that I I kind of sense a sort of a cavalier attitude on a lot of the folks related to these property issues that if they're on the receiving end of, I don't think they'd hold.
[00:52:03] Speaker 1: We have a call from Maui, Jim. Good morning.
[00:52:06] Jim: Uh good morning. Uh I'm enjoying your show. Uh I uh I I'm interested in in law. I'm a I'm not a lawyer but uh I was uh hearing you talk about real estate and what seems to be sovereignty issues legislative, judicial or even moni monacle. Now and the case of Kapilani Park and that that lease problem, uh came to mind. And in that, it expressed an idea that I thought might might uh uh be useful. And that was that the not even the King, I guess, is was was subject to a real estate uh decisions I suspect in England, at least that was the idea that I was given uh by reading this case.
[00:53:15] Jim: And it would seem to me that the uh uh common law uh in this particular area would uh supersede legislative determinations and such. And I was wondering how that might apply to um uh the problem of judicial legislation whether in fact even the courts must keep their their hands off certain uh uh common trusts and such. I would enjoy comment on those.
[00:53:27] Speaker 1: Uh let me see if Tink do you have any thoughts you share?
[00:53:32] Clinton R. Ashford: Jim, I'm sorry, but I'm not familiar with the Kapiolani Park case that you're talking about. Uh can you give us a little bit more the background of it?
[00:53:41] Speaker 1: Well, real quickly, Jim.
[00:53:43] Jim: Yeah, that involved the lease of a property that was shared by uh the trusteeship was shared by the county and the state. Uh and and what the court ultimately did was find that the uh the county and the and the state uh didn't protect public rights as it related to the preservation. Okay. I I might just amplify on that, Jim. I believe that the the property was put in trust for the benefit of the public and then the public, meaning the government tried to develop it with a long-term lease and the court said, hey, you can't do that. You have to follow the trust. I believe that was the gist of the case.
[00:54:11] Daniel H. Case: And if authority somehow that Right. Right. were to the to the integrity of that trust. But they were I think they were interpreting uh the validity of the trust and the fact that if it's in existence and it's a valid trust, that you have to honor it.
[00:54:47] Clinton R. Ashford: The legislature would have to honor that as well. Is that correct?
[00:54:51] Daniel H. Case: Well, I think the legislature would have nothing to do with it unless they somehow the government were asked to condemn the land from the trust which could be done and then the government could do whatever the government wanted to do, if they paid if they paid just compensation. Okay. Jim, we're going to have to move on. I I really appreciate the call.
[00:55:11] Speaker 1: We got uh Doug and Manoah. Good morning, Doug.
[00:55:14] Doug: Yeah, I practiced law in California for a number of years and we kind of have the same problem there just uh for a period of time with what was called Rosebird court.
[00:55:23] Speaker 1: And she wasn't put back into office, was she?
[00:55:26] Doug: Well, that was uh like correct and two other justices were unelected. Among among them Cruz Reno and Rosebird, they both went down the same time. Did they not? And uh Judge Groton and, and that's Tink Ashford talking by the way. Go ahead, Doug. Finish up.
[00:56:03] Doug: Well, what are we doing in Hawaii? At least in California you had the option of unelecting these people. Which uh here, what does one do to Well we have a judicial selection commission and when they're the term of any judge expires, and there must be a reappointment, that judge must first ask to be retained, and submit his name to the Judicial Selection Commission. At that point, the commission would make the judgment uh as to whether they it that judge should be retained or not. So we don't have the recall procedure in California, but there is a procedure. There's not a lifetime appointment as you have in the federal system. Uh one one other thing, Danny, I think it's important there uh when a judge uh asks the uh judicial selection commission to be retained, the commission gives public notice of that and the public is entitled to input on whether or not the judge should be retained but uh his retention or dismissal uh at the end of his term is a function uh Doug that's uh accomplished not by any electorate but by the Judicial Selection Commission itself.
[00:57:00] Randall Roth: A lot of our listeners are concerned about the cost of car insurance and often times the focus is on what the legislature has done, what the legislature is thinking about doing, what what they're going to do. And I think the point you were making in the article is that these various cases uh have contributed. They're not the cause, but have contributed to um to the high cost of insurance, for better or worse. Again, there are some people who like very much the way these cases went.
[00:57:24] Randall Roth: But a couple of cases that that you've mentioned to me, one of which is in the paper and one isn't, uh one involved uh a shooting. I guess it sounded like a couple gang members. One guy in a car got shot by somebody else after the guy who got shot had had threatened to shoot the people in the other car, and that was considered to be quote, a a an automobile accident under the terms of the policy, so the insurance company had to pay.
[00:57:46] Randall Roth: And another one, someone was more than a mile away from his car when he was hit and by an uninsured car, and even though his car had you know, was not involved in the accident, it it the insurer of that car had to pay. And and I think your point, Dan Case, now I'm asking, um, was that when people consider car insurance, they need to look at more than just what the legislature is doing, but also what the court's doing.
[00:58:11] Daniel H. Case: Well that is probably the the result of of the situation to describe, but that's just not realistic. uh, even lawyers can't do that. That's that's almost the point of our program this morning. uh, you have to have predictability in the law before you can uh know what's going to happen. So the concern I have, it's is they're expanding the common law as uh Dick Miller was discussing a few minutes ago. But if you do it in an, what I would say, a a far stretch, then in effect the insurance company is going to say, my gosh, I can't write insurance in that state. I never know when I'm going to be liable.
[00:58:49] Daniel H. Case: And I think that hurts us. That's when your premiums go up, so you have less competition and the ones that are here because of the uncertainty, want more. Tink Ashworth.
[00:58:57] Clinton R. Ashford: Uh, Randy, the the part of the disturbing thing here about those insurance decisions is that uh, what the uh, what the court was doing there was deciding uh, a couple of those cases were decided upon public policy grounds. Um, Danny and I agree and I I believe that policies, should public policy should be made by the uh legislature, and then it should be interpreted and applied by the courts.
[00:59:27] Clinton R. Ashford: But in these insurance decisions, revolving around uninsured motorist coverage, uh, in at least two of those cases, the the court, in interpreting the language of the insurance policy involved, said that certain language in the policy should not apply because it was against the policy, uh expressed by the legislature. The public policy. the public policy. And uh, you you got some pretty clear contractual language that's that's just uh, not accepted by the courts. They just said, we're not going to recognize that.
[01:00:01] Randall Roth: Yeah, one other thing, perhaps the way it describes itself to me is I think the courts should determine these facts on the facts. Uh, I think it's my judgment that if the courts did not know when whether there was or was not car insurance, or in any of these cases, the decisions probably would have been different. And that means that they're deciding it on the fact that there is insurance, and therefore is there a way we can make this uh case work and let the plaintiff recover. I don't believe that's the right way to do it.
[01:00:35] Randall Roth: Is there anything else having to do with this topic, the State Supreme Court that you'd like to raise? I'd I've tried to pull what I considered the major themes from the article out, and you've talked about them at length. Uh, anything that we haven't gotten to, Tink?
[01:00:51] Clinton R. Ashford: Um, well, I hope your listeners will understand uh Randy, that that while Dan and I are being critical of some of these decisions of the court, that we nevertheless continue to hold uh the justices individually, and the court as an institution in very high regard. Uh, we happen to disagree with some of the uh, with some of the results that they've arrived at, uh, primarily on the basis that that uh, this has been a judicial activism, judicial legislation that was unpredictable, unanticipated, and it has associated with it uh costs which may not be recognized at the time, but, but ultimately are going to be borne by the public.
[01:01:32] Clinton R. Ashford: Uh, and uh, I recognize that we're both very conservative. Uh, maybe some people would would say that we're ultra-conservative, but uh, conservatism and predictability of the law, it seems to me is, is necessary for an ordered society.
[01:01:47] Daniel H. Case: Yeah. I'd like to implement on that. I think it should be clear, we believe in the system. We we everybody doesn't always agree with each other. I don't always agree with my wife. We don't always happen to agree to the Supreme Court, but we still support it once the court has ruled, we support that ruling.
[01:02:05] Randall Roth: Okay. Well I know both of you were were born and raised in Hawaii and and in fact, each of you happens to have a a grandfather who was a circuit court judge. Uh, any final thoughts? We've got about 30 seconds. Uh, anything to say about the topic or anything else, Dan Case.
[01:02:21] Daniel H. Case: Well, really just that it's important, I think uh, for people to think through these problems. Uh, when they see a decision and they say great, uh, somebody was hurt and now they're going to get a lot of money, they have to realize this, that uh, it's not a lottery. I mean, I I think I have to say with some discouragement that the first reaction of our citizenry, this is not just Hawaii, when there's a bad accident, uh, is oh boy, that person is going to have a heck of a good case.
[01:02:51] Daniel H. Case: Well, I don't believe uh, society should be governed by litigation. And uh we have to think these things through and when cases come out, we have to say what is going to be the ultimate result of that case, not just the short-term result.
[01:03:04] Clinton R. Ashford: Tink Ashworth. Well, uh one last thought, uh Randy, in the property rights field, uh, borrowing a phrase from the United States Supreme Court, uh concerning investment-backed in expectations, I think people who have paid uh money for property and have certain development or use expectations should be entitled to have their investment-backed expectations fulfilled.
[01:03:27] Randall Roth: Okay. Well, you've been listening to Clinton Tink Ashworth and Dan Case. Each is a senior member of the bar here in Hawaii and each is a former president of the Hawaii State Bar Association. Our director of operations at Hawaii Public Radio is Jeff Ailardi. The producer of the Price of Paradise is Suzy Roth. Helping her this morning and taking care of the phones was Cassie Roth. You've been, Oh, and our sponsor is the Hawaii Community Foundation. You've been listening to the Price of Paradise Radio show. I'm Randy Roth. Aloha.