A Response to Critics of the Hawaii Supreme Court
Price of Paradise · Hawaii Public Radio · aired 1996-09-01
Guests: William S. Richardson (former Chief Justice, Hawaii Supreme Court); Walter Heen (former judge, Hawaii Intermediate Court of Appeals)
Duration: 1:04:49

[00:00:01] Randall Roth: Aloha. This is Randy Roth, host of the Price of Paradise radio show. Everyone who works to bring this show to you is a volunteer. We do what we do because we enjoy doing it and because we believe in the importance of lively and informed public dialogue. Our airtime is paid for by the Hawaii Community Foundation, an organization that supports grassroots efforts to improve the quality of life in Hawaii. And also, it's an organization that administers charitable funds with efficiency and compassion.
[00:00:30] Randall Roth: One month ago, our guests were Dan Case and Clinton Ashford, two highly respected attorneys who were critical of various Hawaii Supreme Court decisions that have been handed down over the last 30 years or so. They were especially critical of decisions of the Richardson court, that in the opinion of Ashford and Case, discarded quote, time honored rules, and that these cases have proven to be quote, harmful to the people of Hawaii. With me in the studio today, are two fellows who strongly disagree. One, Bill Richardson, was the Chief Justice at the time of what we call the Richardson court and was the main architect of the decisions that most upset Ashford and Case.
[00:01:10] Randall Roth: The other, Walter Heen, is a former legislator and former appellate court judge. Currently, he's one of three candidates for the position of Chairman of the Democratic Party in Hawaii. Walter, good morning.
[00:01:21] Walter Heen: Good morning, Randy.
[00:01:23] Randall Roth: Uh Bill, good morning, and I read your piece in the paper this morning and I take it you don't completely agree with everything that Ashford and Case had to say a month ago.
[00:01:31] William S. Richardson: Good morning, Randy, and Walter. I'm certainly glad to be here this morning and thanks for giving me a chance to answer what I saw in the paper that that Ashford and and and Case said.
[00:01:46] Randall Roth: The the people at the advertiser, they try to capture the essence of an article in their headline, and did they capture it uh when they said, your answer is no?
[00:01:56] William S. Richardson: I think they did a pretty good job.
[00:01:59] Randall Roth: Just real briefly, what was it about the article a month ago uh that bothers you the most, that you disagree with the most?
[00:02:08] William S. Richardson: Well, they said that the uh the Richardson Court uh didn't follow the law, and uh as you know, the Supreme Court always follows the law. But under our system of of government, the the common law is often been used to fill in the gaps uh when the when the law is uh maybe not altogether clear.
[00:02:38] William S. Richardson: Uh, but in this case, uh we have uh the laws of of of the state and the laws of of uh the territory, and in each case, uh they made exceptions to the common law, and the common law, that exception, of course is that there would be uh uh precedent in Hawaiian usage that must come before the common law.
[00:03:04] Randall Roth: So you feel you were uh paying attention to what the old law in Hawaii was, and the cases that you were overruling were decided by judges who had been or justices who had been appointed from the mainland, and while you were overruling those cases, you felt that they had strayed from the law in Hawaii?
[00:03:24] William S. Richardson: Well, I I generally agree with that statement, yes.
[00:03:28] Randall Roth: Okay, and you said it much better in the paper this morning than what I just said it. But with that, let's turn to Walter Heen and and see what your thoughts are on this Walter.
[00:03:36] Walter Heen: Well, I thought uh basically the article by Dan and uh Tink, both of whom I respect very much, uh actually was misleading. As Bill put it, it's not a it was not a question of the Supreme Court making new law or ignoring law that had been in existence for a long time. Actually, the Supreme Court was going back to law that had existed in fact and in writing for a long period of time and had been either ignored or overlooked by the uh judges appointed out of Washington, D.C.
[00:04:12] Walter Heen: And another thing I think that's important to point out here is that a lot of those decisions or some of those decisions had to do with property rights. And one must remember, if you were appointed as a judge out of Washington, D.C. in the days of the territory, you were pretty much beholden to the sugar and pineapple industry with industries which controlled the economy of the islands and controlled property law. So they were writing law in those days, in my view, in accordance with the dictates of the landed interests.
[00:04:45] Randall Roth: So the Supreme Court during the territorial days were were politically inspired, uh influenced by, well, by the money interests, the plantations.
[00:04:54] William S. Richardson: No question of that in my mind.
[00:04:56] Randall Roth: Well, one of the cases, Bill, that uh that you're well known for and I I believe you wrote the opinion, uh the McBride case, had to do with with water law, which obviously affected the plantations very, very much. Um, I'm told that that decision was based on theories and findings that were never briefed or or argued by the parties. Uh a month ago, Ashford and Case commented that that the court pretty much on its own initiative, just jumped in and and made the decision that it made without really giving the parties an opportunity to to make their arguments.
[00:05:31] Randall Roth: Um, do you agree or disagree with that description and and how do you how do you feel about it?
[00:05:37] William S. Richardson: Well, you know, that's a I I didn't. I I was not the principal author of that. I I think it was Mr. Justice Oby that uh that wrote that. But generally, I a a court, whenever it can, must find a way to to answer a question that uh that comes before it. Uh in this case, if you recall, there were um there were taro patch owners and and uh rice patch owners that were down at the bottom of of the the stream where water had had first been used by the by the natives and then as sugar came along, uh they began to tunnel the water to the adjoining um uh valleys.
[00:06:30] William S. Richardson: And as they took water from the valleys, uh there was less and less for the the uh taro patch owners and the rice patch uh uh rice growers, and uh someone had to protect them at some point. And and I think that's what the court did.
[00:06:50] Randall Roth: I I've got uh an article that was written many years ago uh about one of the cases. I guess there were a series of cases. Uh this one is the uh Hanapepe case, but Justice Oby was was quoted at the time uh it says, Oby says he reached his conclusion on the basis of what he thought was fair, then supported it by researching the law. The quote was, you find the nail first sometimes. Um, Walter is is is that what what justices are supposed to do is to figure out what's equitable, what's fair, what makes sense to the people, and then reach that decision?
[00:07:27] Walter Heen: Oh, I think that's I think that's entirely correct and I think that is really the premise upon which Bill's Supreme Court operated. I know that uh retired Justice Ed Nakamura has always told me in our conversations that Bill's basic premise and the question he always came back to is, is it fair? But to go back to the question you asked Bill a little earlier, when cases come before an appellate court, there are many, many times when you can arrive at a decision regarding the precise question that was put there put to you.
[00:08:02] Walter Heen: But at the same time, you find yourself pondering another question which may not have even been considered by the parties. And in order to give a full round fully rounded decision, you have to consider that question. A good example is the Pash case, which is the Kohanaiki case over on the Big Island.
[00:08:21] Randall Roth: And just by coincidence, next week, we're going to focus on this Pash case, so listeners listen closely. This is going to be a good preambled.
[00:08:27] Walter Heen: Well, I wrote the original opinion in the intermediate court of appeals that was taken up to the Supreme Court on a writ of certiorari. After arriving at the decision that the Hawaii County Planning Commission had not accorded, had wrongfully not accorded a an administrative hearing to Mr. Molani Pai, it occurred to me that in order to give guidance to the uh county commission with respect to this right that Pai was asserting, the gathering right, some guidance had to give been been given to the county commission as to what they do with this right.
[00:09:07] Walter Heen: Here is a right that's been accorded by the state uh statutes and constitution going back even in fact, the statute goes back to 1859. And nobody's really taken a good look at what it meant and what it really involves with respect to planning agencies, and I said give them a hearing. If it's a right, he's entitled to a hearing.
[00:09:29] Randall Roth: And so even if the specific question in front of the court could be answered very, very narrowly, you're saying, well gee, if eventually, it's going to lead to other questions, the court in some instances ought to go ahead and address the broader issues?
[00:09:41] Walter Heen: That's right. You sound like one of my law clerks.
[00:09:45] Randall Roth: Um, one more quote and and I'm reading from some articles that were written by Ken Kobayashi of the advertiser about uh I guess it was 16 years ago, and and I just found them very interesting. That was right before I moved to Hawaii. But he's quoting um uh highly respected attorney Russell Kades as saying, to be unable to predict how courts will react suggests that every problem that may be brought to the court should be brought to the courts.
[00:10:10] Randall Roth: The volume of litigation is bound to increase, and as the volume increases, the quality of judging will become poorer and poorer. So he was suggesting that that we really need to have more predictability than what he saw coming out of the Richardson court. The article goes on to say, in response to this kind of criticism, Wallace Fujiyama, another veteran trial attorney, says the court is quote, goddamn predictable, close quote. According to Fujiyama, quote, this is a real people court. They know the problems of the real world. They know how real people feel, and it's on that basis that one can predict how the court will rule.
[00:10:48] Randall Roth: Bill, do you think Wally got it right? Uh what's your reaction?
[00:10:51] William S. Richardson: Absolutely. Absolutely. Walter, did Wally get it right?
[00:10:55] Walter Heen: Who's going to argue with Wally Fujiyama?
[00:10:58] Randall Roth: Okay. Well, folks, you're listening to the Price of Paradise radio show. My name is Randy Roth. I'm here with uh Bill Richardson who was the Chief Justice of the Hawaii Supreme Court from 1966 to 1982. He was the Lieutenant Governor of Hawaii before that, uh Bishop Estate Trustee after that. At one time, he served as bar association president. I work at the William S. Richardson School of Law and I think, Bill, that uh that name uh has something to do with with your background.
[00:11:26] Randall Roth: Uh I'm also here with Walter Heen who is former state legislator, judge of the Hawaii Intermediate Court of Appeals, and currently a candidate for the chairmanship of the Hawaii Democratic Party. If you'd like to ask them a question or make a brief comment, call us at 955-8821. If you're on a neighbor island, the number is 1800-955-8821. The topic is Justice in Hawaii, and specifically we're asking uh Bill in particular, but both Bill and Walter to respond to some uh criticisms that were leveled about a month ago by a couple attorneys here in Hawaii, Dan Case and Clinton Ashford.
[00:12:05] Randall Roth: The number again is 955-8821, and we'd really like to have your questions and your brief comments on our subject. Uh Walter, was there anything a month ago in what Ashford and Case wrote and said, I know you you listen to the show, uh was there anything else that kind of caught your attention that you think needs to be corrected or explained better or something?
[00:12:29] Walter Heen: Well, I think there are a couple of points that uh need to be responded to that were made by Dan and Tink, and that is what they call undefined rights of native Hawaiians. Uh admittedly, these rights at the present time are rather hazy, at least in the minds of non-native Hawaiians. And the reason for that is that the courts and the public, basically, have overlooked those rights. They've avoided getting into the teeth of section 1-1 and 7-1, which protect native Hawaiian rights. And in the future, and you may say this is avoiding predictability, but in the future, these rights will be further defined in further cases, I'm sure.
[00:13:22] Walter Heen: In fact, we have the Waiahole water case going on now, in which I'm an attorney for the office of Hawaiian affairs, and we are pressing very hardly for the recognition of native Hawaiian traditional and customary practices and rights.
[00:13:36] Randall Roth: So part of what I'm hearing is that that you would say, well sure, there is a lot of confusion in the law right now, but that's just the nature of of law evolving and that eventually, we'll have real specific answers to our many questions.
[00:13:48] Walter Heen: Well, I'm not sure they'll be real specific. You know, you can't nobody's been able to really specifically define free speech, but eventually you'll get to a point where these things will begin to hone themselves down.
[00:13:58] Randall Roth: The mere fact that some of the decisions we're talking about created a lot of confusion in the short run, you're saying isn't reason to criticize them. Okay. Well, let's go to some callers. First, Liz and Kailua. Good morning, Liz.
[00:14:10] Liz: I wanted to um ask uh Judge Heen to address one of the closing statements that um I believe it was Tink Ashford made regarding the fact that um investment back expectations must be fulfilled. I think that's what was one of his closing statements. And I was also hoping um both judges could address the question of um the takings issue, on um with respect to gathering.
[00:14:34] Randall Roth: Okay. Um, you know Walter, just so our non-lawyer listeners can uh can understand, Liz has has asked a a really good question. And in in legal opinions, sometimes they talk about investment backed expectations, and and specifically, for a hundred or so years, people who would buy beachfront property, uh were under the impression that their the boundary line was closer to the water than what Bill's court ultimately decided was the case. And there are some people who feel, gee, where for a hundred years, people are are relying upon what they think is settled law, and they are investing money in in that reliance.
[00:15:12] Randall Roth: If the state comes along and says, no, we want the boundary someplace else, uh there are some people who feel that amounts to a taking, and if the state takes private property, then the state ought to pay for it. But but in these cases, the state didn't pay anything for it. They just said the boundary line is is more mauka than what uh anyone has thought for a hundred years.
[00:15:32] Walter Heen: I think that's rubbish, but in the first, no, now be, be clear. Do you agree? No, I do not agree. I think that's rubbish for this reason. If everybody in the world, or in the United States, decided that they should be they should have their expectations realized, even though those expectations were based on a false premise, then we would be in utter court chaos. Here, the people have bought this property, as you say, in anticipation, thinking that they were owning property up to a certain point, but under the law, and in fact, they did not own that property up to that point. Therefore, there was no taking.
[00:16:15] Randall Roth: Okay. Bill, you have any other thoughts on that, or just agree with Walter?
[00:16:19] William S. Richardson: Oh, I agree with Walter. Uh, let me go a little bit further. Okay. Uh, how could anyone possibly think that the the Hawaiians who lived on uh in the Alpuas, one who lived up Mauka, uh could have his canoe uh placed there overnight so that the canoe would go out to sea in the morning. Overnight at high tide, it's gone, low tide, or high tide, or even higher than that. It's it's it's plainly fair to me that and and logical that he would pull his canoe up high enough so that it wouldn't drift to sea uh at at high tide.
[00:17:00] Randall Roth: And and basically, you're saying that because that canoe had to be high enough that the water wouldn't pull it out, uh that determines where the boundary should be.
[00:17:09] William S. Richardson: Well, that's that's what we attempted to do in in the Ashford case. It took two or three cases to uh delineate all of that. Uh the previous cases talked about low watermark, high watermark. They were and and not together on that, and these are territorial cases.
[00:17:28] Randall Roth: Right, right. But where you were headed was that you wanted that boundary mauka enough that a canoe could be there at the boundary and be safe overnight.
[00:17:36] William S. Richardson: That's right, and and that's why we finally used the Nal Paka line, and that case went from Molokai to Hawaii, and finally got it all together.
[00:17:46] Randall Roth: Okay. Okay. Liz, thank you for your call.
[00:17:49] Walter Heen: May I say something here? Sure. This is Walter Heen now. I think there's something else that has to be said. Um, in this question is included, I think, uh a thought or a statement made by Dan and Tink, that the expectations were of the property owners were being overturned and that this was something that was economically, of course, depressing and perhaps personally depressing.
[00:18:18] Walter Heen: But you know, if one goes back in history and begins to think about it, this is what the Hawaiians felt in 1848, when all of a sudden the fee simple uh land title concept was imposed on them and all of a sudden, what they had been accustomed to living under for centuries, was gone.
[00:18:36] Randall Roth: So what goes around comes around?
[00:18:38] Walter Heen: You might say that.
[00:18:39] Randall Roth: Okay. We move on to Joan, uh Windward, Oahu. Good morning, Joan.
[00:18:43] Joan: Good morning. Um, I have a question for Judge Richardson. Um, in in 1980 in an article uh on your court, which was published in the Advertiser, you were quoted, after your description of standing on the beach, quote, looking at those nice skies with all their jewels.
[00:19:00] Caller: The Royal Hawaiian Hotel is saying that's got to make some impression on you when you make a decision on whether the beaches will be free to all people of Hawaii. It's got to. That's the end of the quote. My question is, if every judge who came to a court empowered to make decisions having a lasting effect on the community made those decisions on the basis of a personal agenda, which yours seems to have been, uh wouldn't that lead to instability of the law? That's my question.
[00:19:26] William S. Richardson: Uh Bill Richardson. No, no, it it wouldn't. And when you're a judge, personal things often come into play. You can't get away from your background. Uh I I know what you were referring to. You were you were referring to a a cartoon that appeared in in the newspaper uh showing me uh at first in my bathing suit outside looking into the Royal Hawaiian Hotel. And uh then the the next part shows me in the Hawaiian Royal Hawaiian Hotel many years later and looking at the tourists that were standing out there looking at me. Uh to me, uh you cannot get away from your own background and that maybe is uh brings you to the question of what is fair, as uh Walter pointed out. And I I think with that in mind, you you can come up with what is fair, what is fair to the people of Hawaii, okay? Walter Heen?
[00:20:30] Walter Heen: Uh I just like to back up Bill's statement about how judges cannot get away from their personal experiences in their lifetime. Justice Oliver Wendell Holmes had a famous quote in one of his cases and he said uh I might it may have been one of his writings. I was born among barberry bushes, bushes and I know barberry bushes.
[00:20:52] William S. Richardson: Okay. John, thank you for your call. Our our lines are full and we're going to have to keep moving. Thank you very much. Uh next on the line is Bud Smizer, columnist for the Honolulu Star Bulletin. Good morning, Bud.
[00:21:02] Bud Smizer: We're in trouble, Bill.
[00:21:04] William S. Richardson: Bud, you've got them quaking in their shoes, their boots here. Bud Smizer?
[00:21:09] Bud Smizer: Well, no, I've written some articles that have been ambivalent about the Richardson court and I'd like to give them a chance though to uh put it in a national perspective. We had the national case of the Warren Court ignoring precedent to decide it's separate and equal. Separate but equal is no longer satisfactory for blacks in America and we had it deciding that a kind of legislative apportionment that the Congress had approved for Hawaii just a few years earlier was not good and it was not good for other states. So it didn't seem to ignore pre- to it didn't seem to adhere to precedents. I would just like to hear uh both Judge Heen and Justice Richardson place the Richardson court in that perspective.
[00:21:58] William S. Richardson: Uh and Bill, I know you happened to be or were a good friend of of Earl Warren, Chief Justice of the the US Supreme Court. Um what's your reaction to Bud's uh question?
[00:22:09] William S. Richardson: Uh yes, I was a good friend of of Warren in in his his his chief friend in there uh Bill Brennan, who's still alive and both both were my uh mentors uh in a way. So I'd be leaning toward toward their decisions. But you know it took uh a president, Abe Lincoln, uh who was who was killed in the midst of the problems of of racial equality. Uh 150 years later, before anything could be, not anything, but finally things were were begun to be settled. Uh and uh the uh the uh US Supreme Court with with Warren as its chief uh began to settle those questions and you see what's happened now. We've gotten these these questions pretty much taken care of and that had to be done.
[00:23:10] Walter Heen: So if you don't ignore precedents and and non-lawyers out there, a case seemingly on point that went one way is called a precedent and when you ignore that precedent, you're more or less reversing it. You're saying sometimes that just has to be done and it's the justices' decision as to when that needs to be done.
[00:23:29] William S. Richardson: Well, they- of course the the courts are usually a little slower in doing like in this the case I just mentioned, 150 years, but uh-
[00:23:38] Walter Heen: Well, they thought about it a while. But yeah, they did. But it had to be done and at some point they did it.
[00:23:44] William S. Richardson: Okay. And and you felt the same way about the the the many decisions you made while you were Chief Justice that went diametrically opposed to judges- justice um decisions that came out of the Supreme Court of Hawaii during the territorial days, you felt that it was just time for a different approach? Well, I want to go back to to the statement that that Walter made that uh they were they were pointed out of Washington and uh while many of them were were good judges, but their backgrounds and and the people they were really I use the word advisedly uh courting were the Washington politicians. Uh was that pun intended, Bill?
[00:24:32] William S. Richardson: Well, I I I tried to Okay. Um Walter Heen, quick reaction to that uh to what Bill's just said in response to Bud Smizer's question, and then we'll move on.
[00:24:41] Walter Heen: Well, I I'd just like to point out that uh to go back to Dan and uh Tink's article of about a month ago that one of their themes was it shouldn't be the courts that make these large steps but it should be the legislature. The separate but equal case and uh the one-man vote are perfect examples of what would have happened if you had left it up to the legislative bodies. Nothing.
[00:25:05] William S. Richardson: Mhm. So their criticism that the Richardson court was making law rather than interpreting it, you'd say sometimes you need to make law, especially if the legislature isn't doing what it should be done. Well, a precedent doesn't become precedent unless it's the first case and in these cases, they really were the first cases to take a good, hard look at these problems. Okay. We move on. Uh Jim Mee, who has been a guest on our show uh recently. Jim, hang on just a second. Bill wants to ask something. Yeah, I want to thank Bud Smizer for for the question.
[00:25:34] William S. Richardson: Okay. Uh Jim Mee's been a guest on our show uh very recently from Kaimuki. Good morning, Jim.
[00:25:40] Jim Mee: Good morning. The uh I guess the comment that I'd like to make is I I know uh C.J. Richardson wrote in his article about many of these decisions being made by territorial judges. The comment I just kind of wanted to make is that those territorial judges were applying the laws of the Kingdom of Hawaii to the extent that they applied. And and one example I'd like to give is with regard to uh native Hawaiian gathering rights and in that area, the court very early determined in the kingdom back in 1858 that the only gathering rights that the native people were entitled to were specified in a statute called Section 71 and maybe some of the listers are familiar with that. But that statute talks about the right to Aho chord and tea leaf and things like that. If I can just quickly read the one sentence that I think is critical from the court's decision in the case and it's called Oni versus Meek. It says it was the intention of the legislature to declare in all in this enactment all of the specific rights of the Ho aina and here they're referring to the commoners and native Hawaiians, which should be held to prevail against the fee simple title of the konohiki. Now, the reason I make this point is that what I think we're seeing a lot of these days is that the courts say that they're only trying to redo what happened back during the territorial days, but a lot of these uh precedents that have been changed go all the way back to the early days of the kingdom. In this case, the judges that wrote that decision were involved in the Mahele. Uh at least one of the members of that court was a native Hawaiian and was involved in the original debates over the uh Mahele and the fee simple title system. So it sort of troubles me that here after we've had settled law for 150 years, the courts are coming back and saying, no, that's not what was intended back then. And we're not where for example in the PASH case, the the statement is made that no, we don't really have a fee simple system here, that there were certain rights of the people that were not changed and during the Mahele. And the history and the case law just must not back up that kind of assertion. So I was wondering if your speakers could comment on that.
[00:27:45] William S. Richardson: Okay, Jim. Again, I missed. What was the date of that opinion that you were quoting from?
[00:27:49] Jim Mee: This opinion was written in 1858. And for 130 years was frankly held to have determined that question that was brought up by the Richardson court later.
[00:27:59] William S. Richardson: Let's get a couple of answers first from Walter Heen.
[00:28:02] Walter Heen: Well, in the um in the PASH decision, as Mr. Mee points out, the Supreme Court indicated that the law as interpreted by that prior court was not not quite as broad, or wasn't shouldn't be quote uh interpreted as narrowly as the uh court had the original court had said. I've forgotten what he said. There was another point he made um about the PASH case. But I can't remember it at the moment.
[00:28:34] William S. Richardson: Okay. Bill, do you have any uh response to Jim Mee's question? Well, I know you're going to you're going to be taking up the PASH case uh next week. Uh I I I would make one comment and that is that that that was a unanimous court, you know. Okay. And uh and they're going to be here for a long time, that same court. So uh I I often say this, relax and enjoy it.
[00:29:00] William S. Richardson: Relax and enjoy it. Okay. Uh Jim Mee, thank you for your question. Appreciate that very much. Uh want to remind listeners that this is the Price of Paradise Radio Show. We're talking about Justice in Hawaii. In the studio with me is former Chief Justice of the Hawaii Supreme Court, William S. Bill Richardson. He also served as Lieutenant Governor of the state, as a bishop the State Trustee and as a Bar Association President. And also Walter Heen, who is a former state legislator. He was a judge in the Hawaii Intermediate Court of Appeals and currently is one of three candidates for the chair of the Hawaii Democratic Party.
[00:34:21] William S. Richardson: like to Our number is 955-8821 or on a Neighbor Island 1-800-955-8821. Our next caller is Peter in the Diamond Head area. Good morning, Peter.
[00:34:32] Peter: Good morning. Uh my name is Peter Esser and I've appeared many times in front of Judge Heen. Uh I just have a comment and I'd like the your two guests to a comment on it. Uh it seems to me that the uh article by Dan Case and Tink Ashford had a hidden agenda, which I don't think was disclosed. Uh both of those lawyers are highly paid insurance defense lawyers, and I think the hidden agenda inside this article was to criticize three recent decisions of the Moen court uh that went against insurance companies. I think that it would have been a little more honest to disclose before they criticize those decisions uh what sort of clients they represent. Uh do your guests have any comment on that?
[00:35:14] William S. Richardson: Uh let me get a a reaction from Walter Heen and and for what it's worth, during the show, and I forget which of the two, I think it was Dan Case commented that he isn't uh an insurance defense lawyer, uh and my understanding is that that he isn't but uh again, I don't know on what basis Peter is is suggesting that that he is.
[00:35:32] Walter Heen: I I don't know uh who the clients are that either Dan or Tink represent, but I do know that uh Dan, I'm sorry, Tink's firm does a lot of land work and they are also associated with title companies, they represent title companies, who also are backed by insurance companies. Now, that's not quite I don't think what uh Peter was saying or Mr. Esser was saying. You're broadening out the hidden agenda.
[00:36:01] William S. Richardson: Well, I don't think it was hidden. I think it was quite open. Okay. They they didn't like the decision and they didn't like it because their clients got hurt. It's like Tink said, quote or paraphrasing uh Bill Druri's uh statement in advice and consent, it all depends on who's ox is being gored. Okay, Bill is it that simple in your mind? Well, I think Walter has got it all said. Right on the right, hit the nail on the head. Okay. Thank you Peter, appreciate your call. We go to Molly in uh Makiki. Good morning, Molly.
[00:36:28] Molly: Good morning. Do you have a question or a brief comment for us? I think I have a brief comment. Um, I realize I'm probably out of my field trying to argue with lawyers. However, You'll probably make much to too much common sense, Molly, but go ahead.
[00:36:46] Molly: However, My husband was a lawyer. Uh land court title was something that was much much respected by lawyers. Some of the beach land was land courted and to the property, to the high watermark. When the Supreme Court decided that everything was now public, fair is fair. Uh is it still fair to take without compensation something which had been land courted? I mean, not the whole island, all the island beaches were land courted, but the some that were, that were guaranteed. Again, I guess I'm afraid I have to say by the territory of Hawaii which we now consider was all wrong. I'm not I, but the Supreme Court considered was all wrong. Was it fair to take that land courted title without any compensation?
[00:37:32] William S. Richardson: Okay, well, you've uh our guests have addressed that once but real quickly, was it fair? Uh, Walter? Without compensation? Without compensation! That's the Everybody accepts that if the state wants some land, they can take it, but the question is, was it fair to take it without compensation? But it was land courted. The underlying the underlying premise of that question is did you actually own that land? Um there is there is some problem dealing with land court title. But nonetheless,
[00:38:00] Walter Heen: Land court title still describes the property the seaward boundary as being along the high property high water mark, and the question is where is the high water mark?
[00:38:08] William S. Richardson: So, even though, for over a 100 years, if you asked a lawyer, he or she would have said, 'Here's where the boundary is.' And if you had done the research, the Supreme Court opinions would have said, 'Here's where the boundary is.' You're saying they were wrong. And so, when we go back to the the days of the kingdom, that's when we find exactly where the boundary was all along.
[00:38:30] Walter Heen: That's right.
[00:38:30] William S. Richardson: Okay. Any other thoughts?
[00:38:32] Walter Heen: Oh well, thought just right on on that. I remember that case using the term makikai or kakikai, differences in in areas that you spoke from. And the the court was merely trying to explain what the terms makikai meant and and when they came up and said it meant along the ocean and along along the ocean meant a certain position. There's where the interpretation is.
[00:39:04] William S. Richardson: So we had an ambiguous term that needed to be defined.
[00:39:07] Walter Heen: Right, and there was never any any taking. We never had it.
[00:39:12] William S. Richardson: Okay, there you go. How can you take from someone what they didn't have? Okay, Molly, thank you for your call. Appreciate it. We go to Ed from Makiki. Good morning, Ed.
[00:39:21] Ed: Ed, are you there? Yes, I'm here.
[00:39:23] William S. Richardson: Good morning.
[00:39:24] Ed: Very quick question. This state is heavily dependent on imported capital investments to keep its economy going and from all I can understand, heavy investments require stability in law. Any comments?
[00:39:37] William S. Richardson: Well, you know, I'm surprised. I thought we'd have an awful lot of callers that would really like the decisions that that you had made, Bill, but for whatever reason, we've got some folks that I think aren't real happy with decisions of the Richardson court in particular and the Supreme Court over the last 30 years. Uh, what's your reaction to what Ed's saying?
[00:39:55] Walter Heen: Well, you know, there would be no Hawaii if you didn't have free beaches. Let's start with that. It seems to me that we ought to get to that first. Oh, and I don't think there's anyone that feels that that having free beaches hurt Hawaii.
[00:40:12] William S. Richardson: Well, and I think you have been very open all along about making decisions that you felt were in the public's best interests.
[00:40:20] Walter Heen: Well, I hope I did.
[00:40:22] William S. Richardson: Okay. So, you're looking to public policy because I think Tink and Dan, and that's Ashford and Case, I think that that they suggested public policy should be considered by a legislature that's hearing from a lot of different people and making its decision, as opposed to a court making decisions based on public policy. But I guess we have a difference in in judicial philosophy there, Walter.
[00:40:44] Walter Heen: Well, I think you have a difference in, uh, judicial philosophy, but you also have a difference in experience. And that is with my experience in the legislature, if you waited for them to get these kinds of things done as I said earlier, they'd never get done.
[00:40:57] William S. Richardson: Might be 150 years like Bill is referring to earlier.
[00:41:00] Walter Heen: Or, you know, there's no question that the people involved heavily in owning real property have a lot of control in the legislature, and they'd never, it seems to me, be willing to go along with a kind of legislation that would achieve the result that the court has received. All right, achieved. I'd like to make one point. The caller, uh, talked about stability. Stability, yes, is very important in the law. But anytime you have a new interpretation, you're going to have instability and eventually these things straighten themselves out.
[00:41:34] William S. Richardson: Mhm. So, the status quo is always going to be, uh, using the argument of stability to protect what it's got and the the transition sometimes is going to give us some, some uncertainty. Yeah. Okay. Uh, Ed, thank you for your call. We move to Molokai, good. Oh, Bill Richardson has another thought.
[00:41:51] William S. Richardson: You know, sometimes, uh, a court has has a big problem on on whether to step in or not and, uh, once in a while, they may even send a message over to the legislature feeling that perhaps it is their cooliana, and and not theirs. And of course, if the legislature doesn't do it, then we'll step right in. No, especially so, that's especially so with the insurance companies. The, uh, you remember we used to have contributory negligence and uh, we we first wrestle with that one, send a message over to the to the legislature, and then they then they change it. Okay. All right. Uh, we move to Molokai, Wilma from Molokai. Good morning, Wilma.
[00:42:39] Wilma: Good morning. Uh, I would like to first state that as a native Hawaiian that I'm proud that there are two Hawaiian lawyers that are commenting on law cases that relate to Hawaiians. The other comment that I would like to make is that that now Paca line for, uh, high water mark, uh, is what's given testimony by Dan A. Kee who has passed on. My question is, uh, why isn't it that the court has not educated the community, specifically native Hawaiians, who I am a land owner. Uh, specifically native Hawaiians on the laws that apply to, uh, our hope for a right, native tenancy rights. That seems to be kind of glossed over and in the clouds.
[00:43:29] William S. Richardson: Wilma, that's one of our goals next week. When we focus on, um, and it's really broader than this, but we're going to talk more about this Pash case that keeps coming up. Uh, one of the questions is going to be what are the nature of these Hawaiian rights, sometimes called use rights. So we'll hopefully will address that, uh, somewhat next week.
[00:44:16] Walter Heen: Well, except Okay, Walter Heen. Randy, she did ask why the court or the courts didn't engage in this education process, and that's really not the function of the court. The court tries to educate through its opinions, but its opinions are not always read, and very seldom are read by the lay public. The opinions of the court are meant to guide and educate the lawyers in assisting their clients who are in the general public.
[00:44:17] William S. Richardson: Okay. Wilma, thank you for your call.
[00:44:18] Wilma: Just one second. I'm taking the opposite comment on that statement that native Hawaiians are simply in the way in the laws, and they do not have the resources or the money to come forth to have opinions. Thank you very much.
[00:44:33] William S. Richardson: Okay. Thank you, Wilma. Bill, I think you had a comment?
[00:44:36] Walter Heen: I think uh courts uh some hesitate to give advisory opinions. They need they need an actual question uh before them and if if the public brings up an actual question that appears, then it's easier for the the the court to to come up with a a an opinion that that covers that question. It would be a better answer than an advisory one.
[00:45:01] William S. Richardson: Okay. Well, next we go to uh, Kulio. Uh is it uh uh Keanu?
[00:45:08] Keanu: Keanu, are you there? Keanu.
[00:45:10] William S. Richardson: Keanu, I'm sorry. You're on the air.
[00:45:13] Keanu: Okay. Um I just wanted to comment a little on, um, the land system. I mean doing quite a lot of research in the land and uh one thing that really struck me was that trying to understand the land system of Hawaii, I had to revert back to the principles adopted by the Board of Commissioners to go add land titles. By the wording of the instrument, there were terms in there that I couldn't necessarily, I guess, understand, looking in the conventional law books today. And what I found was that term used a lot of feudal terms. And that's when I went ahead and started to you to understand Blackstone's commentaries on the laws of England by Sir William Blackstone. And once I understood that, then I went back and started to look at the land tenure, everything fit. It spoke it spoke about the freehold not of inheritance, the freehold of inheritance, freeholder estates, namely fee simple titles, life estate grants, suzerains, all those kind of terms that were used in the principles. Now what hit me though was that about a month ago, we had found in the Privy Council records that John Record, who was on the land commission in 1845, had submitted a request to his majesty to use certain references to solidify his nation. And one of those references that he used, that he noted in there, was Blackstone's commentaries on the laws of England, which is very uniquely different from the American land system.
[00:46:44] William S. Richardson: And and what's what's the point? What's your bottom line here?
[00:46:47] Keanu: Um I seen that the Land Commission Awards that were issued at that time, we found the early documents calling it life estate grants, or what they call less than a lodeal. Life estate grants are freeholds not of inheritance. But we find that these freeholds not of inheritance or life estates were being converted into fee simple titles, but not by the people who received the title in the first place, and that's during the territorial days. I just wanted to to to get a comment on how could someone do that along the lines of the freeholds not of inheritance and the tenure system.
[00:47:22] Walter Heen: Okay. Uh well, I I'm not sure I I'm not sure I can answer that question, not being as well versed in the land commission proceedings as the caller is. Uh, however, I do know that, uh, being familiar with some of them, that uh there are a number of entries in the records of the Land Commission Awards and by the land commissioners, which are very enlightening with respect to the nature of the fee simple title, allegedly fee simple title, that uh are being that is here in our state today. And some of that was referred to in the Pash decision by the Supreme Court. Um, otherwise I I really can't answer this question.
[00:48:06] William S. Richardson: You know, I thought you were going to say simple that's allegedly here, you know, there's some folks who are arguing that that nobody owns their land in Hawaii right now because it all traces back to, uh, to the overthrow, and that the chain of title is not clear. Walter, a real quick reaction to that.
[00:48:21] Walter Heen: I'm not really fully conversant with that uh movement, but I do know it's there and I don't think I agree with it in in full.
[00:48:31] William S. Richardson: Okay. Bill Richardson. Well, I I I think you have to remember that when the land court, when when the when the commission began to do its work, they had in mind uh this big change uh in from the the old English system uh to the Hawaiian system, and and Hawaiians did not accept it very well in the beginning, and they constantly continued these these hearings so that uh for example, a person had to come in and make a payment. It was a small payment, true, but to the Hawaiians, oh, why should I spend my money on that? It it didn't mean anything. They didn't quite want to adopt this new it wasn't their tradition, it wasn't their culture. No, it wasn't, and and I I'd like to say that when you talk about the uh the common law, you start from England. England, the the American American colonies and early states, um adopted what they could because they there there was there was something in England that they could bring over with them, but then this this worked its way across the United States and and things have changed so that very little looks like what was in England. And now it's making that jump to to Hawaii and and it's another big jump. Okay. Uh our lines are packed. We're down to the last 15 minutes, and what I'm going to do is is ask callers to try to keep it as tight as possible and ask Walter and and Bill to to try to keep their responses as tight as possible so that we can hear uh all of the people who've been waiting patiently. Uh let's go to Kaimuki with uh Kalana. Good morning, Kalana.
[00:50:09] Kalana: Aloha.
[00:50:12] William S. Richardson: Aloha. Good morning. Uh, my question, well, first of all, I'm not an attorney. Good. We've got plenty of them right now, right Walter and Bill?
[00:50:22] Kalana: My question is, was Hawaii annexed according to the uh US Constitution? Specifically, would you address the Newlands Resolution and its application to the sovereignty movement?
[00:50:40] William S. Richardson: Simple answer is no, it did not conform to the Constitution, did not comply with the Constitution. The Noland's Resolution was one that was introduced for adoption as a joint resolution by both houses of Congress because they couldn't get the annexation bill through the Senate. Okay. Kalana, thank you very much for your call. We go to Waimanalu, Dave from Waimanalu. Good morning, Dave.
[00:51:01] Dave: Good morning. I guess the one of the first questions I have, um, would be that our lawyers, uh, in the Hawaii bar, are they in some way, especially if they've been educated elsewhere, been apprised in the process of being a bar member, um, the uniqueness of the Hawaiian legal system and its historical, um, roots and and tracing back to understanding not just as a technician, but, um, perhaps as the law has evolved as a very real human function?
[00:51:29] William S. Richardson: Um, well I guess we can't speak for people educated elsewhere, but Bill, I think you've said some things about why we have a law school here in Hawaii.
[00:51:36] William S. Richardson: Well, I I think you get the point right right there, that, uh, the law schools on the mainland couldn't be teaching very much Hawaiian law. And yet, when as as soon as a an educated person, educated in law, comes from a school outside of the state of Hawaii, comes here, he finds that he has to learn the Hawaiian law, like it or not. Like it or not, it's it's in our statutes. And, uh And by Hawaiian law, we're not just talking about the statutes made in Hawaii, we're talking about pre-territorial days. Right, before 1778, people that were living here. Okay.
[00:52:15] Dave: Thank you, and I guess, uh, I like that comment because the history doesn't simply cease to exist just because of a chain of change of government or sovereignty.
[00:52:22] William S. Richardson: Okay. Dave, thank you for your call. We go to Liz in Kailua. Good morning, Liz.
[00:52:27] Liz: Hi, I'm back again because I I was concerned about um I was concerned that that somebody seems to be missing the point. And that is, in your um newspaper article today, uh Judge Richardson, um, you're criticized for changing water law, um and I think, um, I I I'm hoping you can speak to the fact that I don't think the law changed. That there they they claim that they were first there, they first developed the water, therefore they should have all the water. You mentioned that native tenants um were being unfairly dealt with in that situation. And I think you were trying to get that to what the law really was, not that the law that um you changed the law and they they seem to be saying that you're making it up and you're just trying to get it straight because they seem to have missed have misunderstood it and misinterpreted. They say where were the Conohikis and that they owned it. Conohikis never owned anything.
[00:53:15] William S. Richardson: Okay. Liz. Uh I think Walter Heen, did you have a a quick uh reaction to that? I think Walter knows, Liz and I think the two of you have talked about this many times.
[00:53:23] Walter Heen: I'm smiling because I I keep wondering when she was going to stop.
[00:53:28] William S. Richardson: Liz, thank you for your call. We really appreciate that. Well, you know, one thing that comes to my mind, it may not answer directly. About the time we were talking about these water rights cases, the same time there was a there was a problem going on in Colorado, Arkansas and California. Colorado was trying to divert the the the the the water and uh California if they diverted the water away from California, California would die. You know, you used the word divert. I'm from Kansas and we said they were stealing our water. Oh, yeah. Yeah, they were stealing. That water belonged just as much to California as it as as it did to to Colorado.
[00:54:08] William S. Richardson: Don't forget Kansas. Kansas if it went through. The the Arkansas river, which we call the Arkansas River in Kansas, uh when I was a kid, lots of water all of a sudden it went dry, and we felt it was because of what was going on in Colorado. All right. We go to Bill in Kailua. Good morning, Bill. Good morning, gentlemen. I am troubled by the what seems to be the accepted assumption that the prospect of a possible sluggish change on the part of legislators automatically empowers courts to engage in legislative action. I would appreciate a comment on that thought.
[00:54:43] Walter Heen: Uh Walter Heen, I don't think it automatically empowers the court, but I think what it does is requires the court perhaps when when problems are pressed before them to arrive at some kind of decision to take care of the problem in a fair manner.
[00:54:58] William S. Richardson: You sort of have to fill in the gaps. Well put it that way. Okay. Bill, thank you for your call. We go to Lloyd in Waikiiki. Good morning, Lloyd.
[00:55:06] Lloyd: I'm very glad that you got all these gentlemen on your show, because I was a little disappointed in the last one that was all one sided, because I believe in the the the motto that we have here in the state: The life of the land is perpetuated in righteousness. And I think these gentlemen have been upholding that, and I'm very proud of this. And I think I'm glad that you you've given me faith back in your show again and that you brought them on here because it's very important that they get both sides and now we've got it, and I appreciate that.
[00:55:31] William S. Richardson: Okay. Thank you, Lloyd.
[00:57:00] Speaker 1: You're calling us by our first name.
[00:57:02] William S. Richardson: All right. That's great. Well, let's take a a couple calls and then I'll give each of you a minute or two to to add any thoughts you want to add. We go to the Big Island. Eric, good morning, Eric.
[00:57:10] Eric: Good morning. Um, I just want to say also how pleased I am to to hear these two gentlemen speaking and uh it makes me uh uh feel very proud and happy that uh they were the judges uh to to be dealing with this matter of the shoreline. Um, not being a a shoreline land owner, I think it is right on. Thank you.
[00:57:32] William S. Richardson: Okay, thank you, Eric. We got a David in Kaimuki. Good morning, David.
[00:57:37] David: Um, I had a comment um about uh some of the questions that I um your callers uh regarding reliance, or the comments by um Ashford and Case about the absence of predictability in the court's decisions. Um, I it sounds to me like uh these are just uh attorneys that gave their clients bad advice and they're trying to cover themselves. Um, that for example, a lot of criticism of Pash pointed to Kalipi as providing certainty and Pash didn't provide certainty. I was wondering if uh CJ Richardson um felt that Kalipi was the determinative word on Native Hawaiian rights.
[00:58:10] William S. Richardson: And we got a lot of non lawyers in the audience, Bill, so if you could uh, you know, explain just a little bit about how these decisions sometimes get made incrementally.
[00:58:19] William S. Richardson: Well, 7-1, of course, uh it is a statute that's been uh adopted by the the state of Hawaii, and we have to follow that and and that's uh rather clear that uh these rights should be preserved, and it delineates the type of people that can do it. And but next week, you'll have the Pash case and uh they go further and and still they leave a little bit uh to be done. There's there's room to go even further, huh? Sure. And they they took Kalipi. They went on and next and and the next cases will come about. And that's why I said it's a unanimous court, remember? And so, if I could use the word beware, I'll use it.
[00:59:05] Speaker 1: Folks, if if you don't know just what the implications of of this Pash opinion are, if you don't know the implications of what you just heard uh uh Bill Richardson say, uh for better or worse and some people Bill I'm sure will celebrate what this is all about, and some people are going to be upset by it. But for better or worse, we're talking about something that has gigantic, tremendous implications to the people of Hawaii.
[00:59:30] William S. Richardson: Walter, Hena, comment to that and then I'm going to give each of you a minute or two to some things up.
[00:59:33] Walter Heen: All I can say is that we must remember that the law is not a static situation involving human beings. It's always evolving and changing over the years, the months, the years, the centuries. And that's the only thing that we're involved in now. There's a transitional stage that we're in, and things will work out, as the Hawaiians say. What does that mean? Take it easy. Like Bill said, relax and enjoy it. Okay.
[00:59:59] Speaker 1: Don't worry, be happy, huh?
[01:00:01] William S. Richardson: Yeah. Um, Bill, we've said a lot in the last hour. Uh, what else needs to be said?
[01:00:06] William S. Richardson: Well, that's a great comment. Ho manui. That's uh we use it in the court but only in our messages to each other. But uh, just remember that that Hawaiian rights uh while it might be difficult to find find what they were, they appear in the melees uh and there is much writing going on now and they're beginning to capture what what was there. And that's been there all along. And and and the the territory, the uh the state of Hawaii recognizes all of these things, both in the Constitution and its statutes. It's That's why we talk about 1-1 and 7-1 and Article 12 of of the Constitution.
[01:00:54] Speaker 1: Uh, Walter Heen, I I've mentioned a couple times that you're one of three candidates for the the chair of the State Democratic Party. Also in this these this series of articles I mentioned earlier by Ken Kobayashi at the Advertiser 16 years ago, there's a quote um uh from Bill Richardson. It says, I guess the game plan of the Burns Democrats was to take complete control right from the beginning and the judiciary was still a carryover from way back. So that was the next step to begin getting to the judiciary, which was, which was why I personally got into supporting statehood. Um, and Governor Burns, very popular Democratic governor, his first appointment was to the state Supreme Court was his Lieutenant Governor, Bill Richardson. Um, is it fair to say that the Supreme Court over the last 30 years or so, has been a part of the the Democratic Party's takeover if you will, of of politics in Hawaii?
[01:01:49] Walter Heen: Well, I don't think there's any question of that and and I'm not sure that it's so much a takeover of politics, but it was designed, in my mind, to further the political revolution and the political process, because Judge, a Governor Burns recognized that the legislature could pass all the laws it wanted and make all the social changes it wanted by legislation. But if challenged in the courts and you had courts that were unsympathetic, they could all be shot down.
[01:02:18] Speaker 1: Okay. Well, with that we come to an end. We've been talking about justice in Hawaii with former Chief Justice of the Hawaii Supreme Court, Bill Richardson and former judge in the Hawaii Intermediate Court of Appeals, Walter Heen. The producer of The Price of Paradise radio show is Suzie Roth. Our director of operations is Jeff Ialardi. If you would like to comment on the show or if you would like to make suggestions for topics or guests for future shows, you can uh email me at rroth@hawaii.edu. I'm new to email and I love it. So if somebody wants to send one, it's rroth@hawaii.edu. Next week, as we've mentioned a number of times this morning, we're going to be focusing on Hawaiian use rights and whether they can coexist with development in Hawaii. You've been listening to The Price of Paradise Radio Show. I'm Randy Roth. Aloha.
[01:02:30] Randall Roth: The producer of the Price of Paradise Radio show is Susie Roth, our director of operations is Jeff Ailardi.
[01:02:36] Randall Roth: If you would like to comment on the show, or if you would like to make suggestions for topics or guests for future shows, you can email me at R Roth at Hawaii.edu.
[01:02:47] Randall Roth: I'm new to email, and I love it. So if somebody wants to send one, it's R Roth at Hawaii.edu.
[01:02:54] Randall Roth: Next week, as we've mentioned a number of times this morning, we're going to be focusing on