SCAP IN THE SUPREME COURT OF THE STATE OF HAWAPI

Transcription

1 Electronically Filed Supreme Court SCAP MAR :08 PM SCAP IN THE SUPREME COURT OF THE STATE OF HAWAPI RICHARD NELSON III, KALIKO CHUN, CIVIL NO JHC JAMES AKIONA, SR., SHERILYN ADAMS, KELP I IOANE, JR. and RESPONDENTS/PLAINTIFFS- CHARLES AIPIA, APPELLEES-CROSS-APPELLANTS' RESPONSE TO THE BRIEF OF THE Respondents/Plaintiffs-Appellees-Cross- HAWAPI STATE LEGISLATURE AS Appellants AMICUS CURIAE, FILED FEBRUARY 27, vs. 2017; CERTIFICATE OF SERVICE HAWAIIAN HOMES COMMISSION, THE DEPARTMENT OF HAWAIIAN HOME LANDS, JOBIE MASAGATANI in her official capacity as Chair of the Hawaiian Homes Commission, WILLIAM K. RICHARDSON, MICHAEL P. KAHIKINA, DOREEN NAPUA GOMES, GENE ROSS DAVIS, WALLACE A. ISHIBASHI, DAVID B. KA'APU and WREN WESCOATT, in their official capacities as members of the Hawaiian Homes Commission, Petitioners/Defendants-Appellees-Cross- Appellees and WESLEY MACHIDA, in his official capacity as the State Director of Finance and the STATE OF HAWAI'I, CIRCUIT COURT OF THE FIRST CIRCUIT JUDGE: Honorable Jeannette H. Castagnetti Respondents/Defendants- Appellants-Cross-Appellees.

2 NATIVE HAWAIIAN LEGAL CORPORATION 1164 Bishop Street, Suite 1205 Honolulu, Hawai'i Telephone: ( Fax: ( SHARLA ANN MANLEY 8868 SUMMER L.H. SYLVA 9649 Attorneys for Respondents/Plaintiffs-Appellees- Cross-Appellants RE SP ONDENT S/PLAINTIFFS-APPELLEES-CROSS-APPELLANT S ' RESPONSE TO THE BRIEF OF THE HAWAPI STATE LEGISLATURE AS AMICUS CURIAE, FILED FEBRUARY 27, 2017 CERTIFICATE OF SERVICE 2

3 TABLE OF CONTENTS TABLE OF CONTENTS TABLE OF AUTHORITIES ii I. INTRODUCTION 1 II. STATEMENT OF PRIOR PROCEEDINGS 2 III. THE CIRCUIT COURT'S SUFFICIENT SUMS DETERMINATION SHOULD BE AFFIRMED 4 A. The Circuit Court's Decision Was Consistent With Nelson I And Nelson II Which Established That The Determination Of Sufficient Sums For DHHL's Administrative and Operating Expenses Is Justiciable 4 B. Absurd Results Would Follow From A Bright-Line Test For "Sufficient" Sums Funding Fixed At Funding Levels 6 C. The Circuit Court's Sufficient Sums Determination Did Not Violate The Separation of Powers Doctrine 9 D. The Circuit Court's Sufficient Sums Determination Did Not Run Afoul Of The Political Question Doctrine 12 IV. THE MODEST RELIEF ORDERED BY THE CIRCUIT COURT DID NOT VIOLATE THE SEPARATION OF POWERS DOCTRINE 14 V. CONCLUSION 17

4 TABLE OF AUTHORITES Cases Air Line Pilots Ass 'n Int '1 v. CAB 242 U.S. App. D.C. 233, 750 F.2d 81 (D.C. Cir Alaka`i Na Keiki, Inc. v Matayoshi 127 Haw. 263, 277 P.3d 988 ( Global Van Lines v. Inc. v. ICC 256 U.S. App. D.C. 264, 804 F.2d 1293, 1305 (D.C. Cir Green v. County School Board 391 U.S. 430, 20 L. Ed. 2d 716, 88 S. Ct. 1689( Hawai'i Hous. Auth. v. Lyman 68 Haw. 55, 704 P.2d 888 ( Hecht Co. v. Bowles 321 U.S. 321,88 L. Ed. 754, 64 S. Ct. 857 ( Hutto v. Finney 437 U.S. 678,57 L. Ed. 2d 522, 98 S. Ct ( In re United Mine Workers of Amer. Intl Union 338 U.S. App. D.C. 56, 190F.3d 545 (D.C. Cir Liberty Lincoln Mercury v. Ford Mktg. Corp. 149 F.R.D. 65 (D.N.J Miller v. California 413 U.S. 15 ( Montejo v. Louisiana 556 U.S. 778 ( Nelson v. Hawaiian Homes Comm 'n 127 Hawai'i 185, 277 P.3d 279 (2012 2, 4-5, 8-12 Nelson v. Hawaiian Homes Comm'n 130 Hawai'i. 162, 307 P.3d 142 (2013 2, 4-5 Richardson v. Sport Shinko 76 Hawai'i 494, 880 P.2d 169 (

5 Robinson v. Cahill 339 A.2d 193 ( Ryan v. CFTC 125 F.3d 1062 (7th Cir Schwab v. Ariyoshi 58 Haw. 25, 564 P.2d 135 ( , 15 State v Nakata 76 Hawaii 360, 878 P.2d 699 ( Swann v. Charlotte-Mecklenburg Bd. of Educ. 402 U.S. 1, 28 L. Ed. 2d 554, 91 S. Ct. 1267( System Fed 'n No. 91 Ry. Employees' Dep 't v. Wright 364 U.S. 642, 5 L. Ed. 2d 349, 81 S. Ct. 368 ( Trs. of the Office of Hawaiian Affairs v. Yamasaki 69 Haw. 154, 737 P.2d 446 ( United Pub. Workers, AFSME, Local 646 v. Yogi 101 Hawai'i 46, 62 P.3d 189 ( United States v. Swift & Co. 286 U.S. 106,76 L. Ed. 999,52 S. Ct. 460 ( United States v. W.T Grant Co. 345 U.S. 629, 97 L.Ed. 1303, 73 S. Ct. 894 ( Voices for Choices v. Illinois Bell Telephone Co. 339 F.3d 542 (7th Cir Washington v. Trump 2017 U.S. App. LEXIS 2369, 847 P.3d 1151 (9th Cir. Feb. 9, Statutes HRS HRS Other Authorities 1977 Haw Sess. Laws (First Special Session Act 10 at 523, 539, Proceedings of the Constitutional Convention of Hawaii of 1978 (1980 8, 13 Act 185, 1970 Sess Laws at Committee of the Whole on Hawaiian Affairs Comm. Prop. No. 11, in 1 Proceedings, at 414 6, 8 Erwin Chemerinsky, Federal Jurisdiction 150 (5th ed Hawai`i State Constitution Article XII, 1 4,

6 RESPONDENTS/PLAINTIFFS-APPELLEES/CROSS-APPELLANTS' RESPONSE TO THE BRIEF OF THE HAWAN STATE LEGISLATURE AS AMICUS CURIAE, FILED FEBRUARY 27, 2017 I. INTRODUCTION In 1978, the people of the state of Hawai`i amended the constitution to divest the legislature of discretion over funding the Department of Hawaiian Homelands ("DHHL". To accomplish this aim, the people of the state of Hawai`i imposed a mandate to provide legislative funding of sufficient sums for the department's administrative and operating expenses. Constitutions are the work of the people, not of the courts, not of the legislature. It was neither the courts nor any other branch of government that decided to impose a mandate upon the State to fund DHHL. It was the people of the state of Hawai`i who made this social contract with the beneficiaries of the Hawaiian homelands trust. It is the essential role of this court to uphold and enforce this social contract. The amicus brief asks the Court to abdicate this role. Under the guise of the separation of powers doctrine, the amicus brief asks our courts to cede their power to declare whether the constitution has been violated and to order appropriate relief. The Court should reject this invitation. The clearly articulable standard for evaluating whether the sufficient sums mandate has been met is whether the Department of Hawaiian Homelands is renting its lands to nonbeneficiaries to pay for its administrative and operating expenses. At trial, the undisputed evidence showed that the department leased its own lands to generate revenue just to keep the lights on, so to speak, because the State failed to provide sufficient funds to the department for administrative and operating expenses. The legislature also slyly mis-construes the circuit court's amended order and judgment to manufacture a separation of powers issue where there is none. The circuit court did not tell the State how to comply with the sufficient sums mandate. The circuit court granted the legislature the exact relief that it asked for at the trial court level the amicus asked the circuit court to give the State latitude to comply with the constitution before ordering stronger relief and the circuit court obliged, wrongly in our view. The circuit court modified the order to ensure that: "the Court's Order is not construed in any form as an order for the Legislature to appropriate funds." JEFS #91 RA: 32. Which begs the question, why is the legislature mispresenting the court's final order? By misconstruing the court's final order, the legislature is setting up a straw

7 man, trying to manufacture a hot-button issue to distract from the reality that the circuit court exercised great restraint in fashioning a remedy for the state's dereliction of duty. Too much restraint. The legislature has decided to reward the circuit court's deference by mis-representing the circuit court's order. II. STATEMENT OF PRIOR PROCEEDINGS Plaintiffs filed their initial complaint in JEFS #79 RA:44-54 and The legislature responded by cutting all general funding to DHHL. In fiscal years , , and , the legislature eliminated all general fund appropriations to DHHL for its administrative and operating budget. JEFS #87 RA:506-7 (findings of fact (FOF #23 and #26. This case came before this court and decisions were issued, remanding this matter to the circuit court. See Nelson v. Hawaiian Homes Comm'n, 127 Hawai'i 185, 189, 277 P.3d 279, 283 (2012 (Nelson 1 and Nelson v. Hawaiian Homes Comm'n, 130 Hawai'i 162, 307 P.3d 142 (2013 (Nelson II. More than a month before trial, in its May 26, 2015 minute order, this court explained that it required a "fuller development of facts" including "what are the needs of DHHL to meet its administrative and operating budget." JEFS #79 RA:16-17; see also JEFS #87 RA:102. A few days before the start of trial, the parties submitted their proposed findings of fact, conclusions of law, and orders to the court. The plaintiffs asked the circuit court to conclude that more than $28 million was necessary to satisfy the constitution's sufficient sums mandate. JEFS #87 RA:184, 189. DHHL asked the court to conclude that more than $60 million was necessary. Id. at 140. The State Defendants' request was for a determination that only $4,988, or $6,139, was required. Id. at On November 27, 2015, the circuit court issued its findings of fact, conclusions of law, and decision and order, and the key aspects of the order provided: 3. Although what is "sufficient" will change over the years, the sufficient sums that the legislature is constitutionally obligated to appropriate in general funds for DHHL's administrative and operating budget (not including significant repairs is more than $28 million for fiscal year The defendants shall prospectively fulfill their constitutional duties and trust responsibilities. They are enjoined from violating these obligations. JEFS #87 RA:536 (referred to hereafter as "the November 27, 2015 Original Order". 2

8 On December 11, 2015, final judgment was entered. JEFS #87 RA:540. Ten days later, the State Defendants filed their motion for reconsideration pursuant to Hawai'i Rules of Civil Procedure (HRCP rules 59(e and/or 60. JEFS #87 RA: They asked the circuit court to amend paragraphs 1, 3 and 5 of the order (as well as a variety of FOFs and COLs for two reasons. Id. at ; see also JEFS #51 TRANS:3. The State Defendants' first basis was that insufficient evidence supported the court's conclusion. The court emphatically rejected this reason. JEFS #51 TRANS:4-7; JEFS #91 RA:31. The second basis was that the court's order somehow violated the separation of powers. The State Defendants argued that only the legislature and not the circuit court had the authority to determine how much money was sufficient for DHHL's administrative and operating budget to satisfy its constitutional obligation. And they further argued that the court could not order the legislature to appropriate funds. JEFS #87 RA: On February 16, 2016, a brief, styled as an amicus brief on behalf of the legislature, was filed by former attorney general Mark Bennett who represented the State in this case at its inception but is now in private practice,' although the legislature was represented by the attorney general throughout the case. JEFS #89 RA: On March 8, 2016, the circuit court issued its order denying in part and granting in part the State Defendants' motion for reconsideration (referred to hereafter as "the March 8, 2016 Amended Order". JEFS #91 RA: It amended its order to make clear that it was not to be "construed in any form as an order for the Legislature to appropriate funds." Id. at 32. The State Defendants do not appeal from the March 8, 2016 Amended Order. During the course of the reconsideration motion, legislative leaders introduced bills to 1 The amicus brief is filed by one of the defendants, not a neutral party. See Ryan v. CFTC, 125 F.3d 1062, 1063 (7th Cir. 1997("The term `amicus curiae' means friend of the court, not friend of a party". In a similar case, Judge Posner refused to allow the Speaker of the Illinois House of Representatives and the President of the Senate to file an amicus brief in appeal concerning the validity of a statute passed by the Illinois legislature. Voices for Choices v. Illinois Bell Telephone Col, 339 F.3d 542, 544 (7th Cir. 2003("The fact that powerful public officials.... support or oppose an appeal is a datum that is irrelevant to judicial decision making, except in a few cases, of which this not one, in which the position of a nonparty has legal significance". See also Liberty Lincoln Mercury v. Ford Mktg. Corp., 149 F.R.D. 65, (D.N.J Moreover, there is no evidence that the members of the senate or the house have deliberated let alone voted as to whether an amicus curiae memorandum should be filed on its behalf Because the legislature is already represented; is not involved in any related case; and the legislature never took a vote on the amicus brief, the instant amicus curiae memorandum is irrelevant. 3

9 intimidate and to retaliate against the judiciary, "apparently triggered by legislative anger" over the November 27, 2015 Original Order. JEFS #91 RA:429-31, On May 31, 2016, the circuit court entered the May 31, 2016 First Amended Final Judgment (referred to as the "First Amended Final Judgment." JEFS #91 RA: The State appealed and the plaintiffs cross-appealed, presenting three straightforward legal issues: (1 should this Court set aside the circuit court's finding of fact that $28 million was a sufficient sum for the department of Hawaiian homelands' administrative and operating expenses under the clearly erroneous standard of review; (2 what did Nelson I mean? (i.e., did Nelson I mean that the amount in DHHL's 1978 administrative and operating expenses budget - - $1.3 - $1.6 million adjusted for inflation and collective bargaining - - is the most that a court can order the State of Hawai`i to provide for the Department of Hawaiian Homelands' administrative and operating expenses; and (3 did the circuit court abuse its discretion in granting the state's motion for reconsideration concerning injunctive relief? The legislature obtained leave to file an amicus brief, thereby introducing a fourth question should the circuit court have ducked all of these issues under the separation of powers doctrine? III. THE CIRCUIT COURT'S SUFFICIENT SUMS DETERMINATION SHOULD BE AFFIRMED Given what this Court has already ruled in Nelson l and Nelson II, and in light of the standard of review, the circuit court's sufficient sums determination should be affirmed. A. The Circuit Court's Decision Was Consistent With Nelson I And Nelson II Which Established That The Determination Of Sufficient Sums For DHHL's Administrative And Operating Expenses Is Justiciable The amicus brief challenges the circuit court's power to determine the amount that constitutes sufficient sums for DHHL's administrative and operating expenses, although the legislature has already taken the position, pursuant to a vote, that this issue is judicially determinable. In 2015, the legislature noted that the Hawaii Supreme Court had ruled: "that what constitutes 'sufficient sums' for 'administration and operating' expenses, as those terms are used in article XII, section 1 of the Hawaii State Constitution, is judicially determinable." 2015 Session Laws of Haw., Act 119 at As the legislature has already recognized, the 4

10 Hawai'i Supreme Court ruled in Nelson v. Hawaiian Homes Comm'n, 127 Hawai'i 185, 203, 277 P.3d 279, 296 (2012 (Nelson 1, that "the determination of what constitutes "sufficient sums" for administrative and operating expenses is not barred by the political question doctrine." Inasmuch as the amicus curiae is attempting to re-argue Nelson I, the proffered amicus brief is not consistent with the legislature's admissions and statements. Moreover, the legislature conceded, at the trial court level, that under Nelson I, the determination of what constitutes a sufficient sum "is justiciable and is not barred." JEFS#133 (Transcript of February 26, 2017 Hearing 14:15-15:11. In Nelson I, the Hawai'i Supreme Court recognized that sufficient funding was the level that is necessary to actually run the Department of Hawaiian Home Lands. In its natural sense, the word "sufficient" means "marked by quantity, scope, power, or quality to meet with the demands, wants, or needs of a situation or of a proposed use or end," and the word "sum" means "an indefinite or specified amount of money." Webster's Third New International Dictionary 2284, 2289 (1967. Nelson I, 127 Hawaii at 198, 277 P.3d at 292 (emphasis added. As the Hawai'i Supreme Court subsequently explained: "the State now must fund DHHL's administrative and operating expenses. As a result, DHHL will be able to shift the funds it was spending on administrative and operating expenses towards fulfilling its trust duties to its beneficiaries." Nelson v. Hawaiian Homes Comm'n, 130 Hawai'i. 162, 167, 307 P.3d 142, 147 (2013 (Nelson //(emphasis added. In other words, the State must fund the Department of Hawaiian Home Lands administrative and operating expenses at a level that would relieve the department of the burden of renting out trust lands to the general public. In accordance with Nelson I, the circuit court determined the amount that was necessary to meet the actual needs of the DHHL to run the department without generating revenue from the trust lands. The DHHL's actual needs for administrative and operating expenses were ascertainable and identifiable. The circuit court showed that the judiciary is well-equipped to develop and apply a standard for what constitutes an administrative and operating expense, by referring to those budget items that were included as part of the DHHL's administrative and operating budget at the time of the 1978 constitutional amendment and by employing the legal definition for what constitutes an administrative and operating expense. The kinds of expenses that constitute administrative and operative expenses were defined by statute at the time of the 1978 amendment. Act 185, 1970 Sess Laws at 384 (defining "operating costs" as "recurring 5

11 costs of operating, supporting and maintaining authorized programs, including costs for personnel salaries and wages, employee fringe benefits, supplies, materials, equipment and motor vehicles". Today, the kinds of expenses that constitute operating expenses are defined by statute. See also HRS (definition of "operating costs". The circuit court also showed that the judiciary is competent to ascertain whether or not the DHHL has had to continue to rent its trust lands to the general public to generate revenue for DHHL's administrative and operating budget as opposed to leasing lands to trust beneficiaries. JEFS #87 RA: The circuit court used these judicially discoverable and manageable standards to make a "sufficient sums" determination. B. Absurd Results Would Follow From A Bright-Line Test For "Sufficient" Sums Funding Fixed At Funding Levels The legislature argues that the standard for sufficient sums is a pre-fixed dollar amount ($1.3 - $1.6 million for DHHL's administrative and operating expenses, but this standard would lead to absurd results. This approach would lock the DHHL in at funding levels from over 40 years ago, which were insufficient at that time. The constitutional delegates recognized that the funding levels were not sufficient; that is why the constitutional amendment was necessary. Also, the framers recognized that the administrative and operating needs of the Department of Hawaiian Home Lands would grow: The State must.... insure that there is a way for the DHHL administration to be fully funded to get the evermounting paperwork done. There are presently only 90 people statewide, who are limited by time and other constraints as to what they can do. As demands on the department and staff grow, a much bigger staff will be required.... Not only is there a demand on the money for staff, but there are also other administrative demands that need to be met through funds, especially in the area of record-keeping. Problems the department is facing in record-keeping include a lack of proper equipment to record information, lack of a filing system, the need to automate many portions of the system to speed up the processing of records now there are only electric typewriters. Debates in the Committee of the Whole on Hawaiian Affairs Comm. Prop. No. 11, in 1 Proceedings, at 414 (Delegate Sutton(emphasis added. The Hawai`i Supreme Court turned to the framer's explanation of how administrative and operating expenses were allocated but did not characterize the funding levels as the maximum that the department would be entitled to under the amendment. Id. at 200, 277 P.3d 279 at 294. Thus, both the constitutional 6

12 delegates and the Supreme Court recognized that funding levels for administrative and operating expenses would have to be more than the 1977 budget.2 The legislature's proposed bright-line test for "sufficient" sums would not operate to remedy the evil that the framers meant to cure. In formulating judicially manageable and discoverable standards, our courts, and other courts, have usually devised tests for determining whether the constitution has been violated or not. Most court-established tests for deciding whether the constitution has been violated are not bright-line tests. Montejo v. Louisiana, 556 U.S. 778, 785 (2009(rejecting bright-line test under Sixth Amendment as "arbitrary" and "hollow formalism"; Miller v. California, 413 U.S. 15, 24 (1973 (analyzing concept of obscenity under First Amendment without developing a bright-line judicial standard. It is not necessary for the Court to adopt a bright-line rule in order to satisfy itself that there is a judicially manageable and discoverable standard for making the sufficient sums determination. Indeed, a perfect formula is not required for other constitutional provisions when necessary to enforce a constitutional command. Think of the litigation spawned by the First Amendment, the Fourth Amendment or the Fourteenth Amendment.3 It would be unthinkable for our courts to refuse to enforce the Fourth Amendment because citizens would keep litigating over what is and what is not a reasonable search and seizure. Likewise, it is unconscionable for the legislature to ask that our courts shirk their duty to enforce the sufficient sums constitutional mandate simply because this issue may be litigated again if the legislature refuses to comply. The circuit court correctly conducted an inquiry that is consistent with the intent of the framers, and is within the court's competence to perform: she asked the parties to produce evidence about the extent to which the department's need has grown since ; to justify that growth if any; and to identify the kinds of expenses that were considered administrative and operating expenses at that time. JEFS #79 RA:16-17; see also JEFS #87 RA:102. The circuit 2 In 1977 the year before the constitutional convention the legislature appropriated over $1.6 million to the Department of Hawaiian Home Lands flaw Sess. Laws (First Special Session Act 10 at 523, 539, 541 (70, , , ,856 = $1,651,049. The Hawai'i Supreme Court did not hold that the only level of funding for administrative and operating expenses that is justiciable is $1.6 million. If that is what the Court meant, it would have written: "Any dispute regarding funding greater than $1.3 to $1.6 million is nonjusticiable." 'Moreover, the "most important constitutional provisions," including ones that courts have never hesitated to interpret, "are written in broad, open-textured language and certainly do not include 'judicially discoverable and manageable standards." Erwin Chemerinsky, Federal Jurisdiction 150 (5th ed

13 court applied an articulable constitutional standard for sufficient sums for DHHL's administrative and operating expenses: an amount that would allow the department to pay for its administrative and operating expenses without having to cannibalize the corpus of the Hawaiian homelands trust. The framers declared that they meant to stop the department from renting the trust lands to non-beneficiaries in order to raise funds for their administrative and operating expenses: "DHHL cannot afford to lease more acreage to the general public for the purposes of generating income to accommodate a minimal employee level." Stand. Comm Rep. No. 56 in 1 Proceedings of the Constitutional Convention of Hawaii of 1978, at 632 (1980(emphasis added. The framers intended to make legislative funding mandatory so as to relieve "the department of its present burden to generate revenues through the general leasing of its lands." Stand. Comm. Rep. No. 56 in 1 Proceedings of the Constitutional Convention of Hawaii of 1978, at 632 (1980; See also, id. at 631; Debates in Committee of the Whole on Hawaiian Affairs, in 2 Proceedings of the Constitutional Convention of Hawaii of 1978, at 411 and 415 (1980 (statements by Delegates De Soto and Crozier; R. V. 2 pp. 211, 249, 269, 398, 400, 579, 580. The circuit court found that DHHL had to rely upon the funds it earned from renting trust lands to non-beneficiaries just to operate in every fiscal year since 1992, and thus, this articulable constitutional standard of sufficient was violated by the State. JEFS #87 RA: 517 and 519 at FOF 68 and 75. Notwithstanding the $9,632,000 appropriation from the legislature in three fiscal years following the Nelson I decision, the department was still short-changed by millions of dollars on the monies necessary to run the department and the department had to make up for that shortfall by renting out trust lands to non-beneficiaries, in derogation of the purpose of the trust which was to put these lands back in the hands of the trust beneficiaries. JEFS #87 RA: at FOF As a fall-back position, the legislature proposes that this court adopt a rational basis test for determining whether the "sufficient sums" mandate has been met. The cases cited by the legislature are inapposite. None of the cases cited by the amicus involve a constitutional provision enacted to prevent the legislature from exercising its discretion in order to cure alongstanding pattern of abusing the power of the purse. Hawai`i Hous. Auth. v. Lyman, 68 Haw. 55, 68, 704 P.2d 888, 896 (1985 is about the takings clause which is not analogous to the sufficient sums mandate. Adopting the rational basis review test would under-enforce the constitutional mandate at stake. 8

14 Even if this Court were to apply a rational basis test, the circuit court's ruling would stand. At trial, the State had no proof to counter the evidence of DHHL's actual needs for administrative and operating expenses and in fact the State admitted that it did not know how much it actually costs to run the Department of Hawaiian Homelands. JEFS #87 RA: at FOF 51. The State did not provide a number as an alternative to the more than $28 million amount needed by DHHL for fiscal year 2016; nor did it provide any comprehensible rationale for development of an alternative number; nor did it provide any credible evidence that DHHL's proven necessary budget was flawed. JEFS #87 RA: 511 at FOF 43. Thus, the evidence at trial showed that there was no rational relationship between the sum that the legislature provided in the fiscal years at issue and the amount that would be needed to run the department. See JEFS #87 RA: at FOF 43, 45-46, 51. See also Tr. 7/7/15 p.m. at 26 (Testimony of Neil Miyahira; Tr.07/10/15 p.m. at 29 (Testimony of Neil Miyahira. The legislature's arbitrary and capricious appropriation did not even comport with the executive branch's request. See JEFS #87 RA: at FOF 46. The State's funding decisions would not have passed even a rational basis test. C. The Circuit Court's Sufficient Sums Determination Did Not Violate The Separation of Powers Doctrine The legislature's invocation of the separation of powers doctrine is a ruse to subvert the standard of review on appeal and to re-argue the political question issues decided by Nelson I. The Separation Of Powers Doctrine Should Not Be Used To Ignore The Standard Of Review. The question on appeal is whether the circuit court's sufficient sum determination -- which was a finding of fact -- was clearly erroneous or not. In an attempt to do an end-run around this standard of review on appeal, the legislature contends the circuit court should have deferred to the legislature's inadequate and often times non-existent appropriations that bore no rational relationship to the DHHL's actual administrative and operating expenses. This bid to get a do-over of trial is improper. It strains credibility for the legislature to argue that separation of powers doctrine prevents our courts from "subjecting the legislative process to a trial to determine the constitutional sufficiency" of DHHL administrative and operating expense funding, given the Supreme Court's ruling in Nelson I. See Amicus Curiae Br This contention cannot stand in light of this Court's express acknowledgement of the judiciary's authority to interfere 9

15 with the conduct of legislative affairs pursuant to a "constitutional mandate" and to protect "constitutionally guaranteed rights." Schwab v. Ariyoshi, 58 Haw. 25, 37, 564 P.2d 135, 143 (1977. Deciding whether or not another branch of government has violated the constitution is a task for which courts were made. Alaka`i Na Keiki, Inc. v Matayoshi, 127 Haw. 263, 279, 277 P.3d 988, 1004 (2012("the quintessential power of the judiciary is power to make final determinations of questions of law and this power is nondelegable power resting exclusively with the judiciary". See also Washington v. Trump, 2017 U.S. App. LEXIS 2369 at **16-17, 847 P.3d 1151 (9th Cir. Feb. 9, 2017(rejecting separation of powers defense to a constitutional challenge to an executive order and ruling "Within our system, it is the role of the judiciary to interpret the law, a duty that will sometimes require the resolution of litigation challenging the constitutional authority of one of the three branches." The State, And The Legislature, Already Argued The Issue Of Whether The Courts Had The Power To Hear Disputes Over The Sufficient Sums Mandate In Nelson I, And They Lost. The March 8, 2016 Amended Order and First Amended Judgment are consonant with the Hawai`i Constitution which long ago stripped the legislature of its discretion on the sufficient sums issue. The March 8, 2016 Amended Order and First Amended Judgment both aim to accomplish the purpose and objective of the 1978 constitutional amendment, namely, (i whether the legislature's appropriation of $9,632,000 for fiscal year for DHHL's administrative and operating expenses is sufficient under the constitutional mandate; and (ii the present-day calculation of the legislature's minimum required contribution under the mandate. Both determinations rely on the same judicially discoverable and manageable standards this Court used in Nelson I to determine that the $1.3 to $1.6 million figure constituted "sufficient sums" for DHHL's administrative and operating expenses. So when the circuit court issued its March 8, 2016 Amended Order and First Amended Final Judgment, it was to make sure that the legislature's actions, their appropriations, were consonant with that 1978 mandate circumscribed by the Constitution. For almost forty years, the Constitution has obligated the legislature to adequately fund DHHL's administrative and operational costs. There is no lack of respect to the legislature in a court's addressing the constitutional question of sufficient sums, since it is well-settled that the "courts, not the legislature, are the ultimate interpreters of the Constitution." See State v Nakata, 76 Hawaii 360, 370, 878 P.2d 699, 709 (1994. Adherence to the Hawai`i Constitution and the intent of the framers of the

16 amendment to Article XII, Section 1 demands that the judiciary decide whether the legislature has complied with its obligation to provide sufficient sums for DHHL's administrative and operating expenses. Once the legislature was stripped of its discretion to address "sufficient sums" for DHHL's administrative and operating expenses, no court thereafter asked to resolve such a dispute or to determine the funding level at or above which represents "sufficient sums" risked eroding, let alone breaching, the separation of powers doctrine. See Nelson I, 127 Hawai'i at , 277 P.3d at To the contrary, because there is a clear and definitive constitutional scheme in Hawai'i, whereby the legislature was stripped of its discretion on the discrete matter of sufficient sums which this Court declared justiciable, the circuit court was compelled to ensure that the actions of the legislature did not violate this specific, constitutionalmandate. Id. Given this explicit and specific constitutional mandate, adopted for the purpose of stripping the legislature of discretion to refuse to adequately fund DHHL, the federal cases that the legislature relies upon are inapposite. The legislature's Achilles heel is in refusing to concede what Nelson I decidedly answered: that the determination of what constitutes "sufficient sums" for DHHL's administrative and operating expenses is justiciable because the legislature's power over the purse is regulated by that Article XII, Section 1 purpose.4 Nelson I, 127 Hawai'i at 203, 277 P.3d at 297. Article XII, section 1 and Nelson I absolutely authorize our courts to sit in judgment of any legislative action that contravenes the state Constitution. See Nelson I, 127 Hawai'i at 197, 277 P.3d at 291. If not the courts, then to whom does the legislature answer when their actions. run afoul of the Hawaii Constitution and the mandates embodied therein? And if not now, after running afoul for more than forty years, then when if ever will the legislature be held to answer? The legislature misapprehends and misinterprets the phrase "in the manner provided by law" in Article XII, section 1 of the state Constitution in a way that renders the sufficient sums mandate meaningless. The pertinent portion at issue is as follows: "Nile legislature shall make sufficient sums available for... the administration and operating budget of the department of Hawaiian home lands... by appropriating the same in the manner provided by law." Haw. Const., article XII, 1 (emphasis added. The phrase "provided by law" does not afford the While it may be true that the "legislative branch of government alone holds the purse strings to the public treasury," see Amicus Curiae Br. 13, they do so at the behest of the state Constitution. Indeed, just as the power which gave them the purse can limit the use of it, so, too, the power which placed upon that purse the strings can loosen them. 11

17 legislature unfettered discretion. Amicus Curiae Br. 13. Adopting that logic would betray the foremost intent and object of the framers responsible for drafting the constitutional amendment at issue: "to require appropriation of 'sufficient sums' to relieve DHHL of the burden of general leasing its lands to generate administrative and operating funds." Nelson I, 127 Hawai'i at 203, 277 P.3d at 297. At the time, DHHL was "the most neglected department... woefully lacking in funds at its inception." Even then, the 1978 convention delegates decried that, "for the past 50 years and even now, it lacks funds to run the department properly." Id. at 199, 277 P.3d at 293. And though not much has changed almost forty years later, the Committee on Hawaiian Affairs, which crafted the amendment, had the foresight to decide that for DHHL to overcome its "monumental and eternal dilemma in funding," the Constitution itself could "no longer allow the legislature discretion in this area." Id. at , 277 P.3d at (citations omitted. To ignore, as the legislature does here, the purpose and the policy determination behind the constitutional amendment would produce an absurd result inconsistent with the intent of the framers. See United Pub. Workers, AFSME, Local 646 v. Yogi, 101 Hawai'i 46, 53-54, 62 P.3d 189, (2002 ("A constitutional provision must be construed 'to avoid an absurd result' and to recognize the mischief the framers intended to remedy." (citations omitted. Accepting the legislature's misinterpretation would effectively manufacture an escape clause from the sufficient sums mandate. Moreover, as set forth in the previous section, the State provided no evidence at all to support its decision to short-change the DHHL on funding for its administrative and operating budget. See JEFS #87 RA: at FOF 43, 45-46, 51. How could the circuit court defer to the legislature's actions in this case when the evidence showed that the State has no idea how much it costs to run the department? Given the evidence that the State in fact had no basis for the sum that it made available to the department, the circuit court did not err when she decided that she could not blindly defer to the State. D. The Circuit Court's Sufficient Sums Determination Did Not Run Afoul Of The Political Question Doctrine A finding of nonjusticiability is unwarranted unless one of the following six factors is "inextricable from the case at bar": (1 a textually demonstrable constitutional commitment of the issue to a coordinate political department; or (2 a lack of judicially discoverable and manageable standards for resolving it; or (3 the impossibility of deciding without an initial policy 12

18 determination of a kind clearly for nonjudicial discretion; or (4 the impossibility of a court's undertaking independent resolution without expressing lack of respect due coordinate branches of government; or (5 an unusual need for unquestioning adherence to a political decision already made; or (6 the potentiality of embarrassment from multifarious pronouncements by various departments on one question. Trs. of the Office of Hawaiian Affairs v. Yamasaki, 69 Haw. 154, 170, 737 P.2d 446 (1987. Textual Commitment. The amicus curiae has not shown, and cannot show, that there is a textually demonstrable constitutional commitment of the issue of what constitutes sufficient sums for DHHL's administrative and operating expenses to a coordinate political department. To the contrary, the framers meant to divest the legislature of any discretion to decide this issue. In passing this amendment, the Constitutional Convention's committee report for this amendment to the constitution unequivocally declared: Your committee proposal makes it expressly clear that the legislature is to fund DHHL for purposes which reflect the spirit and intent of the Act. Your Committee decided to no longer allow the legislature discretion in this area. Stand. Comm Rep. No. 56 in 1 Proceedings of the Constitutional Convention of Hawaii of 1978, at 630 (1980(emphasis added. In discussing this amendment, the delegates to the 1978 Constitutional Convention emphasized that the legislature must provide funding: I would like to focus on the word "shall" in the phrase "shall make sufficient sums available: lines 3 and 4,page 2 of Committee Proposal 11; "shall" mandates the legislature to fund the Department of Hawaiian Home Lands for purposes which reflect the spirit and intent of the Hawaiian Homes Commission Act of Debates in Committee of the Whole on Hawaiian Affairs, in 2 Proceedings of the Constitutional Convention of Hawaii of 1978, at (1980(statement by Delegate Hagino. Prior to 1978 amendment, the constitution allowed the legislature to use its discretion to fund DHHL. This constitutional amendment was the work of the people of the state of Hawai`i in The intent of the people was clear. In 1978, the people of the state of Hawai`i decided that they could no longer allow the legislature to decide whether or not to fund the Department of Hawaiian Homelands. They voted to mandate state funding for DHHL. Judicially Discoverable And Manageable Standards. There are judicially discoverable and manageable standards for determining what a sufficient sum is for the DHHL's administrative and operating expenses. See Section III.A and Section III.B, supra. 13

19 Initial Policy Determination Of A Clearly Nonjudicial Discretionary Nature. The circuit court's ruling did not inextricably involve the court in making an initial policy determination of a clearly nonjudicial discretionary nature. The framers made the initial policy determination that the department of Hawaiian Homelands should not rent out the trust lands in order to pay for administrative and operating expenses. The framers imposed a mandate on the state to provide legislative funding so that this would never occur again. The circuit court merely enforced the framer's intent. The Other Prudential Factors Are Not Inextricable From The Case At Bar. The circuit court's decision that the State had violated the constitution did not run afoul of the other prudential factors. See section III.C, supra. The political question doctrine is the expression of the separation of powers doctrine. Yamasaki, 69 Haw. at 170. IV. THE MODEST RELIEF ORDERED BY THE CIRCUIT COURT DID NOT VIOLATE THE SEPARTION OF POWERS DOCTRINE The modest relief granted by the circuit court's March 8, 2016 Amended Order and First Amended Judgment does not present a separation of powers issue. The circuit court, like any other court, has broad equitable powers in ordering injunctive relief. See Swann v. Charlotte- Mecklenburg Bd. of Educ., 402 U.S. 1, 15,28 L. Ed. 2d 554,91 S. Ct (1971("Once a right and a violation have been shown, the scope of a.... court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies". Courts are presumed to possess the full-range of remedial powers to cure a constitutional violation where one is established. Hecht Co. v. Bowles, 321 U.S. 321, , 88 L. Ed. 754, 64 S. Ct. 857 (1944("The essence of equity jurisdiction has been the power.... to do equity and to mould each degree to the necessities of the particular case[.]". When the legislature is found, as in this case, to have failed to live up to its constitutional duties, "[s]ometimes, unavoidably incident thereto and in response to a constitutional mandate, the Court must act, even in a sense seem to encroach, in areas otherwise reserved to other branches of government." Robinson v. Cahill, 339 A.2d 193, 204 (1975. As this Court has long recognized, the courts have inherent equity, supervisory, and administrative powers as well as inherent power to control the litigation process before them. Inherent powers of the court are derived from the state Constitution and are not confined by or dependent on statute. Among courts' inherent powers are the powers to create a remedy for a wrong even in the absence of specific statutory remedies, and to prevent unfair results. 14

20 Richardson v. Sport Shinko, 76 Hawai'i 494, 507, 880 P.2d 169, 182 (1994(internal citations, brackets, and quotation marks omitted. See also HRS Thus, the courts legitimately wield a co-extensive authority to issue all orders necessary to protect constitutional guarantees, to enforce constitutional obligations, and to fashion remedies that prevent unfair results. See e.g., Schwab, 58 Haw. at 37, 564 P.2d at 143; Richardson, 76 Hawai'i at 507, 880 P.2d at 182. The circuit court exercised this authority in the instant case, and as such, did not unduly intrude upon any authority committed to the legislature. When constitutional rights have been violated, "principles of restraint, including comity, separation of powers and pragmatic caution dissolve" and courts should not countenance constitutional violations based on such principles. Duran v.carruthers, 678 F. Supp. 839,847 (D.N.M. 1988, aff'd, 885 F.2d 1485 (10th Cir The amicus curiae ignores important aspects of this lawsuit's procedural history to manufacture a separation of powers dispute where none exists. This Court should not take the bait. The circuit court's March 8, 2016 Amended Order included clarifying language thenrequested by the State and by the legislature as amicus curiae. In granting their request, the circuit court made clear that "the Court's [Original] Order is not construed in any form as an order for the Legislature to appropriate funds." Order Denying in Part and Granting in Part with State Defs.' Mot. for Recon. of, or to Alter or Amend, the J. and Order, Filed December 21, ". JEFS #91 RA: Indeed, the circuit court took great pains to state unequivocally, "To be clear, the Court is not ordering an appropriation." Id. at 3. In direct response to the request from the legislature and from the State Defendants, the resulting March 8, 2016 Amended Order declared simply, "The State is required to comply with the Hawai`i Constitution and must fund DHHL's administrative and operating expenses by making sufficient general funds available to DHHL for its administrative and operating budget for fiscal year " JEFS #91 RA: Thus, having prevailed on their request for an amendment to the November 27, 2015 Original Order, and having conceded at trial that they had "no quarrel with the injunctive relief that the plaintiffs seek" (JEFS #115 TRANS :54, the State Defendants and legislature's attack on a final order that comports with their prior position is inexplicable.5 5 The circuit court's First Amended Final Judgment merely incorporated the clarifying language contained in the March 8, 2016 Amended Order as requested by the State and the legislature. JEFS #91 RA:

21 Furthermore, their attack on the basis of the separation of powers doctrine is implausible. And since the court deliberately refrained from telling the State how to meet the sufficient sums mandate, the legislature's contrivance is nothing more than a rhetorical gambit. The State Defendants and the legislature, as amicus curiae in support, have no colorable basis to appeal the relief that was granted by the circuit court's March 8, 2016 Amended Order. JEFS #91 RA: The State Defendants concede that if the March 8, 2016 Amended Order "does not order the legislature to appropriate a sum certain, then this Court need go no further" with the separation of powers argument. Op. Br As the procedural history and text of the final order lay bare, there is no separation of powers controversy to be decided here. The circuit court's ordered relief was quite modest, giving the State the first opportunity to comply with the constitution before ordering stronger relief. This approach is quite typical of the manner in which other courts have dealt with constitutional violations by other branches of government. See Swann, 402 U.S. at 13-14, 28 L. Ed. 2d at 565, 91 S. Ct. at 1275 (describing the wide-spread practice of allowing government defendants to first develop their own plans for remedying constitutional violation before issuing court-imposed guidelines to obtain compliance. See also Global Van Lines v. Inc. v. ICC, 256 U.S. App. D.C. 264, 804 F.2d 1293, 1305 n.95 (D.C. Cir It is a conservative approach designed to give the government defendant an opportunity to fix the constitutional breach in the first instance. The legislature, nevertheless, complains that the circuit court over-reached by considering a post-judgment motion to enforce its order and asking the State to explain what it had done to comply with its rulings. The legislature is wrong. It is reasonable and typical for a court to enforce its rulings by retaining jurisdiction and auditing compliance with its injunctive relief until it is certain that the unconstitutional practice is not reasonably expected to re-occur.6 See United States v.w.t. Grant Co., 345 U.S. 629, 97 L. Ed. 1303, 73 S. Ct. 894 (1953(continuing jurisdiction in an antitrust case; Hutto v. Finney, 437 U.S. 678, 691, 57 L. Ed. 2d 522, 98 S. Ct (1978; System Fed`n No. 91 Ry. Employees' Dep 't v. Wright, 364 U.S. 642, 5 L. Ed. 2d 349, 81 S. Ct. 368 (1961; United States v. Swill & Co., 286 U.S. 106, 76 L. Ed. 999, 52 S. Ct. 460 ( See also In re United Mine Workers of Amer. Int? Union, 338 U.S. App. D.C. 56, 190 F.3d 545, 546 (D.C. Cir. 1999(requiring status reports pending completion of government defendant's compliance; Air Line Pilots Ass 'n Intl v. CAB, 242 U.S. App. D.C. 233, 750 F.2d 81, (D.C. Cir

22 When a government defendant displays a record of recalcitrance in performing its duties, the court is justified in fashioning equitable relief to ensure that the plaintiffs' rights are vindicated. See Green v. County School Board, 391 U.S. 430, 438, 20 L. Ed. 2d 716, 88 S. Ct (1968(the court, in exercising continuing jurisdiction to achieve structural reform, cannot terminate its jurisdiction until it has eliminated the constitutional violation "root and branch". Here, the State conceded that it had no quarrel with an order declaring "that the legislature has not made sufficient sums available in any of the years since 1978" (JEFS #115 TRANS:54. Given the State's defiance of the sufficient sums mandate, the circuit court could have and should have provided stronger medicine. In fact, the March 8, 2016 Amended Order was too restrained. Given the State's admissions that it has never provided sufficient sums to DHHL (JEFS #115 TRANS:54, the failure of the court to enforce this constitutional mandate would deprive the plaintiffs of any meaningful relief already long overdue. The circuit court erred in reconsidering the relief aspect of the initial order to enforce the sufficient sums mandate. We ask this court to reinstate the November 27, 2015 Original Order. V. CONCLUSION This case presents an incredibly important and timeless test: whether a court of law can hold the State of Hawai`i accountable for a constitutional amendment that was adopted to fulfill the State's agreement, as a condition of statehood, to accept the trust responsibility to return Native Hawaiians to the 203,500 acres of lands set aside for their rehabilitation. This case is about whether we are a state that keeps our promises. The constitutional crisis that the legislature warns of is of the legislature's own making. Given the State's long-running defiance of the constitutional mandate to provide sufficient sums to the DHHL, stronger relief should have been ordered to enforce the circuit court's sufficient sums determination. We ask that the court affirm the sufficient sums determination but reverse the order concerning injunctive relief so as to re-instate the November 27, 2015 Original Order. DATED: Honolulu, Hawai'i, March 28, /s/ SHARLA ANN MANLEY SHARLA ANN MANLEY SUMMER L.H. SYLVA Attorneys for Respondents/Plaintiffs-Appellees- Cross-Appellants 17