▪ 2006 Land Use in Review: No Leg to Stand On

In Keahole Defense Coalition, Inc. v. Bd. of Land and Nat. Res., 110 Haw. 419, 134 P.3d 585 (May 18, 2006), the Hawaii Supreme Court elaborated on the issue of when a party has  "property" within the meaning of the due process clause of the Hawaii Constitution. 

The twisted procedural history of the case is not worth repeating in detail.  Suffice it to say that the appellant claimed that a state-issued license to provide telecommunications service was "property" protected by article I, section 20 of the Hawaii Constitution. 

The court disagreed, holding the license holder did not have "standing," and the license was not a constitutionally-protected property interest  The court emphasized these points:

1. "Standing" is a jurisdictional doctrine - no standing, no jurisdiction.  Important because: the lack of standing can be raised at any time in a case.
2. The test for standing to appeal is somewhat different than other standing tests: the person must have been a party below, must have had standing in the trial court to oppose the order appealed from, and must be affected or prejudiced by the order.
3. The "standing" doctrine and the concept of due process "property" are intertwined, and what the court characterized as an economic interest, standing alone, does not constitute "property."  With no property at stake, the appellant did not have standing to participate.
4. The court tied the standing and property issues together by holding that even if the license was property, the appellant did not show how its license would be affected by the acts complained of.  In other words, the appellant did not demonstrate a concrete injury that could be remedied by a judicial decision. 

This case should not be misread to say that a license never can be "property," since in this case, the state agency with the authority to issue the license retained the discretion to not issue it.  It would have been an entirely different matter, for example, if the license had been issued.