It’s not often that you see an opinion piece previewing an attorney’s arguments in a pending case being published before his or her brief has been filed. Most commonly, if counsel publishes in the op-ed pages about a case, it is afterthe brief has been filed or after the court has rendered adecision. Thus, the op-ed published in today’s Honolulu Advertiser, “State court correct in protecting ceded lands,” by two attorneys for the Office of Hawaiian Affairs previewing one aspect of their argument in the ceded lands case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert.granted Oct. 1, 2008), is most interesting since it suggests that the U.S. Supreme Court cannot — or, more accurately, should not — review the Hawaii Supreme Court’s decision in Office of Hawaiian Affairs v. Housing and Community Dev. Corp. of Hawaii, 117 Haw. 174, 177 P.3d 884 (Jan. 31, 2008).
The authors claim that decision was not based primarily on Congress’ Apology Resolution, but on the Hawaii law of trusts:
Although much attention has been focused on the Hawai’i Supreme Court’sinterpretation of the 1993 Congressional Apology Resolution, it isreally the court’s reliance on Hawai’i trust law that led to itsultimate conclusion.
. . .
The Hawai’i Supreme Court’s decision is firmly based on Hawai’i’sConstitution, statutes and case law, and our state’s highest courtcorrectly interpreted Hawai’i trust law to reach both a legally correctand morally just decision.
Why is it important whether the Hawaii Supreme Court’s decision was based on the federal Apology Resolution or on the Hawaii law of trusts? Because when a state supreme court’s decisionrests primarily on “independent and adequate state grounds” and not onfederal law, the U.S. Supreme Court does not have appellatejurisdiction and cannot review it. See Michigan v. Long,463 U.S. 1032 (1983). In that case, the Court held that if statesupreme courts want to shield their decisions from further review,they should base them on state law and, most importantly, make a “plainstatement” in the opinion that this is what they are doing:
Respectfor the independence of state courts, as well as avoidance of renderingadvisory opinions, have been the cornerstones of this Court’s refusalto decide cases where there is an adequate and independent stateground…. Accordingly, when, as in this case, a state court decisionfairly appears to rest primarily on federal law, or to be interwovenwith the federal law, and when the adequacy and independence of anypossible state law ground is not clear from the face of the opinion, wewill accept as the most reasonable explanation that the state courtdecided the case the way it did because it believed that federal lawrequired it to do so. If a state court chooses merely to rely onfederal precedents as it would on the precedents of all otherjurisdictions, then it need only make clear by a plain statement in itsjudgment or opinion that the federal cases are being used only for thepurpose of guidance, and do not themselves compel the result that thecourt has reached…. If the state court decision indicates clearly andexpressly that it is alternatively based on bona fide separate,adequate, and independent grounds, we, of course, will not undertake toreview the decision.
Id. at 1040-41. Lacking aclear statement by the state court that its decision did not involvefederal law, the Supreme Court may presume it does so, and may review the case.
This is just what happened in the ceded lands case. The Hawaii Supreme Court opinion not only did not make a “plain statement” the decision rested on “independent and adequate state grounds” of Hawaii trust law, but expressly stated it was compelled by the federal Apology Resolution:
Theprimary question before this court on appeal is whether, in light ofthe Apology Resolution, this court should issue an injunction torequire the State, as trustee, to preserve the corpus of the cededlands in the public lands trust until such time as the claims of thenative Hawaiian people to the ceded lands are resolved.
Office of Hawaiian Affairs, 117 Haw. at 210, 177 P.3d at 929 (emphasis added).
The op-ed also suggests the Hawaii Supreme Court’s decision might rest on a mix of federal and state law: “[t]he court concluded that although the Apology Resolution and similarstate legislation do not require that ceded lands be turned over to theNative Hawaiian people, they do recognize that Native Hawaiians haveunrelinquished claims to the lands.” Even if correct, this does not insulate the decision from SCOTUS review under Michigan v. Long, which requires the decision to be based expressly on state law alone.
The State’s merits brief also details the many places in the Hawaii Supreme Court’sopinion where the court expressly stated the injunction was basedon the federal Apology Resolution:
The Hawaii Supreme Courtstressed that its decision rested primarily on its construction of thefederal Apology Resolution. See Pet. App. 26a (“At the heart of theplaintiffs’ claims … is the Apology Resolution.”); id. at 79a (“Theprimary question … is whether, in light of the Apology Resolution, thiscourt should issue an injunction.”) (emphasis omitted); id. at 85a(“[T]he language of the Apology Resolution itself supports the issuanceof an injunction.”); id. (“[T]he Apology Resolution dictates that theceded lands should be preserved.”). Indeed, at three separate points inits opinion, the court emphasized that respondents’ cause of actionarose from the Apology Resolution and could not have been brought untilthat Resolution was enacted. See id. at 58a-59a, 62a-63a, 99a; see alsoPart I, infra (discussing these passages).
State’s Merits Brief at 16.
The op-ed sets forth essentially the same argument made unsuccessfully in OHA’s Brief in Opposition to the petition for cert:
Inrequesting this Court grant certiorari, petitioners attempt tomanufacture a federal question and interest where none exists, andignore the obvious existence of adequate and independent grounds forthe Hawaii Supreme Court’s decision. Congress and the Hawaiilegislature have found as a matter of fact, and even petitioners do notand cannot dispute, that the claims of native Hawaiians resulting fromthe illegal overthrow of their ancestors’ government have never beenresolved or relinquished.
. . .
[T]his Court’s review isnot warranted and would yield at best an advisory opinion. This is sobecause the Hawaii Supreme Court’s decision was clearly based onadequate and independent state grounds — grounds drawn from Hawaii’sConstitution, statutes, and case law, most prominently its common lawof trusts.
BIO at 8-9. The U.S. Supreme Court rejected this argument when it granted the writ of certiorari, and will likely do so again when it addresses the merits of the case. It’s tough to win arguments when the facts don’t back you up. In this case, the Hawaii Supreme Court was about as clear as it could be: its decision was based on and compelled by the federal Apology Resolution, not state trust law.
Disclosure: we filed an amicus brief supporting the State of Hawaii at the cert stage and on the merits.
More, including all of the briefs of the parties, and links to media reports and other commentary on our ceded lands page.