The County of Hawaii has filed its Answering Brief in the latest phase of County of Hawaii v. C&J Coupe Family Ltd. P’ship,two condemnation cases arising out of the County’s attemptsto take a Kona family’s property. The brief responds to the Opening Brief which my Damon Key colleagues Ken Kupchak, Mark Murakami, Matt Evans and I filed in November 2009 (available here).
This appeal addresses several issues,but the most critical involve pretext and public purpose, questionsleft open by the U.S. Supreme Court in Kelo v. City of New London,545 U.S. 469 (2005), but which were answered, in part, by the HawaiiSupreme Court in its opinion when these cases were first before thecourt last year. See County of Hawaii v. C&J Coupe Family Ltd. P’ship, 119 Haw. 352, 198 P.3d 615 (2008) (available here)
In that opinion, the court held that a property owner has a right tochallenge the government’s assertion that a taking is for public use.In reviewing a taking, courts have an obligation to take seriously aproperty owner’s claim that the government’s stated public purpose is apretext masking its true purposes. The court held that substancematters, not form, when government adopts a resolution of taking. Id. at 383, 198 P.3d at 646. Thecourt held that the trial court erroneously accepted the County’sstated purpose at “face value,” and the “single fact that a project isa road does not per se make it a public road.” Id.at 381, 198 P.3d at 643 (emphasis original).
The court vacated thetrial court’s approval of the taking, and remanded the case withinstructions to “thoroughly consider” evidence of pretext and privatebenefit by examining the County’s “actual purposes,” its “veracity,”and by “look[ing] behind the government’s stated public purpose” with a”closer objective scrutiny of the justification being offered.” Id.at 375, 198 P.3d at 638 (“[O]ur case law supports the proposition thata court can look behind the government’s stated public purpose.”).
Afterthe remand from the Hawaii Supreme Court, the trial court againvalidated the taking, concluding there was “no evidence”of pretext orprivate benefit, and the case returned to the appellate courts. The Hawaii Supreme Court has transferred the case from the Intermediate Court of Appeals.
More about thecases here.