▪ HAWSCT Lowers The Bar in Equal Protection "Rational Basis" Analysis

"Rational basis" judicial review in equal protection law, as every law student knows, means virtually no review.  As long as the government provides a "plausible" justification for its discrimination between "non-suspect" classes, a court should defer to the legislature's judgment and uphold the classification.   That is why it is also known as the "minimum rationality" test.

What this means is that if the government is discriminating and it does not involve race, religion, or another protected class, the legislature is supposed to have a free hand, and government lawyers are free to make up justifications for the classification in court, even if the legislature did not think of them.  Under traditional "rational basis" review, it doesn't matter what the legislature actually thought, but that it "rationally could have believed" that the classification was appropriate.

Thus, it's a pretty rare event when a court invalidates a law for violating the Equal Protection clauses of either the Hawaii or U.S. Constitution under rational basis review.  In Silva v. City & County of Honolulu, No. 27385 (Aug. 10, 2007), the Hawaii Supreme Court did just that, holding that Haw. Rev. Stat. § 46-72 was irrational, and violated the Hawaii Constitution. 

In doing so, the court lowered the bar in equal protection claims under the state constitution, giving parties who are challenging government actions a greater chance of prevailing. 

The case involved the statute that required a person claiming injury by a county to inform the county within six months, or be barred from suing.  Claims against the State, however, have a two year deadline.[*]  The plaintiffs claimed injury by the county, but missed the six month limitation period.  Instead, they asserted there was no rational basis to claim that a tort victim should only get six months when pursuing claims against a county, but two years when making identical claims against the state.

[* Haw. Rev. Stat. § 46-72 was recently amended to extend the time period to two years.  See slip op. at 2, n.2.]

The court first noted that between the government and the public, there can be differential statutes of limitations without running afoul of the equal protection clause.  Slip op. at 21.  Protecting the government purse, in the court's thinking, is more important than protecting private purses, so the government can enact statutes of limitations for claims against it that are shorter than those against private parties.  That protectionist rationale, however, does not apply to intra-governmental classifications:

we are not willing simply to transform this explanation of the separate classification of government and private tortfeasors' victims into a rational basis for the distinction between county and state defendants; we have no reason to believe that the counties endure greater budgetary strain or more fraudulent claims than the state.

The court then distinguished a case from Iowa, Farnum v. G.D. Searle & Co., 339 N.W.2d 392 (Iowa 1983), which held that a distinction between counties and the state was rational, because counties are more fiscally restricted than state governments.  Importantly, the Hawaii Supreme Court did not adhere to the "rational basis" analysis outlined above, because it did not speculate whether there were any conceivably rational bases which may have supported the classification.  Instead, the court relied upon the factual record:   

Unlike [Farnum,] the record before us is silent with respect to any difference between the levels of government in this state that would constitute a rational basis for a more stringent limitation period when the County is the defendant as compared to when the state is the defendant.

Slip op. at 23 (emphasis added).  The court also relied upon the fact that the legislature, in subsequently amending § 46-72 to conform the county deadlines with the state deadlines, recognized the irrationality of the county-state distinction.  Id. at 24. 

Silva thus represents a small, if consequential, lowering of the standard.  Under traditional rational basis analysis, the facts really weren't important.  What was critical was whether the government's attorneys and the courts could "conceive" of any plausible grounds on which the legislature may have based the classification, not whether the legislature actually did so. Governments opposing rational basis equal protection challenges under the Hawaii Constitution no longer can rely upon creative lawyers to brainstorm after-the-fact rationales to support a classification.  After Silva, those reasons must be in the record, or judicially noticeable:

We hold that there is no rational basis for the classification scheme effectuated by HRS § 46-72 as it read in 2004. The County offers no rationale for the distinction between the classes, nor can we deduce one. The record on appeal and the legislative history are silent with respect to any budgetary, logistical, or other difference between the County and the state that might justify the unequal treatment of victims of their torts.

Slip op. at 26 (emphasis added).

What does this case about tort statutes of limitations have to do with land use, you ask? 

Rational basis equal protection claims are frequently brought by property owners.  These can be stand-alone claims of disparate treatment between them and their similarly-situated neighbors, and claims of pretext to counter a government claim of public use in eminent domain. In Kelo v. City of New London, 545 U.S. 469 (2005), Justice Kennedy concurring in the judgment, emphasized that:

  A court applying rational-basis review under the Public Use Clause should strike down a taking that, by a clear showing, is intended to favor a particular private party, with only incidental or pretextual public benefits, just as a court applying rational-basis review under the Equal Protection Clause must strike down a government classification that is clearly intended to injure a particular class of private parties, with only incidental or pretextual public justifications.  See Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 446-447, 450, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985); Department of Agriculture v. Moreno, 413 U.S. 528, 533-536, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973).

Kelo, 545 U.S. at 491 (Kennedy, J., concurring).  Thus, after Silva, stand-alone equal protection claims under the Hawaii Constitution should have a better chance since the government must be able to point to facts in the record to support its claims of rationality.  Further, objections to takings that assert pretext cannot be defeated by mere government claims of "plausibility," and the government has some obligation to show that the existing factual record supports its claim of public use.

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As an aside that only a Blue Book wonk could appreciate, check out the Silva opinion for what I think is a record for "quoting" citations.  No less than six (6) embedded references regarding the standard of review for summary judgments:

Willis v. Swain, 112 Hawai`i 184, 188, 145 P.3d 727, 731 (2006) (brackets in original) (quoting Querubin v. Thronas, 107 Hawai`i 48, 56, 109 P.3d 689, 697 (2005) (quoting Durette v. Aloha Plastic Recycling, Inc., 105 Hawai`i 490, 501, 100 P.3d 60, 71 (2004) (quoting Simmons v. Puu, 105 Hawai`i 112, 117-18, 94 P.3d 667, 672-73 (2004) (quoting Kahale, 104 Hawai`i at 344, 90 P.3d at 236 (quoting SCI Mgmt. Corp. v. Sims, 101 Hawai`i 438, 445, 71 P.3d 389, 396 (2003) (quoting Coon v. City & County of Honolulu, 98 Hawai`i 233, 244-45, 47 P.3d 348, 359-60 (2002))))))).

Slip op. at 9.  Just think of when Silva is cited for that proposition -- seven embedded references!  Enough to give a law review editor a migraine: how many right parens at the end -- eight?  And why not just cite Coon since that seems to be the case that started it all?