Op-Ed Previewing OHA Arguments In SCOTUS Ceded Lands Case: Independent and Adequate State Grounds?

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 after the brief has been filed or after the court has rendered a decision. 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's interpretation of the 1993 Congressional Apology Resolution, it is really the court's reliance on Hawai'i trust law that led to its ultimate conclusion.

. . .

The Hawai'i Supreme Court's decision is firmly based on Hawai'i's Constitution, statutes and case law, and our state's highest court correctly interpreted Hawai'i trust law to reach both a legally correct and 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 decision rests primarily on "independent and adequate state grounds" and not on federal law, the U.S. Supreme Court does not have appellate jurisdiction and cannot review it. See Michigan v. Long, 463 U.S. 1032 (1983). In that case, the Court held that if state supreme courts want to shield their decisions from further review, they should base them on state law and, most importantly, make a "plain statement" in the opinion that this is what they are doing:

Respect for the independence of state courts, as well as avoidance of rendering advisory opinions, have been the cornerstones of this Court's refusal to decide cases where there is an adequate and independent state ground.... Accordingly, when, as in this case, a state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion, we will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so. If a state court chooses merely to rely on federal precedents as it would on the precedents of all other jurisdictions, then it need only make clear by a plain statement in its judgment or opinion that the federal cases are being used only for the purpose of guidance, and do not themselves compel the result that the court has reached.... If the state court decision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent grounds, we, of course, will not undertake to review the decision.

Id. at 1040-41. Lacking a clear statement by the state court that its decision did not involve federal 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:

The primary question before this court on appeal is whether, in light of the Apology Resolution, this court should issue an injunction to require the State, as trustee, to preserve the corpus of the ceded lands in the public lands trust until such time as the claims of the native 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 similar state legislation do not require that ceded lands be turned over to the Native Hawaiian people, they do recognize that Native Hawaiians have unrelinquished 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's opinion where the court expressly stated the injunction was based on the federal Apology Resolution:

The Hawaii Supreme Court stressed that its decision rested primarily on its construction of the federal Apology Resolution. See Pet. App. 26a ("At the heart of the plaintiffs' claims … is the Apology Resolution."); id. at 79a ("The primary question … is whether, in light of the Apology Resolution, this court should issue an injunction.") (emphasis omitted); id. at 85a ("[T]he language of the Apology Resolution itself supports the issuance of an injunction."); id. ("[T]he Apology Resolution dictates that the ceded lands should be preserved."). Indeed, at three separate points in its opinion, the court emphasized that respondents’ cause of action arose from the Apology Resolution and could not have been brought until that Resolution was enacted. See id. at 58a-59a, 62a-63a, 99a; see also Part 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:

In requesting this Court grant certiorari, petitioners attempt to manufacture a federal question and interest where none exists, and ignore the obvious existence of adequate and independent grounds for the Hawaii Supreme Court's decision. Congress and the Hawaii legislature have found as a matter of fact, and even petitioners do not and cannot dispute, that the claims of native Hawaiians resulting from the illegal overthrow of their ancestors' government have never been resolved or relinquished.

. . .

[T]his Court's review is not warranted and would yield at best an advisory opinion. This is so because the Hawaii Supreme Court's decision was clearly based on adequate and independent state grounds -- grounds drawn from Hawaii's Constitution, statutes, and case law, most prominently its common law of 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.