Dr. Williamson Chang 9-1-15, “Thursday August 27, 2015, was a memorable day in the history of Hawaii”

Found this on Facebook, here, and I feel this is a very well written description of what occurred on August 27. Recall these posts, 1, 2, 3, as well as this “lava update” post, where it was very clear to me (and to many others connected to the Mauna Kea issue) that there was a strong alignment and connection of the lava outbreak on 8-27-15 with the Supreme Court hearing, on the same date.

No coincidence, baby!

Dr. Chang points out the significance of what occurred on the 27th. I found this very informative and fulfilling to read, and hope others will as well.

“Four main points: A. Due Process: Hearing First, Decision After… B. Law has no Place for the Doctrine of “Incremental Degradation”… C. Justice must be Seen as well as Done… D. The clarity of Speaking from the Heart: The Impact of the Protectors and Kapu Aloha on the Hawaii Supreme Court in Oral Argument… E. The Dangers of the Executive-Administrative State and “Chevron Deference”.

“The non-violent, kapu aloha presence of the protectors on Mauna Kea did, I believe, have an impact on the Supreme Court—perhaps not in their final decision, but definitely on the manner in which the three-hour oral arguments were conducted.

“TMT was granted a conditional permit before the contested case was heard. This completely reversed the burden of proof and undermined the intent of the statute that building on conservation land is the “exception, not the rule.”

“Politics and governance in the State of Hawaii had become highly concentrated in an Executive-Administrative State… TMT was before the Supreme Court as an appeal of the action of an administrative agency. We have become, in Hawaii, an administrative government where the most important decision that affect our lives are decided by often little known board[s] and agencies…

“Conclusion: TMT can no longer claim: “The law is on our side.”…

“Thursday morning, the Supreme Court said in effect: “No, TMT you do not have the right to build, not if the permit was granted before the contested case hearing, and why? When that happens it looks like it was pre-arranged, it looks like it was a done deal. That is not Justice both done and seen to be done.””

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The Supreme Court on the TMT: Justice, Sincerity and the Dangers of the Administrative State
by Williamson B.C. Chang

I. Setting the Stage

The Hawaii Supreme Court hearing of August 27, 2015 reviewing DLNR’s decision to permit construction of the Thirty-Meter-Telescope on Mauna was a remarkable day– a memorable moment in the political history of Hawaii. It is rare that one would say such about a hearing of the Hawaii Supreme Court or of any Court.

Hearings rarely draw much attention or much of a crowd. By the time a case reaches the Supreme Court the legal issue is so boiled down in technical legalese that only lawyers can tell us what happened.

More often hearings are cagey, cat-and-mouse affairs where it is often difficult to discern why a particular justice is asking a particular question: is it to help an advocate? Stump her, or trick her into admitting a weakness?

Watching a State or US Supreme Court hearing is like watching the final table at the World Series of poker. Justices do not give away their positions with facial expressions or questions. The real game being played is in the mind– of the Court and the lawyers—leaving the public clueless.

August 27, 2015 in the Hawaii Supreme Court chambers was not that way at all. From the act of just walking in—passing the metal detector test, one could tell there was something different in the air.

There was an extreme politeness by the Court staff. Conch shells were carefully identified so that there would be no confusion when they were picked up. Half-naked Hawaiian men covered with tattoos proudly passed security, women draped in red mingled in line with the celebrities, former governors, Abigail Kawananakoa, the Attorney General and the Chairperson of the Land Board.
It was a community moment, a democratic moment, as if Sunday at Church where every soul was important as every other.

The protectors of Mauna Kea, and fellow supporters, gravitated to the back seats as extra chairs were added to the courtroom. Quietly and respectfully, those in the back began to sing in Hawaiian. No one stopped them.

Court staff did not interfere for the voices in song were solemn and respectful as it must have been during the days of the Kingdom. All rose when the Justices entered and took their seats.
The moment was thus remarkable for pageantry and rare fellowship. But it was truly remarkable in substance. It was not business as usual. It was not a game of poker with motives hidden, tricky questions and elusive answers. It was a rare moment in history when a Court literally speaks from its heart, with passion, using words not heard in this chamber for a long time.

II. Four Main Points

A. Due Process: Hearing First, Decision After

The first point was that no one, not even DLNR should pronounce a sentence before the parties have a fair trial. DLNR was faulted by the Supreme Court for granting the TMT a construction permit [even though stayed] before conducting a contested, or public hearing, on the merits.
Think about that. What if in criminal proceedings, the judge first pronounced the defendant guilty, then held a trial, telling the defendant, who was now presumed guilty, that it would be he, the defendant who must prove his innocence.

By issuing the permit first, like declaring a defendant guilty before a trial, the essence of the burden of proof in law is completely reversed. In our system, the fundamental principle in criminal law is that the defendant is innocent until proven guilty beyond a reasonable doubt.
That means the defendant need not testify, need not raise a defense, need not even speak—and he is still presumed innocent. It is the prosecution, the state, who must present evidence and prove, beyond the tiniest of doubt that the defendant is guilty.

TMT was granted a conditional permit before the contested case was heard. This completely reversed the burden of proof and undermined the intent of the statute that building on conservation land is the “exception, not the rule.”

B. Law has no Place for the Doctrine of “Incremental Degradation”

The second point was the Court’s adamant refusal to accept the doctrine of “incremental degradation”—the idea that a state of affairs on Mauna Kea had admittedly become so bad that it made no difference in making it worse. That would be like saying a boxer had been beaten so bad that the referee will not stop the fight—what is one more punch in the face?

The Justices were flabbergasted. “Yes,” the thirteen telescopes on Mauna Kea were a mess, a train wreck but why does that justify one more, very huge, train-wreck of a telescope?

Such thinking goes against everything we believe about government and the legal system. The spirit of government is that nothing is ever so terrible, so far gone, that good people cannot turn it around.

Given that idea there would be no point to environmental law—the islands are already ruined, why not build more hotels, give up more Ag lands, allow GMO to be used near schools and why not pave over the whole of the islands?

No, environmental law was born of just that desperation–that Hawaii and America were destroying their natural resources and that it was almost too late. However, with good laws, and hard work, one could save species from extinction, one could save wetlands, rivers, and stop pollution. And it worked—species are slowly being restored, forests are beginning to come back, and the air over Los Angeles, for example, is not as bad as before.

The subtle message of the Supreme Court hearing was yes, perhaps in the last forty years the state has become an administrative oligarchy and monolith dominated by a governor with enormous powers.

However, it is time to end this awful, pessimistic view of the future that the status quo is so awful that it is permissible to make it worse. The law is a tremendous force for positive change; for reinventing our islands and our planet.

C. Justice must be Seen as well as Done

The third point was the highlight of the morning. Justice McKenna, who had sat without speaking for a while, but whose body language expressed both extraordinary intensity and concentration, made the most memorable statement of the day: “Justice,” she stated, “must not only be done; it must also be seen to be done.” Those were remarkable words. One does not hear the word “justice” very often.

Justice McKenna had chosen her words very carefully. Indeed, she was citing from a 1923 Kings Bench case from England. Law is a wordy profession, but the really memorable sayings of high courts are often few and far in between: We know: “Clear and Present Danger,” and “Separate but not equal.” Such words are few and far between.

When a Justice speaks as did Justice McKenna, her words were meant for more than the immediate parties and lawyers in the case before the Court. Justice McKenna was addressing the larger audience gathered in the courtroom; she was speaking to the people in all of Hawaii, she was reminding everyone of a fundamental principle applicable to the world beyond that courtroom. She was speaking for the ages.

D. The clarity of Speaking from the Heart: The Impact of the Protectors and Kapu Aloha on the Hawaii Supreme Court in Oral Argument.

She was also speaking, I believe, to the “protectors” in the Courtroom and on the Mountain. Courts, especially the Supreme Court, whether the United States Supreme Court or the Hawaii Supreme Court, never, as a rule, let on that they are influenced by current events.

Nonetheless, the Justices are human, they are picked from the society that they sit over in judgment. It is simply unrealistic to believe that they act as automatons or robots in applying the law—completely oblivious of extraordinary and important developments in their own communities.

The non-violent, kapu aloha presence of the protectors on Mauna Kea did, I believe, have an impact on the Supreme Court—perhaps not in their final decision, but definitely on the manner in which the three-hour oral arguments were conducted.

For example, the court did not spend any time on the numerous technical issues on appeal—such as whether the eight criteria for conservation use exceptions should be allowed. They had, in their minds, made their decisions on that issue. Rather, the argument was a legal and political statement made to the public at large.

I believe an underlying reason as to the constant, unending focus on justice, due process, and the dissatisfaction with the “incremental degradation” defense put on by the University and the State, was the unfolding nature of the protest on Mauna Kea. It was not violent.

It was a movement of the people, particularly of the young—of the new millennial generation, was notable for its emphasis on “sincerity” and “integrity” of belief. There is an undeniable “purity” in the manner in which the protectors have made their arguments and conducted themselves.

Thus, this was a very different kind of case for the Supreme Court. It was not a contest over the terms of an insurance contract or any case where money is the bottom line. For the protectors, this was a case about what is sacred, held close to the heart, in the lives of many, not just Hawaiians.

The law, and high courts, both the Hawaii and the United States Supreme Court respect actions and positions based in sincerity of belief. Fundamentally, the United States and its Constitution are founded in values that speak to sincerity: freedom of speech and assembly, the legitimacy of government because of the “consent” and thus “loyalty” of the citizenry, and finally, the respect accorded minority rights and the right to speech and protest.

The transformative moments in American law are moments demonstrating the power of sincerity in the law—the American Revolution itself, the Civil War, the suffrage and civil rights movements.

Justice McKenna was raised in post-war Japan, post occupation Japan. Sincerity, is a strong force in Japanese culture, from the practice of Zen Buddhism to the samurai code of bushido.

Sincerity is a deeply felt value in many countries, the United States as well as Japan. It is not just coincidence that it was Justice McKenna who brought forth the reference to Justice as seen, as well as done.

Justice McKenna, saw, like all of us that the strength of the opposition to TMT was evident in the sincerity of the protectors. Their deeds for nearly four months of vigil on Mauna Kea has won respect, and thus legal support, not only among the people of Hawaii, but our High Court–the foremost law-givers in our community.

E. The Dangers of the Executive-Administrative State and “Chevron Deference”

Justice McKenna’s reminder of the importance of “justice” Court harkened back 40 years to the days when Chief Justice Richardson presided. Since then, Hawaii has changed.

Politics and governance in the State of Hawaii had become highly concentrated in an Executive-Administrative State. Like the majority of cases before the Court, TMT was before the Supreme Court as an appeal of the action of an administrative agency.

We have become, in Hawaii, an administrative government where the most important decision that affect our lives are decided by often little known board and agencies: the PUC, DLNR, DCCA, DLIR, HART, DOH, the School Board, this planning Council and that Advisory Group.

Our Governor is the fourth most powerful governor in the United States, responsible for the appointment of 170 boards. The concept of checks and balances in government has been replaced by the belief that specialized Agencies have unique expertise and courts and the public should not question their final decisions or the processes by which they reach those decisions.

This is what is known as “Chevron deference.” “Chevron deference” presumes that because their personnel are trained in water, land and resources. DLNR and its staff know more than the public and will make better decisions than the public.

Indeed, public input has dwindled to nearly nothing. Note the public rulemaking on the emergency rules for Mauna Kea. Public testimony was limited to three minutes regardless of its quality and contribution to the decision to be made.

The rise and dominance of the administrative state has completely reversed the nature of public participation in the key issues of our times—GMO, water pollution, water rights, building Rail, the development of Kakaako, converting ag lands, and making exceptions as to conservation lands [the case here].

This presumption that the agency, like DLNR is so knowledgeable, so expert that the rules they make, the rules that they enforce, and the rules by which prevent public protest, are presumptively valid.

Under “Chevron Deference” it is the public, like the criminal defendant, who now has the burden of proving DLNR wrong—even where conservation lands are, by law, must be preserved in their natural state subject only to extraordinary exceptions.

We have seen thousands of “exceptions” in the form of gentleman farms allowed in conservation districts. Permits that should be exceptions have now become the norm, for the powerful, for the people who can afford the right lawyers.
The nature of the administrative state, and the power of the Governor to appoint 170 boards throughout the State creates an extremely dangerous monolithic, near oligarchy in the Executive branch. Look at the cast of characters in the TMT hearing:

DLNR represented by the State Attorney General [some states do elect their AGs], the AG also represented the University of Hawaii—[why, I do not know.] UH has its General Counsel—who of course is a Board of Regents appointment, and the Board itself is, of course, appointed by the Governor.

The Governor has become so powerful that any one, like the TMT consortium, need only deal with the governor—or hire the local lawyers who have the Governor’s attention. What the Governor wants becomes policy as it is filtered down through those 170 agencies including DLNR.

It is thus a threat to the concept of democracy and the principle that the Governor represents all the people when the Governor can, without condition, make such statements as he did on June 24th:

“TMT has the approvals need to proceed with construction” and there must be “respect and aloha…as TMT restarts construction on the Thirty-Meter-Telescope.”

III. Conclusion: TMT can no longer claim: “The law is on our side.”

The position of the Governor and TMT has been “we have exhausted the legal process—it took seven years—the public had its voice, and we have the right to build because we have the permit.” Somehow, both the Governor and TMT supporters have forgotten there is, fortunately, a Supreme Court in the State of Hawaii.

That Thursday morning, the Supreme Court said in effect:

“No, TMT you do not have the right to build, not if the permit was granted before the contested case hearing, and why? When that happens it looks like it was pre-arranged, it looks like it was a done deal. That is not Justice both done and seen to be done.”

Now, the actual decision of the Supreme Court will not be as dramatic— probably a remand with instructions.

However, what is of real value is the words of the Supreme Court, for over three hours, reminding and redirecting us back to our original sources of successful governance—the values of due process, justice, both in appearance and in actuality, and unbridled power of optimism to change our lives through law.

Thursday August 27, 2015, was a memorable day in the history of Hawaii.

Mahalo
Williamson Chang September 1, 2015