The state of Hawaii must adequately fund the Department of Hawaiian Home Lands, a judge said Monday.

But the judge also said she is not ordering the state to appropriate a specific amount — even as she makes pretty clear what that amount should be.

First Circuit Court Judge Jeannette Castagnetti, as detailed in a transcript released Tuesday, said in the case of Nelson vs. Hawaiian Homes Commission:

“The Defendants must fulfill their constitutional duty and trust responsibilities. To be clear, the Court is not ordering an appropriation.

“The Court is, however, ordering that the State must comply with its constitutional duty to make sufficient sums available to the Department of Hawaiian Homelands for its administrative and operating budget. There is still time for the State to become in compliance during this fiscal year.”

The case centers on whether the Hawaii Legislature is required to provide an additional $18 million on top of the $9.6 million already appropriated in the current fiscal year to DHHL.

Thousands participated in the Aloha Aina Unity March. 9 aug 2015. photograph by Cory Lum/Civil Beat

The legal case involves whether the state has complied with its responsibility to adequately support the Department of Hawaiian Home Lands.

Cory Lum/Civil Beat

Gov. David Ige, Senate President Ron Kouchi and House Speaker Joe Souki argued that the judiciary was exceeding its authority and could not order them to make an appropriation.

A court hearing was held last week and the judge issued a lengthy oral decision Monday.

David Frankel, an attorney for the Native Hawaiian Legal Corporation, which is representing DHHL beneficiaries, said Castagnetti’s decision “speaks for itself.”

UPDATE: Attorney Doug Chin, who represented the state, said in a statement:

“Our primary concern was the separation of powers. Yesterday’s decision by the judge revised language directing the Legislature to appropriate a specific amount to the Department of Hawaiian Home Lands and instead ordered the State to make sufficient sums of general funds available to DHHL for its administration and operating budget, which is what the Hawaii Constitution provides.”

In the transcript, Castagnetti modified language in her original order that was issued last November, language attorneys say is key in understanding the matter at hand.

Here are two cases of changed language, the first as it appeared in the original order, and the second as it reads in the new transcript:

BEFORE: Although what is “sufficient” will change over the years, the sufficient sums that the legislature is constitutionally obligated to appropriate in general funds for DHHL’s administrative and operating budget (not including significant repairs) is more than $28 million for fiscal year 2015-16.

AFTER: Although what is sufficient will change over the years, the amount of general funds appropriated to DHHL for its administrative and operating budget for fiscal year 2015 to -16 (9,632,000) is not sufficient. The State is required to comply with the Hawai’i Constitution and must fund DHHL’s administrative and operating expenses by making sufficient general funds available to DHHL for its administrative and operating budget for fiscal year 2015 to -16.

And here’s the second modification:

BEFORE: The defendants shall prospectively fulfill their constitutional duties and trust responsibilities. They are enjoined from violating these obligations.

AFTER: The Defendants must fulfill their constitutional duty and trust responsibilities.

It’s not clear what the Legislature and the governor will do now, but there will likely be renewed pressure to increase DHHL’s funding in the 2016 session that is meeting now — and renewed argument that that is the kuleana of the legislative and executive branches.

UPDATE: But Castagnetti also said in her decision that DHHL needs $28 million to operate, stating “there is substantial evidence in the trial record to support the Court’s factual findings that sufficient funds for DHHL’s administrative and operating budget for fiscal year 2015 to 2016 is $28 million or more than 28 million.”

She argued, “And there’s a long history of Supreme Court decisions and history in the case also describing what is in issue here, including longstanding problems that have — longstanding funding problems that have plagued the Department of Hawaiian Homelands.”

Those problems include chronic understaffing, she said, stating: “I do conclude that declaratory relief alone is not a sufficient remedy to the years of underfunding of the Department of Hawaiian Homelands that it has suffered and that a form of injunctive relief is appropriate and necessary for the State to comply with its constitutional mandate … ”

Read the transcript and the original ruling below:

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