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Justice in the Air: TMT at the Supreme Court
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The Hawaii Supreme Court oral arguments on the Thirty Meter Telescope case was different from most court proceedings. It is not often that one sees and feels justice in the air. One could tell there was something different — an extreme politeness by the court staff, conch shells 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 celebrities, former governors, Princess Abigail Kawananakoa, the attorney general and the chairperson of the Land Board. It was a community moment, a democratic moment, as if it were Sunday at Kawaiahao where every soul was important as every other.
The protectors of Mauna Kea and their fellow supporters gravitated to the back seats as extra chairs were added to the courtroom. Quietly and respectfully, they began to sing in Hawaiian. No one stopped them. The voices in song were as solemn as they must have been during the days of the Kingdom. That moment was remarkable for its pageantry and sense of community.
The hearing that followed was just as remarkable. It was not business as usual. It was not a game of poker with motives hidden, tricky questions and elusive answers. It was a moment in history when one could see a court speaking from its heart.
Due Process: Hearing First, Decision After
The first point made was that no one, not even the Department of Land and Natural Resources, 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.
What if in a criminal proceeding 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? Issuing a conditional permit before hearing all the evidence is taken as a signal that the judge or hearing officer has already made up his or her mind.
It reminds me of a judge who once said, “You have the right to be heard — not the right to win.” If one is an advocate, or a party before such a judge, that kind of statement undermines all sense of hope that one will be truly heard.
No one, not even the Department of Land and Natural Resources, should pronounce a sentence before the parties have a fair trial.
The second point was the refusal of at least two of the justices to accept the implications of “incremental degradation” — the idea that the state of affairs on Mauna Kea had become so bad that it made no difference to make it worse. That would be like saying a boxer had been beaten so badly that the referee would not stop the fight. What’s one more punch in the face?
The justices were flabbergasted. Yes, the 13 telescopes on Mauna Kea were a mess, a train wreck, but why does that justify one more huge, train-wreck of a telescope?
Under that view there would be no point to environmental law — the islands are already ruined, why not build more hotels, give up more agricultural lands, allow genetically modified crops and pave over the whole of Oahu?
The environmental law movement was born from the opposite view, that it is never too late. With good laws, and hard work, one can save species from extinction and one can save wetlands, rivers, and stop pollution before it is too late. And it has worked: Species are slowly being restored, and forests are beginning to come back. The view that the status quo is so awful that it is permissible that the future be worse is simply to give up. The engine that drives all progress is exactly the opposite view of never giving up. That is why there are protectors on Mauna Kea.
The challenge of our times is the issue of climate change. Can climate change be reversed? Not if one adheres to the doctrine that “a little more will not hurt because it is already too late” — the doctrine of incremental degradation.
Justice Must Be Seen As Well As DoneThe third point was the highlight of the morning. Justice Sabrina 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.
McKenna was addressing the larger audience gathered in the courtroom. She was also 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 also speaking, I believe, to the “protectors” in the Courtroom and on Mauna Kea. Courts, especially the Supreme Court, whether the United States Supreme Court or the Hawaii Supreme Court, as a rule never let on that they are influenced by current events. Yet, the non-violent, kapu aloha presence of the protectors on Mauna Kea did, I believe, have a bearing on the nature and length of the oral argument.
Opposition to TMT is a movement of the people, particularly of the young — of the new millennial generation, 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.
The United States and its Constitution are founded in values that speak to sincerity: freedom of speech, religion and assembly. The strength of the opposition to TMT lies in the sincerity of the protectors. Their near four month vigil on Mauna Kea has won respect throughout the world.
Dangers of “Chevron Deference”
Justice McKenna’s reminder of the importance of visible “justice” harkened back 40 years to the days when Chief Justice William Richardson presided. Since then, Hawaii has changed.
Politics and governance in the State of Hawaii have 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 decisions that affect our lives are decided by often little known boards and agencies typically referred to by official sounding acronyms — the PUC, DLNR, DCCA, DLIR, HART, DOH, BOE, 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 the 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,” which presumes that because their personnel are trained in water, land and resources, the 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 concept of checks and balances in Hawaii government has been replaced by the belief that specialized agencies have unique expertise, and the courts and the public should not question their decisions or the processes by which they reach them.
The rise and dominance of the administrative state has completely reversed the nature of public participation in some of the key issues of our times — GMO, water pollution, water rights, the Honolulu rail project, the development of Kakaako, converting agricultural lands to other uses, and making use exceptions for lands designated for conservation.
This presumption that an agency like DLNR is so knowledgeable, so expert that the rules they make and enforce and the rules by which they 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, 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.
The nature of the administrative state and the power of the governor to appoint 170 boards is truly extraordinary. The state attorney general is appointed. The Board of Regents of the University of Hawaii, which subleases to TMT, and the Board of Land and Natural Resources, which issues the construction permit, are appointed by the Governor. If only appearances mattered, one would assume that TMT need only garner the governor’s support to gain the right to build.
Thus, it was disturbing to hear the governor speak as he did on June 24: “TMT has the approvals needed to proceed with construction,” and there must be “respect and aloha … as TMT restarts construction on the Thirty Meter Telescope.”
The position of the governor and TMT has been that a seven-year legal process has been exhausted, the public had its say, and TMT has the right to build because they have a permit. Somehow, both the governor and TMT supporters have forgotten there is fortunately a Supreme Court in the State of Hawaii.
Now, the actual decision of the Supreme Court will not be as dramatic as the oral argument. There is little chance that the High Court will nullify the permit. Most likely, the Court will remand the proceeding in light of their concern with due process.
However, what is of historic value are the words and body language of the justices, reminding and redirecting us back to the value of justice, both in appearance and in actuality, and the power of optimism to change our lives for the better through law.
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