No. SCWC-30110 Thursday, October 6, 2011, 9:00 a.m.

*(Amended 6/22/11)

RICHARD NELSON III, KALIKO CHUN, JAMES AKIONA, SR., SHERILYN ADAMS,
KELII IOANE, JR., and CHARLES AIPIA (deceased), Respondents/Plaintiffs/Appellants, vs. HAWAIIAN HOMES COMMISSION,
THE DEPARTMENT OF HAWAIIAN HOME LANDS, KAULANA H.R. PARK, in his official capacity as Chair of the
Hawaiian Homes Commission, PERRY ARTATES, ALAPAKI NAHALE-A, DONALD S.M. CHANG, STUART HANCHETT,
MALIA KAMAKA, FRANCIS LUM, TRISH MORIKAWA, and HENRY K. TANCAYO, in their official capacities
as members of the Hawaiian Homes Commission, Respondents/Defendants/Appellees, and
KALBERT K. YOUNG, in his official capacity as the State Director of Finance, and the
STATE OF HAWAI`I, Petitioners/Defendants-Appellees.

(Declaratory and Injunctive Relief)

Attorney(s) for Petitioners/Defendants/Appellees:
Girard D. Lau and Charleen M. Aina, Deputy Attorneys General

Attorney(s) for Respondents/Plaintiffs/Appellants:
David Kimo Frankel and Alan T. Murakami of Native Hawaiian Legal Corporation

Attorney(s) for Respondents/Defendants/Appellees:
Brian A. Kang and Emi L.M. Kaimuloa of Watanabe Ing LLP

NOTE: Order accepting application for writ of certiorari, filed 06/06/11.

*NOTE: Order granting motion to reschedule oral argument date from 09/1/11 to 10/06/11.

COURT: MER, CJ; PAN, SRA, JED, & SSM, JJ.

The above oral argument is set in:

Supreme Court courtroom
Ali`iolani Hale
417 South King Street
Honolulu, HI 96813

[ Listen to the entire audio recording in mp3 format ]

Brief Description:

Individual native Hawaiians seeking Hawaiian home lands lots under the Hawaiian Homes Commission Act sued the State of Hawaii and its Director of Finance for the Department of Budget and Finance (“the State”) for violating Article XII of the Hawaii State Constitution. Article XII, Section 1 of the Hawaii State Constitution states, in relevant part:

The legislature shall make sufficient sums available for the following purposes: (1) development of home, agriculture, farm and ranch lots; (2) home, agriculture, aquaculture, farm and ranch loans; (3) rehabilitation projects to include, but not limited to, educational, economic, political, social and cultural processes by which the general welfare and conditions of native Hawaiians are thereby improved; (4) the administration and operating budget of the department of Hawaiian home lands; in furtherance of (1), (2), (3) and (4) herein, by appropriating the same in the manner provided by law. (emphasis added)

The native Hawaiian plantiffs allege that the State failed to make sufficient sums available to the Department of Hawaiian Home Lands (“DHHL”), as evidenced by the number of eligible native Hawaiians on the DHHL wait list and the length of time applicants have spent on the wait list.

At issue is whether the political question doctrine bars the judicial branch from determining whether the State has failed to make “sufficient sums” available to DHHL. The circuit court determined that the political question doctrine does apply, stating, “There are no judicially discoverable and manageable standards for resolving the dispute over the definition and determination of ‘sufficient sums’ . . . without making initial policy determinations of a kind clearly for nonjudicial discretion.” The Intermediate Court of Appeals issued a published opinion holding that the political question doctrine does not apply; it therefore vacated the circuit court’s judgment and remanded the case for further proceedings. See Nelson v. Hawaiian Homes Comm’n., 124 Hawai`i 437, 246 P.3d 360 (App. 2011). The State now appeals.