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Oral Argument Before the Hawaii Supreme Court — No. SCRQ-22-0000118

No. SCRQ-22-0000118, Tuesday, November 1, 2022, 10 a.m.

FLORES-CASE ʻOHANA, Plaintiff-Appellant, vs. UNIVERSITY OF HAWAIʻI, Defendant-Appellee.

The above-captioned case has been set for oral argument at:

Supreme Court Courtroom
Aliʻiōlani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

The oral argument will also be livestreamed for public viewing via the Judiciary’s YouTube channel at

Attorneys for appellant Flores-Case ʻOhana:
David Kauila Kopper, Ashley K. Obrey, and Daylin-Rose H. Heather of Native Hawaiian Legal Corporation

Attorneys for appellee University of Hawaiʻi:
Carrie K. S. Okinaga, University General Counsel, and Joseph F. Kotowski, III, Associate General Counsel

Attorneys for Amicus Curiae, Holly T. Shikada, Attorney General of Hawaiʻi:
Kimberly T. Guidry, Solicitor General, and David D. Day, Deputy Solicitor General

NOTE: Order accepting Reserved Question, filed 04/05/22.

NOTE: Order granting “Attorney General Holly T. Shikada’s Motion for Leave to Participate in Oral Argument,” filed 10/12/22.

COURT: Recktenwald, C.J., Nakayama, McKenna, Wilson, and Eddins, JJ.

This Oral Argument was edited due to technical difficulties 

[ Listen to the entire audio recording in mp3 format ]

Brief Description:

In 2020, Defendant University of Hawaiʻi (UH) promulgated administrative rules governing access to the Summit of Mauna Kea. Plaintiff Flores-Case ʻOhana (FCO), an unincorporated association of a Kanaka Maoli (Native Hawaiian) family whose members carry out cultural practices on the summit of Mauna Kea, filed a complaint in the Circuit Court of the Third Circuit requesting declaratory and injunctive relief. FCO sought to invalidate the administrative rules promulgated by UH on statutory and constitutional grounds, arguing that the rules unlawfully impinged on FCO’s traditional cultural practices.

At issue in the circuit court was which party bore the burden of proof for constitutional challenges to administrative rules. UH argued that the general rule for constitutional challengers to statutes — where the burden of proof rests on the challenger — applies to constitutional challenges to administrative rules as well. FCO argued that Article XII, Section 7 of the Hawaiʻi State Constitution placed an affirmative duty on the State and UH to protect Native Hawaiian rights and, as such, the burden of proof rested on the UH to prove that its administrative rules did not negatively impact Native Hawaiian rights.

The circuit court determined that who bore the burden of proof would be dispositive of the case. Accordingly, the circuit court submitted the following reserved question to this court:

In a challenge to the constitutionality of administrative rules based on a violation of Article XII, Section 7 of the Hawaiʻi State Constitution, does the burden of proof shift to the government defendant to prove that the rules are reasonable and do not unduly limit the constitutional rights conferred in Article XII, Section 7? If so, what standards govern its application?