(August 2019)
Orientation: Richardson Lawyering
RICHARDSON LAWYERING
Welcome
elcome to the University of Hawai‘i at Mānoa, William S. Richardson School of
Law. As part of Orientation, you will participate in several classes called
“Richardson Lawyering.” Designed by faculty to provide you with an introduction
to key concepts and learning methods that are widely used in U.S. law schools and to get you ready
for the first semester at Richardson, these classes will also immerse you in a unique and important
area of law: Hawaiian tradition and custom.
The legal concepts you will learn are part of the rich contribution of Chief Justice (“CJ”)
Richardson to the development of law in Hawai‘i. Whether you are from Hawai‘i, another U.S.
state, or abroad, as law students at Richardson and future members of the legal community in
Hawai‘i and beyond, you have the privilege and responsibility to learn about this fascinating area
of law and CJ’s legacy in both historic and modern context.
We have included in your 1L Richardson Lawyering (RL) Packet important preparation
information that will help you make the most of this introductory series of sessions (further
described below) as well as two short articles on CJ Richardson’s lasting impact on this area of
the law.
These issues are particularly important to the vision and mission of the William S. Richardson
School of Law and will be referred to, and we hope further studied by you, throughout your law
school education here at Richardson. We hope that you will enjoy the RL series.
W
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RICHARDSON LAWYERING
Reading a Case – An Introduction. Liam Skilling, Associate Faculty Specialist and Director of
Academic Success and the Evening Part Time Program, will introduce you to the critical lawyering
skill of reading and briefing cases. He will introduce you to the two key cases
– known by their short names Kalipi and Hanapi – that will help you understand and resolve the
client’s problem. He will explain the particular way that law students and lawyers “read” cases
and how to write an effective “case brief,” skills you will need to master in order to prepare
effectively for your law school classes.
* Your role: Before Orientation starts, read the Reading a Case summary in the 1L RL Packet.
Read the Kalipi and Hanapi cases in the packet (note, we have included an
annotated version of Hanapi as a study aid). Try to become familiar with the
overall format of the cases and the key concepts. Do not expect to understand or
remember all the details or legal terms. This is just the beginning not the end of
your exploration of this area of law.
* Take Away Questions:
(1) How is reading a case different than reading a story or a news article?
(2) How can you develop your own template for briefing cases that includes traditional
case analysis factors and also reflects your personal style of lawyering?
(3) What is the role of a reported appellate “case” in the development of law?
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RICHARDSON LAWYERING
Introduction to Lawyering Fundamentals. Lawyering Fundamentals is the 1L
legal analysis and writing course. For this session, Professor Dan Barnett, Director of Legal
Writing, will introduce law practice writing. He will lead you in a discussion to demonstrate how
you would apply the ideas from the other Orientation sessions to begin to analyze a client’s legal
problem.
* Your role: Come prepared to apply the ideas you have learned in the other Orientation
sessions to a client’s legal problem.
* Take Away Questions:
(1) Why is legal writing important to law practice?
(2) Who is the primary audience and what is the primary purpose of an objective
memorandum analyzing a client’s legal problem?
(3) How does the hierarchy of the law relate to the analysis of a client’s problem?
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RICHARDSON LAWYERING
Mini-Class. For the final session of the series, you will be introduced to the setting
of a typical law school class, led by Professor Melody Kapilialoha MacKenzie. She will engage
you in a discussion of the Kalipi and Hanapi cases, asking you questions about your understanding
and interpretation of the law and the facts. Individual students will be (randomly) called on and
asked to share their responses with the class. This experience is intended to provide a relatively
risk-free preview of the expectations in your 1L classes, where you must always be prepared to
respond to your professor’s questions.
* Your role: Before class, read the Mini-Class summary in the 1L RL Packet. For fun, watch
clips of the traditional Socratic Method by viewing the classic law school movie
Paper Chase on the web! Come to class with copies of the cases and the statutes
(on your laptop or hard copies), and with your own notes for both cases and the
statutes.
* Take Away Questions:
(1) How do the expectations for class preparation and participation differ in a law
school class compared to undergraduate study?
(2) How can you develop your own approach to preparing for each law school class
effectively?
(3) How does the law school classroom experience help develop skills necessary for
an attorney?
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RICHARDSON LAWYERING
Conclusion
We hope that the Richardson Lawyering series gets you excited about your new adventure in life
called law school! We also hope that this series of classes, and the opportunity to meet with faculty
and classmates before Law School starts, reduces the stress and anxiety that new students often
feel when they enter a new school, especially a professional school, and especially after you have
invested so many years of education and experience in getting yourselves to this point in life.
We want you to be more comfortable and more confident, as well as competent, as you enter
your first semester at Richardson. Orientation provides you the basic toolkit – an introduction to
key legal concepts, learning approaches, lawyering skills, and professionalism. Law School will
expand and refine your toolkit, on a daily basis, both through classes and through your wealth of
interactions with faculty, students, staff, friends, and alumni. Throughout your Richardson
educational experience, and when you are a member of the legal profession, we very much hope
and trust that you will constantly add to your professional toolkit. At the same time, we want you
to maintain and develop your own “personal compass” – the passion, values, personal history,
and ethic that brought you here and that will serve you so well throughout your life and career.
−— Your Richardson Lawyering Team
Denise Antolini
Associate Dean for Academic Affairs
Liam Skilling ’07
Director, Academic Success
Director, Evening Part Time Program
Daniel Barnett
Professor of Law
Director, Legal Writing
Melody Kapilialoha MacKenzie ’76
Professor of Law
* * *
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RICHARDSON LAWYERING
Reading a Case – An Introduction
Case briefing is a tool that law students and lawyers use to help them understand and organize the
information found in judicial opinions. A case brief isolates the key parts of an opinion and
summarizes the most relevant information. As a new law student, briefing the cases you are
assigned will help you to prepare for class, to begin your course outlines, and to study for exams.
Briefing effectively and efficiently is an important part of the process of learning to “think like a
lawyer.”
There is no single correct way to brief a case, and the components included in a brief vary
depending on purpose and preference. That said, a brief will typically include, at a minimum, a
summary of the following components of a judicial opinion.
Case Citation: The case citation allows a legal reader to locate a case in print or online. You will
learn all about citations in your legal writing and research classes and you will become very
familiar with the citation guide for legal writing: The Bluebook, A Uniform System of Citation.
The citation also provides substantive information about the name of the case, the court that
decided the case, and the date of the decision.
Issue: The issue statement sets forth the specific legal question facing the court. Usually, the
court will explicitly state the issue somewhere in the opinion. However, it may be more helpful to
frame the issue more broadly or narrowly than did the court. When you craft your own issue
statement, try to include both the controlling legal rule and the key facts that determine the
outcome. If you think of a well-phrased issue statement as a question about the law, the holding
of the case is the answer to that question.
Procedural History: This part of a case lets the legal reader know who are the parties to the
dispute and what has already happened in the courts. Virtually all the cases you will read in Law
School are the opinions of appellate courts. That means there was at least one decision at the trial
level preceding the opinion you are reading. Sometimes the procedural history of a case is long
and convoluted including multiple parties and prior decisions, and even multiple cases.
Deciphering the procedural history not only provides the context for the specific case you are
reading, but can also illuminate the structure and procedures of the court system.
Facts: The story of the parties and their dispute is found in the facts of the case. The job of the
legal reader is to discern which facts are relevant to the outcome of the case. If you omit relevant
facts from your brief, then you risk misinterpreting the holding; if you include too many facts, then
you have wasted time and muddied the analysis. The facts of a case plus the applicable legal rule
lead to the outcome or holding of the case. Conversely, knowing the holding and the facts helps
you understand and interpret the operation of the legal rule.
Holding: The outcome of a particular case is called the holding. The holding also expresses what
the case has added to the existing law. It is crucial that you can discern the legal rule(s) exemplified
by the holding of each case you read. It is these legal rules that you must extract from your readings
and lectures and then be able to apply on your exams. Like the issue, the holding of a case can be
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RICHARDSON LAWYERING
framed broadly or narrowly. Effective advocacy involves interpreting the existing law (made up
of the holdings of prior cases) in a way that is logical, convincing, and that
supports your client’s position.
Analysis: The analysis in an opinion shows how and why the court reached its decision. This
includes the court’s interpretation of the existing law and the application of that law to the facts of
the present case. Policy considerations, whether stated explicitly or not, may also influence the
analysis. As you brief cases in your first semester, and throughout Law School, attend not only to
the legal rules of individual cases, but also what these cases teach you about legal analysis
generally. Each opinion provides an example of how judges and lawyers think about issues,
interpret precedent, and structure their writing. It is this method of thinking and writing that you
need to adopt and adapt to perform well in Law School and in practice.
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RICHARDSON LAWYERING
Lawyering Fundamentals
The Lawyering Fundamentals (LF) course—LFI in the fall and LFII in the spring—is the first part
of a comprehensive writing program at the Law School to teach you the legal problem solving
skills you need to reach your maximum potential as a legal thinker and writer. In all of your first
year classes, you will learn the foundational reasoning skills lawyers use to understand legal
analysis. In subject matter courses, like Contracts and Torts, you’ll refine those reasoning skills by
learning concepts of different areas of the law. In LFI and LFII you will develop the skills by
learning to prepare the basic type of documents lawyers write in practice. The writing program
continues after the first year in research and writing seminars in the second year, and clinical
workshops and externships in both the second and third years. Your LF professors will serve as
your initial guides—along with all of your first-year professors—to help you understand and adapt
to our Law School and the legal community.
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RICHARDSON LAWYERING
Mini-Class
Welcome to your first law school class. You may be wondering what happens in a law school
class. Indeed, if you’ve ever seen the movie, The Paper Chase, you’re probably a little worried
about the “Socratic method” and whether you’ll undergo a grilling as students did in the movie.
That movie portrays law classes––and law professors––at their toughest and meanest!
Most classes in law school use cases––judicial decisions or excerpts from judicial decisions––as
basic reading materials for the course. Depending on the course, readings will also include statutes,
administrative decisions, regulations, and commentaries (law review or other articles) on the
materials. At first, it will be confusing and a little daunting, but most students quickly adjust to
the amount and substance of the materials. It is like learning a new language!
In classes, law professors today, if they use the “Socratic method” at all, use a modified form, not
the intense grilling depicted in The Paper Chase. There are widely varying ways and styles in
which professors teach law classes––some lecture and then ask a few pointed questions of
randomly picked students, some assign specific students to discuss the cases for each class, and
others give students a set of questions to consider as they are preparing for class. Although some
professors use power-point presentations to illustrate parts of a case, emphasize important points,
ask questions to spark class discussion, and make the material visually more interesting, that is not
standard practice in first year classes.
Generally, whatever the method, professors do ask questions and in doing so seek to:
1. Ensure that students understand the facts of a case, its procedural history, and the basic
legal principles it utilizes;
2. Ensure that students prepare for class (at some point in your law school career, you will be
called upon by a professor);
3. Help students overcome the fear of speaking in public or in large groups;
4. Teach students to think and respond quickly and answer questions that may come out of
left field (thus preparing students for the experience of arguing motions in court or arguing
before appellate courts); and,
5. Tease out some of the broader policy and legal implications resulting from a court’s
decision.
So, for your first law school class, come prepared––read and study the assigned materials, write
your case brief, and come with your own questions about the case, its facts, applicable statutes or
constitutional provisions, and the policy implications of the case!
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RICHARDSON LAWYERING
Relevant Cases
&
Constitutional and Statutory Materials
10
For Educational Use Only
Kalipi v. Hawaiian Trust Co., Ltd., 66 Haw. 1 (1982)
656 P.2d 745
© 2013 Thomson Reuters. No claim to original U.S. Government Works. 1
66 Haw. 1 Supreme Court of Hawai’i.
William KALIPI, Plaintiff-Appellant, v.
HAWAIIAN TRUST COMPANY, LTD., Pearl M. Petro, Ruth R. Searle, Ethel F. Shaner, Lorrin A. Meyer, William C. Meyer, Edmund Wond, Samuel Pedro and State of Hawaii, Department of Land and Natural Resources and its Director and Chairman of the Board Christopher Cobb,
Defendants-Appellees.
No. 6957. | Dec. 30, 1982.
. . .
**746 Syllabus by the Court
1. *1 The court’s obligation to preserve and enforce
traditional rights of descendants of native Hawaiians is
found in Hawaii Const. art. XII, § 7.
2. *2 With respect to gathering rights, HRS § 7–1 was
included to insure that commoners would be able to
exercise the rights mentioned therein, in connection with
their tenancy in order to ensure the utilization and
development of their lands.
3. Lawful occupants of an ahupuaa may, for the purposes
of practicing native Hawaiian customs and traditions,
enter undeveloped lands within the ahupuaa to gather
those items enumerated in HRS § 7–1.
4. “Lawful occupants” means persons residing within the
ahupuaa in which they seek to exercise gathering rights,
not persons who merely own property there.
5. Gathering rights of HRS § 7–1 are limited to the items
enumerated in that statute.
6. Although the requirement that gathering rights be
exercised on undeveloped land is not found in HRS § 7–1,
to hold otherwise would be to conflict with current
understandings of property and with the traditional
Hawaiian way of life in which cooperation and
noninterference with the well being of other residents
were integral parts of the culture.
7. The requirement that gathering rights be utilized to
practice native customs is a reasonable interpretation of
HRS § 7–1 since the rights were necessary to insure the
survival of those who, in 1851, sought to live in
accordance with the ancient ways.
8. Where practices associated with the ancient Hawaiian
way of life have, without harm to anyone, been continued,
reference to Hawaiian usage in HRS § 1–1 insures their
continuance for so long as no actual harm is done thereby.
9. As the court in Oni v. Meek did not expressly preclude
the possibility that the doctrine of custom might be
utilized as a vehicle for the retention of some commoners’
rights, HRS § 31–1 may be used as a vehicle for the
continued existence of those customary rights which
continued to be practiced and which worked no actual
harm upon the recognized interests of others.
10. There is an insufficient basis to find that gathering
rights based on HRS § 1–1 would, or should, accrue to
persons who did not actually reside within the ahupuaa in
which such rights are claimed.
11. Traditional gathering rights, based on reservations in
original land awards, do not accrue to persons who do not
live within the ahupuaa in which such rights are to be
asserted.
Attorneys and Law Firms
*13 Ronald Albu, Honolulu (Sandra E. Pechter, Deputy
Corp. Counsel, Honolulu, with him on the brief), for
plaintiff-appellant.
Steven K.S. Chung, Honolulu (Frank D. Padgett,
Honolulu, of counsel), for defendants-appellees **747
Hawaiian Trust Company, Ltd., Ethel Shaner, Ruth
Searle, Lorrin Meyer, William Meyer, Pearl Petro,
Edmund Wond and Samuel Pedro.
Che Lun Huang, Deputy Atty. Gen. (Lester G.L. Wong,
Deputy Atty. Gen., on the brief), for defendants-appellees
State of Hawaii, Dept. of Land and Natural Resources and
Christopher Cobb.
Opinion
*3 RICHARDSON, Chief Justice.
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For Educational Use Only
Kalipi v. Hawaiian Trust Co., Ltd., 66 Haw. 1 (1982)
656 P.2d 745
© 2013 Thomson Reuters. No claim to original U.S. Government Works. 2
In this appeal, Plaintiff-Appellant Kalipi claims the right
to enter Defendants-Appellees’ undeveloped lands to
gather, without unnecessarily disturbing the surrounding
environment, natural products necessary for certain
traditional native Hawaiian practices. While we agree that
such rights have, to a limited extent, been statutorily
preserved, we conclude that Plaintiff’s failure to actually
reside within the land divisions in which he seeks to
exercise these rights requires the affirming of the trial
court’s judgment for Defendants.
I.
William Kalipi seeks to exercise traditional Hawaiian
gathering rights in the ahupuaa of Ohia and Manawai on
the island of Molokai. Manawai is owned by
Defendants-Appellees Petro, Searle, Shaner, Meyer and
Hawaiian Trust Co. The land division runs from the
mountains to the sea and comprises approximately 588
largely undeveloped acres used primarily for hunting and
raising cattle. Ohia is divided into two parts.1 East Ohia is
366 acres of largely undeveloped land owned by
Defendant-Appellee State of Hawaii. West Ohia is owned
by Defendants Wond and Pedro and consists of
approximately 326 undeveloped acres used for hunting
and cattle grazing.
Plaintiff is a resident of Molokai who owns a taro patch in
Manawai and an adjoining houselot in East Ohia. He was
raised on the lots and resided there periodically until the
latter part of 1975. At the time of trial, however, he did
not reside on the property. Rather, with his wife and five
children, he lived in the nearby ahupuaa of Keawenui.
Kalipi asserts that it has long been the practice of him and
his family to travel the lands of the Defendants in order to
gather indigenous agricultural products for use in
accordance *4 with traditional Hawaiian practices.
Among the products he gathered, and seeks the right to
gather in this action, are ti leaf, bamboo, kukui nuts,
kiawe, medicinal herbs and ferns. Defendants have
refused to grant him unfettered access to their lands for
these purposes and this action was filed to vindicate and
insure an asserted right to gather such products.
A trial was had and the jury, by special verdict,
determined that Kalipi had no such right. He now alleges
numerous errors in the trial court’s instructions to the jury
and conduct of the trial. We find, for the reasons stated
below that none of the alleged errors warrants reversal.
II.
Plaintiff-Appellant Kalipi suggests three sources for his
asserted gathering rights. The first is HRS § 7–1, a statute
of ancient origin initially passed when the concept of
private ownership of real property had first been
introduced into these islands. The second is native custom
and tradition, a source of the law which he claims to have
been fixed in 1892 by the passage of what is now HRS §
1–1. And the third is the reservation found in all relevant
documents of original title in this case, language reserving
the people’s “kuleana” in lands converted to fee simple
ownership when such conversion first occurred.
Generally, Defendants argue that regardless of their
purported sources, traditional gathering should not be
recognized or enforced as a matter of policy. They
characterize the rights asserted as dangerous
anachronisms which conflict with and potentially threaten
the concept of fee simple ownership in Hawaii.
**748 We recognize that permitting access to private
property for the purpose of gathering natural products
may indeed conflict with the exclusivity traditionally
associated with fee simple ownership of land. But any
argument for the extinguishing of traditional rights based
simply upon the possible inconsistency of purported
native rights with our modern system of land tenure must
fail. For the court’s obligation to preserve and enforce
such traditional rights is a part of our Hawaii State
Constitution:
*5 The State reaffirms and shall
protect all rights, customarily and
traditionally exercised for
subsistence, cultural and religious
purposes and possessed by
ahupua’a tenants who are
descendants of native Hawaiians
who inhabited the Hawaiian Islands
prior to 1778, subject to the right of
the State to regulate such rights.
Haw. Const. art. XII, § 7. And it is this expression of
policy which must guide our determinations. See
Stand.Comm.Rep. No. 57, reprinted in 1 Proceedings of
the Constitutional Convention of Hawaii of 1978 at 637
(1980) (“in reaffirming these rights in the Constitution,
Your Committee feels that badly needed judicial guidance
is provided[,] and enforcement by the courts of these
rights is guaranteed”). With this in mind, we proceed to
address Kalipi’s contentions.
12
For Educational Use Only
Kalipi v. Hawaiian Trust Co., Ltd., 66 Haw. 1 (1982)
656 P.2d 745
© 2013 Thomson Reuters. No claim to original U.S. Government Works. 3
A.
The primary basis for Plaintiff’s claim to gathering rights
is HRS § 7–1, a statute initially passed in 1851 and
continued in our law since that time without substantial
modification. The statute, in its current form, provides
that:
Where the landlords have obtained, or may hereafter
obtain, allodial titles to their lands, the people on each
of their lands shall not be deprived of the right to take
firewood, housetimber, aho cord, thatch, or ki leaf,
from the land on which they live, for their own private
use, but they shall not have a right to take such articles
to sell for profit. The people shall also have a right to
drinking water, and running water, and the right of
way. The springs of water, running water, and roads
shall be free to all, on all lands granted in fee simple;
provided, that this shall not be applicable to wells and
water-courses, which individuals have made for their
own use.
HRS § 7–1 (1976). The statute appears to contain two
types of rights: gathering rights which are specifically
limited and enumerated, and rights to access and water
which are framed in general terms. While the extent and
scope of the latter set of rights have been the subject of
discussion by this court, see, McBryde Sugar Co. v.
Robinson, 54 Haw. 174, 504 P.2d 1330, aff’d on
rehearing, 55 Haw. 260, 517 P.2d 26 (1973), appeal *6
dismissed and cert. denied, 417 U.S. 962, 94 S.Ct. 3164,
41 L.Ed.2d 1135 (1974), Palama v. Sheehan, 50 Haw.
298, 440 P.2d 95 (1968), we are unable to find any
previous interpretation of the gathering rights found in the
statute. The issue we address is thus one of first
impression.
The land division most relevant to this issue is the
ahupuaa. And it is with the traditional function of the
division that our analysis begins. In Palama v. Sheehan,
supra, 50 Haw. at 301, 440 P.2d 95, we discussed the
significance of this division as follows:
[I]n ancient Hawaii, the division of
land known as an ahupuaa
generally ran from the sea to the
mountains. Such division enabled a
chief and his people to obtain fish
and seaweed from the ocean, and
fuel, canoe timber and mountain
birds, and the right of way to obtain
those things. In Re Boundries of
Pulehunui, 4 Haw. 239.
The cited case provides more detail:
A principle very largely obtaining
in these divisions of territory was
that a land should run from the sea
to the mountains, thus affording to
the chief and his people a fishery
residence at the warm seaside,
together with the products of the
high lands, such as fuel, canoe
timber, mountain birds, and the
right of way to the same, and all the
varied products of the intermediate
land as might be suitable to the soil
and climate of the different
altitudes from sea soil to
mountainside or top.
**749 In Re Boundries of Pulehunui, 4 Haw. 239, 241
(1879). In ancient times the utilization of the ahupuaa as
the principal land division was a rational one. The native
people existed by a subsistence economy and the division
of land discussed above enabled persons within it to
obtain virtually all things necessary to survival. The
traversing of an ahupuaa to gather items naturally found
there was therefore a matter of practical necessity.
The governance and control of ahupuaa also conformed
with the exercise of this privilege. Ahupuaa were
distributed by the King to favored chiefs subject, prior to
the introduction of written laws, to dispossession at the
King’s pleasure. And commoners were permitted to
cultivate lands within the ahupuaa in exchange for
services to the King and the ruling chief (if the ahupuaa
were not reserved for the King himself). The well *7
being of ruler and ruled was thus intertwined and the use
of undeveloped lands by commoners for subsistence and
culture was to the benefit of all.
With the coming of the influence of the west, the
traditional system became increasingly less viable. A
trading economy gradually replaced the subsistence
economy and the land and its resources came to have a
value apart from the labor of those who worked it. In
1848 the ancient order was formally dissolved when, by
what has come to be known as the Great Mahele, the
lands of the Kingdom were divided between the chiefs
and King. See generally Chinen, The Great Mahele
(1958). Many ahupuaa were granted in whole to their
13
For Educational Use Only
Kalipi v. Hawaiian Trust Co., Ltd., 66 Haw. 1 (1982)
656 P.2d 745
© 2013 Thomson Reuters. No claim to original U.S. Government Works. 4
former lords who subsequently were able to obtain fee
simple title to them upon payment of a commutation. Two
years later, by the Act of August 6, 1850, commoners
were permitted to obtain fee simple title to the lands
which they had cultivated. And it is the last section of that
Act which today survives as HRS § 7–1.
This section was included at the behest of the King and
was reported to reflect his concern that a “little bit of land
even with allodial title, if they [the people] be cut off from
all other privileges would be of very little value.” Privy
Council Minutes, July 13, 1850. It therefore appears that,
with respect to gathering rights, the section was included
to insure that commoners would be able to exercise those
rights in connection with their tenancy in order to ensure
the utilization and development of their lands.
The problem is that the gathering rights of § 7–1 represent
remnants of an economic and physical existence largely
foreign to today’s world. Our task is thus to conform
these traditional rights born of a culture which knew little
of the rigid exclusivity associated with the private
ownership of land, with a modern system of land tenure in
which the right of an owner to exclude is perceived to be
an integral part of fee simple title.
We believe that this balance is struck, consistent with our
constitutional mandate and the language and intent of the
statute, by interpreting the gathering rights of § 7–1 to
assure that lawful occupants of an ahupuaa may, for the
purposes of practicing native Hawaiian customs and
traditions, enter undeveloped lands within the ahupuaa to
gather those items *8 enumerated in the statute.2 Such
activities would, of course, be subject to further
governmental regulation.
By “lawful occupants” we mean persons residing within
the ahupuaa in which they seek to exercise gathering
rights. We thus reject Plaintiff’s contention that the mere
ownership of property within an ahupuaa should suffice.
This limitation is dictated by the language of the statute
itself. HRS § 1–14 (1976) (words of statute to be given
usual meaning). It requires that the tenants be “on” the
land before they become entitled to take products “from
the **750 land on which they live.” We see no reason to
deviate from such unambiguous language. And nothing in
our caselaw or the statute’s history can reasonably be
interpreted to require a contrary result.3 Moreover, we
believe that the extension of these rights to absentee
landlords would be contrary to the intention of the
framers in that the right would thereby be spread to those
whose only association with the ahupuaa may be by virtue
of an economic investment.
Similarly, the limiting of gatherable items to those
enumerated in the statute is a result dictated by the
language of the statute. For it simply contains no
suggestion that any other items were intended to be
covered by the law.
The requirement that these rights be exercised on
undeveloped land is not, of course, found within the
statute. However, if this limitation were not imposed,
there would be nothing to prevent residents from going
anywhere within the ahupuaa, including fully developed
property, to gather the enumerated items. In the context of
our current culture this result would so conflict with
understandings of property, and potentially lead to such
disruption, that we could not consider it anything short *9
of absurd and therefore other than that which was
intended by the statute’s framers…. Moreover, it would
conflict with our understanding of the traditional
Hawaiian way of life in which cooperation and
non-interference with the well-being of other residents
were integral parts of the culture.
Similarly, the requirement that the rights be utilized to
practice native customs represents, we believe, a
reasonable interpretation of the Act as applied to our
current context. The gathering rights of § 7–1 were
necessary to insure the survival of those who, in 1851,
sought to live in accordance with the ancient ways. They
thus remain, to the extent provided in the statute,
available to those who wish to continue those ways.
Plaintiff uncontestedly did not actually reside within the
ahupuaa in which he sought to exercise these gathering
rights. Thus, as a matter of law, he was not entitled to the
privileges discussed above.
B.
The second basis for Plaintiff’s claim to gathering rights
is HRS § 1–1 which provides:
The common law of England, as
ascertained by English and
American decisions, is declared to
be the common law of the State of
Hawaii in all cases, except as
otherwise expressly provided by
the Constitution or laws of the
United States, or by the laws of the
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State, or fixed by Hawaiian judicial
precedent, or established by
Hawaiian usage .... (Emphasis
added.)
It is his contention that the reference to “Hawaiian usage”
established certain customary Hawaiian rights, including
his asserted gathering rights, as the law of our State.
Conversely, Defendants contend that any customary
rights which might otherwise have been retained by § 1–1
have been abrogated by judicial precedent. Specifically,
they point to language in Oni v. Meek, 2 Haw. 87, 91
(1858), to the effect that the rights found in § 7–1 were
declarative of “all the specific *10 rights of the hoaaina
(excepting fishing rights) which should be held to prevail
against the fee simple title of the konohiki....” (Emphasis
in original.) They thus conclude that no customary rights
other than those found in that statute survived the Mahele.
We perceive the Hawaiian usage exception to the
adoption of the English common law to represent an
attempt on the part of **751 the framers of the statute to
avoid results inappropriate to the isles’ inhabitants by
permitting the continuance of native understandings and
practices which did not unreasonably interfere with the
spirit of the common law…. The statutory exception to
the common law is thus akin to the English doctrine of
custom whereby practices and privileges unique to
particular districts continued to apply to the residents of
those districts even though in contravention of the
common law. See, 1 W. Blackstone, Commentaries *74;
see also, State ex rel. Thornton v. Hay, 254 Or. 584, 462
P.2d 671 (1969). This, however, is not to say that we find
that all the requisite elements of the doctrine of custom
were necessarily incorporated in § 1–1. Rather, we
believe that the retention of a Hawaiian tradition should in
each case be determined by balancing the respective
interests and harm once it is established that the
application of the custom has continued in a particular
area.
In this case, Plaintiff’s witnesses testified at trial that there
have continued in certain ahupuaa a range of practices
associated with the ancient way of life which required the
utilization of the undeveloped property of others and
which were not found in § 7–1.4 Where these practices
have, without harm to anyone, been continued, we are of
the opinion that the reference to Hawaiian usage in § 1–1
insures their continuance for so long as no actual harm is
done thereby.
*11 Oni v. Meek, supra, does not preclude this
conclusion, for in that case the application of the doctrine
of custom was argued and the doctrine itself was not
rejected. Rather, the court found the particular right
asserted, the pasturage of horses, to be “so unreasonable,
so uncertain, and so repugnant to the spirit of the present
laws, that it ought not to be sustained by judicial
authority.” Id. at 90. And the court determined that the
privilege was the product of an admitted contractual
arrangement rather than a function of custom.5 Such an
analysis is consistent with our view of the § 1–1
exception. Moreover, the language in Oni respecting the
conclusiveness of § 7–1 does not necessarily preclude the
application of the doctrine. For there the plaintiff argued
only that his asserted right to pasturage had a statutory
basis by virtue of a pre-Mahele predecessor of § 7–1
which insured, inter alia, the right to “pasture his horse
and cow and other animals” on unused land surrounding
his lot. Oni v. Meek, supra, 2 Haw. at 91. He asserted that
the resolution which contained this right had never been
repealed and that the right therefore remained in force.
The court reasoned that the subsequent enactment of
commoners’ rights, which did not include the
aforementioned right to pasturage, implied that the
legislature had not intended that it be continued so that the
plaintiff could not claim the right pursuant to the
pre-existing resolution.
We thus interpret Oni to stand for the proposition that §
7–1 expresses all commoners’ rights statutorily insured at
the time of the Mahele. However, inasmuch as the court
did not expressly preclude the possibility that the doctrine
of custom might be utilized as a vehicle for the retention
ome such rights, we find no inconsistency in finding that
the Hawaiian *12 usage exception in § 1–1 may be used
as a vehicle **752 for the continued existence of those
customary rights which continued to be practiced and
which worked no actual harm upon the recognized
interests of others.
The precise nature and scope of the rights retained by §
1–1 would, of course, depend upon the particular
circumstances of each case. We need not at this time,
however, explore in detail the scope of any gathering and
access rights which may have been demonstrated as a part
of Plaintiff’s case. For, as with the gathering rights of §
7–1, there is an insufficient basis to find that such rights
would, or should, accrue to persons who did not actually
reside within the ahupuaa in which such rights are
claimed. Plaintiff therefore would have no gathering
rights on the property in question pursuant to HRS § 1–1.
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C.
Plaintiff’s final argued source of gathering rights are
reservations found in the original awards of Manawai and
the eastern portion of Ohia. The reservation in the
Manawai award was “Koe nae no kuleana o na kanaka
maloko,” translated at trial to mean “the kuleanas of the
people therein are excepted.” And the reservation in the
governmental grant provided:
And we do hereby declare these
lands to be set apart as the lands of
the Hawaiian Government, subject
always to the rights of tenants.
It is the contention of the Plaintiff that these reservations
retained certain traditional rights for the people, including
his asserted gathering rights. Conversely, Defendants
argue that the question must be decided in their favor
pursuant to Territory v. Liliuokalani, 14 Haw. 88 (1902),
wherein the court determined that a similar reservation
did not incorporate any public right to the use of certain
shoreline areas included in a grant.
We do not agree that the cited case necessarily disposes of
this issue. For it dealt only with asserted public rights and
not with the retained rights of ahupuaa residents or those
who subsequently obtained title to their lands within an
ahupuaa. However, we need not in this case delineate the
precise scope of any such rights retained by the proffered
reservations. For, as with any gathering rights preserved
by § 7–1 or § 1–1, we are convinced that traditional
gathering rights do not accrue to persons, such as the
Plaintiff, who do not live within the ahupuaa in which
such rights are sought to be asserted.
III.
Because we find that Plaintiff is, as a matter of law,
without gathering rights in the ahupuaa of Manawai or
Ohia because of his failure to reside in those land
divisions, the judgment of the trial court is affirmed.
Parallel Citations
656 P.2d 745
Footnotes
1
Defendants contend that Ohia represents two, rather than a single ahupuaa. Because of our resolution of the case, we need not
address this essentially factual issue.
2
These rights are rights of access and collection. They do not include any inherent interest in the natural objects themselves until
they are reduced to the gatherer’s possession. As such those asserting the rights cannot prevent the diminution or destruction of
those things they seek. The rights therefore do not prevent owners from developing lands.
3
Analogous case law, in fact, supports the conclusion reached here. See, e.g., Oni v. Meek, 2 Haw. 87 (1858) (lawful occupant
incorporated as definition of tenant); Damon v. Tsutsui, 31 Haw. 678 (1930) (non-severance of fishing right by transferror of
property).
4
These include the gathering of items not delineated in § 7–1 and the use of defendants’ lands for spiritual and other purposes.
5
The opinion implies that all traditional rights may have been, in essence, contractual rather than customary insofar as commoners
cultivated their lands and enjoyed privileges in exchange for services to the lord of that ahupuaa. We do not, however, adopt this
conclusion. For we find it difficult to imagine any custom in any ancient culture which did not exist to in some fashion benefit
those who ruled. The relevant inquiry is therefore not whether those who once ruled continue to benefit, but rather whether the
privileges which were permissibly or contractually exercised persisted to the point where it had evolved into an accepted part of the
culture and whether these practices had continued without fundamentally violating the new system.
16
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State v. Hanapi, 89 Hawai’i 177 (1998)
970 P.2d 485
© 2013 Thomson Reuters. No claim to original U.S. Government Works. 1
89 Hawai’i 177 Supreme Court of Hawai‘i.
STATE of Hawai‘i, Plaintiff-Appellee, v.
Alapai HANAPI, Defendant-Appellant.
No. 19746 | Nov. 20, 1998. | Reconsideration Denied Feb. 8, 1999.
Attorneys and Law Firms
**486 *178 Brian K. Nakamura, on the briefs, Honolulu,
for defendant-appellant.
Moana M. Lutey, Deputy Prosecuting Attorney, on the
briefs, for plaintiff-appellee.
MOON, C.J., KLEIN, LEVINSON, NAKAYAMA, and
RAMIL, JJ.
Opinion
Opinion of the Court by KLEIN, J.
Defendant-appellant Alapai Hanapi appeals from his
conviction of and sentence for criminal trespass in the
second degree, in violation of Hawai‘i Revised Statutes
(HRS) § 708-814(1)(a) (1993).1 On appeal, Hanapi
contends that his conviction should be reversed because:
(1) the district court committed reversible error when it
excluded relevant evidence and testimony in support of
his constitutionally protected native Hawaiian rights; and
(2) there was insufficient evidence to convict him because
the prosecution failed to negative his native Hawaiian
rights claim. Because Hanapi failed to show that his
conduct constituted protected constitutional activity, we
affirm his conviction of and sentence for criminal trespass
in the second degree.
I. BACKGROUND
Hanapi and his wife, Louise, assert that they are “native
Hawaiian artists and cultural practitioners who work, live,
and reside on the ancestral family kuleana within the
ahupua‘a of ‘Aha‘ino on the island of Moloka‘i.”
Adjoining the Hanapis’ property are twin fishponds
popularly called Kihaloko and Waihilahila. Hanapi
maintains that “for generations [his] family and ...
ancestors have practiced traditional native Hawaiian
religious, gathering, and sustenance activities in and
around the fishponds.”
Gary Galiher purchased the land next to the Hanapis’
property. Galiher subsequently fenced the property and
allegedly began to grade and fill the area near the ponds
with the apparent intention of building a boat landing.2
The Hanapis viewed Galiher’s grading as “the desecration
of [a] traditional ancestral cultural site” and allegedly
voiced their objection, first with Galiher and then to the
U.S. Army Corps of Engineers (COE).
The COE determined that a “wetlands violation” occurred
and entered into an agreement with Galiher to restore the
property.3 The COE agreed to a voluntary, unsupervised
restoration of the property, subject to the advice and
oversight of a consultant/archaeologist. Galiher hired Aki
Sinota, an archaeologist, and Vernon Demello, the on-site
supervisor, to remove the fill and restore the property.
The restoration took place on August 14-16, 1995. The
work consisted principally of removing the fill and
regrading the land with a bulldozer. For the first two days,
Hanapi4 entered the property without incident to observe
and monitor the restoration.
On the third day, Demello told Hanapi that he was not to
enter the property. Ignoring the warning, Hanapi entered
the property **487 *179 and allegedly observed demello
using a bulldozer to push the fill into a “punawai,” or
fresh water spring. Hanapi believed the destruction of the
“punawai” was not consistent with the restoration ordered
by the COE and complained to Sinota. Sinota explained to
Hanapi that the water was not a spring, but actually water
that had collected in a hole left by an uprooted tree.
During this discussion, Demello approached Hanapi and
ordered him off the property. When Hanapi refused to
leave, police were called and arrested Hanapi for criminal
trespass in the second degree, in violation of HRS §
708-814.
Trial commenced in the District Court of the Second
Circuit on November 14, 1995, with Hanapi appearing
pro se. At trial, Galiher stated that he employed Demello
as a foreman to maintain and operate equipment on his
land and “take[ ] on assignments as I give him.” Galiher
also testified that he gave Demello the authority to
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exclude people from his enclosed property.
Demello testified that on August 16, 1995, when Hanapi
came onto Galiher’s property he asked him to leave the
premises. Hanapi refused Demello’s request and the
police were called. Demello stated Hanapi was arrested
and removed from the premises.
As part of Hanapi’s defense, he called his wife, Louise, to
testify on his behalf. Hanapi first asked Louise if she
knew what was happening on Galiher’s premises the day
he was arrested. Louise responded that “[t]here was a
wetland [s] violation that was issued by the ... [COE] ... to
restore the wetland area [on Galiher’s property].” The
prosecutor objected on the grounds of relevance. Hanapi
advised the court that he was “trying to establish [his]
rights [as a native tenant] ... on the land regardless of
whether Mr. Galiher ... owned it or not[.]” The court
sustained the prosecution’s objection and told Hanapi,
“[y]ou’re getting into something that is a Circuit Court
matter, Mr. Hanapi. Right now we are talking about
trespass.”
Hanapi persisted in his attempt to assert his constitutional
rights as a native Hawaiian tenant and sought to elicit
further testimony from Louise concerning the native
Hawaiian right being claimed by him at the time of his
arrest….
**488 *180
….
Despite several adverse rulings, Hanapi continued to
question Louise about the moral obligation native
Hawaiian tenants have to the land.
….
Following Hanapi’s unsuccessful questioning, Hanapi
testified on his own behalf. In a narrative form, Hanapi
stated:
We are adjacent land owners. We’re native tenants of
the ahupua‘a. We are also legal land owners and we
enjoy the rights mandated by the state constitution,
[a]rticle 12 and HRS [sections] 1-1 [and] 7-1 which
allows us access for gathering reasons, for religious
purpose and also to-we have-as native tenant we also
have a moral responsibility and obligation to protect
our natural resources. This is an undeveloped ahupua‘a.
We subsist in this ahupua‘a, what I mean by subsisting
is subsist off the water, the fishpond, the ocean, the
springs[,] and also mauka side.
**489 *181 So, when this restoration was taking place
the family was of course concerned that it would be
done appropriately and done right, with respect.
...
[W]e went over to perform our religious and traditional
ceremonies of healing the land. We shared that with
Mrs. Billington, that we had to go over and start ... to
heal the land at that time. And that’s what our total
purpose was just to make sure that restoration was done
properly.
...
So we as a kama‘aina of the native peoples that lived in
that area and have been there since ancient times, we
know-we have knowledge of that area and how it was
prior to the damage that was done. So we were offering
our-we felt that it was our right to be there and to be
included to make sure it was done right.
On cross-examination, Hanapi did not contest that he was
on Galiher’s property on the date he was arrested. He did
not recall, however, Demello asking him to leave the
property. The prosecutor then asked Hanapi if he was on
Galiher’s property exercising his gathering or religious
rights. Hanapi responded affirmatively, stating that he
was “gathering for religious purposes to start the healing
of the land before the machines came in[.]”
At the close of trial, the district court convicted Hanapi of
criminal trespass in the second degree and made the
following oral findings:
[1.] There was no showing that the property is owned
by anyone other than ... Mr. Gary Galiher.
[2.] The charge of criminal trespass in the second
degree specifically indicates that the person willingly
[sic-knowingly] enters or remains unlawfully in or
upon premises which are enclosed in a manner
designed to [exclude] intruders or fenced.
[3.] The testimony [offered] was that the property on
which Mr. Hanapi entered was fenced, that he was
specifically asked to leave the premises. He did not
leave and was arrested.
[4.] The definition of enters or remains unlawfully
includes the fact that regardless of the person’s intent, a
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person [who] enters or remains upon premises does so
unless he defines [sic] a lawful owner [sic] not to enter
or remain personally communicated to the person by
the owner of the premises or by some other authorized
person. And the owner of the property, Mr. Galiher,
specifically indicated that Vernon Demello, his
foreman, had the right to exclude people.
[5.] Mr. Demello also testified that he asked Mr.
Hanapi to leave and he did not leave.
[6.] [T]here [was] no showing by the defendant that
whatever rights he asserts as a native tenant which has
been testified to only by his wife.
[7.] [T]here was no other showing that [Hanapi] is in
fact a native tenant of that particular property beside[s]
his own testimony and that of his wife.
[8]. [T]here is no showing also that he did enter for any
religious or gathering purposes.
Accordingly, the district court fined Hanapi $100.00.
Hanapi timely filed this appeal.
II. STANDARDS OF REVIEW
….
III. DISCUSSION
A. The District Court Did Not Commit Reversible Error
When It Excluded Evidence and Testimony Supporting
Hanapi’s Claimed Constitutional Right.
The offense of criminal trespass in the second degree with
which Hanapi was charged is defined in HRS §
708-814(1)(a) as “knowingly enter[ing] or remain [ing]
unlawfully in or upon premises which are enclosed in a
manner designed to exclude intruders or are fenced[.]”
See supra, note 1. A person “‘enters or remains
unlawfully’ in or upon premises when the person is not
licensed, invited, or otherwise privileged to do so.” HRS §
708-800 (1993) (emphasis added).
At trial, Hanapi essentially claimed he had a privilege, as
a native Hawaiian, to remain lawfully on Galiher’s
property to engage in a constitutionally protected
activity….
**491 *183 … [T]he assertion of a constitutionally
protected right presents a purely legal issue that must be
determined by the court….
As a practical matter, it would be unduly burdensome to
require the prosecution to negative any and all native
Hawaiian rights claims regardless of how implausible the
claimed right may be. “[T]o hold otherwise would be to
create a rule that all conduct is presumptively [protected
under the Constitution].” [Clark v. Community for
Creative Non-Violence, 468 U.S. 288, n.5 (1984)]. We
therefore hold that it is the obligation of the person
claiming the exercise of a native Hawaiian right to
demonstrate that the right is protected.
….
[T]he trial court begrudgingly allowed Hanapi to testify in
support of his constitutional claims. The burden was
squarely placed on Hanapi to prove that his conduct ought
to have been accorded constitutional protection.
Article XII, section 7 of the Hawai‘i Constitution
expressly provides:
The State reaffirms and shall
protect all rights, customarily and
traditionally exercised for
subsistence, cultural and religious
purposes and possessed by
ahupua‘a tenants who are
descendants of native Hawaiians
who inhabited the Hawaiian Islands
prior to 1778, subject to the right of
the State to regulate such rights.
This court has consistently recognized that “the
reasonable exercise of ancient Hawaiian usage is entitled
to protection under article XII, section 7.” Public Access
Shoreline Hawai‘i v. Hawai‘i County Planning Comm’n,
79 Hawai‘i 425, 442, 903 P.2d 1246, 1263 (1995)
(hereinafter “PASH ”) (emphasis in original). See also
Kalipi v. Hawaiian Trust Co., Ltd., 66 Haw. 1, 656 P.2d
745 (1982) (recognizing Hawaii’s constitutional mandate
to protect traditional and customary native Hawaiian
rights); Pele Defense Fund v. Paty, 73 Haw. 578, 620,
837 P.2d 1247, 1272 (1992) (upholding the “Kalipi
rights” defining the “rudiments of native Hawaiian rights
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protected by article XII, § 7” of the Hawai‘i Constitution).
In PASH, we further examined the legal developments of
land tenure in Hawai‘i and concluded that “the issuance
of a Hawaiian land patent confirmed a limited property
interest as compared with typical land patents governed
by western concepts of property.” Id.
Although PASH did not discuss the precise nature of
Hawaii’s “limited property interest,” one limitation would
be that constitutionally protected native Hawaiian rights,
reasonably exercised, qualify as a privilege for purposes
of enforcing criminal trespass statutes.
In the instant case, Hanapi attempted to meet his burden
of proof by requesting that **493 *185 the district court
allow him to introduce: (1) evidence and testimony
relating to the COE’s finding of a wetlands violation on
Galiher’s property; and (2) Louise Hanapi’s testimony
concerning the native Hawaiian rights asserted by Hanapi
at the time of his arrest.
….
The court permitted Hanapi to offer evidence that he was
on Galiher’s property due to a wetland’s violation. Hanapi
testified that his purpose for being on Galiher’s property
was “to participate in [the wet lands] restoration as [a]
monitor[ ] and consultant[ ].” Any further details of the
wetlands violation were of no consequence to Hanapi’s
claimed native Hawaiian right. Accordingly, the district
court correctly excluded additional evidence of a wetlands
violation as irrelevant.
Next, Hanapi contends that the district court excluded, as
irrelevant, testimonial evidence tending to support his
claim that he had a privilege, as a native Hawaiian, to be
on Galiher’s property to engage in a constitutionally
protected activity. Without this evidence, Hanapi appears
to argue that the court could not have concluded that he
was not exercising a protected constitutional right at the
time of his arrest. The record indicates that Hanapi
advised the court that he was “trying to establish [his]
rights [as a native tenant] ... on the land regardless of
whether Mr. Galiher ... owned it or not[.]” Thereafter, the
district court dismissed Hanapi’s constitutional claim as a
“[c]ircuit [c]ourt matter” unrelated to his trespass charge.
Despite this initial ruling, the district court permitted
Hanapi to substantiate his claimed constitutionally
protected right by eliciting testimony that: (1) he was a
native Hawaiian ahupua‘a tenant; (2) he had “a moral
responsibility and obligation to protect our natural
resources[;]” (3) the property he was on at the time of his
arrest was undeveloped; and (4) he was on Galiher’s
property to “perform ... religious and traditional
ceremonies of healing the land[,]” and “make sure the
restoration was done properly.” This being the case, we
can discern no prejudice to Hanapi’s substantial rights as
a result of the district court’s initial rejection of his
claimed constitutional privilege to be on Galiher’s
property. We therefore hold that the court’s errors were
harmless.
B. Hanapi Failed To Establish That His Claimed Native
Hawaiian Right Was a Customary and Traditional
Practice, and There Was Sufficient Evidence in the
Record To Sustain His Conviction.
Hanapi’s second point of error asserts that there was
insufficient evidence to support a conclusion that he
knowingly entered or remained unlawfully on Galiher’s
property in violation of HRS § 708-814(1)(a). In
particular, Hanapi contends that he presented credible
evidence establishing that he was exercising a
constitutionally protected native Hawaiian right at the
time of his arrest, and “the trial court was compelled as a
matter of law to acquit [him].”
In order for a defendant to establish that his or her
conduct is constitutionally protected as a native Hawaiian
right, he or she must **494 *186 show, at minimum, the
following three factors. First, he or she must qualify as a
“native Hawaiian” within the guidelines set out in PASH.
PASH acknowledged that the terms “native,” “Hawaiian,”
or “native Hawaiian” are not defined in our statutes, or
suggested in legislative history. PASH, 79 Hawai‘i at 449,
903 P.2d at 1270. PASH further declined to endorse a fifty
percent blood quantum requirement as urged by the
plaintiffs. Id. at 448, 903 P.2d at 1269. Instead, PASH
stated that “ those persons who are ‘descendants of native
Hawaiians who inhabited the islands prior to 1778,’ and
who assert otherwise valid customary and traditional
Hawaiian rights are entitled to [constitutional] protection
regardless of their blood quantum.” Id. at 449, 903 P.2d
at 1270 (quoting Haw. Const. art. XII, § 7) (emphasis
added).8
Second, once a defendant qualifies as a native Hawaiian,
he or she must then establish that his or her claimed right
is constitutionally protected as a customary or traditional
native Hawaiian practice. Some customary and traditional
native Hawaiian rights are codified either in art. XII,
section 7 of the Hawai‘i Constitution or in HRS §§ 1-1
and 7-1 (1993).9 The fact that the claimed right is not
specifically enumerated in the Constitution or statutes,
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does not preclude further inquiry concerning other
traditional and customary practices that have existed. Id.
at 438, 903 P.2d at 1259.
Finally, a defendant claiming his or her conduct is
constitutionally protected must also prove that the
exercise of the right occurred on undeveloped or “less
than fully developed property.” Id. at 450, 903 P.2d at
1271. In PASH, we reaffirmed the Kalipi court’s
nonstatutory “undeveloped land” requirement. Id. We
noted that “the Kalipi court justified the imposition of ...
[such a requirement] by suggesting that the exercise of
traditional gathering rights on fully developed property
‘would conflict with our understanding of the traditional
Hawaiian way of life in which cooperation and
non-interference with the wellbeing of other residents
were integral parts of the culture.’ ” Id. (quoting Kalipi
66 Haw. at 9, 656 P.2d at 750 (emphasis in original)). We
also acknowledged that “[d]epending on the
circumstances of each case, once land has reached the
point of ‘full development’ it may be inconsistent to allow
or enforce the practice of traditional Hawaiian gathering
rights on such property.” Id. (emphasis added). Our
intention in PASH was to examine the degree of
development of the property, including its current uses, to
determine whether the exercise of constitutionally
protected native Hawaiian rights on the site would be
inconsistent with modern reality. To clarify PASH, we
hold that if property is deemed “fully developed,” i.e.,
lands zoned and used for residential purposes with
existing dwellings,, **495 *187 improvements, and
infrastructure,10 it is always “inconsistent” to permit the
practice of traditional and customary native Hawaiian
rights on such property. In accordance with PASH,
however, we reserve the question as to the status of native
Hawaiian rights on property that is “less than fully
developed.” Id. at 450, 903 P.2d at 1271.
In this case, it is uncontroverted that Hanapi is a
“descendant[ ] of native Hawaiians who inhabited the
islands prior to 1778.” Thus, the primary issue is whether
Hanapi proved that his conduct, at the time of his arrest,
represented the exercise of a traditional or customary
native Hawaiian right deserving of constitutional
protection.11
At trial, Hanapi adduced no evidence establishing
“stewardship” or “restoration and healing of lands” as an
ancient traditional or customary native Hawaiian practice.
Instead, Hanapi reiterated his responsibility and sense of
obligation to the land, as a native Hawaiian tenant, to
justify his privileged access to Galiher’s property. This
evidence assumed, rather than established, the existence
of a protected customary right. See PASH, 79 Hawai‘i at
449, 903 P.2d at 1270 (specifying that, “ ‘usage must be
based on actual practice’ and not assumptions or
conjecture”) (quoting State v. Zimring, 58 Haw. 106, 117,
566 P.2d 725, 733 (1977)).
To establish the existence of a traditional or customary
native Hawaiian practice, we hold that there must be an
adequate foundation12 in the record connecting the
claimed right to a firmly rooted traditional or customary
native Hawaiian practice. Here, Hanapi did not offer any
explanation of the history or origin of the claimed right.
Nor was there a description of the “ceremonies” involved
in the healing process. Without this foundation, the
district court properly rejected, albeit inartfully, Hanapi’s
claim of constitutional privilege.
Inasmuch as Hanapi failed to adduce sufficient evidence
to support his claim of constitutional privilege, we must
next decide whether substantial evidence existed in the
record to support Hanapi’s conviction of criminal trespass
in the second degree.
As noted earlier, HRS § 708-814(1) states that “a person
commits the offense of criminal trespass in the second
degree if ... [t]he person knowingly enters or remains
unlawfully in or upon premises which are enclosed in a
manner designed to exclude intruders or are fenced[.]”
The facts in this case reveal that: (1) Galiher’s property
was fenced in a manner to exclude intruders; (2) Hanapi
knowingly entered Galiher’s property on the date of his
arrest; and (3) when Galiher’s foreman, Demello, ordered
Hanapi off the property, he refused to leave. Based on
these facts, the judge, as the trier of fact, had sufficient
evidence to conclude that Hanapi **496 *188 was
unlawfully on Galiher’s property, in violation of HRS §
708-814(1).
IV. CONCLUSION
For the above reasons, we affirm Hanapi’s conviction of
and sentence for criminal trespass in the second degree.
Parallel Citations
970 P.2d 485
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970 P.2d 485
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Footnotes
1
HRS § 708-814 states in relevant part:
Criminal trespass in the second degree. (1) A person commits the offense of criminal trespass in the second degree if:
(a) The person knowingly enters or remains unlawfully in or upon premises which are enclosed in a manner designed to
exclude intruders or are fenced[.]
...
(2) Criminal trespass in the second degree is a petty misdemeanor.
2
This background fact was mentioned in Hanapi’s opening brief, but not reflected in the trial transcripts.
3
As near as we can tell, Galiher committed an alleged “wetlands violation” and entered into an agreement with the COE to restore
his property. No further facts were available regarding Galiher’s violation. See infra, part III.A.
4
It appears from the record that Hanapi and his wife were both present on Galiher’s property throughout the restoration process.
However, we will not address Louise’s participation in this case unless it relates to issues concerning Hanapi.
5
….
6
….
7
….
8
In PASH, we also reserved the right to comment on the questions of (1) “whether descendants of citizens of the Kingdom of
Hawai‘i who did not inhabit the islands prior to 1778 may also assert customary and traditional rights[;]” and (2) whether
“non-Hawaiian” members of an “ohana” may legitimately claim native Hawaiian rights. Id. at 449 n. 41, 903 P.2d at 1270 n. 41.
Here, because Hanapi represented that he was a native Hawaiian ahupua‘a tenant, we do not reach the issues left open in footnote
41.
9
HRS § 1-1 states:
The common law of England as ascertained by English and American decisions, is declared to be the common law of the State
of Hawai‘i in all cases, except as otherwise provided by the Constitution or laws of the United States, or by the laws of the
State, or fixed by Hawaiian judicial precedent, or established by Hawaiian usage; provided that no person shall be subject to
criminal proceedings except as provided by the written laws of the United States of the State.
(Emphasis added).
HRS § 7-1 states:
Where landlords have obtained, or may hereafter obtain, allodial titles to their lands, the people on each of their lands shall not
be deprived of the right to take firewood, house-timber, aho cord, thatch, or ki leaf, from the land on which they live, for their
own private use, but they shall not have the right to take such articles to sell for profit. The people shall also have the right to
drinking water, and roads shall be free to all on all lands granted in fee simple; provided that this shall not be applicable to
well and watercourses, which individuals have made for their own use.
Together, HRS §§ 1-1 and 7-1 represents the codification of traditional and customary native Hawaiian rights which provide the
basis for a claim of a constitutionally protected native Hawaiian right.
10
We cite property used for residential purposes as an example of “fully developed” property. There may be other examples of “fully
developed” property as well where the existing uses of the property may be inconsistent with the exercise of protected native
Hawaiian rights.
11
Despite Hanapi’s uncontested testimony that Galiher’s property was undeveloped, we need not discuss the degree of development
on Galiher’s property because the dispositive issue in the instant case is based on the constitutionality of Hanapi’s claimed native
Hawaiian right.
12
A defendant may lay an adequate foundation by putting forth specialized knowledge that the claimed right is a traditional or
customary native Hawaiian practice. This specialized knowledge may come from expert testimony, pursuant to HRE Rule 702
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(1993). HRE Rule 702 states:
Testimony by experts. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or
education may testify thereto in the form of an opinion or otherwise. In determining the issue of assistance to the trier of fact,
the court may consider the trustworthiness and validity of the scientific technique or mode of analysis employed by the
proffered expert.
In this jurisdiction, we have also accepted kama‘aina witness testimony as proof of ancient Hawaiian tradition, custom, and
usage. See Palama v. Sheehan, 50 Haw. 298, 440 P.2d 95 (1968) (holding that testimony from kama‘aina witnesses were
sufficient to find the existence of an ancient Hawaiian right of way); Application of Ashford, 50 Haw. 314, 316, 440 P.2d 76, 78,
reh’g denied, 50 Haw. 452, 440 P.2d 76 (1968) (recognizing that Hawai‘i “allow[s] reputation evidence by kama‘aina witnesses
in land disputes”); In re Boundaries of Pulehunui, 4 Haw. 239 (1879) (permitting kama‘aina witnesses to testify about the
location of ancient Hawaiian land boundaries).
End of Document
© 2013 Thomson Reuters. No claim to original U.S. Government Works.
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State v. Hanapi, 89 Hawai’i 177 (1998)
970 P.2d 485
© 2013 Thomson Reuters. No claim to original U.S. Government Works. 1
89 Hawai’i 177 Supreme Court of Hawai‘i.
STATE of Hawai‘i, Plaintiff-Appellee, v.
Alapai HANAPI, Defendant-Appellant.
No. 19746 | Nov. 20, 1998. | Reconsideration Denied Feb. 8, 1999.
Attorneys and Law Firms
**486 *178 Brian K. Nakamura, on the briefs, Honolulu,
for defendant-appellant.
Moana M. Lutey, Deputy Prosecuting Attorney, on the
briefs, for plaintiff-appellee.
MOON, C.J., KLEIN, LEVINSON, NAKAYAMA, and
RAMIL, JJ.
Opinion
Opinion of the Court by KLEIN, J.
Defendant-appellant Alapai Hanapi appeals from his
conviction of and sentence for criminal trespass in the
second degree, in violation of Hawai‘i Revised Statutes
(HRS) § 708-814(1)(a) (1993).1 On appeal, Hanapi
contends that his conviction should be reversed because:
(1) the district court committed reversible error when it
excluded relevant evidence and testimony in support of
his constitutionally protected native Hawaiian rights; and
(2) there was insufficient evidence to convict him because
the prosecution failed to negative his native Hawaiian
rights claim. Because Hanapi failed to show that his
conduct constituted protected constitutional activity, we
affirm his conviction of and sentence for criminal trespass
in the second degree.
I. BACKGROUND
Hanapi and his wife, Louise, assert that they are “native
Hawaiian artists and cultural practitioners who work, live,
and reside on the ancestral family kuleana within the
ahupua‘a of ‘Aha‘ino on the island of Moloka‘i.”
Adjoining the Hanapis’ property are twin fishponds
popularly called Kihaloko and Waihilahila. Hanapi
maintains that “for generations [his] family and ...
ancestors have practiced traditional native Hawaiian
religious, gathering, and sustenance activities in and
around the fishponds.”
Gary Galiher purchased the land next to the Hanapis’
property. Galiher subsequently fenced the property and
allegedly began to grade and fill the area near the ponds
with the apparent intention of building a boat landing.2
The Hanapis viewed Galiher’s grading as “the desecration
of [a] traditional ancestral cultural site” and allegedly
voiced their objection, first with Galiher and then to the
U.S. Army Corps of Engineers (COE).
The COE determined that a “wetlands violation” occurred
and entered into an agreement with Galiher to restore the
property.3 The COE agreed to a voluntary, unsupervised
restoration of the property, subject to the advice and
oversight of a consultant/archaeologist. Galiher hired Aki
Sinota, an archaeologist, and Vernon Demello, the on-site
supervisor, to remove the fill and restore the property.
The restoration took place on August 14-16, 1995. The
work consisted principally of removing the fill and
regrading the land with a bulldozer. For the first two days,
Hanapi4 entered the property without incident to observe
and monitor the restoration.
On the third day, Demello told Hanapi that he was not to
enter the property. Ignoring the warning, Hanapi entered
the property **487 *179 and allegedly observed demello
using a bulldozer to push the fill into a “punawai,” or
fresh water spring. Hanapi believed the destruction of the
“punawai” was not consistent with the restoration ordered
by the COE and complained to Sinota. Sinota explained to
Hanapi that the water was not a spring, but actually water
that had collected in a hole left by an uprooted tree.
During this discussion, Demello approached Hanapi and
ordered him off the property. When Hanapi refused to
leave, police were called and arrested Hanapi for criminal
trespass in the second degree, in violation of HRS §
708-814.
Trial commenced in the District Court of the Second
Circuit on November 14, 1995, with Hanapi appearing
pro se. At trial, Galiher stated that he employed Demello
as a foreman to maintain and operate equipment on his
land and “take[ ] on assignments as I give him.” Galiher
also testified that he gave Demello the authority to
Comment [C1]: Information about the parties to
the dispute, the court that heard the case, and the
date of the decision all go into the case citation.
In this case the parties are Alapai Hanapi and the
state of Hawaii. The state or federal government will
always be a party to any criminal case.
Hanapi is identified as the Defendant-Appellant.
This means that he was the defendant at the trial
court level and that he is appealing that decision.
The citation also tells you in which volume and on
which page of a particular reporter you can find the
case. State v. Hanapi is published in volume 89, page
177 of Hawaii Reports.
Comment [C2]: This sentence summarizes the
procedural history of this case. Hanapi was
convicted of criminal trespass in the second degree
and he is appealing that conviction.
Some readers will also be interested in the fact that
Hanapi based his defense almost exclusively on the
argument that he was exercising Constitutionally
protected Hawaiian rights and that the court was
reluctant to allow Hanapi to introduce the evidence
he felt would prove his claim.
Does it tell you anything that Hanapi’s conviction
was accompanied by a fine of just $100? Do you
think the money is a primary motivation for the
appeal?
Comment [C3]: This is one place where the
court frames the issues.
Almost all the cases you read in Law School will be
appellate decisions, so the issue(s) will relate to
what the appellant contends are errors in the lower
court decision.
Comment [C4]: This statement by the court
summarizes the holding of the case.
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exclude people from his enclosed property.
Demello testified that on August 16, 1995, when Hanapi
came onto Galiher’s property he asked him to leave the
premises. Hanapi refused Demello’s request and the
police were called. Demello stated Hanapi was arrested
and removed from the premises.
As part of Hanapi’s defense, he called his wife, Louise, to
testify on his behalf. Hanapi first asked Louise if she
knew what was happening on Galiher’s premises the day
he was arrested. Louise responded that “[t]here was a
wetland [s] violation that was issued by the ... [COE] ... to
restore the wetland area [on Galiher’s property].” The
prosecutor objected on the grounds of relevance. Hanapi
advised the court that he was “trying to establish [his]
rights [as a native tenant] ... on the land regardless of
whether Mr. Galiher ... owned it or not[.]” The court
sustained the prosecution’s objection and told Hanapi,
“[y]ou’re getting into something that is a Circuit Court
matter, Mr. Hanapi. Right now we are talking about
trespass.”
Hanapi persisted in his attempt to assert his constitutional
rights as a native Hawaiian tenant and sought to elicit
further testimony from Louise concerning the native
Hawaiian right being claimed by him at the time of his
arrest….
**488 *180
….
Despite several adverse rulings, Hanapi continued to
question Louise about the moral obligation native
Hawaiian tenants have to the land.
….
Following Hanapi’s unsuccessful questioning, Hanapi
testified on his own behalf. In a narrative form, Hanapi
stated:
We are adjacent land owners. We’re native tenants of
the ahupua‘a. We are also legal land owners and we
enjoy the rights mandated by the state constitution,
[a]rticle 12 and HRS [sections] 1-1 [and] 7-1 which
allows us access for gathering reasons, for religious
purpose and also to-we have-as native tenant we also
have a moral responsibility and obligation to protect
our natural resources. This is an undeveloped ahupua‘a.
We subsist in this ahupua‘a, what I mean by subsisting
is subsist off the water, the fishpond, the ocean, the
springs[,] and also mauka side.
**489 *181 So, when this restoration was taking place
the family was of course concerned that it would be
done appropriately and done right, with respect.
...
[W]e went over to perform our religious and traditional
ceremonies of healing the land. We shared that with
Mrs. Billington, that we had to go over and start ... to
heal the land at that time. And that’s what our total
purpose was just to make sure that restoration was done
properly.
...
So we as a kama‘aina of the native peoples that lived in
that area and have been there since ancient times, we
know-we have knowledge of that area and how it was
prior to the damage that was done. So we were offering
our-we felt that it was our right to be there and to be
included to make sure it was done right.
On cross-examination, Hanapi did not contest that he was
on Galiher’s property on the date he was arrested. He did
not recall, however, Demello asking him to leave the
property. The prosecutor then asked Hanapi if he was on
Galiher’s property exercising his gathering or religious
rights. Hanapi responded affirmatively, stating that he
was “gathering for religious purposes to start the healing
of the land before the machines came in[.]”
At the close of trial, the district court convicted Hanapi of
criminal trespass in the second degree and made the
following oral findings:
[1.] There was no showing that the property is owned
by anyone other than ... Mr. Gary Galiher.
[2.] The charge of criminal trespass in the second
degree specifically indicates that the person willingly
[sic-knowingly] enters or remains unlawfully in or
upon premises which are enclosed in a manner
designed to [exclude] intruders or fenced.
[3.] The testimony [offered] was that the property on
which Mr. Hanapi entered was fenced, that he was
specifically asked to leave the premises. He did not
leave and was arrested.
[4.] The definition of enters or remains unlawfully
includes the fact that regardless of the person’s intent, a
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person [who] enters or remains upon premises does so
unless he defines [sic] a lawful owner [sic] not to enter
or remain personally communicated to the person by
the owner of the premises or by some other authorized
person. And the owner of the property, Mr. Galiher,
specifically indicated that Vernon Demello, his
foreman, had the right to exclude people.
[5.] Mr. Demello also testified that he asked Mr.
Hanapi to leave and he did not leave.
[6.] [T]here [was] no showing by the defendant that
whatever rights he asserts as a native tenant which has
been testified to only by his wife.
[7.] [T]here was no other showing that [Hanapi] is in
fact a native tenant of that particular property beside[s]
his own testimony and that of his wife.
[8]. [T]here is no showing also that he did enter for any
religious or gathering purposes.
Accordingly, the district court fined Hanapi $100.00.
Hanapi timely filed this appeal.
II. STANDARDS OF REVIEW
….
III. DISCUSSION
A. The District Court Did Not Commit Reversible Error
When It Excluded Evidence and Testimony Supporting
Hanapi’s Claimed Constitutional Right.
The offense of criminal trespass in the second degree with
which Hanapi was charged is defined in HRS §
708-814(1)(a) as “knowingly enter[ing] or remain [ing]
unlawfully in or upon premises which are enclosed in a
manner designed to exclude intruders or are fenced[.]”
See supra, note 1. A person “‘enters or remains
unlawfully’ in or upon premises when the person is not
licensed, invited, or otherwise privileged to do so.” HRS §
708-800 (1993) (emphasis added).
At trial, Hanapi essentially claimed he had a privilege, as
a native Hawaiian, to remain lawfully on Galiher’s
property to engage in a constitutionally protected
activity….
**491 *183 … [T]he assertion of a constitutionally
protected right presents a purely legal issue that must be
determined by the court….
As a practical matter, it would be unduly burdensome to
require the prosecution to negative any and all native
Hawaiian rights claims regardless of how implausible the
claimed right may be. “[T]o hold otherwise would be to
create a rule that all conduct is presumptively [protected
under the Constitution].” [Clark v. Community for
Creative Non-Violence, 468 U.S. 288, n.5 (1984)]. We
therefore hold that it is the obligation of the person
claiming the exercise of a native Hawaiian right to
demonstrate that the right is protected.
….
[T]he trial court begrudgingly allowed Hanapi to testify in
support of his constitutional claims. The burden was
squarely placed on Hanapi to prove that his conduct ought
to have been accorded constitutional protection.
Article XII, section 7 of the Hawai‘i Constitution
expressly provides:
The State reaffirms and shall
protect all rights, customarily and
traditionally exercised for
subsistence, cultural and religious
purposes and possessed by
ahupua‘a tenants who are
descendants of native Hawaiians
who inhabited the Hawaiian Islands
prior to 1778, subject to the right of
the State to regulate such rights.
This court has consistently recognized that “the
reasonable exercise of ancient Hawaiian usage is entitled
to protection under article XII, section 7.” Public Access
Shoreline Hawai‘i v. Hawai‘i County Planning Comm’n,
79 Hawai‘i 425, 442, 903 P.2d 1246, 1263 (1995) (hereinafter “PASH ”) (emphasis in original). See also
Kalipi v. Hawaiian Trust Co., Ltd., 66 Haw. 1, 656 P.2d
745 (1982) (recognizing Hawaii’s constitutional mandate
to protect traditional and customary native Hawaiian
rights); Pele Defense Fund v. Paty, 73 Haw. 578, 620,
837 P.2d 1247, 1272 (1992) (upholding the “Kalipi
rights” defining the “rudiments of native Hawaiian rights
Comment [C5]: This section of the opinion sets
forth the facts of the case.
Comment [C6]: The Court’s analysis is found in
this section of the opinion.
Hanapi has already been found guilty at trial. The
appellate court, in this case the Hawaii Supreme
Court is not going to hear new evidence on the
trespass conviction. The question on appeal is
whether the trial court decided correctly, or made
some error in the way the trial was conducted or in
the way the trial court interpreted the law.
On appeal, Hanapi argues that the trial court made
two errors.
•First, the court prevented Hanapi from introducing
evidence that Hanapi contends could have
supported his Native Hawaiian traditional and
customary rights claim. Hanapi argues that this
evidence should have been permitted and that it
would have changed the outcome.
•Second, Hanapi argues that the state failed to
prove that his actions did not constitute
constitutionally protected Native Hawaiian
traditional and customary rights. This is essentially a
question of who has the burden of proof on this
issue.
Comment [C7]: This statement is another way of
framing the holding of the case.
The same statement, rephrased as a question, could
serve as an issue statement.
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protected by article XII, § 7” of the Hawai‘i Constitution).
In PASH, we further examined the legal developments of
land tenure in Hawai‘i and concluded that “the issuance
of a Hawaiian land patent confirmed a limited property
interest as compared with typical land patents governed
by western concepts of property.” Id.
Although PASH did not discuss the precise nature of
Hawaii’s “limited property interest,” one limitation would
be that constitutionally protected native Hawaiian rights,
reasonably exercised, qualify as a privilege for purposes
of enforcing criminal trespass statutes.
In the instant case, Hanapi attempted to meet his burden
of proof by requesting that **493 *185 the district court
allow him to introduce: (1) evidence and testimony
relating to the COE’s finding of a wetlands violation on
Galiher’s property; and (2) Louise Hanapi’s testimony
concerning the native Hawaiian rights asserted by Hanapi
at the time of his arrest.
….
The court permitted Hanapi to offer evidence that he was
on Galiher’s property due to a wetland’s violation. Hanapi
testified that his purpose for being on Galiher’s property
was “to participate in [the wet lands] restoration as [a]
monitor[ ] and consultant[ ].” Any further details of the
wetlands violation were of no consequence to Hanapi’s
claimed native Hawaiian right. Accordingly, the district
court correctly excluded additional evidence of a wetlands
violation as irrelevant.
Next, Hanapi contends that the district court excluded, as
irrelevant, testimonial evidence tending to support his
claim that he had a privilege, as a native Hawaiian, to be
on Galiher’s property to engage in a constitutionally
protected activity. Without this evidence, Hanapi appears
to argue that the court could not have concluded that he
was not exercising a protected constitutional right at the
time of his arrest. The record indicates that Hanapi
advised the court that he was “trying to establish [his]
rights [as a native tenant] ... on the land regardless of
whether Mr. Galiher ... owned it or not[.]” Thereafter, the
district court dismissed Hanapi’s constitutional claim as a
“[c]ircuit [c]ourt matter” unrelated to his trespass charge.
Despite this initial ruling, the district court permitted
Hanapi to substantiate his claimed constitutionally
protected right by eliciting testimony that: (1) he was a
native Hawaiian ahupua‘a tenant; (2) he had “a moral
responsibility and obligation to protect our natural
resources[;]” (3) the property he was on at the time of his
arrest was undeveloped; and (4) he was on Galiher’s
property to “perform ... religious and traditional
ceremonies of healing the land[,]” and “make sure the
restoration was done properly.” This being the case, we
can discern no prejudice to Hanapi’s substantial rights as
a result of the district court’s initial rejection of his
claimed constitutional privilege to be on Galiher’s
property. We therefore hold that the court’s errors were
harmless.
B. Hanapi Failed To Establish That His Claimed Native
Hawaiian Right Was a Customary and Traditional
Practice, and There Was Sufficient Evidence in the
Record To Sustain His Conviction. Hanapi’s second point of error asserts that there was
insufficient evidence to support a conclusion that he
knowingly entered or remained unlawfully on Galiher’s
property in violation of HRS § 708-814(1)(a). In
particular, Hanapi contends that he presented credible
evidence establishing that he was exercising a
constitutionally protected native Hawaiian right at the
time of his arrest, and “the trial court was compelled as a
matter of law to acquit [him].”
In order for a defendant to establish that his or her
conduct is constitutionally protected as a native Hawaiian
right, he or she must **494 *186 show, at minimum, the
following three factors. First, he or she must qualify as a
“native Hawaiian” within the guidelines set out in PASH.
PASH acknowledged that the terms “native,” “Hawaiian,”
or “native Hawaiian” are not defined in our statutes, or
suggested in legislative history. PASH, 79 Hawai‘i at 449,
903 P.2d at 1270. PASH further declined to endorse a fifty
percent blood quantum requirement as urged by the
plaintiffs. Id. at 448, 903 P.2d at 1269. Instead, PASH
stated that “ those persons who are ‘descendants of native
Hawaiians who inhabited the islands prior to 1778,’ and
who assert otherwise valid customary and traditional
Hawaiian rights are entitled to [constitutional] protection
regardless of their blood quantum.” Id. at 449, 903 P.2d
at 1270 (quoting Haw. Const. art. XII, § 7) (emphasis
added).8
Second, once a defendant qualifies as a native Hawaiian,
he or she must then establish that his or her claimed right
is constitutionally protected as a customary or traditional
native Hawaiian practice. Some customary and traditional
native Hawaiian rights are codified either in art. XII,
section 7 of the Hawai‘i Constitution or in HRS §§ 1-1
and 7-1 (1993).9 The fact that the claimed right is not
specifically enumerated in the Constitution or statutes,
Comment [C8]: Use the court’s organizational
clues, like the numbered list here, to guide you
through the analysis.
Comment [C9]: This statement is another way of
framing the holding of the case.
The same statement, rephrased as a question, could
serve as an issue statement. Since there are really
two issues being addressed here, it would also be
correct to address them separately.
Comment [C10]: The three-factor test discussed
here organizes the court’s analysis. Always take
note of these structural clues to help you
understand the court’s reasoning.
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does not preclude further inquiry concerning other
traditional and customary practices that have existed. Id.
at 438, 903 P.2d at 1259.
Finally, a defendant claiming his or her conduct is
constitutionally protected must also prove that the
exercise of the right occurred on undeveloped or “less
than fully developed property.” Id. at 450, 903 P.2d at
1271. In PASH, we reaffirmed the Kalipi court’s
nonstatutory “undeveloped land” requirement. Id. We
noted that “the Kalipi court justified the imposition of ...
[such a requirement] by suggesting that the exercise of
traditional gathering rights on fully developed property
‘would conflict with our understanding of the traditional
Hawaiian way of life in which cooperation and
non-interference with the wellbeing of other residents
were integral parts of the culture.’ ” Id. (quoting Kalipi
66 Haw. at 9, 656 P.2d at 750 (emphasis in original)). We
also acknowledged that “[d]epending on the
circumstances of each case, once land has reached the
point of ‘full development’ it may be inconsistent to allow
or enforce the practice of traditional Hawaiian gathering
rights on such property.” Id. (emphasis added). Our
intention in PASH was to examine the degree of
development of the property, including its current uses, to
determine whether the exercise of constitutionally
protected native Hawaiian rights on the site would be
inconsistent with modern reality. To clarify PASH, we
hold that if property is deemed “fully developed,” i.e.,
lands zoned and used for residential purposes with
existing dwellings,, **495 *187 improvements, and
infrastructure,10 it is always “inconsistent” to permit the
practice of traditional and customary native Hawaiian
rights on such property. In accordance with PASH,
however, we reserve the question as to the status of native
Hawaiian rights on property that is “less than fully
developed.” Id. at 450, 903 P.2d at 1271.
In this case, it is uncontroverted that Hanapi is a
“descendant[ ] of native Hawaiians who inhabited the
islands prior to 1778.” Thus, the primary issue is whether
Hanapi proved that his conduct, at the time of his arrest,
represented the exercise of a traditional or customary
native Hawaiian right deserving of constitutional
protection.11
At trial, Hanapi adduced no evidence establishing
“stewardship” or “restoration and healing of lands” as an
ancient traditional or customary native Hawaiian practice.
Instead, Hanapi reiterated his responsibility and sense of
obligation to the land, as a native Hawaiian tenant, to
justify his privileged access to Galiher’s property. This
evidence assumed, rather than established, the existence
of a protected customary right. See PASH, 79 Hawai‘i at
449, 903 P.2d at 1270 (specifying that, “ ‘usage must be
based on actual practice’ and not assumptions or
conjecture”) (quoting State v. Zimring, 58 Haw. 106, 117,
566 P.2d 725, 733 (1977)).
To establish the existence of a traditional or customary
native Hawaiian practice, we hold that there must be an
adequate foundation12 in the record connecting the
claimed right to a firmly rooted traditional or customary
native Hawaiian practice. Here, Hanapi did not offer any
explanation of the history or origin of the claimed right.
Nor was there a description of the “ceremonies” involved
in the healing process. Without this foundation, the
district court properly rejected, albeit inartfully, Hanapi’s
claim of constitutional privilege.
Inasmuch as Hanapi failed to adduce sufficient evidence
to support his claim of constitutional privilege, we must
next decide whether substantial evidence existed in the
record to support Hanapi’s conviction of criminal trespass
in the second degree.
As noted earlier, HRS § 708-814(1) states that “a person
commits the offense of criminal trespass in the second
degree if ... [t]he person knowingly enters or remains
unlawfully in or upon premises which are enclosed in a
manner designed to exclude intruders or are fenced[.]”
The facts in this case reveal that: (1) Galiher’s property
was fenced in a manner to exclude intruders; (2) Hanapi
knowingly entered Galiher’s property on the date of his
arrest; and (3) when Galiher’s foreman, Demello, ordered
Hanapi off the property, he refused to leave. Based on
these facts, the judge, as the trier of fact, had sufficient
evidence to conclude that Hanapi **496 *188 was
unlawfully on Galiher’s property, in violation of HRS §
708-814(1).
IV. CONCLUSION
For the above reasons, we affirm Hanapi’s conviction of
and sentence for criminal trespass in the second degree.
Parallel Citations
970 P.2d 485
Comment [C11]: Here the court is recapping the
analysis that the trial court used to find Hanapi
guilty. In a criminal case, the state must prove every
element of the crime. The Supreme Court runs
through this analysis quickly because the trial court
is best suited to determine these factual issues.
Comment [C12]:
Do not be alarmed if you still find the analysis hard
to follow or understand. That is perfectly natural at
this stage. Your first days and weeks and months of
law school will involve learning a new language, a
new analytical approach, and a host of substantive
rules, all at the same time.
Expect the process to be slow and uneven at times
and be patient with yourself. Throughout the
process, keep asking yourself: “What does this case
teach me about the law?”
28
For Educational Use Only
State v. Hanapi, 89 Hawai’i 177 (1998)
970 P.2d 485
© 2013 Thomson Reuters. No claim to original U.S. Government Works. 6
Footnotes
1
HRS § 708-814 states in relevant part:
Criminal trespass in the second degree. (1) A person commits the offense of criminal trespass in the second degree if:
(a) The person knowingly enters or remains unlawfully in or upon premises which are enclosed in a manner designed to
exclude intruders or are fenced[.] ...
(2) Criminal trespass in the second degree is a petty misdemeanor.
2
This background fact was mentioned in Hanapi’s opening brief, but not reflected in the trial transcripts.
3
As near as we can tell, Galiher committed an alleged “wetlands violation” and entered into an agreement with the COE to restore
his property. No further facts were available regarding Galiher’s violation. See infra, part III.A.
4
It appears from the record that Hanapi and his wife were both present on Galiher’s property throughout the restoration process.
However, we will not address Louise’s participation in this case unless it relates to issues concerning Hanapi.
5
….
6
….
7
….
8
In PASH, we also reserved the right to comment on the questions of (1) “whether descendants of citizens of the Kingdom of
Hawai‘i who did not inhabit the islands prior to 1778 may also assert customary and traditional rights[;]” and (2) whether
“non-Hawaiian” members of an “ohana” may legitimately claim native Hawaiian rights. Id. at 449 n. 41, 903 P.2d at 1270 n. 41.
Here, because Hanapi represented that he was a native Hawaiian ahupua‘a tenant, we do not reach the issues left open in footnote
41.
9
HRS § 1-1 states:
The common law of England as ascertained by English and American decisions, is declared to be the common law of the State
of Hawai‘i in all cases, except as otherwise provided by the Constitution or laws of the United States, or by the laws of the
State, or fixed by Hawaiian judicial precedent, or established by Hawaiian usage; provided that no person shall be subject to
criminal proceedings except as provided by the written laws of the United States of the State.
(Emphasis added).
HRS § 7-1 states:
Where landlords have obtained, or may hereafter obtain, allodial titles to their lands, the people on each of their lands shall not
be deprived of the right to take firewood, house-timber, aho cord, thatch, or ki leaf, from the land on which they live, for their
own private use, but they shall not have the right to take such articles to sell for profit. The people shall also have the right to
drinking water, and roads shall be free to all on all lands granted in fee simple; provided that this shall not be applicable to
well and watercourses, which individuals have made for their own use.
Together, HRS §§ 1-1 and 7-1 represents the codification of traditional and customary native Hawaiian rights which provide the
basis for a claim of a constitutionally protected native Hawaiian right.
10
We cite property used for residential purposes as an example of “fully developed” property. There may be other examples of “fully
developed” property as well where the existing uses of the property may be inconsistent with the exercise of protected native
Hawaiian rights.
11
Despite Hanapi’s uncontested testimony that Galiher’s property was undeveloped, we need not discuss the degree of development
on Galiher’s property because the dispositive issue in the instant case is based on the constitutionality of Hanapi’s claimed native
Hawaiian right.
12
A defendant may lay an adequate foundation by putting forth specialized knowledge that the claimed right is a traditional or
customary native Hawaiian practice. This specialized knowledge may come from expert testimony, pursuant to HRE Rule 702
29
For Educational Use Only
State v. Hanapi, 89 Hawai’i 177 (1998)
970 P.2d 485
© 2013 Thomson Reuters. No claim to original U.S. Government Works. 7
(1993). HRE Rule 702 states:
Testimony by experts. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. In determining the issue of assistance to the trier of fact,
the court may consider the trustworthiness and validity of the scientific technique or mode of analysis employed by the
proffered expert.
In this jurisdiction, we have also accepted kama‘aina witness testimony as proof of ancient Hawaiian tradition, custom, and
usage. See Palama v. Sheehan, 50 Haw. 298, 440 P.2d 95 (1968) (holding that testimony from kama‘aina witnesses were
sufficient to find the existence of an ancient Hawaiian right of way); Application of Ashford, 50 Haw. 314, 316, 440 P.2d 76, 78,
reh’g denied, 50 Haw. 452, 440 P.2d 76 (1968) (recognizing that Hawai‘i “allow[s] reputation evidence by kama‘aina witnesses
in land disputes”); In re Boundaries of Pulehunui, 4 Haw. 239 (1879) (permitting kama‘aina witnesses to testify about the
location of ancient Hawaiian land boundaries).
End of Document
© 2013 Thomson Reuters. No claim to original U.S. Government Works.
30
RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS
TRADITIONAL AND CUSTOMARY RIGHTS
[Haw. Const., Art. XII,] Section 7. The State reaffirms and shall protect all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupua‘a tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the right of the State to regulate such rights.
[Add Const Con 1978 and election Nov 7, 1978]
* * *
Haw. Rev. Stat. [HRS] § 1-1 Common law of the State; exceptions. The common law of England, as ascertained by English and American decisions, is declared to be the common law of the State of Hawaii in all cases, except as otherwise expressly provided by the Constitution or laws of the United States, or by the laws of the State, or fixed by Hawaiian judicial precedent, or established by Hawaiian usage; provided that no person shall be subject to criminal proceedings except as provided by the written laws of the United States or of the State.
[L 1892, c 57, § 5; am L 1903, c 32, § 2; RL 1925, § 1; RL 1935, § 1; RL 1945, § 1; RL 1955, § 1-1; HRS § 1-1]
* * *
Haw. Rev. Stat. [HRS] § 7-1 Building materials, water, etc.; landlords' titles subject to
tenants' use. Where the landlords have obtained, or may hereafter obtain, allodial titles to their lands, the people on each of their lands shall not be deprived of the right to take firewood, house-timber, aho cord, thatch, or ki leaf, from the land on which they live, for their own private use, but they shall not have a right to take such articles to sell for profit. The people shall also have a right to drinking water, and running water, and the right of way. The springs of water, running water, and roads shall be free to all, on all lands granted in fee simple; provided that this shall not be applicable to wells and watercourses, which individuals have made for their own use.
[CC 1859, § 1477; RL 1925, § 576; RL 1935, § 1694; RL 1945, § 12901; RL 1955, § 14-1; HRS § 7-1]
31
RICHARDSON LAWYERING
CJ Richardson Materials
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In considering what I could add to this discussion, I thought that I could draw upon my experience as a judge in attempting to ensure that Hawaiian cultural practices and traditions were refl ected in the Hawai‘i Supreme Court’s decisions and, thus, in the law of our state. As you know, our courts have recognizedthat Hawai‘i’s laws relating to land and natural resources are unique in that they are based, in part, upon Hawaiian tradition, custom, and usage. This means that in many cases, we can look to the practices of our ancestors as guidance in establishing present-day law. Thus, it might be useful today to review with you some of the decisions that established these principles.
One of the fi rst was the 1968 case of In re Ashford—dealing ddwith a shoreline boundary. Many original grants from the Mahele described shoreline boundaries in general terms, using phrases such as “ma ke kai,” “along the sea, shoreline, or seacoast.” The exact meaning of these phrases was not established until the Ashford case. In that case, the court determined that according dto ancient Hawaiian tradition, custom, and usage, seaward boundaries described as “ma ke kai” are located along the upper reaches of the wash of waves, as evidenced by the edge of vegetation or by the line of debris left by the wash of waves.r
This decision was followed in 1973 by County of Hawai‘i ‘v. Sotomura (1973), in which, we examined property thathad been registered in Land Court with a description of the property using azimuth and distance measurements. We determined that even with property that had been so regis-tered and described, the “upper reaches of the wash of the waves” standard should be used to determine the shoreline boundary. The Sotomura case also established that where a seaward boundary is evidenced by both a debris line and a vegetation line lying further mauka (inland), the boundary is presumed to be the vegetation line. This meant that more of the beach would be available for public use.
USE OF TRADITIONAL PRACTICES IN PRESENT-DAY LAW PUWALU ‘EKOLU (THIRD CONFERENCE): OPENING REMARKS (DAY 1)BY WILLIAM S. RICHARDSON
THIS PUWALU (CONFERENCE) BRINGS TOGETHER THOSE WHO WERE INVOLVEDin the fi rst two Puwalu gatherings—cultural practitioners and teachers—with policymakers from the state and county level. The goal of this Third Puwalu is to fi nd ways to incorporate traditional cultural practices—practices that often come from and are most closely associated with moku and ahupua a—into natural and cultural resource management laws and policies throughout our islands. This is certainly a worthy goal–and a daunting task!
Hawaiian woman catching opae (shrimp) with a dip net atNapoopoo in Hawai‘i.
Hawaiian people using a dip net to fish in tide pools in Hawai‘i (1890-1905).
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In a subsequent decision, In re Sanborn (1977), we reaf-fi rmed our earlier decisions and determined that the seaward boundary of a parcel registered by the Land Court lay at the more mauka vegetation and debris line. Moreover, we held that in construing Land Court decrees, natural monuments such as “along the high water mark” are controlling over azimuth and distance measurements.
Following this series of cases, our State Legislature then enacted laws on shoreline boundaries to refl ect the court’s decisions, and the State Department of Land and Natural Resources enacted rules and regulations to implement the laws. I was delighted to see that recently, in interpreting these rules and regulations, our Hawai‘i Supreme Court looked to the Ashford and d Sotomuradecisions to provide guidance on where the shoreline should be located (Diamond v. State, October 2006). In that case, the Supreme Court reconfi rmed public policy in Sotomura.
I believe that the shoreline boundary situation presents a good example of how traditional and customary practice and knowledge has been judicially recognized and then incor-porated into state statutory law and eventually adopted as management policy.
In other areas of law, the Supreme Court has also looked toHawaiian custom and practice:
In Palama v. Sheehan (1968), we found a right of access toa kuleana parcel based, in part, on language in early Hawai‘i deeds reserving the rights of native tenants and on the 1850 Kuleana Act reserving the “right of way” on all lands granted in fee simple.
In McBryde Sugar Co. v Robinson (1973), we examined early Hawaiian water practices and determined that private ownership of such a precious resource was at odds with traditional Hawaiian practices. With this background, we looked at the intent of the
mid-eighteenth century laws surrounding the Mahele and trans-forming the communal land system into a private fee simple system. We found that the King intended to reserve the right to use water to himself in trust for the common good of all. Thus,twe recognized that the public trust doctrine was consistent with Hawaiian practice and thought and adopted into our laws at the time of the Mahele itself.
In the 1978 case In re Kamakana, the court looked to Hawaiian practice and custom to determine that the grant of an ahupua‘a would naturally include the fi shpond attached to the ahupua‘a—since Hawaiians viewed fi shponds in the same way they viewed ‘aina.¯
In Kalipi v. Hawaiian Trust Co., Ltd. (1982), we determined that gathering rights are protected by three sources in Hawai`i law:
- fi rst, the Kuleana Act, now codifi ed as HRS § 7-1;
- second, an 1892 law, HRS § 1-1, recognizing Hawaiian usage as an important exception to the common law; and
- fi nally, in Article XII, section 7, of the State Constitution protecting the traditional and customary rights of ahupua‘a tenants.
The court held that lawful residents of an ahupua‘a may, for the purpose of practicing Native Hawaiian customs and traditions, enter undeveloped lands within the ahupua a to gather fi rewood, house-timber, aho cord, thatch, or k i leaf, all items enumerated¯in the Kuleana Act. The court also stated that pursuant to Article XII, § 7, of the Constitution, courts are obligated “to preserve and enforce such traditional rights.”
We further stated that HRS § 1-1 ensures the continuation of Native Hawaiian customs and traditions not specifi cally enumer-ated in HRS § 7-1 that may have been practiced in certain ahupua‘a “for so long as no actual harm is done thereby.” We noted that the “retention of a Hawaiian tradition should in each case be determined by balancing the respective interests and harm.”
Thus, with regard to shoreline boundaries, kuleana access, water resources, ownership of fi shponds, and gathering rights, the court consistently looked to traditional and customary Native Hawaiian practice and use. These cases have also formed the basis for legislation, rules and regulations, and further judicial decisions.
One of the diffi cult questions courts have had to face in these kinds of cases is determining exactly what the Hawaiian practice or custom was and how it is expressed today. Long ago, our courts recognized that in ancient times certain people were taught the names and boundaries of each land division and that these people were repositories for this special kind of knowledge. So, the courts have allowed these kama‘aina witnesses to testify¯in land and boundary cases.
A Hawaiian canoe and fish baskets (ca. 1890). Photographed by Charles Furneaux.
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In modern times, and in the cases I just discussed, we have allowed kama‘aina witnesses to testify to the location of ¯shoreline boundaries according to ancient Hawaiian tradition, custom, and usage; to the location of trails used by kupuna; and more recently to gathering practices in specifi c areas such a Wao Kele O Puna on the Islands of Hawai‘i. The courts have looked to “experts” in Hawaiian language—to manaleo—to¯help determine the true meaning of certain phrases in Land Commission Awards and early deeds.
As all of you realize, traditional and customary practices can onlybe recognized by the courts and by policymakers if the practices remain vibrant and healthy and relevant to the lives of our people. We can only call upon manaleo to interpret the Hawaiian¯language in old deeds and laws if our language continues to live; we can only fi nd someone to testify as to the path used by hula folk who gather lehua and palapalai fern if hula continues to live, and the lehua and palapalai thrive; we will only know the right way to pick limu without killing off this resource if those who know teach those who are willing to learn.
This is why I was so encouraged to learn of the declarations and commitments made in the fi rst two Puwalu held earlier this year. This fi rst Puwalu of traditional practitioners called on the Hawaiian people “to begin the process to uphold and continue
Hawaiian traditional land and ocean practices into the gover-nance and education of the Hawaiian Archipelago.” The second Puwalu, which included both practitioners and educators, met to “deliberate on how to incorporate traditional Hawaiian practices and knowledge into the daily education of Hawai‘i’s children.” This third Puwalu tackles the diffi cult issues of how to incorporate traditional and customary practices into decisions and policies at the county and state levels.
For policymakers, I believe that you have the burden of balancing many different and apparently competing interests. You must balance the past and the future; the rights of the collective and individual; public interests and private interests; use of a resource with the risk that the use may deplete the resource; and Hawaiian customs and traditions with Western law.
You must make diffi cult decisions, but if you make those decisions with the counsel and advice from traditional prac-titioners and those who are most closely affected by and connected to a particular resource or area, your decisions will be sound. If you make your decisions based on traditional concepts of ahupua‘a resource management, while beingcognizant of the effects of your management decisions on the larger moku and on the entire archipelago, your decisions will result in a healthy and thriving resource and community. The
Spear fisherman near Hana, Maui (ca. 1890). Torch fishing with a dip net (1919). Photograph by Tai Sing Loo.
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best possible outcome for the resource, the Hawaiian people and all the people of Hawai‘i.
As all of you continue your deliberations, I know that you will remember that whatever our individual interests and goals, we are linked together and to this land. Each of us struggles, in their own way, to retain within us the learning and wisdom of our ancestors. We walk that delicate balance between two worlds—the modern and sometimes impersonal society that surrounds us, and the highly personal and ancient culture we carry within us. The times ahead present great challenges and possibilities for Hawaiians. I believe that we can meet these challenges, if we maintain our link with the past and our hope for the future.
WILLIAM S. RICHARDSON served as Chief Justiceof the Hawai‘i State Supreme Court from 1966-1982, and subsequently, as a trustee of what is now Kamehameha Schools/Bishop Estate. Prior to these services, he was Hawai‘i’s Lieutenant Governor under John A. Burns; in the private practice of law; an advocate for statehood; and chairman of the Hawai‘i Democratic Party (1956-1962). He is currently “in residence” at and involved with the continuing development of the state’s only law school, the William S. Richardson School of Law at the University of Hawai‘i, named in his honor.
PHOTO CREDIT
All photos courtesy of Bishop Museum
Weloka fishpond at Pearl Harbor, O‘ahu (ca. 1910). Photograph by Stokes.
Hawaiian people cutting up a captured turtle, Hilo, Hawai‘i (ca.1890-1905).
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36
Ka Lama Kil 0 Ka No'eau:The Standing Torch of Wisdom
Melody Kapilialoha MacKenzie*
In Hawaiian tradition, admiration for a wise person is expressed using thephrase "ka lama kii o ka no'eau," literally meaning "the standing torch ofwisdom."' This is indeed a fitting description of former Hawai'i SupremeCourt Chief Justice (CJ) William S. Richardson. Here at the law school thatbears his name and especially for those of us who have benefited from hisdecisions-both in his role as ajurist and as a wise mentor and leader-the lossof CJ Richardson's physical presence is deeply felt. Nowhere is CJRichardson's wisdom expressed with more eloquence and force than in theopinions that he wrote over the course of his sixteen-year tenure on the bench.His opinions reflect his humble background, his commitment to a more opensociety with equal opportunity for Hawai'i's multi-ethnic population, and hisstrong belief in looking to Hawai'i's rich past as a source of today's law.2
Born into a working-class Hawaiian, Chinese, and Caucasian family, CJRichardson understood social, economic, and political deprivations, and hecommitted himself to social justice. A graduate of Roosevelt High School andthe University of Hawai'i, CJ Richardson left Hawai'i to attend law school atthe University of Cincinnati. After his return from service in World War II, CJRichardson aligned himself with the revitalized Democratic Party, helping in
Associate Professor of Law and Director of Ka Huli Ao Center for Excellence in NativeHawaiian Law, William S. Richardson School of Law. I am a beneficiary-three times over-of Chief Justice Richardson's vision and commitment to the people of Hawai'i. I graduated inthe law schooPs first class in 1976, clerked for CJ Richardson for four years, and now teach atthe law school that bears his name.
In celebration of Chief Justice Richardson's ninetieth birthday in December 2009, and inhonor of the significant role he played in shaping Hawai'i's current jurisprudence and legalenvironment, selected opinions authored by CJ Richardson were gathered into one volumeentitled Ka Lama Ki7 0 Ka No'eau: The Standing Torch of Wisdom: Selected Opinions ofWilliam S. Richardson, ChiefJustice, Hawai'i Supreme Court, 1966-1982. This is an expandedversion of the introduction to that volume. Dean Avi Soifer contributed to that introduction andhas graciously allowed me to expand our work in this essay. I also wish to express my gratitudeto Nathaniel T. Noda, Ka Huli Ao Post-JD Research & Scholarship Fellow. Mahalo nunui to2005 WSRSL graduate, Kahikino Noa Dettweiler, for his beautiful Oli Aloha for CJRichardson.
' MARY KAWENA PUKUI, 'OLELO NO'EAu: HAwAIIAN PROVERBS & POETICAL SAYINGS 155(1983).
2 See generally CAROL S. DODD, THE RICHARDSON YEARS: 1966-1982 (1985) for a detailedbiography of Chief Justice Richardson and the factors that influenced his judicial decisions,much of which is referenced in this article.
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particular to mobilize the Hawaiian community in support of Democraticcandidates. He subsequently served as Chief Clerk of the State Senate and asLieutenant Governor. In 1966, Governor John A. Burns appointed him ChiefJustice of the Hawai'i Supreme Court where he served for the next sixteenyears. Throughout his career, CJ Richardson encouraged Native Hawaiians andother under-represented groups to work within the legal system to bring aboutpositive change for all of Hawai'i's people.
CJ Richardson was a staunch advocate of an independent judiciary, evenauthoring an article in the University of Hawai'i Law Review discussing hisviews on judicial independence.3 Although he had many friends andcolleagues in the legislative and executive branches of government, he fiercelydefended the Supreme Court's authority to promulgate rules of practice andprocedure for the state courts and to regulate the admission of new lawyers. Hefought to ensure that judges were protected from undue political pressures,which in his mind also meant guaranteeing that judges made a decent living.During his tenure, CJ Richardson established a unified judiciary and oversawthe implementation of the 1978 amendments to the Hawai'i State Constitutionthat created both an Intermediate Court of Appeals and a new judicial selectionprocess.
In addition to his role as ajurist, CJ Richardson was an astute administrator.One of his major efforts was to oversee the funding and construction of newbuildings for the judiciary-on O'ahu, Ka'ahumanu Hale to house the circuitcourts and Kauikeaouli Hale for the district courts. He also secured funding fornew judiciary buildings on the neighbor islands. The project closest to hisheart, however, was renovating Ali'i6lani Hale, the current Supreme Courtbuilding. CJ Richardson clearly wanted to restore the building to its earlierglory and to reclaim it for Hawai'i's people. After all, Ali'ialani Hale had beenthe seat of the Hawaiian Kingdom's Legislative Assembly. Moreover, it wasfrom the steps of Ali'i6lani Hale that the provisional government had declaredthe abrogation of the Hawaiian monarchy. It was thus particularly fitting that aNative Hawaiian Chief Justice ensured that the building, and in many sensesthe judiciary itself, would once again belong to the people of Hawai'i.
CJ Richardson mentored countless young attorneys, including the forty lawclerks who worked for him during his tenure on the court. As one of his lawclerks, I had the privilege of working closely with him for almost four years,staying on past my initial one-year commitment to help with the expandingcaseload and as CJ sought to implement changes in the judiciary.
CJ Richardson gave his law clerks wide latitude to freely express theiropinions about cases, both before and after oral argument. Once the court had
See William S. Richardson, Judicial Independence: The Hawaii Experience, 2 U. HAw.L. REv. 1 (1979).
4
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2010 / KA LA MA KCOKA NO'EAU
met and decided a case, CJ would call one of us into his chambers and saysomething like, "Well, I think we're going to be in the majority on this one-maybe even a unanimous one." He would outline his thinking on the case andan exchange of ideas would follow; sometimes he would call two of his clerksin to see which one was most interested in writing the decision. And then,armed with general directions and principles, it was up to the law clerk to givethose ideas real meat in a decision. If, at any time during the drafting process, aclerk was stuck, felt that perhaps the wrong decision was being made, or foundfacts in the record that made it impossible to rule as CJ and the court wished,CJ's door was always open. A first draft was often followed by a second andthird. You could always feel CJ's calm, but persistent, guidance.
Always generous with his time, CJ Richardson sat and talked to each of usabout the more mundane aspects of our lives as well as the big decisions wehad to make. CJ also allowed us great flexibility in our schedules. Afterensuring that there would be no conflicts, he let me work in my off hours on thedefense for those charged with federal trespass on the island of Kaho'olawe andlater allowed me to take a leave of absence to work at the 1978 ConstitutionalConvention. One of my most memorable experiences was when he bundled agroup of Supreme Court clerks into his car to go to Ala Moana Park for the firsthomecoming of the Hawaiian voyaging canoe, H6kile'a.
CJ took an ongoing interest in the lives and careers of his law clerks. He wasdelighted when we succeeded and he comforted us when we did not. Whenone of the clerks became a judge (as several did), ran for office, became apartner in a law firm, or received recognition for community service, CJRichardson was there. With a wide grin and a gentle nod of his head, he let usknow how much he supported us and how proud he was of ouraccomplishments.
Nothing is more striking about CJ Richardson's achievements than hislongstanding and continuing commitment to opening educational andprofessional avenues for the islands' most disadvantaged groups. Thiscommitment led to the 1973 establishment of the law school that now bears hisname. He understood that those with the greatest stake in building a more justand equitable society were often denied the opportunity to go to law schoolbecause of the prohibitive cost and distance. Determined that all in Hawai'ishould have the chance to obtain an excellent legal education, he fought anuphill battle over many years to create and help shape Hawai'i's only lawschool.
Because of CJ Richardson's perseverance, nearly 2500 men and women-many from underrepresented, minority, and Native Hawaiian communities-arenow practicing law in the public and private sectors, holding elected office,leading community and legal services organizations, teaching law, and servingin the judiciary.
5
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In 1966, as he was beginning his tenure on the Supreme Court, CJRichardson reflected on his new role as a jurist:
The man who is Chief Justice must balance the rules of the past to conform withthe state of society today .... He must bring the old rules in line with modemtimes. He must remember that those rules were made under a different structure.
He must live in the past-but not only the past. He must adopt the fundamentalprinciples of the past and bring them into focus with the present. And in Hawaii,the present-like the past-is a time of migration.4
For CJ Richardson, the past included more than the principles of Anglo-American law; it also included the principles of Hawaiian custom and tradition.For him, the past, present, and future all encompassed concern for the commonperson and for the dispossessed and disadvantaged. CJ Richardson understoodand accepted, even embraced, his responsibility. He knew that he and hisfellow jurists had the opportunity to make major changes, and he grasped thatopportunity.
Working closely with the other members of the court, CJ Richardson helpedto reincorporate Native Hawaiian tradition and custom into state law andexpanded public rights. His decisions show his successful efforts to balancecompeting factors: the past and the future; Western law and Hawaiian law andtradition; the rights of the individual and the rights of the collective; and publicand private interests.
At times, this new yet old way of thinking drew criticism from governmentofficials and the legal profession, but it has become recognized as anenlightened approach for our distinctive, multi-cultural homeland. Recently,CJ Richardson reflected on his court's approach:
Hawai'i has a unique legal system, a system of laws that was originally built onan ancient and traditional culture. While that ancient culture had largely beendisplaced, nevertheless many of the underlying guiding principles remained.During the years after the illegal overthrow of the Hawaiian Kingdom in 1893and through Hawai'i's territorial period, the decisions of our highest courtreflected a primarily Western orientation and sensibility that wasn't acomfortable fit with Hawai'i's indigenous people and its immigrant population.We set about returning control of interpreting the law to those with deep roots inand profound love for Hawai'i. The result can be found in the decisions of ourSupreme Court beginning after Statehood. Thus, we made a conscious effort tolook to Hawaiian custom and tradition in deciding our cases-and consistent withHawaiian practice, our court held that the beaches were free to all, that access to
4 Gene Hunter, Democrat Richardson Has His Heart in Hawaii, HONOLULU ADVERTISER,
Feb. 26, 1966, at Al.
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the mountains and shoreline must be provided to the people, and that waterresources could not be privately owned.5
The decisions of the Richardson court relating to water are undoubtedly themost widely known and the most controversial. CJ Richardson did not writethe seminal water rights opinion, McBryde Sugar Co. v. Robinson,6 but he wasin strong agreement with the majority and defended and reaffirmed this earlierdecision in subsequent opinions. In McBryde, the court clarified Hawai'i lawand held that water flowing in natural watercourses belongs to the State. Thecourt concluded that in the Mihele-the conversion to fee simple titles in themid-i 800s-King Kamehameha III intended to reserve the right to use water tohimself as sovereign for the common good.7 No right to private ownership ofwater had been conveyed with any land title grants.8 Therefore, the State, assuccessor to the king, owned all waters flowing in natural watercourses andheld water in trust for the people.9 The McBryde decision also pointed to the1850 Kuleana Act, which allowed native tenants to obtain fee simple title toland. The Kuleana Act, the court stated, guaranteed the right to "drinkingwater and running water," thereby giving riparian water rights to land ownersadjoining natural watercourses.o
In 1982, in Robinson v. Ariyoshi," CJ Richardson responded to six questionscertified by the Ninth Circuit Court of Appeals in appeals related to theMcBryde decision. Robinson provided important clarifications regarding waterlaw in Hawai'i, including strongly reaffirming the role of the public trustdoctrine in both traditional Hawaiian and modem usage. Robinson reiteratedthat the McBryde decision clarified ambiguous aspects of Hawai'i water lawand did not depart from settled legal principles.12 It was also instrumental inaffirming the role of the riparian doctrine in Hawai'i water law.
CJ Richardson decided a second important water rights case the same year.Reppun v. Board of Water Supply' 3 involved a dispute over the water inWaihe'e Stream on O'ahu and the impact of the Board of Water Supply's wellson the rights of downstream kalo (taro) farmers. The court's opinion helped
William S. Richardson, Spirit of Excellence Award Acceptance Speech at the ABA Spiritof Excellence Awards Luncheon (Miami, Fla., February 10, 2007).
6 54 Haw. 174, 504 P.2d 1330 (Abe, J.), aff'don reh'g, 55 Haw. 260,517 P.2d 26 (1973)(per curiam).
7 Id. at 185-87, 504 P.2d at 1338-39.8 Id
9 Id.'o Id. at 191-99, 504 P.2d at 1341-45.' 65 Haw. 641, 658 P.2d 287 (1982).
12 Id. at 673-76, 658 P.2d at 309-12.'3 65 Haw. 531, 656 P.2d 57 (1982).
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explain the doctrines of appurtenant and riparian rights, including whether suchrights may be transferred or extinguished.
CJ Richardson has identified In re Ashfordl4 as the decision of which he wasmost proud and the one that he believed had the most significant impact. InAshford, the court was called upon to determine the boundary between publicbeaches and private property. At issue was an original grant from the Mheledescribing the shoreline boundary using the phrase "ma ke kai," or "along thesea."15 The meaning of this term was established in Ashford, when the courtallowed kama'dina witness testimony' 6 on the location of shoreline boundariesaccording to ancient Hawaiian tradition, custom, and usage. The court thendetermined that based on Hawaiian custom and usage, seaward boundariesdescribed as "ma ke kai" are located along the upper reaches of the wash ofwaves, as evidenced by the edge of vegetation or line of debris left by the washof waves.' 7
In two subsequent cases, County of Hawaii v. Sotomura and In reSanborn,'9 the court affirmed and refined the Ashford decision. In Sotomura,the court applied the Ashford standard to property that had been registered inLand Court and also determined that where seaward boundaries are evidencedby both a debris line and a vegetation line lying further mauka, or inland, theboundary is presumed to be at the vegetation line.20 This meant that more ofthe beach would be available for public use and the court specifically noted that"[p]ublic policy .. . favors extending to public use and ownership as much ofHawaii's shoreline as is reasonably possible." 21 In Sanborn, another caseinvolving property registered in Land Court, the Hawai'i Supreme Courtreaffirmed its earlier holdings and also ruled that in construing land courtdecrees, natural monuments such as "along the high water mark" arecontrolling over azimuth and distance measurements.2 2 Citing Sotomura, thecourt stated, "land below high water mark is held in public trust by the State,whose ownership may not be relinquished, except where relinquishment isconsistent with certain public purposes." 23
14 50 Haw. 314, 440 P.2d 76 (1968)." Id. at 314, 440 P.2d at 77.16 In a footnote, the court quoted an earlier Hawai'i case to define a kama'dina witness as "a
person familiar from childhood with any locality." Id. at 315 n.2, 440 P.2d at 77 n.2 (quotingln
re Boundaries of Pulehunui, 4 Haw. 239, 245 (1879)).17 Id. at 315, 440 P.2d at 77." 55 Haw. 176, 517 P.2d 57 (1973).'9 57 Haw. 585, 562 P.2d 771 (1977).20 Sotomura, 55 Haw. at 182, 517 P.2d at 62.21 Id. at 189, 517 P.2d at 66.22 Sanborn, 57 Haw. at 590, 562 P.2d at 774.23 Id. at 593-94, 562 P.2d at 776 (quoting Sotomura, 55 Haw. at 183-84, 517 P.2d at 63).
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In another landmark case, State ex rel. Kobayashi v. Zimring,24 the court wascalled upon to resolve a dispute over whether new lands created by a lava flowwere public or private property. After a detailed examination of the Miheleand the State Admission Act, as well as Hawaiian precedent, to determine howlava extensions were treated under Hawaiian custom and applicable law, CJRichardson held that lands created by lava extensions are owned by the State ofHawai'i. 2 5 Finding no prior Hawaiian custom or judicial precedent, hereasoned that "equity and sound public policy demand that such land inure tothe benefit of all the people of Hawaii, in whose behalf the government acts astrustee ... . Thus we hold that lava extensions vest when created in the peopleof Hawaii, held in public trust by the government for the benefit, use andenjoyment of all the people."26
Two other decisions further demonstrate the Richardson court's view thatresources should be held for the benefit of the public. In the 1966 case In reRobinson, the court held that a reservation of the government's rights to "allmineral or metallic mines, of every description," in a royal patent controlledeven where the original Land Commission Award did not contain thereservation.27 Two years later, the court decided In re Kelley, holding that aprivate road, abandoned to the government prior to an 1892 act designating alltrails, roads and highways as public, automatically became a public highway
28upon passage of the act-even without formal acceptance by the government.It would be a mistake to conclude, however, that the Richardson court always
acted to give resources to the public. In the 1978 case In re Kamakana, thejustices looked to Hawaiian practice and custom to determine that the grant ofan ahupua'a, a traditional Hawaiian land unit, would naturally include thefishpond attached to the ahupua'a.29 The court reasoned that becauseHawaiians viewed fishponds in the same way that they viewed 'dina or land,the private claimant, not the State, owned a Moloka'i fishpond.o In anothercase decided the same year, United Congregational Churches v. Kamamalu,the court established that continuous occupation of state lands by the churchesafforded them an equitable right to use the property, until abandoned, for thosepurposes.
24 58 Haw. 106, 566 P.2d 725 (1977).25 Id. at 124-25, 566 P.2d at 736-38.26 Id. at 121, 566 P.2d at 735 (citations omitted).27 49 Haw. 429, 440-41, 421 P.2d 570, 577-78 (1966).28 50 Haw. 567, 579-80, 445 P.2d 538, 546-47 (1968).29 58 Haw. 632, 640-41, 574 P.2d 1346, 1350-51 (1978).30 Id. at 638-41, 574 P.2d at 1349-5 1.31 59 Haw. 334, 341-43, 582 P.2d 208, 213-14 (1978).
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CJ Richardson also expressed concern for the loss of Hawaiian lands throughadverse possession. In Yin v. Midkiff 2 and City and County of Honolulu v.Bennett,33 his court determined that a co-tenant must show good faith inadversely possessing property. In most instances, CJ Richardson noted, therequirement of good faith in turn mandates that the tenant acting adverselymust actually notify co-tenants of the claim against them.34 The courtacknowledged that there may be exceptional circumstances where good faith issatisfied by less than actual notice, but this basic good faith requirement hasremained the standard for adverse possession claims against co-tenants inHawai' i.36
In another key decision, CJ Richardson set forth the standard by which stateactions should be judged when dealing with beneficiaries of the HawaiianHomes Commission Act,37 a law establishing homestead lands for NativeHawaiians of not less than fifty percent Hawaiian ancestry. In Ahuna v.Department ofHawaiian Home Lands, the court drew the analogy between thefederal government's relationship with Native American peoples and theState's relationship with Hawaiian home lands beneficiaries, declaring that theState must "adhere to high fiduciary duties normally owed by a trustee to itsbeneficiaries."38 CJ's opinion added that the State should thus be judged by"the most exacting fiduciary standards."39 These duties included the duty to actsolely in the interests of the beneficiaries and to exercise reasonable care andskill in dealing with trust property.4 0
The lasting value of the Ahuna court's explication of these trust duties isevident in current Hawai'i case law. The Hawai'i Supreme Court has adoptedthe Ahuna standard in two landmark caseS4' related to the public land trust, theformer Hawaiian Kingdom Government and Crown Lands ceded to the UnitedStates by the Republic of Hawai'i in 1898 and then transferred to the State ofHawai'i in the 1959 Admission Act. The court has applied these same strict
32 52 Haw. 537, 481 P.2d 109 (1971).3 57 Haw. 195, 552 P.2d 1380 (1976).34 Id. at 209-10, 552 P.2d at 1390.35 Id.36 See Wailuku Agribusiness Co. v. Ah Sam, 114 Haw. 24,34, 155 P.3d 1125, 1135 (2007);
Morinoue v. Roy, 86 Haw. 76, 82-83, 947 P.2d 944, 950-51 (1997); Hana Ranch v. Kanakaole,66 Haw. 643, 645-46, 672 P.2d 550, 551-52 (1983).
1 42 Stat. 108 (1921), reprinted in 1 HAw. REv. STAT. 261 (2009).3 64 Haw. 327, 338, 640 P.2d 1161, 1168 (1982).3 Id. at 339, 640 P.2d at 1169 (quoting Seminole Nation v. United States, 316 U.S. 286,
297 (1942)) (emphasis omitted).40 Id. at 340, 640 P.2d at 1169.41 Pele Def. Fund v. Paty, 73 Haw. 578,605 n.18,837 P.2d 1247, 1274 n.18(1992); Office
of Hawaiian Affairs v. Hous. & Cmty. Dev. Corp. of Haw., 117 Haw. 174, 195, 177 P.3d 884,905 (2008), rev'd sub nom. Hawaii v. Office of Hawaiian Affairs, 129 S. Ct. 1436 (2009).
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fiduciary standards to the State's dealings with public trust lands, stating that"such duty is consistent with the State's obligation to use reasonable skill andcare in managing the public lands trust" and that the State's conduct should bejudged "by the most exacting fiduciary standards."42
CJ Richardson once again looked to early Hawaiian law and custom inPalama v. Sheehan.43 In Palama, his opinion found a right of access to akuleana parcel based, in part, on language in early Hawai'i deeds reserving therights of native tenants as well as the 1850 Kuleana Act's provision reservingthe "right of way" on all lands granted in fee simple." The decision also reliedon kama'aina testimony in the trial court showing that the road was an ancientHawaiian right of way.45
Turning to Hawaiian custom and practice again, and bolstered by a 1978amendment to the Hawai'i State Constitution, CJ Richardson's 1982 decisionin Kalipi v. Hawaiian Trust Co.,46 dealing with Native Hawaiian gatheringrights, broke new ground. The court stated that pursuant to article XII, section7 of the amended constitution, courts are obligated "to preserve and enforcesuch traditional rights."47 Recognizing that gathering rights are protected bythree sources in Hawai'i law-Hawai'i Revised Statutes (H.R.S.) sections 1-1and 7-1, and article XII, section 7 of the Hawai'i State Constitution-the courtdetermined that lawful residents of an ahupua'a may, for the purpose ofpracticing Native Hawaiian customs and traditions, enter undeveloped landswithin the ahupua'a to gather the items enumerated in H.R.S. section 7-1.4The court further stated that H.R.S. section 1-1 ensures the continuation ofNative Hawaiian customs and traditions not specifically enumerated in H.R.S.section 7-1 that may have been practiced in certain ahupua'a "for so long as noactual harm is done thereby."49 It noted that the "retention of a Hawaiiantradition should in each case be determined by balancing the respectiveinterests and harm once it is established that the application of the custom hascontinued in a particular area."50
The Kalipi decision set the foundation for more recent cases affirmingtraditional and customary rights. Ten years after Kalipi, the Hawai'i SupremeCourt, in Pele Defense Fund v. Paty, recognized that "native Hawaiian rights
42 Office ofHawaiian Affairs, 117 Haw. at 195, 177 P.3d at 905 (internal quotation marksomitted).
43 50 Haw. 298, 440 P.2d 95 (1968).4 See id. at 300, 440 P.2d at 97.45 Id. at 301, 440 P.2d at 97-98.46 66 Haw. 1, 656 P.2d 745 (1982).47 Id. at 4, 656 P.2d at 748.48 Id. at 7-8, 656 P.2d at 749.49 Id. at 10, 656 P.2d at 751.50 Id.
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protected by article XII, section 7 [of the Hawai'i Constitution] may extendbeyond the ahupua'a in which a native Hawaiian resides where such rights havebeen customarily and traditionally exercised in this manner."51 The courtexplained that although Kalipi had gathering rights under H.R.S. section 7-1limited to the ahupua'a in which he lived as a native tenant, H.R.S. section 1-l's "'Hawaiian usage' clause may establish certain customary Hawaiian rightsbeyond those found in section 7-1."s2 In 1995, in Public Access ShorelineHawaii v. Hawai'i County Planning Commission (PASH), the court rejectedthe argument that gathering rights disappear when an owner develops land,holding instead that the State is obligated to protect the reasonable exercise oftraditional and customary rights to the extent feasible.53 The court based itsdecision on H.R.S. section 1-1, tracing its origins to an 1847 law authorizingthe adoption of common law principles "not in conflict with the laws andusages of this kingdom." 54 The PASH court further stressed, "the precisenature and scope of the rights retained by [H.R.S.] § 1-1 ... depend upon theparticular circumstances of each case"55 and noted that Kalipi specificallyrefused to decide the "ultimate scope" of traditional rights under that statute. 6
Two decisions of the Richardson era illustrate the court's general approach topublic education. In Spears v. Honda, a 1968 case, the court ruled that theState lacked the constitutional authority to use public funds to provide bustransportation subsidies for sectarian and private school students.57 InMedeiros v. Kiyosaki, decided in 1970, the court found that the use of a familylife and sex education film series in a non-compulsory state sex educationprogram did not contravene the right of privacy and autonomy claimed byparents.5 8
The court was frequently called upon to decide cases relating to the rights ofthe electorate. In the 1969 case Akizaki v. Fong, the court determined that thecommingling of valid and invalid absentee ballots invalidated the electionresults for a representative to the State House, necessitating another election.59
In County ofKauai v. Pacific Standard Life Insurance Co., the court resolved"a conflict between the private interest of the landowners to develop their
s" 73 Haw. 578, 620, 837 P.2d 1247, 1272 (1992).52 Id. at 618, 837 P.2d at 1275 (citing Kalipi, 66 Haw. at 9-10, 656 P.2d at 750).s3 79 Haw. 425,448-49,903 P.2d 1246, 1269-70 (1995) (holding that "common law rights
ordinarily associated with tenancy do not limit customary rights existing under the laws of thisstate") (citation and internal quotation marks omitted).
54 Id. at 437 n.21, 903 P.2d at 1258 n.21 (internal quotation marks omitted).s Id. at 438, 440, 903 P.2d at 1259, 1261 (citing Pele Def. Fund v. Paty, 73 Haw. at 619,
837 P.2d at 1271) (internal quotation marks omitted).56 Id. at 439, 903 P.2d at 1260.5 51 Haw. 1, 15-16, 449 P.2d 130, 139 (1968).58 52 Haw. 436, 438-41, 478 P.2d 314, 315-17 (1970).s9 51 Haw. 354, 360, 461 P.2d 221, 224-25 (1968).
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property and the public interest of the electorate to effectively determine ...land use policy." 0 The court held for the electorate and determined that zoningestoppel does not apply where certification of a prohibiting referendumprecedes final discretionary action by the government.
The Richardson court also opened the way for greater public access to boththe administrative process and the courts. In Life of the Land v. Land UseCommission62 and later in Akau v. Olohana,6 3 the court adopted progressivestanding requirements, allowing organizations and individuals to challenge landuse decisions and to assert environmental and other important public rights.Since their initial adoption, the Hawai'i Supreme Court has consistentlyreaffirmed these standing requirements in cases involving environmental andpublic rights.6
Consistent with CJ Richardson's concern for working people, his courtliberally interpreted the statutory presumption in favor of a causal connectionbetween employment activity and an employee's death in Akamine v. HawaiianPacking & Crating Co.65 According to CJ Richardson, it was legally irrelevantthat an employee's heart attack, which occurred at work, could just as easilyhave occurred when the employee was not working: "The only [legal]consideration should have been whether the attack in fact was aggravated oraccelerated by . .. work activity."66
Finally, in another important series of cases, the Hawai'i Supreme Courtexamined negligent infliction of emotional distress claims. In the 1970 caseRodrigues v. State, the court had to decide if the plaintiff could recover foremotional distress when his newly-built house was flooded after the State failedto clear a drainage culvert. The court determined that "the interest in freedomfrom negligent infliction of serious mental distress is entitled to independentlegal protection"68 and held that "there is a duty to refrain from the negligentinfliction of serious mental distress."6 9 The duty, however, runs "only to those
60 65 Haw. 318, 323, 653 P.2d 766, 771 (1982).6! Id. at 335-36, 653 P.2d at 778-79.62 61 Haw. 3, 594 P.2d 1079 (1979).63 65 Haw. 383, 653 P.2d 1130 (1982).64 Cases citing Life ofthe Land include E & JLounge Operating Co. v. Liquor Commission
of City & County ofHonolulu, 118 Haw. 320, 346, 189 P.3d 432, 458 (2008), and Ka Pa'akaiOKa 'Aina v. Land Use Commission, 94 Haw. 31,43, 7 P.3d 1068, 1080 (2000); cases citingAkau include Office of Hawaiian Affairs v. Housing & Community Development Corp. ofHawai'i, 121 Haw. 324, 331, 219 P.3d 1111, 1118 (2009), and Sierra Club v. Department ofTransportation (Superferry l), 115 Haw. 299, 314, 167 P.3d 292, 321 (2007).
6s 53 Haw. 406, 495 P.2d 1164 (1972).6 Id. at 413, 495 P.2d at 1169.67 52 Haw. 156, 157-61, 472 P.2d 509, 512-14 (1970).61 Id. at 174, 472 P.2d at 520 (emphasis added).69 Id.
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who are foreseeably endangered by the conduct and only with respect to thoserisks or hazards whose likelihood made the conduct unreasonably dangerous."70
Four years later, in Leong v. Takasaki, by looking to the concepts of 'ohana(extended family) and ho'okama (a form of customary adoption), CJRichardson found that a blood relationship may not be necessary in order torecover for emotional distress caused by seeing a step-grandmother hit by acar." His opinion stated: "Hawaiian and Asian families of this state have longmaintained strong ties among members of the same extended family group.The Hawaiian word ohana has been used to express this concept."7 2 In 1975,CJ Richardson dissented in Kelley v. Kokua Sales, another case involving thebounds of liability in negligent infliction of serious mental distress cases. Heargued eloquently against the majority's retreat from the precedent set byRodrigues.74
Necessarily, any review of CJ Richardson's judicial opinions can give only ahint of his enormous influence. It does not begin to touch upon theextraordinary personal qualities-his optimism, his empathy, his uniquelygenerous blend of heart and spirit and head, his warmth and humor, and his rarecommon sense-that are so securely anchored in the land and people ofHawai'i. It also cannot convey how CJ Richardson's many deeds, stretchingfar beyond his judicial opinions, have greatly influenced and improved Hawai'ias well as the world beyond our shores.
For the law school's 2005 graduation ceremony, graduate Kahikino NoaDettweiler wrote and presented an Oli Aloha, a chant honoring CJRichardson. As Noa explained, the chant compares CJ Richardson to thelehua blossom, a poetic reference for a person of profound skill and wisdom.76
The Oli Aloha alludes to Kamehameha's Law of the Splintered Paddle, thelaw that declared: "Let the old men, the old women and the children go andsleep by the wayside; let them be not molested."77 Although there are severalversions of the mo'olelo (story) about this law, they all recount that some of
70 Id. at 174, 472 P.2d at 521.7 55 Haw. 398, 410-11, 520 P.2d 758, 766 (1974).72 Id. at 410, 520 P.2d at 766.7 56 Haw. 204, 532 P.2d 673 (1975).74 See id. at 210-14, 532 P.2d at 677-79 (Richardson, C.J., dissenting).7s See Kahikino Noa Dettweiler, OliAloha No William S. Richardson, 33 U. HAW. L. REV. 1
(2010).76 Id.7 PUKui, supra note 1, at 35.78 See SAMUEL M. KAMAKAU, RULING CHIEFS OF HAWAII 125-26 (rev. ed. 1992); W.D.
WESTERVELT, HAWAIIAN HISTORICAL LEGENDS 162-175 (1923); JULIE STEWART WILLIAMS,KAMEHAMEHA THE GREAT 58-59, 86-87 (rev. ed. 1993); see also STEPHEN L. DESHA,KAMEHAMEHA AND HIS WARRIOR KEKOHAUPI'O 205-16 (Frances N. Frazier trans., 2000), for acomplete account of one version of the mo'olelo along with a summary of several other
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the common people of Puna were fishing when the young chief Kamehamehacame upon them.79 Knowing only that a stranger and a chief approached, themen feared trouble and fled; Kamehameha pursued. When Kamehameha'sankle was caught in a lava crevice, Kaleleiki, one of the fishermen, turned backand with his paddle, hit Kamehameha on the head, splitting the paddle in two.80
Years later, when Kaleleiki and his companions were brought beforeKamehameha for punishment, instead of putting them to death, Kamehameharecognized his own responsibility in causing the incident.8' He proclaimed theLaw of the Splintered Paddle, protecting even the most defenseless fromoppression by those with more power and authority.82
Thus, in Noa's tribute to CJ Richardson, I was reminded that the lawschool's graduates fulfill CJ Richardson's highest aspirations for us when weprotect those who are powerless from those who have power, when we fight forthose who lack economic security and life's basic necessities, and when weseek justice for Hawai'i's native people and, indeed, for all people in ourhomeland.
But for CJ Richardson's endeavors, so many of us would have lacked theopportunity to learn the law and to seek justice through its practice. Withoutour beloved CJ, we would have had no such compelling embodiment of a lifewell lived-and lived with exemplary grace and humble nobility.
Ka Lama Ki 0 Ka No'eau-the standing torch of wisdom. Indeed!
versions.7 DESHA, supra note 78, at 206-07; WESTERVELT, supra note 78, at 167-68; WILLIAMS,
supra note 78, at 58.80 DESHA, supra note 78, at 208-09.8' WESTERVELT, supra note 78, at 174-75; WILLIAMS, supra note 78, at 86-87.82 WILLIAMS, supra note 78, at 86-87; DESHA, supra note 78, at 216.
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