2007-07-23_George_Kahoohanohano_et_al_v._State_of_Hawaii_et_al_-_Opinion_of_the_court_by_Justice_Acoba

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Kaho'ohanohano v. State Page 19 of 46 in making budgetary decisions involving the benefits of public employees. Finally, the third prong of the test is met because even a cursory analysis of the ERS history shows that, over time, the State and counties have used funds owed to the ERS in order to address budgetary concerns. Id. (Acoba, J., concurring). Thus we reject the State's argument that Trustees' claim for declaratory relief is moot. XXVIII. In relation to the State's argument(5) that "this lawsuit involves 'political questions' and is not justiciable[,]" the State maintains that "'the manner of funding the city's future obligations to its pension fund is a political decision ultimately reposed in the legislative branch of the city government[,]"' (quoting Cianci, 722 A.2d at 1198-99), and similarly, "how the 'accrued benefits' of ERS members are funded requires 'policy decisions that are primarily within the authority and expertise of the legislative branch[,]"' (quoting Office of Hawaiian Affairs v. State, 96 Hawaii 388, 401, 31 P.3d 901, 914 (2001) [hereinafter, OHA]). Trustees respond that "[t]he issue presented calls upon this [c]ourt to interpret the Hawaii Constitution, a task most appropriate to judicial action." Trustees rely on Waihee, and maintain that "'all constitutional interpretations have political consequences,"' and a court cannot reject "'a bona fide controversy as to whether some action denominated political exceeds constitutional authority unless the matter at hand has been committed to another branch of government[.]"' 70 Haw. at 262-63, 768 P.2d at 1285 (quoting Baker v. Carr, 369 U.S. 186, 217 (1962)). As noted, the State relies on Cianci, where the Rhode Island Supreme Court addressed the issue of"whether the council may actually fund part of the pension system on an annual basis and fund as another part . . . on a pay-as-you- go basis." 722 A.2d at 1197. In making its determination that there was a political question involved, the Cianci trial court observed that, "[i]n the absence of some overriding statutory directive from the General Assembly, or a Collective Bargaining agreement or some other contractual requirement, the City is free to fund its pension system in any manner it may wish[.]" Id. at 1197-98 (emphasis added). As noted previously, the Hawaii legislature also has "flexibility" in funding the ERS subject to the constitutional pension provision. However, unlike Cianci, which did not have a constitutional pension provision guiding its actions, here, the Hawaii legislature is not free, like the city in Cianci, to fund its system "in any manner" because it is restricted by article XVI, section 2 from diminishing or impairing retirement funds. See discussion infra. Relying on OHA and Trs. of the Office of Hawaiian Affairs v. Yamasaki, 69 Haw. 154, 737 P.2d 446 (1987), the State essentially appears to argue that how the State chooses to fulfill its funding obligations to the ERS is a policy decision to be made by the legislature and, therefore, a political question. In response, Trustees assert that "the primary issue . . . is whether [a]rticle XVI, [s]ection 2 prohibits legislative raids on the ERS like that perpetuated through Act 100," a question "entirely within the purview of the court." Trustees further contend that the instant case is distinguishable from both Yamasaki and OHA because "[t]here is no 'initial policy determination' this [c]ourt would have to make in this case with respect to [a]rticle XVI, [s]ection 2 that is normally reserved for the Legislature." The constitutional mandate involved in those cases was "the establishment of a government agency with a primary goal 'of the betterment of the conditions of native Hawaiians."' OHA, 96 Hawaii at 400, 31 P.3d at 913. The statutes at issue required that "twenty per cent of all funds derived from the public land trust . . . shall be expended by the [Office of Hawaiian Affairs] . . . for the purposes of this chapter[.]" See id. at 391, 400, 31 P.3d at 904, 913 (citing 1980 Haw. Sess. L. Act 273, at 521) (stating that "the invalidity of Act 304 reinstates the immediately preceding version . . . which then places this court precisely where it was at the time Yamasaki was decided")). This court determined that "[it] would be encroaching on legislative turf because the seemingly clear language of HRS § 10-13.5 [(1993)] actually provides no 'judicially discoverable and manageable standards' for resolving the disputes and they cannot be decided without'initial policy determination[s] of a kind clearly for nonjudicial discretion."' Id. (quoting Baker, 369 U.S. at 217) (brackets omitted). OHA reiterated what had been said in Yamasaki, to the extent that there were many "uncertainties with respect to the ceded lands comprising the trust res and the funds derived therefrom." Id. at 400 n.19, 31 P.3d at 913 n.19 (quoting Yamasaki, 69 Haw. at 173-74, 737 P.2d at 457-58). The instant case differs from the foregoing cases because determining whether Act 100 violates the constitution does not require an "initial policy" consideration. As Trustees argue, this case is similar to Waihee, where the plaintiffs sought "a declaration of'the powers of the [Board] to formulate policy and exercise control over the public school http://www.state.hi.us/jud/opinions/sct/2007/26178.htm 8/12/2008