Circuit Judge Jeannette Castagnetti said this week that she will strike from her November order language that instructs the state to boost funding for the
Department of Hawaiian Home Lands to about
$28.5 million from its current level of $9.6 million.
Instead, the order will be amended to instruct the state to make “sufficient general funds available to DHHL.”
The Ige administration argued in a motion for reconsideration that the court order violated the constitutional separation of powers that exists between the different branches of government. Attorney General Doug Chin argued, in part, that the courts can’t instruct the state to appropriate a specific amount to a government department.
The tweaking of the order’s language may satisfy the state’s concerns with the ruling.
Josh Wisch, a spokesman for the Attorney General’s Office, said the Ige administration has not decided whether it will move forward with an appeal in the case of Nelson v. Hawaiian Homes Commission. In a statement, he suggested that the administration may be satisfied by the judge’s new language.
“Our primary concern was the separation of powers,” Wisch said by email. “Yesterday’s decision by the judge revised language directing the Legislature to appropriate a specific amount to the Department of Hawaiian Home Lands and instead ordered the state to make sufficient sums of general funds available to DHHL for its administration and operating budget, which is what the Hawaii Constitution provides.”
Despite the change in language, Castagnetti maintains that $9.6 million is not a sufficient amount to cover DHHL’s operating and administrative costs.
“To be clear, the court is not ordering an appropriation. The court is, however, ordering that the state must comply with its constitutional duty to make sufficient sums available to the Department of Hawaiian Home Lands for its administrative and operating budget,” Castagnetti said, according to a transcript of the Monday court proceeding. “There is still time for the state to become in compliance during this fiscal year.”
In 2012, the Supreme Court ruled, in what’s known as the Nelson decision, that the state had “failed by any reasonable measure to provide sufficient funding to DHHL.” The Supreme Court sent the case back to Circuit Court to determine what constitutes a sufficient sum.
The lawsuit, brought by the Native Hawaiian Legal Corp. on behalf of Native Hawaiian beneficiaries, has been weaving its way through the court system for about a decade.
