Two high-profile actions by the Hawaii Supreme Court point to the increasing trend by courts and judges to nullify public policy choices made by the state Legislature in response to the wishes of our citizens. Court is guilty of usurping role of lawmakers
In the cases of same-sex marriage and privatization, the Hawaii Supreme Court overstepped its bounds
In 1993, the justices on our state's highest court ruled against the state in Baehr v. Lewin, effectually opening the door for same-sex marriage even though Hawaii, like every other state in the nation, already had laws on the books limiting marriage to opposite-sex couples. These existing state statutes were founded on the thinking, desires and wishes of Hawaii's people and reflected a legislative responsibility and responsiveness to the public.
This year, Hawaii's Supreme Court ruled against the County of Hawaii in the well-publicized Konno decision affecting the privatization of the Puuanahulu Landfill. The wide-ranging impact of this decision has already been felt, with all neighbor island counties warning that essential county-provided services, such as health and social services, may be in jeopardy in the near-future as contracts expire or are cancelled because of the Konno ruling.
The ironic timing of this ruling comes as the public demand for government downsizing and efficiency has led Hawaii's Legislature to consider increasing the scope of privatization of services in our state.
In both cases, the state Legislature had already set public policy by passing laws based on public desires. Major surveys have all concluded that a vast majority of Hawaii's citizens are opposed to the legalization of same-sex marriage.
Likewise, the idea that government contracts for services can sometimes be done better and at a lower cost by non-government workers is widespread among our citizenry, and borne out by competitive contracting studies.
In spite of this, Hawaii's courts have seen fit to nullify these public policy choices, and single-handedly overturn existing laws and the wishes of our people.
Unfortunately, this breach of governmental powers on the part of the judiciary can be found in states throughout our nation. As an example, the American Legislative Exchange Council reports that in the past decade, more than 60 state court decisions have nullified public policy choices made by legislatures regarding state liability (tort) law.
In addition, some judges have assumed the mantle of legislator, retroactively creating new tort claims that have no basis in precedent or state public policy.
The nullification of public policy and the judicial "legislation" of new laws represent a dangerous shift in the balance of powers between state legislatures and state courts. The function of the judiciary should be to interpret state law, not to create it or set (or reset) public policy. Our founding fathers understood the importance of separating law-making with statutory interpretation, and never intended for the judicial branch of government to establish public policy and make the legislative branch irrelevant.
Today, in states throughout our nation, some courts have taken on a legislative role in "making law." These are decisions not based on past precedent or judicial "gap-filling" of the common law. Rather, they reflect state court judges' views of what the law of the state "should be."
The creation of laws reflecting the wishes of the public is the function of the legislative branch of government, not the courts. It's time for Hawaii's state Legislature to exercise its authority and take back the responsibility of creating laws and shaping public policy that it has relinquished to the judiciary.
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