The State of Aloha

We don’t know where exactly the right to a trial by jury came from. The ancient Greeks had a massive number of citizens – sometimes up to a thousand – sit on a single jury and the Romans had a form of citizen participation in trials too. But our jury trial is a direct descendant from England.

The United States inherited the tradition from the English colonies and incorporated it into the federal Constitution. Each state more or less took the lead from the federal Constitution and made it part of their declaration of rights too.

But the way trial by jury came to Hawaii is a little different. It came directly from the English – a particular Englishman, in fact. Lord Byron, cousin to the famed poet of the same name who epitomized the Romantic movement, arrived in the islands in 1825 and is considered the man who introduced the principle.

Lord Byron was a captain with the Royal Navy on a sad mission. His ship carried the bodies of King Kamehameha II and his wife. The king and queen were the first royal Hawaiians to go abroad. While the royal couple toured London, they were exposed to the measles and died because they had no way to fight the Western disease. Their remains are buried on the grounds of Iolani Palace in the corner near King Street.

When Lord Byron got to the islands, he was invited to address a small group of chiefs about the British government. The captain did not want to dictate how the kingdom should be run, but he did come up with a list of suggestions.

He advised that “no man’s life be taken away except by consent of the king, or the regent, for the time being, and of twelve chiefs.” This suggestion soon developed into a fully formed right to a jury trial in death-penalty cases.

The first murder trial took place in 1826. The jury was selected by none other than Queen Ka’ahumanu. The details of the evidence and even the name of the accused have been lost, but the jury did not convict him. The jurors doubted that the accused really intended to kill. The unknown defendant was acquitted. Unfortunately, the governor of Oahu felt otherwise and ordered the execution anyways. The accused was publicly hanged.

The judicial system gradually improved. By the time Kamehameha III ascended the throne in the 1840s, the right to a jury trial extended beyond capital cases. Any offense with a possible fine exceeding $100 had to be tried by a jury.

But what kind of jury? The king passed a law that determined the composition of juries based on the status of the litigants. If the parties in the lawsuit were foreigners, then the jury had to be made up entirely of foreigners. If they were natives, then the jury had to be native. If it was a foreigner versus a native, then the jury had to be split equally.

A dispute quickly arose as to whether an island-born or naturalized white litigant was a “foreigner.” In a series of cases to the early Supreme Court of the kingdom, it was resolved that these subjects were considered “foreigners,” even though they had been naturalized citizens of the Hawaiian kingdom. In other words, “native” meant Native Hawaiian. The division now depended on ethnicity.

Ethnically divided juries continued long after the kingdom. The practice remained in effect well into the 20th century. The infamous Massie trial highlighted the racial tensions in territorial Hawaii.

In that case, Mainland haoles were horrified to learn that “native” jurors acquitted dark-skinned defendants accused of raping a white woman on the beach at Waikiki in the 1930s. They were equally horrified when another jury convicted the conspirators who kidnapped and murdered one of the acquitted defendants. Like the governor in power for the first murder trial, the territorial governor disagreed with the jury and commuted the sentence from 10 years hard labor to one hour at Washington Place.

One would like to think that those days are over, but the cases from the 1840s haunt us even to this day. This summer the trial of federal agent Christopher Deedy sparked a debate about “locals” and “haoles.” Some considered the fatal shooting of a local male at the Waikiki McDonalds a modern-day Massie trial.

The jury was made up of folks from the islands and some born on the Mainland. One juror later spoke out and said that it was a diverse group. In the end, the jury was hopelessly divided, and the only thing that was hung was the jury itself. Deedy may be retried next year. No matter what the verdict will be, the conflict and the right to a jury trial will live on.

* Ben Lowenthal is a trial and appellate lawyer who grew up on Maui. His email is “The State of Aloha” alternates Fridays with Ilima Loomis’ “Neighbors.”

The State of Aloha

Hawaii is not Wisconsin. No kidding. It’s not Michigan either. But in his State of the State address earlier this year, Gov. Neil Abercrombie had to assure us of these obvious facts.

He was talking about organized labor. The governor assured us that although he “is not going to abandon collective bargaining,” he won’t let labor unions “bankrupt the future for all by buying some temporary solution that does not address the fundamental fiscal issues we cannot escape.”

Last winter, workers came out in droves in Michigan, braving the cold to storm the Capitol in Lansing and oppose what they called a legislative hammer to the labor movement. And Wisconsin was the site of a possible resurgence of the labor movement.

But they could not stop their legislatures and governors from passing another “right-to-work” law in this country. Michigan was the latest battleground in an effort to curtail union-dominated workplaces. Twenty-four states have passed these right-to-work laws.

So what exactly is a right-to-work law? Why is it even called that? The actual laws are all a little bit different, but the bottom line is that the law prevents a labor union and the employer from creating a workplace in which every employee is required to join a union or pay fees equivalent to union dues as a condition of employment. In other words, being in a union is not required to work. Hence the name, a right to work (without having to pay union dues).

On the other hand, the term is kind of a misnomer. It doesn’t establish a right to work at all. It deprives the other dues-paying union members from their right to have a union. If an employee could have all of the benefits of being in a union shop – like a grievance procedure, arbitration of employer actions and guaranteed wages – without having to pay union dues, how many employees would dutifully pay union dues? None, say the opponents of these laws.

Without money from union dues, the union has no money to hire lawyers to represent workers in grievances and in contract negotiations. They wouldn’t have the funds for walkouts, strikes or other kinds of action. In short, the union is stretched thin. Its resources dry up and it withers on the vine.

Hawaii has never passed this law. Far from it. Hawaii has a strong unionized workforce and the majority of political leaders are pro-union. And given the governor’s speech, it doesn’t seem like the state will join the other 24 anytime soon.

What if our governor did want to join Michigan and Wisconsin? What if the Maui County Council or the mayor wanted to? Could we become a right-to-work state? Or even a right-to-work county?

Probably not. If the state or county had the political will and wherewithal to pass such a law, the unions who have closed shops – such as the HGEA, HSTA and ILWU – would have something their Midwestern counterparts didn’t have: the Hawaii Constitution.

The state constitution guarantees – right along with the freedom of speech and the right to privacy – the workers’ right to organize. This protection has been part of our state constitution since 1978.

Would a right-to-work law be considered an infringement on a right to organize? A court would have to decide that. And in doing so, it would have to examine our constitutional right to organize.

Maybe it is constitutional. Perhaps the right to organize could be narrowly construed so that it would only protect workers in assembling and forming a union in the first place. That would mean that the law could prevent unions and employers from requiring the payment of dues from workers who choose to opt out. It would not infringe on the right to form the union and keep the union there in the first place.

Then again, the law could be unconstitutional. The right to organize – like the similar freedom of assembly – certainly includes something more than simply getting together and forming a union. It encompasses the right to negotiate and settle the terms of the employment from the employer, which would include the payment of dues in a union shop. The right to organize would be meaningless if it did not include this protection.

Who decides this question? First, a trial court would have to rule and the loser would almost certainly appeal to the highest and most authoritative interpreter of the Hawaii Constitution – the Hawaii Supreme Court. So in Hawaii at least, if the right-to-work law was miraculously passed by the Legislature and, even more incredibly, approved by the governor, the last word, then, would come from the courts.

So when the governor says that his administration is not going to abandon collective bargaining, that’s great news, but it’s certainly not newsworthy. He probably can’t.

* Ben Lowenthal is a trial and appellate lawyer who grew up on Maui. His email is “The State of Aloha” alternates Fridays with Ilima Loomis’ “Neighbors.”