AN attorney/author of a book called "The Death of Common Sense" observes that instead of being a nation of laws we have become a nation of lawsuits. Philip K. Howard spoke about this at the remarkable Hillsdale College in Michigan, which refuses all federal aid in order to have more freedom. A welcome victory
for restraint in the lawHis main focus was the stultifying effect on business and even in our personal lives of shelves of well-intended overregulation. I'll return to this near the opening of our 1997 Legislature in the hope at least a few lawmakers will read it and repress their zeal to add still more rules and procedural traps to the thousands already in place.
Today I'd like to cheer one small victory before the Hawaii Supreme Court. By the narrow vote of 3-2 it decided not to inhibit counselors in Hawaii by making them liable for self-destructive acts by their clients.
The case involved a deranged war veteran on Kauai who wrote a will, told his counselor at the state's Office of Veterans Services he was going to commit suicide, then asked his father to drive him to a high lookout and jumped off.
The question was whether the counselor had acted energetically enough to deter his client. The Kauai Circuit Court held the counselor couldn't be sued by the veteran's family. The Supreme Court agreed but only by 3-2.
Had it permitted the suit, Hawaii would have been subjected to one more bit of courts deciding to impose their will independent of the much more cumbersome legislative process. Three votes will do it in our Supreme Court. In the Legislature it take the votes of 13 senators, 26 representatives and a signature by the governor.
Associate Justice Steven H. Levinson made no bones about his view in writing the dissent, which Robert G. Klein joined.
He wrote: ". . . this court has consistently exhibited a willingness to extend protections under the Hawaii Constitution beyond the scope of 'atrophied' federal constitutional rights." In this case, he said, the Hawaii court should recognize an affirmative duty to act even though other jurisdictions have failed to do so.
The court has a history, he said, of being willing to act to effect desirable changes in the common law even where precedent is lacking. How true - but where will it end?
When William Richardson was chief justice, the court literally reached out to a matter not before it to declare state rather than private ownership of water falling from the rains on private property. It moved the public domain along beachfronts far back from where it had been and claimed for the state new lands created by lava flows.
THESE decisions stood up under federal appeal and may have created the judicial headiness the Levinson opinion suggests. In this particular case, a Levinson majority surely would have placed a pall on counseling services throughout the state. Just the threat of being sued would be chilling, no matter whether the suit might be won or lost.
The majority that rejected this further legal intrusion into daily life consisted of Chief Justice Ronald T. Y. Moon, Mario Ramil and Paula Nakayama, who wrote the majority opinion.
Both sides assembled supporting opinions, which is easy to do in the field of law, where the terrain is littered with zillions of opinions that computers now make easier than ever to dig out. Both sides also rose above the opinions to apply common sense and civic obligation as they saw it.
Fortunately a "go slow" majority carried the day over those who want still more government intrusion into daily life.