scholarspace.manoa.hawaii.edu 47.pdf · tany s. hong 821 attorney general state of hawaii . james...

... \I.ft"ti" .,,~ .1I·'1j.·.;.· .. ~. 'if.,.'~·i~~'~ C:t"i"'''''~' ··V~,' "'\

i;.~\ I . :. ,i ,."j: .. >\I: .. ~~~~ ;-tN,.,\~,i..,.,:.'"Uf·.:Io;··~ .~

, . . '1.

TANY S. HONG 821 Attorney General State of Hawaii

JAMES H. DANNENBERG 2691 Deputy Attorney General State Capitol Honolulu, Hawaii 96813 Telephone: 548-4740

Attorneys for Defendants

IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

STATE OF HAWAII

THE TRUSTEES OF THE OFFICE OF HAWAIIAN AFFAIRS,

Plaintiff,

vs.

) ) ) ) ) ) )

TANY S. HONG, in his official) capacity as the Attorney' ) General of the State of ) Hawaii, SUSUMU ONO, in his ) official capacity as chairman) of the Board of Land and ) Natural Resources, and ) JENSEN HEE, in his official ) capacity as Director of ) Finance, )

Defendants. ) ) )

-----------------------------------)

CIVIL NO. 79260

REPLY MEMORANDUM IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS

DATE: April 12, 1984

TIME: 10:00 a.m.

JUDGE: Honorable Edwin H. Honda


[CERTIFICATE OF SERVICE ATTACHED]

... \I.ft"ti" .,,~ .1I·'1j.·.;.· .. ~. 'if.,.'~·i~~'~ C:t"i"'''''~' ··V~,' "'\

i;.~\ I . :. ,i ,."j: .. >\I: .. ~~~~ ;-tN,.,\~,i..,.,:.'"Uf·.:Io;··~ .~

, . . '1.





STATE OF HAWAII


Plaintiff,

vs.

) ) ) ) ) ) )


Defendants. ) ) )

-----------------------------------)

CIVIL NO. 79260



TIME: 10:00 a.m.




... \I.ft"ti" .,,~ .1I·'1j.·.;.· .. ~. 'if.,.'~·i~~'~ C:t"i"'''''~' ··V~,' "'\

i;.~\ I . :. ,i ,."j: .. >\I: .. ~~~~ ;-tN,.,\~,i..,.,:.'"Uf·.:Io;··~ .~

, . . '1.





STATE OF HAWAII


Plaintiff,

vs.

) ) ) ) ) ) )


Defendants. ) ) )

----------------------------)

CIVIL NO. 79260



TIME: 10:00 a.m.




University of Hawaii School of Law Library - Jon Van Dyke Archives Collection

TABLE OF CONTENTS

TABLE OF AUTHORITIES •••••••••••••••.•.••••.•••••••

I. INTRODUCTION ••••••.•••••••.••••••.••.•.•.••.•••••

I I • ARGUMENT •••••••••••••••••••••••••••••••••••••••••

A. THIS IS A SUIT AGAINST THE STATE SINCE THE RELIEF SOUGHT IS RELIEF AGAINST THE SOVEREIGN

B. WRITS OF MANDAMUS DIRECTED TO PUBLIC OFFICERS TO COMPEL THEM TO FULFILL THE DUTIES OF THEIR OFFICES ARE AVAILABLE

Page ii

1

9

9

IN THE STATE OF HAWAII...................... 22

C. OHA CANNOT CONSTITUTIONALLY BE CHARACTERIZED AS AN "ARM OF THE STATE" .••••••.••...•.•.•.. 24

D.

E.

THIS COURT LACKS JURISDICTION TO ADJUDICATE OHA'S CLAIM FOR AN INTEREST IN STATE LAND AND STATE FUNDS WITHOUT THE STATE'S CONSENT OR WAIVER OF ITS IMMUNITY ~ •••••...•.•••••••.

1.

2.

Funds Emanating From A Public Land Trust Are Public Funds ••••..••.••••••••

Plaintiffs' Demands For "Section 5(f) Trust Lands And Income And Proceeds Of Section 5(f) Trust Lands" Are Inaccurate, Misleading, And Erroneous •.

THE DECLARATORY JUDGMENT ACT DOES NOT CONFER JURISDICTION OVER PLAINTIFFS' CLAIMS ..•••••.

F. THE STATE HAS NOT WAIVED ITS SOVEREIGN IMMUNITY FOR SUITS PREDICATED UPON ALLEGED

33

33

35

39

BREACH OF TRUST ••••••••.•••.•••.•••.•..••••. 42 ,.

III. CONCLUSION 0....................................... 43

I

TABLE OF CONTENTS


I. INTRODUCTION ••••••.•••••••.••••••.••.•.•.••.•••••

I I • ARGUMENT •••••••••••••••••••••••••••••••••••••••••



Page ii

1

9

9



D.

E.


1.

2.





33

33

35

39

BREACH OF TRUST ••••••••.•••.•••.•••.•..••••. 42 ,.

III. CONCLUSION 0....................................... 43

I

TABLE OF CONTENTS


I. INTRODUCTION ••••••.•••••••.••••••.••.•.•.••.•••••

I I • ARGUMENT •••••••••••••••••••••••••••••••••••••••••



Page ii

1

9

9



D.

E.


1.

2.





33

33

35

39

BREACH OF TRUST ••••••••.•••.•••.•••.•..••••. 42 ,.

III. CONCLUSION 0....................................... 43

I


TABLE OF AUTHORITIES

Cases Page

Anthony v. Cleveland, 355 F.Supp. 789 (D. Haw. 1973) •.••••.•••.•.•• 25

Avery v. Midland County, 390 U.S. 374 (1978) ••.••••••••.•••.•••.•.•••• 30

Baker v. Carr, 369 U.S. 186 (1962) ••••••.••••••••..••.•.•..• 17,

Ball v. James, 451 U.S. 355 (1981) •••..•.•.•..••••.••.••...• 30,31

Bell v. Hood, 327 U.S. 678 (1946) •.••..•..•••••••..•.•••... 22

Bush v. Territory, 13 Haw. 1 ( 1900) ;' ..••••••••.•••••••..••••.•.• 20

A.C. Chock, Ltd. v. Kaneshiro, 51 Haw. 87 (1969) •.•••••••••.•••.••..•.•••••• 20,41

Cipriano v. City of Houma, 395 U.S. 701 (1969) (per curiam) .............. 30

City of Fresno v. California, 372 U.S. 627 (1973) •••.•••••.••••••..•••••••• 13

Cit of Phoenix v. Ko1odzie'ski, 399 U.S. 204 1970) ••••.•••••••.••••.•••••••• 30

Decker v. Universit Civil Service etc., 406 N.E.2d 173 Ill. App. 1980 •••••••••••••• 27 /

Droste v. Kerner, 217 N.E.2d 73 (Ill. 1966) •••••••••••••••••••• 33

Dugan v. Rank, 372 U.S. 609 (1963) •••••••••••••.••.••••••••. 13

Fielder v. Clark, 714 F./2d 77 (1983) ••••••••••••••••.•.•.••••• 42

Figuero v. State, 61 Haw. 369, 604 P.2d 1198 (1979) ...•.••••••• 21

ii


Cases Page



Baker v. Carr, 369 U.S. 186 (1962) ••••••.••••••••..••.•.•..• 17,

Ball v. James, 451 U.S. 355 (1981) •••..•.•.•..••••.••.••...• 30,31

Bell v. Hood, 327 U.S. 678 (1946) •.••..•..•••••••..•.•••... 22








Dugan v. Rank, 372 U.S. 609 (1963) •••••••••••••.••.••••••••. 13



ii


Cases Page



Baker v. Carr, 369 U.S. 186 (1962) ••••••.••••••••..••.•.•..• 17,

Ball v. James, 451 U.S. 355 (1981) •••..•.•.•..••••.••.••...• 30,31

Bell v. Hood, 327 U.S. 678 (1946) •.••..•..•••••••..•.•••... 22








Dugan v. Rank, 372 U.S. 609 (1963) •••••••••••••.••.••••••••. 13



ii


,.:'.'-

'l."~~'"

Florida State v. Treasure Salvors, Inc., 458 U.S. 670 (1982) •.•.•••••••••••••..•.••••• 14

Food Town Stores v. E.E.O.C., 708 F.2d 920,922 (4th Cir. 1983) .••..•.••.•• 14

w. H. Greenwell, Ltd. v. Land Dept., 50 Haw. 207, 436 P.2d 527 (1968) ••.•••••••••• passim

Hawaii v. Gordon, 373 U.S. 57 (1963) ••••••••••••••••••••••.•••• 14,18,

Helton v. U.S., 532 F. Supp. 813 and 819 (S. D. Ga. 1982) •.•..• 14

Hill v. Stone, 421 U.S. 289 (1975) •••...•.•••••••.•.•.•.•... 30

Kawananakoa v. Polyblank, 205 U.S. 349 (1907) ••..•••••••.•••••••••.•.•• 20

Keaukaha-Panaewa Com. v. Hawaiian Homes Com'n, 588 F.2d 1216 (1978), cert. denied, 62 L.Ed.2d 33 (1979) •..•.•.••.• 36,37,43

Kramer v. Union Free School District, 395 U.S. 621 (1969) •••••••••..••.•••.•.•••..• 30

Land v. Dollar, 330 U.S. 731 (1947) •••••••••••••••••.•.•••.•• 22

Larson v. Domestic & Forei n Commerce Cor. 337 U.S. 682 1949) •.•••••••••••••••.•••.•••• passim

Malone v. Bowdoin, 369 U.S. 643 (1962) •.•.•.•••.•• 14

Marks v. Ah Nee, 48 Haw. 92 (1964) .•.••••••••••••••.•.•••••••• 19

Meyer v. Territory, 36 Haw. 75 (1942) •••••••••••••••.•••.•••••••• 20

Mt. 1977) ..................•....... 24

iii

".J'

,.:'.'-

'l."~~'"






Hill v. Stone, 421 U.S. 289 (1975) •••...•.•••••••.•.•.•.•... 30




Land v. Dollar, 330 U.S. 731 (1947) •••••••••••••••••.•.•••.•• 22

Larson v. Domestic & Forei n Commerce Cor. 337 U.S. 682 1949) •.•••••••••••••••.•••.•••• passim


Marks v. Ah Nee, 48 Haw. 92 (1964) .•.••••••••••••••.•.•••••••• 19


Mt. 1977) ..................•....... 24

iii

".J'

,.:'.'-

'l."~~'"






Hill v. Stone, 421 U.S. 289 (1975) •••...•.•••••••.•.•.•.•... 30




Land v. Dollar, 330 U.S. 731 (1947) •••••••••••••••••.•.•••.•• 22

Larson v. Domestic 337 U.S. 682


Marks v. Ah Nee, 48 Haw. 92 (1964) .•.••••••••••••••.•.•••••••• 19


Mt. 1977) ..................•....... 24

iii

".J'


Nevada v. Hall, 440 U.S. 410, (1979) .••.•••••••••.•.•.•.••.•• 40

People v. Barrett, 46 N.E.2d 951 (Ill. 1943) .•.•.••••.••.••••••. 26

Reynolds v. Sims, 377 U.S. 533 (1963) ••••••••••••••.•••.•.•.••• 30,31

Robertsv. United States, 176 U.S. 221 (1900) .••••••••••.••••••.•.••••• 18

Robinson v. Ariyoshi, 65 Haw. 641, 658 P.2d 287 (1982) •..••.••••..• 21

Sal er Land Co. v. Tulare Water, 410 U.S. 719 1973) •••••••..•••••••••.•.••••. 30

Sotomura v. County of Hawaii, 402 F.Supp. 95 (1975) ••••••.•••••••••.•.••••• 10

United States v. Lee, 106 U.S. 196 (1882) •••••••••••.••••••••.••••. 13

United States ex reI Dunlap v. Black, 128 U.S. 40 (1888) •••••••.•.•••••••••.••••••• 18,23

Warth v. Seldin, 422 U.S. 490 (1975) •••••••••••••••••.••••.•.• 17

Waugh v. University of Hawaii, . 63 Haw. 117, 621 P.2d 957 (1980) ••..••.••.•.. 21,41

Ex Parte Young, 209 U.S. 123, 52 L.Ed. 714 (1908) •••••.• _ .•.• passim ./

iv

Nevada v. Hall, 440 U.S. 410, (1979) .••.•••••••••.•.•.•.••.•• 40









Warth v. Seldin, 422 U.S. 490 (1975) •••••••••••••••••.••••.•.• 17



iv

Nevada v. Hall, 440 U.S. 410, (1979) .••.•••••••••.•.•.•.••.•• 40









Warth v. Seldin, 422 U.S. 490 (1975) •••••••••••••••••.••••.•.• 17



iv


Statutes

Hawaii State Constitution

Article XII. .. . . . . §4 •••• §5 ••. . . . . . §5 (f) •••••• §6 ••• §10-16 (a) •••••

Hawaii Revised Statutes

Chapter 10. §10-1 •• ' •••••• §10-4. §10-5 ••••••• §10-6. §10-16 (a) §304-6 •••• §632-1 •••• §662-15(1)

Federal Statutes

...... ~ . . . .

. . . .

· ... · ...

........ . . . . . · .

· ...

..2,26,29,32,36,

..36,38

..36,38 • •• 36,38 .•• 36,38

• .26

..2,27,28,29,43

..28 • •••• 28

..28 • •• 28

•• 28 ..25 ..3,41 .23

42 U.S.C. §1983. •••••••••••••••••••••••••• -25

Other Sources

Block, Suits t~h~e~S~o-v-e~r~e~i--~~--~~~~~~~----and

59 Harv. L. Re. ••• 40

26 C.J.S. Declaratory Judgments §130, p. 299. .41

Davis, Administrative Law Treatise (1st Ed.)~ .•.•• 13

v

Statutes


Article XII. .. . . . . §4 •••• §5 ••. . . . . . §5 (f) •••••• §6 ••• §10-16 (a) •••••


Chapter 10. §10-1 •• ' •••••• §10-4. §10-5 ••••••• §10-6. §10-16 (a) §304-6 •••• §632-1 •••• §662-15(1)

Federal Statutes

...... ~ . . . .

. . . .

· ... · ...

........ . . . . . · .

· ...

..2,26,29,32,36,

..36,38

..36,38 • •• 36,38 .•• 36,38

• .26

..2,27,28,29,43

..28 • •••• 28

..28 • •• 28

•• 28 ..25 ..3,41 .23

42 U.S.C. §1983. •••••••••••••••••••••••••• -25

Other Sources


59 Harv. L. Re. ••• 40



v

Statutes


Article XII. .. . . . . §4 •••• §5 ••. . . . . . §5 (f) •••••• §6 ••• §10-16 (a) •••••


Chapter 10. §10-1 •• ' •••••• §10-4. §10-5 ••••••• §10-6. §10-16 (a) §304-6 •••• §632-1 •••• §662-15(1)

Federal Statutes

...... ~ . . . .

. . . .

· ... · ...

........ . . . . . · .

· ...

..2,26,29,32,36,

..36,38

..36,38 • •• 36,38 .•• 36,38

• .26

..2,27,28,29,43

..28 • •••• 28

..28 • •• 28

•• 28 ..25 ..3,41 .23

42 U.S.C. §1983. •••••••••••••••••••••••••• -25

Other Sources


59 Harv. L. Re. ••• 40



v



. JAMES H. DANNENBERG 2691 Deputy Attorney General State Capitol Honolulu, Hawaii 96813 Telephone: 548-4740



STATE OF HAWAII


Plaintiff,

vs.

) ) ) ) ) ) )

TANY S. HONG, in his official ) capacity as the Attorney ) General of the State of Hawaii, ) SUSUMU ONO, in his official ) capacity as Chairman of the ) Board of Land and Natural ) Resources, and JENSEN HEE, ) in his official capacity as ) Director of Finance, )

Defendants. ) ) )

--------------------------------)

CIVIL NO. 79260



TIME: 10:00 a.m.



I. INTRODUCTION

For the sake of judicial economy, Defendants' reply memorandum

is in response to Plaintiffs' memoranda in both Civil No. 79260 and

Civil No. 81939. Given that the major effort by Plaintiffs in both





STATE OF HAWAII


Plaintiff,

vs.

) ) ) ) ) ) )


Defendants. ) ) )

--------------------------------)

CIVIL NO. 79260



TIME: 10:00 a.m.



I. INTRODUCTION








STATE OF HAWAII


Plaintiff,

vs.

) ) ) ) ) ) )


Defendants. ) ) )

--------------------------------)

CIVIL NO. 79260



TIME: 10:00 a.m.



I. INTRODUCTION





actions has been expended in the memorandum in Civil No. 79260, the

bulk of this reply is directed to that action, but since the

sovereign immunity defense is equally applicable to both actions,

the arguments in reply apply with equal force in Civil No. 81939.

References to "the Complaint" or "Plaintiffs' memorandum" are to

Civil No. 79260 unless otherwise stated.

Civil No. 79260 had its genesis in a request by the Office of

Hawaiian Affairs (OHA) for an interest in property which the State

of Hawaii received in settlement of the State's claim against

Molokai Ranch for the loss of sand unlawfully mined from Papohaku

Beach, Molokai.

OHA requested an undivided twenty percent (20%) interest in

the land or its cash equivalent and twenty percent (20%) of the

proceeds realized by the State from its disposition of sand from

Papohaku Beach.

In order to determine whether OHA was entitled to an interest

in the land or its monetary equivalent, or the cash requested, or

both, the Attorney General, in the performance of his regular

duties as Attorney General, and in the exercise of his ordinary

official duties, was required to examine Chapter 10, H.R.S.>", \ ,?

Article XII of the Constitution of the State of Hawaii, several

acts of Congress, and constr.ue and interpret the law in light of

OHA's request.

The Attorney General concluded that OHA was not entitled to an

interest in the land or its monetary equivalent or the cash sums

requested. Various departmental heads, who are expressly

-2-











Beach, Molokai.




Papohaku Beach.








OHA's request.




-2-











Beach, Molokai.




Papohaku Beach.








OHA's request.




-2-


authorized to seek the advice of the Attorney General upon

questions of law touching their official duties, refused to

transfer either land or money or both to OHA (Complaint, ~ 24).

Thereafter, OHA filed a complaint for declaratory and injunc

tive relief, naming the Attorney General, the Chairman of the Board

of Land and Natural Resources, and the Director of Finance, in

their official capacities, as Defendants (Civil No. 79260).

OHA has invoked the Declaratory Judgment Act (Chapter 632,

H.R.S.) as its jurisdictional base.

The relief requested was a declaratory judgment that (1) OHA

is entitled to receive twenty percent (20%) of the proceeds

realized by the State of Hawaii from its disposition of sand from

Papohaku Beach (Complaint, p. 9, ~ 3); (2) OHA is entitled to a

conveyance from Defendant Susumu Ono on behalf of the State of

Hawaii of an undivided twenty percent (20%) interest in the land

which constituted the proceeds from the disposition of Papohaku

Beach sand (Complaint, p. 10, ~ 4); (3) in the alternative OHA is

entitled to receive from the State of Hawaii through its Department

of Budget and Finance, cash in an amount equal to twenty percent

(20%) of the appraised value of the land rec~ived as proceed§~from

the disposition of Papohaku Beach sand but no less than $255,801.20

(Complaint, p. 10, ~ 5); and (4) this Court enter mandatory

injunction appropriate to implement its judgment (Complaint, p. 10,

~ 8).

Following the filing of this complaint, OHA filed a similar

suit for declaratory and injunctive relief, naming additional

-3-
























~ 8).



-3-
























~ 8).



-3-


Defendants and expanding its demands to include numerous other

interests in state land. (Civil No. 81939).11

Since the State of Hawaii continuously, consistently, and

resolutely has recognized that the doctrine of sovereign immunity

precludes suit against the State without the State's express

consent, the State has invoked the doctrine of sovereign immunity as

a bar to this action.

It is clear that if this Court lacks jurisdiction to entertain

this action, the complaint filed in this action as well as Civil No.

81939 must be dismissed.

Plaintiffs have filed lengthy memoranda in opposition to

Defendants' Motion for Judgment on the Pleadings and Defendants'

Motion to Dismiss. A careful examination of Plaintiffs' arguments

and the authorities cited therein demonstrates that Plaintiffs have

indulged in legal legerdemain in asserting that this is not a suit

against the State; that the authorities cited do not support

Plaintiffs' position but support Defendants' contentions; that the

numerous cases cited by Plaintiffs either have no application to

this case or do not accurately reflect the law in the State of

Hawaii, or the Ninth Circuit; and that the memoranda submitt~a are '.

not helpful to this Court in resolving the jurisdictional problem

1/ In Civil No. 81939, Plaintiffs omitted to state the nature of the injunction requested. However, it can be safely assumed that Plaintiffs are requesting the. same type of injunctive relief as requested in Civil No. 79260.

-4-























-4-























-4-


which Defendants' motions have raised.~/

2/ It is worthwhile to note in passing that Plaintiffs have made numerous references to what they would have the court believe are egregious misstatements of law by Defendants. Plaintiffs' pronouncements of the law in such instances have been invariably wrong.

For example, Plaintiffs took Defendants' references to certain Eleventh Amendment cases out of context and then stated at page 27 that "The Eleventh Amendment to the U. S. Constitution has nothing to do with the doctrine of sovereign immunity - never has -never will!" In fact, this arrogant misstatement of the law could not be more incorrect. Never has? In Hans v. Louisiana, 134 u.s. 1 (1890) the court extended the scope of the Eleventh Amendment beyond its apparent wording precisely because it was the embodiment and recognition of state's sovereign immunity. Never Will? -The court's attention is directed to Pennhurst 'S"tcite School v. Halderman, U.S. ,52 L.W. 4155, 4157-(January 24, 1984) where the Supreme Court said and held that the true significance of the Eleventh Amnendment "lies in its affirmation that the fundamental principle of sovereign immunity limits the grant of judicial authority in Article III."

As another example, Plaintiffs at pages 36-37 suggest that " [d]efendants are evidently confused about the law of standing" and state dogmatically that lack of standing is unrelated to jurisdiction and that standing questions are unrelated to the merits J of a particular claim. Such simplistic exposition is far from helpful, but the court's attention is directed to City of Revere v. Massachusetts General Hospital, ____ U.S. ,77 L.Ed.2d 605,610 fn. 5 (1983), and Holtzman- v. Schlesinger, 414 U.S. 1316, 1319 (1973) (Douglas, J. in chambers) both of whi9h acknowledge ,> "the class of those [cases] where standing and the merits are inextricably intertwined" for discussion of the latter proposition. In regard to the former, it is generally recognized that standing is indeed a jurisdictional issue, even if separate and distinct from the merits. See, cases cited at page 15, opening brief~ H.L. v. Matheson, 450 U.S. 398, 4309 (1981) (Marshall, J. dissenting).

-5-





-5-





-5-


.~ "I

\ , ,~. /

v,,;r;:~,,

~ Most significantly, the Plaintiffs themselves, in arguing

that OHA is an "arm of the State" and is an equal "sovereign" to

the State agencies being sued so that the doctrine of sovereign

immunity is inapplicable, are suggesting a course of action that

would undermine the constitutionality of Article XII, Section 5,

Constitution of the State of Hawaii, and have, in fact, opened

the door for this Court to declare OHA unconstitutional.

The purpose of this Reply Memorandum is to assist the Court

in resolving the question as to whether it has jurisdiction to

grant the relief requested or whether the doctrine of sovereign

immunity deprives this Court of jurisdiction to entertain this

suit.

The Plaintiffs' arguments and the State's reply will be

addressed in the following manner:

1. Plaintiffs contend that the doctrine of sovereign

immunity does not apply to this action because it is not "a suit

against the State" (Memo, p. 18).

Defendants will demonstrate that the cases relied upon by

Plaintiffs do not support their position. Ex parte Young, 209

U.S. 123, 52 L.Ed. 714 (1908), and its progeny have no releva~ce \

to this action. Larson v. Domestic & Foreign Commerce Corp., 337

U.S. 682, 93 L.Ed. 1628 (1949), and the cases emanating therefrom

clearly support Defendants' position that the declaratory relief

requested requires affirmative action by the sovereign and the

disposition of what is unquestionably sovereign property. Larson

-6-

.~ "I

\ , ,~. /

v,,;r;:~,,












suit.














-6-

.~ "I

\ , ,~. /

v,,;r;:~,,












suit.














-6-


.//~,;'i!;;;#:; .-

/' makes clear that such a suit must fail as one against the

sovereign.

2. Plaintiffs assert that this suit is similar to mandamus

actions and therefore the doctrine of sovereign immunity is

inapplicable (Memo, p. 2).

Defendants will demonstrate that this action is not for a

writ of mandamus but a declaratory judgment. Defendants will

also show that the Supreme Court has jurisdiction to entertain a

case arising under writs of mandamus directed to public officers

to compel them to fulfill the duties of their office, if

Plaintiffs desire such relief. H.R.S. §602-5(4).

3. Plaintiffs argue that OHA is an "arm of the State"; that

Plaintiffs and Defenda:nts have equal status; and that the

doctrine of sovereign immunity is inapplicable between two "arms

of the State" (Memo, p. 29).

Defendants will establish that OHA cannot be

constitutionally considered an "arm of the State", exercising

governmental powers and endowed with the sovereign immuni ty- of

the State as other State agencies.

Defendants will also establish that if OHA is indeed an "arm \

;/ ,.-

of the State", Article XII, Section 5, Constitution of the State

of Hawaii, is unconstitutional in that it deprives the general

public of the right to vote for trustees exercising governmental

powers in the administration of an agency, which comprises the

sovereign entity' itself (see Memo, p. 29). Under these

-7-

.//~,;'i!;;;#:; .-


sovereign.



















;/ ,.-






-7-

.//~,;'i!;;;#:; .-


sovereign.



















;/ ,.-






-7-


"",,>(,~,t#~}P' . . ~'. j .•

circumstances the Court could not grant OHA any relief and would

have no alternative but to declare OHA unconstitutional.

4. Plaintiffs argue that they do not seek to recover from

the State treasury and therefore this action is maintainable

(Memo, p. 31).

Defendants will establish that fun.ds emanating from the

public land trust are public funds regardless of where they are

kept and although earmarked for a special purpose. Defendants

will demonstrate that Plaintiffs are clearly seeking an interest

in State land or public funds or both.

5. Plaintiffs argue that whether the Declaratory Judgment

Act confers jurisdiction or waives the sovereign immunity is

irrelevant because this action is within the class of cases to

which the doctrine of sovereign immunity is not applicable (Memo,

p. 33).

Defendants will demonstrate that this argument is but

another example of Plaintiffs' judicial gymnastics which this

Court should not countenance.

The doctrine of sovereign immunity is clearly applicable to

this case and the Defendants will demonstra~e that since thi·s

Court has no jurisdiction to entertain this action, Plaintiffs

cannot invoke the Declaratory Judgment Act to provide an

independent jurisdictional basis for this suit.

Defendants will also establish that the Declaratory Judgment

Act permits this Court to adopt a specific remedy only when

jurisdiction exists.

-8-

"",,>(,~,t#~}P' . . ~'. j .•





(Memo, p. 31).










p. 33).












-8-

"",,>(,~,t#~}P' . . ~'. j .•





(Memo, p. 31).










p. 33).












-8-


6. Plaintiffs argue that OHA, as a body corporate empowered

to sue or be sued, can sue the State for the breach of the

State's constitutional and statutory duty to transfer to OHA its

pro rata share of ceded lands income (Memo, p. 55).

Defendant will demonstrate that Plaintiffs' assertions are

the result of faulty legal reasoning~ that there is no private

cause of action for the State's "breach of trust"~ and that since

the sovereignty of the State is supreme, no cause of action for a

money judgment against the State based on the Constitution or

statutes, may be maintained in the absence of waiver.

I I • ARGUMENT

A. THIS IS A SUIT AGAINST THE STATE SINCE THE RELIEF

SOUGHT IS RELIEF AGAINST THE SOVEREIGN.

Plaintiffs do not attempt to show in what manner the State

has consented to this suit or waived its sovereign immunity. Nor

can they.

Instead they rely upon the United States Supreme Court

ruling in Ex Parte Young, supra, and its progeny in an aottempto./to

convince this Court that this is not a suit against the State of

Hawaii and therefore consent of the State or waiver of its

sovereign immunity is unnecessary (Memo, p. 14). Ex Parte Young,

supra, and the cases emanating from its ruling hold that a suit

in federal court against individuals for the purpose of

preventing them as officers of the State from enforcing an

-9-

'-~











I I • ARGUMENT





can they.









-9-

'-~











I I • ARGUMENT





can they.









-9-

'-~


uuvv •• stitutional act is not a suit against the State within the

meaning of the Eleventh amendment. (See Sotomura v. County of

Hawaii, 402 F.Supp. 95 (1975), cited by Plaintiffs on page 18 of

their Memorandum.)

Ex Parte Young was a suit to enjoin the Attorney General of

Minnesota from enforcing an unconstitutional state statute. The

rationale of Ex Parte Young, has been extended to state courts.

W. H. Greenwell, Ltd. v. Land Dept., 50 Haw 207, 436 P.2d 527

(1968) .

Since Plaintiffs do not contend that the Defendants are

enforcing an unconstitutional State statute, Ex Parte Young and

the cases emanating therefrom have no relevance to this action.

Plaintiffs rely heavily upon Larson v. Domestic & Foreign

Commerce Corp., 337 U.S. 682 (1949) for the purpose of

establishing jurisdiction in this action (Memo, pp. 15, 19). In

Larson, plaintiff, a private corporation brought suit against the

Administrator of the War Assets Administration, an agency of the

United States, in his official capacity. The complaint alleged

that the Administrator had sold certain surplus coal to the

plaintiff, but had refused to deliver it and had made a new ./ ,

contract to sell it to others. The prayer was for an injunction

prohibiting the Administrator, his agents and all persons acting

under their direction, from selling or delivering the coal to

anyone other than the plaintiff and for a declaration that the

sale to the plaintiff was valid and the sale to the second

purchaser invalid.

-10-

uuvv •• stitutional act is not a suit against the State within the



their Memorandum.)





(1968) .

















purchaser invalid.

-10-

titutional act is not a suit against the State within the



their Memorandum.)





(1968) .

















purchaser invalid.

-10-


The Court dismissed the suit, holding that it was an action

against the United States and, in the absence of consent by the

United States, the District Court was without jurisdiction.

The Court also made significant rulings which have been

adopted by the Hawaii Supreme Court to resolve the question of

whether a suit, nominally against an officer, is a suit against

the officer individually or against the sovereign. It noted that

the crucial question is whether the relief sought is relief

against the sovereign. (337 U.S. at 687-688). If it is a suit

against the sovereign , it ~ fail absent the sovereign's

consent:

In a suit against the officer to recover damages for the agent's personal actions, that question is easily answered. The judgment sought will not re~uire action by the sovereign or disturb the sovereign s property. There is, therefore, no jurisdictional difficulty. The question becomes difficult and the area of controversy is entered when the suit is not one for damages but for specific relief: i.e., the recovery of specific property or monies, ejectment from land, or injunction either directing or restraining the Defendant officer's actions. In each such case the question is directly posed as to whether, by obtaining relief against the officer, relief will not, in effect, be obtained against the sovereign. For the sovereign can act only through agents and, when an agent's actions are restrained, the sovereign itself may, through him, be restrained. As indicated, this question does not arise /~ because of any distinction between law and equity. It arises whenever suit is brought against an officer Of the sovereign in which the relief sought from him is not compensation for an alleged wrong but, rather, the prevention or discontinuance, in rem, of the wrong. In each such case the compulsion, which the court is asked to impose, may be compulsion against the sovereign, although nominally directed against the individual officer. If it is, then the suit is barred, not because it is a suit a ainst an officer 0 . the Government, but ecause l.t l.S, l.n substance, a SUl.t against the Government over which the court, in the absence of consent, has no jurisdiction.

-11-











consent:


-11-











consent:


-11-


337 u.s. at 687, 688, (emphasis added, footnote omitted).

In referring to the complaint in Larson, the Court noted in

footnote 9:

The complaint also asked for declaratory relief more clearly directed at the sovereign. It was asked that the court declare that the sale of coal. • is still valid and in effect.

* * * * The request for an adjudication of the validity of the sale was thus, even in form a request for an adjudication against the sovereign. Such a declaration of the rights of the respondent vis a vis the United States would clearly have been beyond-rhe-court's jurisdiction.

337 U.S. at 689 (emphasis added).

The Court also noted that there were two categories of cases in

which restraint may be obtained against government officials:

There may be, of course , suits for specific relief against officers of the sovereign which are not suits against the sovereign. If the officer purports to act as an individual and not as an official, a suit directed against that action is not a suit against the sovereign. If the War Assets Administrator had completed a sale of his personal home, he presumably could be enjoined from later conveying it to a third person. On a similar theory, where the officer's powers are limited by statute, his actions beyond those limitations are considered individual and not sovereign actions. The officer is not doing the business which the sovereign has empowered him to do or he is doing it in a way which the sovereign has forbidden. His actiops ~ ultra vires his authority and theref~re may be made the object of specific relief. It is important to note that in such cases the relief can be granted, without impleading the sovereign, only because of the officer's lack of delegated power. A claim of error in the exercise of that power is therefore not sufficient. And, since the jurisdiction of the court to hear the case may depend, as we have recently recognized, upon the decision which it ultimately reaches on the merits, it is necessary that the plaintiff set out in his complaint the statutory limitation on which he relies.

A second type of case is that in which the statute or order conferring power upon the officer to take action in the sovereign's name is claimed to be unconstitutional.

-12-



footnote 9:








-12-



footnote 9:








-12-


* * * * These two types have frequently been recognized by this

Court as the only ones in which a restraint may be obtained against the conduct of Government officials.

337 U.S. at 687, 688 (emphasis added, footnotes omitted).

Most significantly the Supreme Court noted in footnote 11:

Of course, a suit may fail, as one against the sovereign, even if it is claimed that the officer being sued has acted unconstitutionally or beyond his statutory powers, if the relief requested can not be granted by merely ordering the cessation of the conduct complained of but will require affirmative action by the sovereign or the disposition of unquestionably sovereign property. North Carolina v. Temple, 134 U.S. 22 (1890).


Plaintiffs in Civil No. 79260 acknowledge the rule of Larson v.

Domestic & Foreign Commerce Corp. at page 15 but immediately try to

isolate and limit its application, at least in part by reference to

United States v. Lee, 106 U.S. 196 (1882). Indeed, they state

baldly that "[n]o case before or after has gone so far" to uphold

the doctrine of sovereign immunity. This statement is simply wrong.

For example, Professor Davis noted in the 1965 supplement to his

treatise that:

The most important development [in sovereign immunity] since 1958 is that the Supreme Court in ,four decisions / during 1962 and 1963 has continued to follow and strengthen the Larson case. In the four cases the Court has also cut into what was left of the Lee case.

K. C. Davis, Administrative Law Treatise (1st Ed.), Vol. 3,

§27 .01, 1965 supplement at 145. (Emphasis added.) The cases

referred to are Dugan v. Rank, 372 U.S. 609 (1963) ~ City of

Fresno v. California, 372 U.S. 627 (1973)~ Malone v. Bowdoin, 369

-13-














treatise that:






-13-














treatise that:






-13-


/" .;-/

,/'/ ~

u.s. 643 (1962); and Hawaii v. Gordon, 373 U.S. 57 (1963) (per curiam) •

Hawaii v. Gordon, supra, did indeed strengthen Larson, and in many ways it was similar to the case at bar~ In that case, as described by Professor Davis:

[t] he State of Hawaii sought an order requl.rl.ng the Director of the Bureau of the Budget to withdraw advice to federal agencies that the Hawaii Statehood Act should be interpreted in accordance with an opinion of the Attorney General. The Act provided that the federal agencies should report to the President as to continued need for specified land, and that "if the President determines that the land or property is no longer needed by the United States it shall be conveyed to the State of Hawaii." The issue was not whether the lands should be conveyed--for that question was solely for the President--but whether a report should be made to the President with respect to designated lands. The Attorney General and the Director had taken the position that the~e1igib1e lands were limited to those which at one time belonged to Hawaii and were ceded to the United States. Thus, the sole question was one of statutory interpretation. The Court refused relief on the ground of sovereign immunity: "The general rule is that relief sought nominally against an officer is in fact against the sovereign if the decree would operate against the latter. • • .Here the order requested would require the Director's official affirmative action, affect the public administration of government agencies and cause as well the disposition of property admittedly belonging to the United States."

Davis, Supra at 147-48. (Emphasis added) Hawaii v. Gordon was,.i a unanimous decision, and it continues to be seen as persuasive precedent. ~,~, Food Town Stores v. E.E.O.C., 708 F.2d 920, 922 (4th Cir. 1983); Helton v. U.S., 532 F.Supp. 813 and 819 ( S. D. Ga . 1 98 2 )

Likewise, Larson continues to be good law. Florida Dept. of State v. Treasure Salvors, Inc., 458 U.S. 670, 688-89 (1982).

-14-

/" .;-/

,/'/ ~

u.s. 643 (1962); and Hawaii v. Gordon, 373 U.S. 57 (1963) (per

curiam) •

Hawaii v. Gordon, supra, did indeed strengthen Larson, and

in many ways it was similar to the case at bar~ In that case, as

described by Professor Davis:


Davis, Supra at 147-48. (Emphasis added) Hawaii v. Gordon was,.i a

unanimous decision, and it continues to be seen as persuasive

precedent. ~,~, Food Town Stores v. E.E.O.C., 708 F.2d

920, 922 (4th Cir. 1983); Helton v. U.S., 532 F.Supp. 813 and 819

( S. D. Ga . 1 98 2 )

Likewise, Larson continues to be good law. Florida Dept. of

State v. Treasure Salvors, Inc., 458 U.S. 670, 688-89 (1982).

-14-

/" .;-/

,/'/ ~

u.s. 643 (1962); and Hawaii v. Gordon, 373 U.S. 57 (1963) (per

curiam) •

Hawaii v. Gordon, supra, did indeed strengthen Larson, and

in many ways it was similar to the case at bar~ In that case, as

described by Professor Davis:


Davis, Supra at 147-48. (Emphasis added) Hawaii v. Gordon was,.i a

unanimous decision, and it continues to be seen as persuasive

precedent. ~,~, Food Town Stores v. E.E.O.C., 708 F.2d

920, 922 (4th Cir. 1983); Helton v. U.S., 532 F.Supp. 813 and 819

( S. D. Ga . 1 98 2 )

Likewise, Larson continues to be good law. Florida Dept. of

State v. Treasure Salvors, Inc., 458 U.S. 670, 688-89 (1982).

-14-


The aforementioned principles have been adopted by the

Hawaii Supreme Court in the Greenwell case, cited and relied upon

by Plaintiffs on page 19 of their Memorandum. In Greenwell,

plaintiff sought to restrain or enjoin State officials from

introducing axis deer on State land on the island of Hawaii.

Plaintiff alleged that the action of the Department of Land and

Natural Resources was an unconstitutional exercise of the police

power of the State. Therefore, the Court stated that the

doctrine of sovereign immunity was not a defense. Clearly,

plaintiff did not claim that he was entitled to State land or

State funds; plaintiff did not seek an adjudication of his

interest in State land .. or State funds; and plaintiff did not seek

a mandatory injunction requiring the State to transfer to

plaintiff State land or funds. The result would have been quite

different if he had.

It would take a great leap of imagination to conclude that

the instant case falls within the perimeters of Greenwell.

Applying the principles set forth in Larson to the complaint

in this action, the following conclusions emerge.

1. The complaint is predicated upon tl(e Attorney Gener.al' s

legal opinion denying that OHA is entitled to receive or share in

any part of the land received by the State of Hawaii as proceeds

from the disposition of State-owned sand from ceded lands. Addi

tionally, various State agencies relied upon such advice and

refused to transfer an ownership of the land or to pay OHA twenty

percent (20%) of the value of such land (Complaint, p. 7, ~ 24).

-15-



























-15-



























-15-


// ./// In other words, the "wrong" allegedly comroi tted by the Attorney

General was an erroneous interpretation of the law. Why else was

the Attorney General named as a Defendant in this suit? The

"wrong" allegedly committed by other State agencies was their

reliance upon the allegedly erroneous legal opinion.

Nowhere in the Complaint is it alleged that the Attorney

General exceeded his statutory or constitutional authority to

interpret the law, render legal opinions, and advise and counsel

public officers in matters connected with their public duties.

In fact, the Complaint on page 2, ~ 4, acknowledges that the

Attorney General is required to give his opinions on questions of

law submitted to him by governmental agencies. Clearly

governmental agencies may rely upon the Attorney General's

interpretation of the law to guide them in the exercise of their

official duties.

Turning to the first category of cases discussed in Larson,

in which restraints may be obtained against government officials,

the following conclusions are apparent:

(a) Plaintiffs have not shown that Defendants acted as

individuals rather than officials. y

---(b) Plaintiffs have not shown that the actions of the

State officials exceeded their statutory authority.

(c) Plaintiffs have not shown that relief could be

granted against the State officials without requiring the

disposition of the State's property.

-16-















official duties.











-16-















official duties.











-16-


Therefore, Plaintiffs have not shown that this case falls

within the first category of cases which is not considered "a

suit against the State."

2. A claim of error in the exercise of powers statutorily

vested in the various officials is not sufficient upon which to

to support this lawsuit.

The reason a suit may not be based upon a claim of error is

obvious and such a claim is simply not justiciable.

Dissatisfaction with the operation of State agencies, performing

their duties pursuant to valid statutory authority, is a

"poli tical question," not suitable for judicial resolution.

Warth v. Seldin, 422 U~.S. 490, 45 L.Ed.2d 343 (1975); Baker v.

~, 369 U.S. 186, 7 L.Ed.2d 663, 668 (1962). Plaintiffs, like

any other individual or group of individuals, may seek

legislative solutions to their problems or make their views known

at the ballot box. Legal remedies are unavailable and

inappropriate.

There is no question that in a proper case in which a court

has jurisdiction to award the relief requested, and the suit

involves the interpretation of laws, the court certainly would

not be bound to adopt the construction given by the head of a

department. And if the court supposed his decision to be wrong,

it would pronounce its judgment as to the proper interpretation

of the law. But in order to do so it is essential that the court

have jurisdiction to entertain the action in the first instance.

-17-

















inappropriate.









-17-

















inappropriate.









-17-University of Hawaii School of Law Library - Jon Van Dyke Archives Collection

/ .

/ .. /., .. "

~/ /'''' '.

/ Lacking such jurisdiction, as in the instant case, the Court cannot revise the Attorney General's opinion or compel him to issue another opinion favorable to the litigant, when the Attorney General has interpreted the law in a matter committed to his care, in the ordinary discharge of his official duties. ~, Hawaii v. Gordon, supra, United States ex reI Dunlap v. Black, 128 U.S. 40 (1888); Roberts v. United States, 176 U.S. 221 (1900) •

Because this action is predicated merely upon an alleged claim of legal error by the Attorney General of the State of Hawaii, this Court lacks jurisdiction to entertain it.

The second type of case in which a suit against a State official is permitted without a waiver of the State's sovereign immunity is that in which the statute or order conferring power upon the officer to take action in the sovereign's name, is claimed to be unconstitutional.

The present case clearly does not fall within that category. Additionally, pursuant to Larson, it is necessary to examine

the relief requested in order to determine whether this is an action against a sovereign requiring a waiver \ of the State's

//

sovereign immunity.

Plaintiffs herein request a declaration of the rights of OHA vis a vis the State of Hawaii. Larson makes it clear that such a ---declaration is beyond the court's jurisdiction.

Plaintiffs request a declaration that OHA is entitled to an interest in State land and money and a mandatory injunction to

-18-

/ .

/ .. /., .. "

~/ /'''' '.

/ Lacking such jurisdiction, as in the instant case, the Court

cannot revise the Attorney General's opinion or compel him to

issue another opinion favorable to the litigant, when the

Attorney General has interpreted the law in a matter committed to

his care, in the ordinary discharge of his official duties. ~,

Hawaii v. Gordon, supra, United States ex reI Dunlap v. Black,

128 U.S. 40 (1888); Roberts v. United States, 176 U.S. 221

(1900) •

Because this action is predicated merely upon an alleged

claim of legal error by the Attorney General of the State of

Hawaii, this Court lacks jurisdiction to entertain it.

The second type of case in which a suit against a State

official is permitted without a waiver of the State's sovereign

immunity is that in which the statute or order conferring power

upon the officer to take action in the sovereign's name, is

claimed to be unconstitutional.

The present case clearly does not fall within that category.

Additionally, pursuant to Larson, it is necessary to examine

the relief requested in order to determine whether this is an

action against a sovereign requiring a waiver \ of the State's //

sovereign immunity.

Plaintiffs herein request a declaration of the rights of OHA

vis a vis the State of Hawaii. Larson makes it clear that such a ---declaration is beyond the court's jurisdiction.

Plaintiffs request a declaration that OHA is entitled to an

interest in State land and money and a mandatory injunction to

-18-

/ .

/ .. /., .. "

~/ /'''' '.

/ Lacking such jurisdiction, as in the instant case, the Court

cannot revise the Attorney General's opinion or compel him to

issue another opinion favorable to the litigant, when the

Attorney General has interpreted the law in a matter committed to

his care, in the ordinary discharge of his official duties. ~,

Hawaii v. Gordon, supra, United States ex reI Dunlap v. Black,

128 U.S. 40 (1888); Roberts v. United States, 176 U.S. 221

(1900) •

Because this action is predicated merely upon an alleged

claim of legal error by the Attorney General of the State of

Hawaii, this Court lacks jurisdiction to entertain it.

The second type of case in which a suit against a State

official is permitted without a waiver of the State's sovereign

immunity is that in which the statute or order conferring power

upon the officer to take action in the sovereign's name, is

claimed to be unconstitutional.

The present case clearly does not fall within that category.

Additionally, pursuant to Larson, it is necessary to examine

the relief requested in order to determine whether this is an

action against a sovereign requiring a waiver \ of the State's //

sovereign immunity.

Plaintiffs herein request a declaration of the rights of OHA

vis a vis the State of Hawaii. Larson makes it clear that such a ---declaration is beyond the court's jurisdiction.

Plaintiffs request a declaration that OHA is entitled to an

interest in State land and money and a mandatory injunction to

-18-


effectuate the judgment, and it is difficult to conceive of any

case in which the compulsion the court is asked to impose is more

directly against the sovereign.1f

Since this is indeed a "suit against the State," Plaintiffs

must demonstrate a waiver of the State's immunity or this action

must be dismissed.

The Supreme Court of the State of Hawaii has faithfully and

unswervingly adhered to the teachings of Larson. The following

cases are but a few of the many cases in which courts of this

State were requested to address the question of sovereign

immuni ty when claims were made against the State in which a

litigant asserted an interest in State land or State funds:

1. In Marks v. Ah Nee, 48 Haw. 92 (1964), the court held

that the State cannot be forced to submit for adjudication in a

partition action any claim involving a contest as to ownership,

or the extent of the State's right, title and interest. The

court's jurisdiction over the merits of such claim was ousted

under the doctrine of sovereign immunity, even if the

, Plaintiffs in both cases cite and quote from Ragland v. Mueller, 460 F.2d 1196 (5th Cir. 1972) in support of the proposition that the raising of sovereign immunity in a case such as this "borders on the frivolous." Aside from the fact that Judge Tuttle's quote is merely dictum, it is bolstered by no authority save K. C. Davis, Administrative Law Treatise (1st Ed) Vol. 3, 27.03. A quick reference to this section shows that all professor Davis was referring to was the generally recognized exceptions created by Ex Parte Young, 209 U.S. 123 (1908) and Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949). To the extent that Judge Tuttle's dictum restates the Ex Parte Young principle, it is sound, but to the extent that it goes beyond it, Hawaii law is to the contrary.

-19-






must be dismissed.














-19-






must be dismissed.














-19-


// //

>/

/~ /'

/"! point was not raised in the trial court. The court cited, ,-' '.".

with approval the following cases. Kawananakoa v. Po1yb1ank,

205 u.s. 349 (1907); Bush v. Territory, 13 Haw. 1 (1900);

and Meyer v. Territory, 36 Haw. 75 (1942).

2. In A. C. Chock, Ltd. v. Kaneshiro, 51 Haw. 87

(1969), Plaintiffs filed a mechanic's lien against property

in which the State had an interest and brought suit to

enforce their lien. The trial court dismissed the State on

the ground that a proceeding against property in which the

State had an interest was a suit against the State and could

not be maintained without the consent of the State. The

dismissal was affirmed by the State Supreme Court. The

. court noted that mecnanic' s liens were purely statutory

remedies; that statutory laws which contravene sovereign

rights were to be strictly construed; and the subject

legislation had not waived the State's sovereign immunity!.

The court also noted that the legislature could have

subjected State land to liens, but had not done so and that

it was not for the court "to usurp legislative power and

enter the legislative field." ,

3. In Greenwell, supra, the court stated: /

It is the unquestioned rule that the State cannot be sued without its consent or waiver of its immunity in matters "involving the enforcement of contracts, treasury liability for tort, and the adjudication of interest in property which has corne unsullied by tort into the bosom of government."L. L. Jaffe, Judicial Control of Administrative Action, p. 221. Bush v. Territory of Hawaii, 13 Haw. 1; Coffield v. Territory of Hawaii, 13 Haw. 478;

-20-

// //

>/

/~ /'























-20-

// //

>/

/~ /'























-20-


-"

~ ...... .

/. ~.

Marks v. Ah Nee, 48 Haw. 92, 395 P.2d 620; Munoz v. Com'r Pub. Lands et al., 40 Haw. 675; Hele1a v. State of Hawaii, 49 Haw. 365, 418 P.2d 482.

50 Haw. at 208.

In Robinson v. Ariyoshi, 65 Haw. 641, 658 P.2d 287 (1982),

cited by Plaintiffs (Memo, p. 13), in footnote 13, the court stated:

Appellees also raise the issue of sovereign immunity. The State may, of course, only·be sued pursuant to a waiver of its immunity. Big Island Small Ranchers Assn'n v. State, 60 Haw. 228, 588 P.2d 430 (1978). And we agree with Appellees that our applicable statutes contain no provision for a suit against the State seeking damages based on any .. taking" resulting from the McBryde opinion. But" sovereign immunity may not be invoked as a defense by state officials who comprise an executive department of the government when their action is attacked as being unconstitutional." W. H. Greenwell, Ltd. v. Land Dept., 50 Haw. 207, 209, 436 P.2d 527, 528 (1968). Hence, a suit in state court similar to that filed in Robinsonv. Ariyoshi, supra, seeking to enjoin an unconstitution.al application of McBryde by state officials would not be precluded by the doctrine of sovereign immunity.

65 Haw. at 658 (emphasis added).

The case before this Court does not seek to enjoin the uncon-

stitutional application of a decision. Plaintiffs' reliance upon

Robinson v. Ariyoshi, supra (Memo, p. 19), is inapposite.

4. In Figueroa v. State, 61 Haw. 369, 604 P.2d 1198 (-1979),

the doctrine of sovereign immunity barred an action predicated upon ~/

alleged unconstitutional acts of State officers because a money

judgment was requested from the State and the State had not con-

sented to such a suit.

5. And finally, in Waugh v. University, 63 Haw. 117, 621 P.2d

957 (1980), the Hawaii Supreme Court stated with unmistakable

clarity that the only suits to which the State has consented are

defined in Chapters 661 and 662 of the Hawaii Revised Statutes:

-21-

-"

~ ...... .

/. ~.


50 Haw. at 208.

















-21-

-"

~ ...... .

/. ~.


50 Haw. at 208.

















-21-


plaintiff's action unless brought under one of these two chapters would be barred by the doctrine of sovereign immunity.

Since Plaintiffs' arguments that this is not a suit against the State are wholly insubstantial and frivolous, this Court should unhesitatingly dismiss the complaint for lack of jurisdiction. (See Bell v. Hood, 327 U.S. 678, 682-683 (1946); Land v. Dollar, 330 U.S. 731, 739 (1947).

B. WRITS OF MANDAMUS DIRECTED TO PUBLIC OFFICERS TO COMPEL

THEM TO FULFILL THE DUTIES OF THEIR OFFICES ARE AVAILABLE IN THE STATE OF HAWAII.

Unsuccessfully ar~~ing that this is not a "suit against the State," Plaintiffs additionally assert that this action is similar to a mandamus action; that actions in the nature of mandamus have been abolished in the State of Hawaii; and that the doctrine of sovereign immunity is not applicable to mandamus actions (Memo, pp. 22-26) .if

First, this is not an action in the nature of mandamus or a petition for a writ of mandamus. This is an action for a

--/ declaratory judgment seeking an interest in State land and State

if Plaintiffs' reference at page 21 to Widemann v. Thurston, 7 Haw. 470 (1888) as a rebuttal of the sovereign immunity defense is somewhat puzzling. Defendants do not dispute that sovereign immunity does not bar a proper mandamus action, as Widemann correctly held, but the instant complaints are decidedly not mandamus petitions. In the event that Plaintiffs were to file a petition for mandamus, however, one might wonder what ministerial act the court could compel.

-22-

plaintiff's action unless brought under one of these two chapters

would be barred by the doctrine of sovereign immunity.

Since Plaintiffs' arguments that this is not a suit against the

State are wholly insubstantial and frivolous, this Court should

unhesitatingly dismiss the complaint for lack of jurisdiction. (See

Bell v. Hood, 327 U.S. 678, 682-683 (1946); Land v. Dollar, 330 U.S.

731, 739 (1947).


THEM TO FULFILL THE DUTIES OF THEIR OFFICES ARE AVAILABLE

IN THE STATE OF HAWAII.

Unsuccessfully ar~~ing that this is not a "suit against the

State," Plaintiffs additionally assert that this action is similar

to a mandamus action; that actions in the nature of mandamus have

been abolished in the State of Hawaii; and that the doctrine of

sovereign immunity is not applicable to mandamus actions (Memo, pp.

22-26) .if

First, this is not an action in the nature of mandamus or a

petition for a writ of mandamus. This is an action for a



-22-

plaintiff's action unless brought under one of these two chapters

would be barred by the doctrine of sovereign immunity.

Since Plaintiffs' arguments that this is not a suit against the

State are wholly insubstantial and frivolous, this Court should

unhesitatingly dismiss the complaint for lack of jurisdiction. (See

Bell v. Hood, 327 U.S. 678, 682-683 (1946); Land v. Dollar, 330 U.S.

731, 739 (1947).


THEM TO FULFILL THE DUTIES OF THEIR OFFICES ARE AVAILABLE

IN THE STATE OF HAWAII.

Unsuccessfully ar~~ing that this is not a "suit against the

State," Plaintiffs additionally assert that this action is similar

to a mandamus action; that actions in the nature of mandamus have

been abolished in the State of Hawaii; and that the doctrine of

sovereign immunity is not applicable to mandamus actions (Memo, pp.

22-26) .if

First, this is not an action in the nature of mandamus or a

petition for a writ of mandamus. This is an action for a



-22-


/" 4"/'~

/! ~:,," . funds and the Court's resolution of the jurisdictional

problem should be predicated upon Hawaii cases which have

addressed the same problems.

Additionally, cases arising under writs of mandamus

have not been abolished in Hawaii. Section 602-5(4),

H.R.S., delineates the jurisdiction and powers of the

Supreme Court as follows:

To exercise original jurisdiction in all questions ar1s1ng under writs directed to courts of inferior jurisdiction and returnable before the supreme court, or if the supreme court consents to receive the case arising under writs of mandamus directed to public officers to compel them to fulfill the duties of their offices; ••. (Emphasis added.)

Moreover, if Plaintiffs believe that this action is to compel

public officers to fulfill the duties of their office, they are not

barred from seeking a writ of mandamus from the Supreme Court.

Finally, to characterize this action as in the nature of

mandamus is wholly without merit when in reality Plaintiffs seek to

have this Court overturn a legal opinion of the Attorney General. e

United States ex rel. Dunlap v. Black, supra, and Roberts v. United

States, supra, (holding that legal opinions rendered by an executive

officer of the government in the exercise of his ordinary official

duties, are discretionary and inappropriate 'for mandamus.) 2,/ /.'

2,/ In the event that Plaintiffs are claiming that the state was somehow negligent in performing its legal duties, such a claim would be barred by the terms of H.R.S.§662-15(1), which preserves the defense of sovereign immunity for IIdiscretionaryll functions.

-23-

/" 4"/'~




















-23-

/" 4"/'~




















-23-


~/

//. C. OHA CANNOT CONSTITUTIONALLY BE CHARACTERIZED AS AN "ARM

OF THE STATE"

It is ironic that Plaintiffs resort to the argument that

"the doctrine of sovereign immunity does not apply to an action *

* * * between arms of the State" (Memo, pp. 28-31).

On page 28 of Plaintiffs' Memorandum it is stated:

Plaintiff was created by the same constitution which established the executive branch of government of which Defendants are a part. As a result both OHA and Defendants are of equal constitutional stature and dignity. Neither is superior, i. e. "sovereign" over the other. The statutes which spell out Defendants' rights and obligations are no more or less important than those which affect OHA and its beneficiaries. Because of the equality between Plaintiffs and Defendants stq;tus, there is not even a theoretical basis for the application of the doctrine of sovereign immunity in this case.

If Plaintiffs' description of OHA is accurate, then OHA is

unconstitutional.

There is no question that the Defendant State agencies are

"arms or branches of the State." They are true "State agencies,"

clothed with and exercising governmental powers. They are part of

the State, having and exercising sovereign powers. The department

heads are appointed by the Governor, who is 1 elected by all -{he

voters of the State of Hawaii. Most significantly, if any of the

departments incur liability, it is the liability of the State.

It is settled law that the characterization of an agency as an

"arm of the State," partaking of the State's sovereign immunity,

does not depend upon whether the agency is created by the same law

as other agencies~ whether it is subject to control by the

-24-

~/

//. C. OHA CANNOT CONSTITUTIONALLY BE CHARACTERIZED AS AN "ARM

OF THE STATE"







unconstitutional.












-24-

/' / C. OHA CANNOT CONSTITUTIONALLY BE CHARACTERIZED AS AN "ARM

OF THE STATE"







unconstitutional.












-24-


1egis1ature~ or whether it receives significant amounts of money

from the State to perform the functions for which it was created.

(See Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 50 L.Ed.

471 (1977), holding that the school board under Ohio law was not an

"arm of the state" entitled to partake of State's Eleventh Amendment

immuni ty.)

The crucial factor in determining whether an agency of the

State has sovereign powers is whether the liability of the agency is

the liability of the State. Thus, if the liability of OHA is the

liability of the State, it can then be considered an "arm of the

State" of equal sovereignty to other branches of the State

government and endowed,,with sovereign immunity coextensive with that

of the other State Defendants. This principle of law is illustrated

in Anthony v. Cleveland, 355 F.Supp. 789 (D. Haw. 1973). The court

was faced squarely with the question of whether the University of

Hawaii was endowed with the sovereign immunity of the State so that

a suit against the University was a suit against the State for the

purposes of an action brought under 42 U.S.C. § 1983. In concluding

that the University of Hawaii was endowed with the sovereign ./

immunity of the State, and therefore a § 1983 action could not be

maintaiped against it, the court noted that pursuant to statute, any

liability incurred by the university would be the liability of the

State. The court stated, with emphasis:

Moreover, section 304-6 of the Haw. Rev. Stat. (1968) provides, in pertinent part, that:

The university may sue and be sued in its corporate name: however, it shall be subject to suit only in the manner provided for suits against the State, and any

-25-

,. - ".M, '"






immuni ty.)




















-25-

,. - ".M, '"






immuni ty.)




















-25-

,. - ".M, '"


liability incurred by the university in such a suit shall be the liability of the State. (Emphasis added).

Thus if the Plaintiff is successful in this suit, the state will have to pay his judgment and the result is the same as suing the state. • • •

355 F.Supp. at 791, emphasis in original.

It is readily apparent, that, in creating OHA, the legislature

arrived at the exact opposite result as far as the responsibility of

the State for any liability incurred by OHA.

Hawaii Revised Statutes § 10-16(a) provides in pertinent part:

Suits. (a) The office may sue and be sued in its corporate name. The State shall not be liable for any acts or omissions of the office, its officers, employees, and the members of the board of trustees, except as provided under subsection (b).

'!'

(b) In matters of tort, the office, its officers and employees, and the members of the board shall be subject to suit only in the manner provided for suits against the State under chapter 662. (Emphasis added.)]

Thus the State's disclaimer of liability for any acts of OHA,

except in matters of tort, renders Plaintiffs rhetoric as to the

equal "sovereignty" of OHA and the State Defendants legally

unsupportable.

Additionally, an examination of the nature of the entity that ./

the State created when it established OHA undermines the very

foundation upon which Plaintiffs' argument is based.

Before examining the nature of OHA, as set forth in Article XII

of the State Constitution and the implementing legislation contained

in Chapter 10, H.R.S., it is instructive to consider a case in which

an appellate court was required to determine whether ~he University

of Illinois, created by law1 operated by public funds1 and not

-26-









'!'





unsupportable.









-26-









'!'





unsupportable.










permitted to own property in its own right [see People v. Barrett,

46 N.E.2d 951 at 962 (Ill. 1943)], was a "State agency" clothed with

and exercising governmental powers or an agent of the State created

for a particular purpose but lacking any coercive governmental

power.

In concluding that the University of Illinois functioned as an

agency of the state and could exercise no sovereign powers, the

court in Decker v. University Civil Service, etc., 406 N.E.2d 173

(Ill. App. 1980), described an agency very similar in nature to OHA.

The court reasoned:

Both Plaintiffs and Defendants rely on People v. Barrett (1943), 382 Ill. 321, 46 N.E.2d 951; in which the supreme court eX!i.lmined at length the nature of the University of Illinois. The opinion is exhaustive and learned and is concerned with some matters not material to the instant case. The court's ultimate conclusion was that the university is not a State agency but an agent for the State. The distinction, while subtle, is very real. A State agency is an element of government, clothed with, and exercising, governmental powers. Examples are the so-called "Code Departments, h created in chapter 127 (Ill. Rev. Stat. 1977, ch. 127, par. 3). An agent for the State is an entity created b~ the State for a particular purpose but lacking any coerC1ve governmental power. These are of a greater variety, extending across a broad spectrum of activities. At one end stand huge public corporations, like the University of Illinois (Ill. Rev. Stat. 1977, ch 144, par. 22): at the other stand small advisory boards, like the Board of Sponsors of Governor's Scholars (Ill. Rev. Stat. 1977, ch. 127, par. 63b131). Both State agencies and agents for the State are created by the legislature, but the former are governmental in nature while the latter are proprietary or administrative.

The Barrett court made this very clear in saying:

"It is a public corporation, created for the specific purpose of the operation and administration of the university. As such, it may exercise all corporate powers

-27-





power.





The court reasoned:




-27-





power.





The court reasoned:




-27-


necessarii' to perform the functions for which it was created.' 382 Ill. 321, 342, 46 N.E.2d 951, 962.

* * * * * * II It functions solely as an agency of the State for the purpose of the operation and administration of the university, for the State. In doing this, it f~nctions as a corporation, separate and distinct from the State and as a public corporate entity with all the powers enumerated in the applicable statutes, or necessarily incident thereto. It has and can exercise no sovereign powers. It is no part of the State or State Government. h 382 Ill. 321, 343, 46 N.E.2d 951, 962.

406 N.E.2d at 177, emphasis added.

The nature of OHA is reflected in Article XII of the State

Constitution and Chapter 10, H.R.S. The similarity to the entity

described in Decker is apparent when the following factors are

considered:

1. OHA is a public corporation, and a separate entity

independent of the executive branch (H.R.S. § 10-4).

2. The specific purpose for which OHA was formed was to

address the needs of the aboriginal class of people of Hawaii

(H.R.S. § 10-1).

3. OHA holds title to all property, real and personal, set

aside or conveyed to it, or set aside and trflnsferred to it,/*hich

it holds in trust for the limited and specific purpose for which OHA

was established [Art. XII, Sections 5, 6, State Constitution; H.R.S.

§ 10-5(2)].

4. OHA may exercise all corporate powers necessary to perform

the functions for which it was created (H.R.S. §§ 10-5 and 10-6).

5. The trustees of OHA were elected by qualified voters who

are Hawaiian and the board members are required to be Hawaiian (Art.

-28-







considered:





(H.R.S. § 10-1).





§ 10-5(2)].





-28-







considered:





(H.R.S. § 10-1).





§ 10-5(2)].






~ ~/

~ . XII, Sec. 5, State Constitution).

6. The State is not liable for any acts of OHA except in

matters of tort [HRS § 10-16(a)].

The only logical conclusion from a review of the laws

establishing OHA is that (1) OHA was created for a particular

purpose; (2) OHA's powers are proprietary or administrative; (3) OHA

functions solely for the purpose of addressing the needs of the

aboriginal class of people of Hawaii with funds set aside and

transferred to it for the limited purpose for which OHA has been

created; (4) the State is not liable for OHA's activities except in

matters of tort; (5) OHA is no part of the State or State

government; (6) it has and can exercise no governmental powers; and ,;

(7) neither Article XII of the State Constitution nor Chapter 10,

H. R. S., authorizes OHA to sue the State or waives the State's

sovereign immunity.

Thus the doctrine of sovereign immunity is ava~lable against

OHA as it is against any individual or group of individuals,

corporate or otherwise who ~ue the State for an interest in State

lands or public funds.~/

.~ ..

~7 None of the cases cited by Plaintiffs concern a suit by a public corporation whose board is elected by a distinct racial group, which corporation lacks sovereign powers, exercises limited functions, is not part of the sovereign entity, yet sues the sovereign itself.

While Plaintiffs' out-of-state authorities must be disregarded even if they state the correct rulings of the court, it is to be noted that several cases do not. For example, in Terrebonne Parish School Board v. St. Mary Parish School Board, 138 So.2d 104 (La. 1962), the court held that immunity of parish school boards from suit had been, waived by the legislature. In Rocky Mountain Oil & Gas Ass'n v. State, (Wyo. 1982), the court stated that its holding was applicable when a money judgment was not involved. (See Plaintiffs' Memo p. 29).

-29-

~ ~/















sovereign immunity.





.~ ..



-29-

~ ~/















sovereign immunity.





.~ ..



-29-


It is incredible that Plaintiffs urge upon this Court that OHA r

is an "arm of the State" and of equal sovereignty to the State

Defendants, be~ause that a~gument would rendex .. QHA unco~stitutional. r

The law is clear that the Equal Protection Clause of the

Fourteenth Amendment to the United States Constitution requires

adherence to the principle of one-person, one-vote in elections of

officials exercising governmental powers. Reynolds v. Sims, 377

U.S. 533 (1963); Avery v. Midland County, 390 U.S. 374 (1978); Hill --v. Stone, 421 U.S. 289 (1975); City of Phoenix v. Kolodziejski, 399

U.S. 204, 290 (1970); Hadley v. Junior College District, 397 U.S. 50

(1970); Kramer v. Union Free School District, 395 U.S. 621 (1969);

Cipriano v. City of Houma, 395 U.S. 701 (1969) (per curiam).

The State Defendants in the case at bar are appointed by the

Governor. The election of the appointing authority of officials

exercising governmental powers, or the election of the officials

themselves, as in the case of the Board of Education, must comply

with the rigid strictures of Reynolds or be in violation of the

Equal Protection Clause of the Fourteenth Amendment to the Federal

Constitution and Article I, Section 5 of the State Constitution.

Since all the "arms of the State" are sbvereign and all the

officials administering the various "arms of the State" exercise

governmental powers the strict demands of Reynolds must be complied

with. Thus, the State of Hawaii satisfies the mandate of Reynolds

by affording all qualified voters the right to vote in elections of

the appointing authority or boards exercising sovereign powers.

-30-

























-30-


























A very narrow and limited exception to the principles of

Reynolds was found to exist in Salyer Land Co. v. Tulare Water

District, 410 u.S. 719 (1973) and Ball v. James, 451 U.S. 355

(1981). The United States Supreme Court in these cases held that a

popular election in compliance with Reynolds was not required

because of the nature of the governmental entities involved.

The Supreme Court stressed the fact that the Water Storage

District in Salyer did not provide general public services

ordinarily attributed to a governmental body (410 U.S. at 728-729);

that the activities of the district were narrowly confined to the

landowners as a group of the Water Storage District (410 U.S. at

726-728); and that the"activities of the district fell so dispropor-

tionately on the landowners of the district (410 U.S. at 726-728),

that the limitation of the franchise to landowners of the Water

District I S Board of Directors comported with equal protection

requirements.

Again in Ball v. James, supra, the Supreme Court noted that the

purpose for the creation of the Power District was specialized and

narrow and its activities bore on landowners so disproportionately

as to release the election of the District'~ directors fro~/the

strict demands of the Reynolds principle (410 U.S. at 362-371). The

Court again stressed that the District does not exercise the sort of

governmental powers that invoke the strict demands of Reynolds and

does not administer normal government functions (id. at 365-366).

Applying these principles to "arms of the State" and "equally

sovereign officials" of the State, it is obvious that all government

-31-
















requirements.











-31-
















requirements.












./ ",/. ~

/ <c . officials provide general public services ordinarily attributed to a

government body; that the activities of all officials, administering

"arms of the State" are not narrowly confined to a particular group

of individuals; and the activities of the department heads or boards

exercising governmental powers do not fall so disproportionately on

one group of persons so that the rigid demands of Reynolds need not

be complied with.

Article XII, Section 5 of the State Constitution limits the

election of the Board of Trustees of OHA to Hawaiians. OHA cannot

have it both ways. They cannot consider themselves an "arm of the

State" of equal sovereignty to the State Defendants, which would

require them to adhere~to the principles of Reynolds in the election

of its governing body, the Board of Trustees of OHA, and at the same

time claim that they fall within the exceptions discussed in Salyer

and Ball in order to avoid the principle of Reynolds. If they fall

within the exceptions discussed in Salyer and Ball, then, of course,

they do not comprise an "arm of the State" of "equal sovereignty" to

the State, as Defendants believe, and the doctrine of sovereign

immunity is applicable to OHA as well as to any other public or

private corporation asserting claims against ~he sovereign.

On the other hand, if this Court concludes that this action

involves two equally sovereign "arms of the State" as Plaintiffs

contend then the Court also must conclude that OHA is unconstitu-

tional since the voting public cannot be denied the right to

participate in the election of government officials who comprise

"arms of the State." In such case, of course, it would be

-32-

./ ",/. ~

/ <c . officials provide general public services ordinarily attributed to a






be complied with.




















-32-

~ . ./

",/. / <c .

officials provide general public services ordinarily attributed to a






be complied with.




















-32-


/"

/' /,/

/ 'i!:;'\~" immaterial whether the State could assert its sovereign immunity

against OHA because OHA would be unconstitutional.II D. THIS COURT LACKS JURISDICTION TO ADJUDICATE OHA'S CLAIM

FOR AN INTEREST IN STATE LAND AND STATE FUNDS WITHOUT THE

STATE'S CONSENT OR WAIVER OF ITS IMMUNITY.

1. Funds Emanating From A Public Land Trust Are Public

Funds.

Plaintiffs assert that this action is maintainable because they do not seek to recover funds from the State treasury (Memo, pp. 31-33). Nothing could be further from the truth. In Droste v. . "'

Kerner, 217 N.E.2d 73 (Il1._1966), the Supreme Court of Illinois defined "public funds" as follows:

Webster's New International Dictionary, 2d ed. p. 2005, defines "public funds" as being: "Moneys belonging to a overnment or an de artment of it, in the hands of a public official." See also: Cases collected in Words & Phrases, Perm.ed. vol. 35, pp. 164-172.} Approximately the same definition is given in Black's Law Dictionary, 4th ed., p. 802, and this court has on two occasions stated that the word "funds", in its common usage, "ordinarily means money or negotiable instruments readily convertible into cash, and has been defined as property of every" kind when such "" property is contemplated as something to,be used for paym~nt of debts."


In Money v. State, 206 So.2d 436 (1968), the District Court of Appeals of Florida held that "public funds" do not change character although earmarked for a special purpose. Again in Matter of State

7/ The views expressed herein are consistent with the views expressed in Attorney General Opinions, Nos. 80-8 and 83-2.

-33-

/"

/' /,/

/ 'i!:;'\~" immaterial whether the State could assert its sovereign immunity

against OHA because OHA would be unconstitutional.II

D. THIS COURT LACKS JURISDICTION TO ADJUDICATE OHA'S CLAIM




Funds.

Plaintiffs assert that this action is maintainable because they

do not seek to recover funds from the State treasury (Memo, pp.

31-33). Nothing could be further from the truth. In Droste v. . "'

Kerner, 217 N.E.2d 73 (Il1._1966), the Supreme Court of Illinois

defined "public funds" as follows:

Webster's New International Dictionary, 2d ed. p. 2005, defines "public funds" as being: "Moneys belonging to a

overnment or an de artment of it, in the hands of a public official." See also: Cases collected in Words & Phrases, Perm.ed. vol. 35, pp. 164-172.} Approximately the same definition is given in Black's Law Dictionary, 4th ed., p. 802, and this court has on two occasions stated that the word "funds", in its common usage, "ordinarily means money or negotiable instruments readily convertible into cash, and has been defined as property of every" kind when such "" property is contemplated as something to,be used for paym~nt of debts."


In Money v. State, 206 So.2d 436 (1968), the District Court of

Appeals of Florida held that "public funds" do not change character

although earmarked for a special purpose. Again in Matter of State


-33-

/"

/' /,/

~/ !:;.\~" immaterial whether the State could assert its sovereign immunity

against OHA because OHA would be unconstitutional.II

D. THIS COURT LACKS JURISDICTION TO ADJUDICATE OHA'S CLAIM




Funds.

Plaintiffs assert that this action is maintainable because they

do not seek to recover funds from the State treasury (Memo, pp.

31-33). Nothing could be further from the truth. In Droste v. . "'

Kerner, 217 N.E.2d 73 (Il1._1966), the Supreme Court of Illinois

defined "public funds" as follows:

Webster's New International Dictionary, 2d ed. p. 2005, defines "public funds" as being: "Moneys belonging to a

overnment or an de artment of it, in the hands of a public official." See also: Cases collected in Words & Phrases, Perm.ed. vol. 35, pp. 164-172.} Approximately the same definition is given in Black's Law Dictionary, 4th ed., p. 802, and this court has on two occasions stated that the word "funds", in its common usage, "ordinarily means money or negotiable instruments readily convertible into cash, and has been defined as property of every" kind when such "" property is contemplated as something to,be used for paym~nt of debts."


In Money v. State, 206 So.2d 436 (1968), the District Court of

Appeals of Florida held that "public funds" do not change character

although earmarked for a special purpose. Again in Matter of State


-33-


Motor Fuel Tax Liab., etc., 273 N.W.2d 737 (S.D. 1978), the

Supreme Court of South Dakota noted that "public funds" are not

necessarily limited to tax moneys. The court defined "public

funds" as follows:

It is commonly understood that "public funds ll are monies belonging to the United States or corporate agencies of the Federal Government, a state or subdivision thereof, or a municipal corporation. Public funds represent monies raised by operation of law for support of the government, or for discharge of its obligations.

273 N.W.2d at 742. (Emphasis added).

I It is clear that the moneys Plaintiffs are seeking are "public

funds. II They are moneys belonging to the State and in the hands of

public officials. The funds that Plaintiffs seek represent moneys

raised by operation of law for the State of Hawaii to discharge its

obligations. Thus, it is immaterial whether they are kept separate

and apart from general revenue funds or earmarked for a special

purpose. The "public funds" are considered to be in the "State

Treasury."

Plaintiffs' argument that the funds and the lands they are

seeking "do not belong to the State outright" is frivolou~; All

"public land" and "public money" is held "in trust" to be used/for a

"public purpose."!/ (See Article VII, Section 4, State

Constitution).

No tax shall be levied or appropriation of public money or property made * * * except for a public purpose.

8/ Art. VII, Section 4 of the State Constitution provides in relevant part:


-34-




funds" as follows:










Treasury."





Constitution).




-34-




funds" as follows:










Treasury."





Constitution).





Since Plaintiffs clearly seek an interest in State lands and

public funds, this Court lacks jurisdiction to entertain this suit.

2. Plaintiffs' Demands For "Section 5(f) Trust Lands And

Income And Proceeds Of Section 5(f) Trust Lands" Are

Inaccurate, Misleading, And Erroneous.

Throughout Plaintiffs' Memorandum and the Complaint filed

herein, Plaintiffs refer to Section 5(f) of the Admission Act as the

basis of their claims. For example, on page 3 of their memorandum,

Plaintiffs state:

The "trust" referred in Art. XII, Sec. 6 and in Article XII, Section 4 of the State constitution was established by Section 5(f) of the Admission Act".

On page 5 of their memorandum, it is stated:

The terms of the trust spelled out in Section 5(f) of the Admission Act require that the 5(f) Trust Land as well as the proceeds and income derived by the State from the sale, lease or other disposition of 5(f) Trust Lands are to be held by the State of Hawaii as a public trust and used only for five specific purposes .•••

Also on page 5 of Plaintiffs' memorandum, they state:

One of the purposes in creating the Office of Hawaiian Affairs was to establish an entity controlled by Hawaiians to which could be paid the pro rata share of the 5(f) tr9st, income and proceeds which by the terms 'of the 5(f) Trust were to be used 'for lithe betterment of conditions of Native Hawaiians."

On pages 32 and 33, the part of Plaintiffs' memorandum under

discussion, there are six paragraphs of reference to 5(f) Trust Land

and 5(f) income and proceeds with the amazing conclusion:

The 5(f) Trust Lands and the income and proceeds derived therefrom are in fact not the property of the State but constitute the res of the trust.

-35-









Plaintiffs state:










-35-









Plaintiffs state:











Even a cursory examination of Section 5(f) of the Admission Act

demonstrates the unsupportability of Plaintiffs' statements. Nor is

there any reference to Section 5(f) o~ the Admission Act in Article

XII, Section 4, entitled "Public Trust." Additionally, there is no

reference to Section 5 (f) of the Admission Act in Article XII,

Sections 5 and 6 of the State Constitution.

Chapter 10, H.R.S., is utterly devoid of any reference to

Section 5(f) of the Admission Act. Because of Plaintiffs' clearly

erroneous interpretation of Section 5(f) of the Admission Act, this

discussion is for the purpose of clarifying any confusion the Court

may have as a result of Plaintiffs' statements.

The background of OHA's creation and the res of the trust OHA .~~

is required to administer to address the needs of its beneficiaries

is culled from the legislative history of Chapter 10, H.R.S.; the

Ninth Circuit's analysis of the trust provision of section 5(f) of

the Admission Act in Keaukaha-Panaewa Com. v. Hawaiian Homes Com'n,

588 F.2d 1216 (1978), cert. denied, 62 L.Ed.2d 33 (1979); and the

clear language of Article XII, Section 5 of the State Constitution.

Section 5(f) of the Hawaii Admission Act states in relevant

part: /'

The lands granted to the State of Hawaii by subsection (b) of this section and public lands retained by the United States under subsections (c) and (d) and later conveyed to the State under subsection (e), together with the proceeds from the sale or other disposition of any such lands and the income therefrom, shall be held by said State as a public trust for the support of the public schools and other public educational institutions, for the betterment of the conditions of native Hawaiians, as defined in the Hawaiian Homes Commission Act, 1920, as amended, for the development of farm and home ownership on as widespread a basis as possible for making the public improvements, and for the

-36-




















part: /'


-36-




















part: /'


-36-


provJ.sJ.on of lands, for public use. Such lands, proceeds, and income shall be managed and disposed of for one or more of the foregoing purposes in such manner as the constitution and laws of said State may provide, and their use for any other object shall constitute a breach of trust for which sui t may be brought by the United States. [Emphasis supplied. ]

The clear language of Section 5(f) does not require that any

lands, proceeds and income be used to better the condition of native

Hawaiians, since the State could use its public lands for any one or

more of the stated purposes without violating the trust provision

of Section 5(f).

In Panaewa, the court noted the ambiguity in Section 5 (f) .

(See footnote 2, 588 F.2d at 1218). Section 5 (f) includes the

transfer of the Hawai~~n home lands as well as all public Hawaiian

land. Since the Hawaiian home lands could not be used for the same

general public purposes as other federal lands conveyed to Hawaii

pursuant to the Admission Act, the ambiguity is apparent.

Because the Hawaiian home lands are included in Section 5(f),

the State interpreted the public trust as being fulfilled with

respect to "betterment of conditions of native Hawaiians", by virtue

of the home lands being held and used in the interest of native

Hawaiians [See Senate Standing Committee Rep.ort No. 784, 10th Haw.

Leg., Regular Session, reprinted in Senate Journal 1350-1351

(1979)]. Thus; all of the income from the public lands transferred

to Hawaii, other than the Hawaiian home lands, could be used without

any portion utilized for native Hawaiians. Prior to the amendment

of the State Constitution in 1978, most of the income flowed to the

Department of Education, an appropriate trust purpose.

-37-






of Section 5(f).


















-37-






of Section 5(f).


















-37-


The court in Panaewa also noted that the trust provision of

Section 5(f) was not enacted for the especial benefit of native

Hawaiians. The court stated:

Of course, the trust provision of section 5(f) of the Admission Act pertains to all public Hawaiian land and not just to home lands. In that sense, the provision does not benefit any class narrower than all citizens of Hawaii.

588 F.2d at 1223, emphasis added.

As a result of the Constitutional Convention of 1978, Article

XII was added to the State Constitution, because Section 5(f) did

not and does not require that any portion of the income of the

Section 5 (f) trust be utilized for native Hawaiians. Clearly,

Article XII,Sections 4 and 6, were not established by Section 5(f)

of the Admission Act (Plaintiffs' memo, p. 3). Article XII, Section

4, created a new public land trust excluding the Hawaiian home lands

and designated native Hawaiians as well as the general public as the

beneficiaries of the new public land trust.

Pursuant to the clear language of Article XII, Section 6, the

legislature was required to designate a pro rata portion of the

trust referred to in Article XII, Section 4. Most significantly,

Article XII, Section 5, established OHA and provided that OHA shall· //

hold title to all the real and personal property now or hereafter

set aside or conveyed to it which shall be held in trust for native

Hawaiians and Hawaiians.

It is clear that the trust res which OHA is required to

administer consists of all property set aside or conveyed to OHA or

set aside and transferred to OHA (Article XII, Section 6). OHA's

trust duties attach to all property set aside and transferred or

-38-


























-38-


























-38-


.. -~.~.'-.. ---..-

~/~_/'------------' .-----

conveyed to it. It can hardly be disputed, of course, that the

lands in controversy in this action or in Civil No. 81939 have not

been set aside or conveyed to aHA.

This discussion was merely intended to dispel the confusion

generated by Plaintiffs' demands for Section 5(f) trust land and

income. Clearly, whatever the source of aHA's demands, it is

immaterial to the jurisdictional issue which this Court must

resolve. The land acquired by the State in settlement of the

illegal sand mining incident is "public land." The moneys aHA seeks

from the State are "public funds." All "public lands" and all

"public moneys" are constitutionally required to be used for a

"public purpose." (S~ Art. VII, Section 4, State Constitution.)

The State holds all its public land and public funds "in trust" - to

be used for a "public purpose."

Plaintiffs' contention that the land and funds they claim "are

in fact not the property of the State" is wholly frivolous and does

not merit this Court's serious consideration. aHA is simply trying

to litigate what they perceive to be their interest in public

property vis~ vis the State's interest in its public property.

E. THE DECLARATORY JUDGMENT ACT DOES NOT CONFER JURISDicTION

OVER PLAINTIFFS' CLAIMS.

Plaintiffs' argument "E" (Memo, pp. 33-36) states:

Whether the Declaratory Judgment Act Confers Jurisdiction or Waives Sovereign Immunity is Irrelevant to This Case Since it is Within the Class of Cases to Which the Doctrine of Sovereign Immunity Is Not Applicable.

-39-

.. -~.~.'-.. ---..-

~/~_/'------------' .-----
























-39-

.. -~.~.'-.. ---..-

~/~_/'------------' .-----

























Defendants have discussed in depth the reasons why this action

does not fall within the class of cases in which a restraint may be

obtained against a government official without violating the

doctrine of sovereign immunity. Since this suit does not fall

within the two types of categories discussed in Larson and

recognized by the Hawaii Supreme Court in Greenwell, the doctrine of

sovereign immunity protects the State from this suit. Since the

State of Hawaii has continued to place emphasis on consent to suit

in actions against the sovereign, some comments about the doctrine

of sovereign immunity are instructive in order that this Court may

view Plaintiffs' complaint in its proper prospective.

American courts in this century have viewed the sovereign "

immunity doctrine as embodying a policy of protecting the public

purse rather than as perpetuating philosophical notions of sovereign

power and incapacity to err. (See Plaintiffs' comments to the

contrary, Memo, p. 3, footnote 3). In discussing sovereign immunity

from suit, one commentator observed that the doctrine was best

viewed as preventing "the subjection of the state and federal

governments to * * * serious interference with the performance of

their functions and with their control over their respect:i,ve ,

instrumentali ties, fund, and property." (Block , Suits Against

Government Officers and the Sovereign Immunity Doctrine, 59 Har. L.

Rev. 1060, 1061(1946).

The doctrine continues to prevent all suits against the

sovereign from going forward, in the absence of consent, at least in

the sovereign's own courts (see Nevada v. Hall, 440 u.S. 410, 421,

-40-























Rev. 1060, 1061(1946).




-40-























Rev. 1060, 1061(1946).




-40-


.~- " 59 L. Ed. 2d 416, 425 (1979» regardless of the purpose of the activity in which the sovereign was engaged when it incurred the alleged liability. The consent, even when explicit, is narrowly construed. (See Figueroa v. State, supra; Waugh v. University of Hawaii, supra; A. C. Chock, Ltd. v. Kaneshiro, supra.

In weighing the possible disadvantage to a litigant, unable to assert its claims against a sovereign, the United States Supreme Court in Larson noted that the necessity of permitting the sovereign to carry out its functions far outweighs any disadvantage to a litigant. (337 U.S. at 703-704).

The continued emphasis placed on consent to suit by the Hawaii Supreme Court in the n~merous cases involving the same or similar issues before this Court is the inevitable result of viewing the doctrine as necessary to preserve the State's control over its property, funds and instrumentalities from external interference.

It is hard to imagine a case more suitable than the one before this Court for the invocation of the doctrine of sovereign immunity.

Clearly, no consent to suit can be found in the Declaratory Judgment Act. The specific language of H.R.S. § 632-1 requires that

.. /" the court have jurisdiction before it can entertain a declaratory judgment action. H.R.S. § 632-1 states in relevant part:

In cases of actual controversy, courts of record, within the scope of their respective jurisdictions. • • •

The general rule is stated in 26 C.J.S. Declaratory Judgments §130, p. 299.

Generally an action for a declaratory judgment cannot be maintained against the state without its consent, the

-41-

.~- "

59 L. Ed. 2d 416, 425 (1979» regardless of the purpose of the

activity in which the sovereign was engaged when it incurred the

alleged liability. The consent, even when explicit, is narrowly

construed. (See Figueroa v. State, supra; Waugh v. University of

Hawaii, supra; A. C. Chock, Ltd. v. Kaneshiro, supra.

In weighing the possible disadvantage to a litigant, unable to

assert its claims against a sovereign, the United States Supreme

Court in Larson noted that the necessity of permitting the sovereign

to carry out its functions far outweighs any disadvantage to a

litigant. (337 U.S. at 703-704).

The continued emphasis placed on consent to suit by the Hawaii

Supreme Court in the n~merous cases involving the same or similar

issues before this Court is the inevitable result of viewing the

doctrine as necessary to preserve the State's control over its

property, funds and instrumentalities from external interference.

It is hard to imagine a case more suitable than the one before

this Court for the invocation of the doctrine of sovereign immunity.

Clearly, no consent to suit can be found in the Declaratory

Judgment Act. The specific language of H.R.S. § 632-1 requires that .. /"

the court have jurisdiction before it can entertain a declaratory

judgment action. H.R.S. § 632-1 states in relevant part:


The general rule is stated in 26 C.J.S. Declaratory Judgments

§130, p. 299.


-41-

.~- "

59 L. Ed. 2d 416, 425 (1979» regardless of the purpose of the

activity in which the sovereign was engaged when it incurred the

alleged liability. The consent, even when explicit, is narrowly

construed. (See Figueroa v. State, supra; Waugh v. University of

Hawaii, supra; A. C. Chock, Ltd. v. Kaneshiro, supra.

In weighing the possible disadvantage to a litigant, unable to

assert its claims against a sovereign, the United States Supreme

Court in Larson noted that the necessity of permitting the sovereign

to carry out its functions far outweighs any disadvantage to a

litigant. (337 U.S. at 703-704).

The continued emphasis placed on consent to suit by the Hawaii

Supreme Court in the n~merous cases involving the same or similar

issues before this Court is the inevitable result of viewing the

doctrine as necessary to preserve the State's control over its

property, funds and instrumentalities from external interference.

It is hard to imagine a case more suitable than the one before

this Court for the invocation of the doctrine of sovereign immunity.

Clearly, no consent to suit can be found in the Declaratory

Judgment Act. The specific language of H.R.S. § 632-1 requires that .. /"

the court have jurisdiction before it can entertain a declaratory

judgment action. H.R.S. § 632-1 states in relevant part:


The general rule is stated in 26 C.J.S. Declaratory Judgments

§130, p. 299.



state's immunity from suit being unaffected by declaratory judgment statutes.

The Hawaii Supreme Court frequently looks to decisions of the

Ninth Circuit Court of Appeals as guidance in construing similar

statutes. Most recently, in Fiedler v. Clark, 714 F.2d 77' (1983),

the Court stated with unmistakable clarity:

The Declaratory Judgment Act does not provide an independent jurisdictional basis for suits in federal court. Skelly Oil Co. v. Phillips Petroleum Co., 339 u.s. 667, 671-74, 70 S.Ct. 876, 878-80, 94 L.Ed. 1194 (1950). It only permits the district court to adopt a specific remedy when jurisdiction exists. Id. at 671, 70 S.Ct. 878.


To summarize Defendants' reply:

(1) This is a suit against the State of Hawaii; '"!;~

(2) The State has not consented to this suit;

(3) No consent to this suit can be found in the Declaratory

Judgment Act or any other statute upon which this suit is

predicated;, and

(4) This Court lacks jurisdiction to entertain this action.

F. THE STATE HAS NOT WAIVED ITS SOVEREIGN IMMUNITY FOR SUITS

PREDICATED UPON ALLEGED BREACH OF TRUST.

/

After arguing for the best part of 55 pages that this is not "a

suit against the State," Plaintiffs conclude on page 55 that OHA is

suing the State for breach of the State's duty to transfer to OHA

its pro rata share of ceded lands income. Plaintiffs state:

Iti this regard OHA is suing the State to secure a right guaranteed both by the constitution and by statute.

-42-













predicated;, and




/






-42-













predicated;, and




/






-42-


",,'//

<.-;~-'('" / .....

/~

It is exactly this type of suit that is barred, absent the

consent of the State, since this suit seeks to impose impermissible

compulsion against the sovereign. (Larson, supra, 337 U.S. at 688).

Although Plaintiffs assert that they are not attempting to

enforce the State's duties and obligations imposed by the Admission

Act (see footnote 1, page 5 of Plaintiffs' Memorandum), Plaintiffs

claim entitlement "to a share of the proceeds derived from-'ceded

lands granted to aHA by federal statute (the Admission Act); State

statute (H.R.S. Chapter 10) i and by the State Constitution (Article

XII) (Memo, p. 55).

First, the Hawaii Admission Act did not create a cause of

action by which aHA may enforce the State's duties imposed by the .~~

Act Keaukaha-Panaewa Com. v. Hawaiian Homes Comm'n, supra.

Second, Article XII of the State Constitution did not create a

cause of action by which aHA may enforce the State's duties imposed

by the constitutional amendment.

Third, H.R.S. Chapter 10 did not create a cause of action by

which aHA may enforce the State's duties imposed by the statute.

Since the creation of such a cause of action requires a waiver

of the State's sovereign immunity, which is a matter of legislative ,

grace, this Court has no alternative but to dismiss this complaint.

III. CONCLUSION.

For the above stated reasons, Defendants respectfully request

-43-

",,'//

<.-;~-'('" / .....

/~










XII) (Memo, p. 55).












III. CONCLUSION.


-43-

",,'//

<.-;~-'('" / .....

/~










XII) (Memo, p. 55).












III. CONCLUSION.


-43-


that this Court dismiss the Complaint on the ground of lack of jurisdiction.

DATED: Honolulu, Hawaii, April 6, 1984.

Respectfully submitted,

TANY S. HONG Attorney General

ES H. DANNENBERG Dep ty Attorney General Att rneys for Defendants

-44-

that this Court dismiss the Complaint on the ground of lack of

jurisdiction.





-44-

that this Court dismiss the Complaint on the ground of lack of

jurisdiction.





-44-


~ ...

" ..... , .. ,-

)

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document was

served on April 6, 1984, on the following by having said document

personally delivered, at the address below:

BOYCE R. BROWN., Esq. 222 Merchant Street Honolulu, Hawaii 96813


. ',: .'~

. '.:"

~ ...

" ..... , .. ,-

)







. ',: .'~

. '.:"

~ ...

" ..... , .. ,-

)







. ',: .'~

. '.:"


scholarspace.manoa.hawaii.edu 47.pdf · tany s. hong 821 attorney general state of hawaii . james...

Documents