at., ) - university of hawaii€¦ · carroll was running for the united states against senator...

No. 02-15483

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

JOHN CARROLL,

P1aintiff-Appellant

vs.

) ) ) ) ) )

JAMES NAKATANI, in his capacity) as Chairperson/Director of the State ) of Hawai'i Dept. of Agriculture, et al.,)

) Defendants-Appellees )

------------------------) PATRICK BARRETT, )

) Plaintiff, )

vs. ) )

STATE OF HA WArI, et at., ) )

Defendants. ) ------------------------)

Dist. Ct. Civ. No. CV-00-00641 DAE-KSC

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAW ArI

Dist. Ct. Civ. No. CV-OO-00645 DAE-KSC

ANSWERING BRIEF OF DEFENDANTS-APPELLEES OFFICE OF HAWAIIAN AFFAIRS

CERTIFICATE OF SERVICE

Attorneys for Defendants-Appellees Office of Hawaiian Affairs

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

Additional Counsel for Defendants-Appellees Office of Hawaiian Affairs:


TABLE OF CONTENTS

I. STATEMENT OF ISSUES PRESENTED FOR APPEAL. . 1

II. STATEMENTOFTHEFACTS ...................... 1

III. SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . 4

IV. ARGUMENT 5

A. Consistent Decisions of the United States Supreme Court Require a Plaintiff to Claim a Specific Personal Injury in Order to Have Standing to Bring an Action in Federal Court. . . . 5

B. The Shaw and Hays Cases Do Not Support Mr. Carroll's Contention that an Action Can Be Brought in Federal Court Without a Claim of Specific Personal Injury. . . . . . . . . . . . . . . . . . . . 9

C. Mr. Carroll Is Not "Able and Ready" to Obtain Any of the Benefits He Alleges He Is Being Denied. 12

D. The Relief Sought by Mr. Carroll Would Not Provide Redress for His Alleged Injuries. . . . . . . . . 14

V. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 14

APPENDIX


I. STATEMENT OF ISSUES PRESENTED FOR APPEAL

The issues presented for review are whether or not the District Court's decision

denying Appellant Carroll standing to raise his claims should be affirmed because Mr.

Carroll lacked Article III standing to bring his claims.

II. STATEMENT OF THE FACTS

Appellee Office of Hawaiian Affairs ("OHA") is a state agency created by

amendment to the Hawaii State Constitution in the General Election of 1978. (Article

XII, Sections 5 and 6, Hawaii State Constitution).

"The people of the State of Hawaii and the United States of America as set forth and approved in the Admission Act, established a public trust which includes among other responsibilities, betterment of conditions for native Hawaiians. The people of the State of Hawaii reaffirmed their solemn trust obligation and responsibility to native Hawaiians and furthermore declared in the state constitution that there be an office of Hawaiian affairs to address the needs of the aboriginal class of people of Hawaii."

Hawaii Revised Statutes 10-1 ( a). Its purposes include "the betterment of conditions"

of Native Hawaiians. It is also intended to serve as receptacle for federal reparations.

H.R.S. 10-3(1)(2) and (6).

In his deposition, Mr. Carroll acknowledged that he has never identified any

particular OHA program that he would like to participate in, and that he has never

applied for any OHA program. The only effort made in that direction was "a


summary inquiry" made by telephone by one or two attorneys from his attorney's law

office "with respect to whether or not we would - whether or not I would be given

any benefits." Appellants Excerpts of Record ("EOR") at 181, Carroll Deposition,

attached as Exhibit 2 to OHA' s Concise Statement of Facts in Support of Motion To

Dismiss ("Depo") at 8:19-9:20; see also 31:8-25. Although Mr. Carroll did talk to

one OHA employee and did obtain some materials from OHA, he never filled out any

application for any program. EORat 181, Depo. at9:2-10:17,11:20-22, 13:25-14:2.

The inquiries that were made occurred after Mr. Carroll had filed this lawsuit. EOR

at 181,Depo. at 10:1-11,31:5-13,31:23-25.

Mr. Carroll acknowledged that the impetus for filing this lawsuit was to try to

influence the U.S. Congress with regard to its consideration of current legislation

designed to address Native Hawaiian rights, colloquially referred to as the "Akaka

Bill," EOR at 181, Depo. at 25:12-26:23. (Mr. Carroll was running for the United

States against Senator Akaka at the time this lawsuit was filed.)

Mr. Carroll admitted that he had voted to create, fund and support OHA when

he served as a member of the Hawai'i State Legislature. EOR at 181, Depo. at 40:6-

18,67:16-24.

2


Mr. Carroll explained that he actually supports the expenditure of funds for

many of OHA's programs as follows:

The basic purpose of the lawsuit is to insure that there is a constitutionally administered OHA, and to the extent that they can take care of Native Hawaiians who are 50 percent blood quantum, such as loans for people who are on Hawaiian homestead land, things of that sort, that's fine, and if they can be nondiscriminatory in achieving the goals of OHA, which is to enhance, you know, the Hawaiian culture, the Hawaiian language and so forth and be nondiscriminatory as to those persons who are less or no or who have no Hawaiian blood, then that's fine, but the constitutionality of the issue is there, and that's what the basic nexus of this whole thing is.

The other major objection I have is the amount of money they spend on advertising about what they do and the amount of time they spend lobbying to get things done, which I don't think they should be doing at all. If they want to do something, they ought to be putting out Medicare and medical benefits and educational benefits and get it down to the people that are supposed to be helped.

EOR at 181, Depo. at 51:6-52:5.

Mr. Carroll obviously has a philosophy about the rights and privileges of

Native Hawaiians. However, he is of the opinion that OHA expenditures on Native

Hawaiians of 50% blood quantum is permissible, that Native Hawaiians are entitled

to compensation of $95 billion and that" a trust fund which could be utilized only for

the benefit of aboriginal (persons of Hawaiian blood, criteria specified by OHA) for

the purposes of creating farms, ranches, businesses or building homes. These would

not be loans but grants in aid. All ceded lands possible would be returned to the

3


appropriate state agency for distribution to aboriginal children and adults." See EOR

at 181, Depo. at 19:7-20:9.

Mr. Carroll testified in his deposition that he does not currently pay any income

tax to the State of Hawai'i, and has not since at least 1998. EOR at 181, Depo. 62: 14-

22,65:1-6,68:4-19,68:24-69:3.

III. SUMMARY OF ARGUMENT

Mr. Carroll acknowledges at page 11 of his Opening Brief that Article III of

the U.S. Constitution requires as "an irreducible minimum" that "the party invoking

the court's authority' ... show that he personally has suffered some actual or threatened

injury as a result of the putatively illegal conduct of the defendant[sJ' and that the

injury 'fairly can be traced to the challenge action' and 'is likely to be redressed by

a favorable decision.'" Opening Brief at 11 (quoting from Valley Forge Christian

College v. Americans Unitedfor Separation of Church and State, 454 U.S. 464, 471

(1982)). In this lawsuit, Mr. Carroll has challenged the constitutionality of Article

XII(5) & (6) of the Hawai'i Constitution and Chapter 10 of the Hawai'i Revised

Statutes, which create and govern the Office of Hawaiian Affairs (OHA), but his only

claimed injury is that, as a Caucasian, he does not "enjoy that certain extra and special

consideration provided by OHA" for native Hawaiians and Hawaiians. Opening

Brief at 12. He contends that he is injured because no specific State agency is

4


charged with creating a "'comprehensive master plan' for those of the Caucasian

race" or with "'hold[ing] title to the real and personal property now or hereafter set

aside or conveyed to it which shall be held in trust for' Caucasians." Id. at 13. But

he claims no specific or unique personal injury whatsoever, and has "acknowledged

that he has never identified any particular OHA program that he would like to

participate in, and that he has never applied for any OHA program." Carroll v.

Nakatani, 188 F.Supp.2d 1233, 1235, 1236 (D.Hawai'i 2002).

Mr. Carroll argues that he is entitled to standing in this case based on an

analogy to Shaw v. Reno, 509 U.S. 630 (1993), and United States v. Hays, 515 U.S.

737 (1995), claiming that these cases support a finding of standing in the absence of

any specific personal injury. But his contention is unsupported by governing caselaw,

and his invocation of the Shaw and Hays cases demonstrates a complete

misunderstanding of the holdings of these cases.

IV. ARGUMENT

A. Consistent Decisions of the United States Supreme Court Require a Plaintiff to Claim a Specific Personal Injury in Order to Have Standing to Bring an Action in Federal Court.

Mr. Carroll has asserted a classic example of a "generalized grievance" held

in common with most of the residents of Hawai'i, and he has not identified any

"personal injury suffered by [him] as a consequence of the alleged constitutional

5


error, other than the alleged psychological consequence presumably produced by

observation of conduct with which one disagrees." Valley Forge Christian College

v. Americans United/or Separation a/Church and State, 454 U.S. 464,485 (1982).

In his opinion below, 188 F.Supp.2d at 1236, Chief District Judge David Ezra

emphasized that the rule against standing based on generalized grievances applies to

equal protection claims by quoting from United States v. Hays, 515 U.S. 737, 743-44

(1995), where the Supreme Court said that "the rule against generalized grievances

applies with as much force in the equal protection context as in any other." Judge

Ezra went on to explain that the decision in Allen v. Wright, 468 U.S. 737, 755

(1984), "made clear that even if a governmental actor is discriminating on the basis

of race, the resulting injury 'accords a basis for standing only to "those persons who

are personally denied equal treatment" by the challenged discriminatory conduct.'"

188 F.Supp.2d at 1237; see also Valley Forge Christian College, 454 U.S. at489-490

n. 26 (disapproving the proposition that every citizen has II standing to challenge every

affirmative-action program on the basis of a personal right to a government that does

not deny equal protection of the laws "). Mr. Carroll has failed to allege or

demonstrate any personalized impact whatsoever resulting from the governmental

programs with which he disagrees, nor has he alleged that the relief he has sought

would benefit him personally in any direct way whatsoever.

6


Mr. Carroll's claim is simply that the government is not functioning in

accordance with his view of what the Constitution requires. The plaintiffs in Allen

v. Wright, 468 U.S. 737 (1984), had presented a similar claim, contending that their

children were less likely "to receive a desegregated education" because the Internal

Revenue Service was not fulfilling its obligation to deny tax -exempt status to racially

discriminatory private schools. Id. at 746. But the Court rejected this claim, saying

that "an asserted right to have the Government act in accordance with law is not

sufficient, standing alone, to confer jurisdiction on a federal court." Id. at 754; see

also Valley Forge Christian College, 454 U.S. at 482-83 ("This Court has repeatedly

rejected claims of standing predicated on 'the right, possessed by every citizen, to

require that the Government be administered according to law .... "'). It went on to say

that "the stigmatizing injury often caused by racial discrimination" will be sufficient

to grant "standing only to 'those persons who are personally denied equal treatment'

by the challenged discriminatory conduct." 468 U.S. at 755 (quoting from Heckler

v. Mathews, 465 U.S. 728, 739-40 (1984)).

In Adarand Constructors, Inc. v. Mineta, 122 S. Ct. 511 (2001), certiorari was

dismissed as improvidently granted. The Tenth Circuit Court of Appeals had

specifically confined its opinion to the constitutionality of the Department of

Transportation's Disadvantage Business Enterprise Program as it pertained to

procurement of federal funds for highway projects let by states and localities. The

7


Tenth Circuit had ruled that Adarand had standing to challenge some certifications

under the Subcontracting Compensation Clause ("SCC"). See Adarand Constructors,

Inc. v. Slater, 228 F.3d 1147 (10th Cir. Colo. 2000). The Tenth Circuit discussed

other programs and concluded that Adarand lacked standing to challenge any other

program. After certiorari was granted, Adarand again sought to show that it did have

standing to generally challenge other race-conscious programs. The Government

responded that no race-conscious measures were sued for direct procurement in any

jurisdiction in which petitioner did business and that therefore he did not have

standing. The United States Supreme Court concluded that "the petition for certiorari

nowhere disputed the Court of Appeals' explicit holding that petitioner lacked

standing to challenge the very provisions petitioner now asks us to review."

Adarand, supra, 12 S. Ct. at 513.

In Adarand, 228 F.3d 1160, the Tenth Circuit clarified the programs which

Adarand did not have standing to challenge. First the Tenth Circuit found that the

Small Business Act program did not involve the use of SCC' s and that Adarand had

not shown that he had been injured by non-inclusion. The Tenth Circuit reasoned that

"This case does not involve, nor had Adarand ever demonstrated standing to bring,

a generalized challenge to the policy of maximizing contracting opportunities for

small disadvantaged businesses ... or to the various goals for fostering the

participation of small minority-owned businesses promulgated." Id. (Emphasis

8


added.) Second, the Tenth Circuit pointed out that it had already specifically held in

its prior decision that Adarand had not shown standing to challenge "the provisions

of the SCC program pertaining to women-owned business enterprises (WBE)." See

Adarand Constructors, Inc. v. Pena, 16 F.3d 1537, 1543 (loth Cir. 1994). This

conclusion was left undisturbed by the United States Supreme Court. See, Adarand

Constructors v. Pena, 515 U.S. 200, 210-12 (1'995). Thus, the Tenth Circuit

concluded: "to the extent the district court's judgment can be construed as having

reached statutes, programs, and issues beyond the scope of Adarand's standing and

the Supreme Court's remand in Adarand III, we reverse that judgment. Adarand,

supra, 228 F.3d at 1160.

Just as the United States Supreme Court limited standing to those instances

where Adarand could show that he had been injured, so should this Honorable Court

limit Mr. Carroll's complaints.

B. The Shaw and Hays Cases Do Not Support Mr. Carroll's Contention that an Action Can Be Brought in Federal Court Without a Claim of Specific Personal Injury.

District Judge Ezra responded accurately to Mr. Carroll's contention that the

Shaw and Hays cases somehow grant standing to him, explaining that those decisions

have been limited to "the voting context." 188 F.Supp.2d at 1238 (quoting from

Hays, 515 U.S. at 744). The conclusion that the standing granted to the Shaw

plaintiffs is narrowly circumscribed to the specific facts of that case comes through

9


loud and clear from the refusal to grant standing to the Hays plaintiffs, but if any

doubt remained regarding this matter, it was cleared up by the Supreme Court's·

treatment of the challenge raised in Sinkfield v. Kelley, 531 U.S. 28 (2000).

In Hays, the Court had dismissed the complaint, holding that persons living

outside a racially-constructed voting district lacked standing to challenge the

construction of the district, and saying explicitly that "[o]nly those citizens able to

allege injury 'as a direct result of having personally been denied equal treatment,"

Allen, 468 U.S., at 755, (emphasis added [in the Hays opinion]), may bring such a

challenge." 515 U.S. at 746. The Court went on to say that no authority exists "for

the proposition that an equal protection challenge may go forward in federal court

absent that showing of individualized harm." Id. at 747.

Despite that clear ruling, a three-judge panel in the Middle District of Alabama

allowed white voters to challenge the majority-white district they lived in as racially

gerrymandered. Kelley v. Bennett, 96 F.Supp.2d 1301 (M.D.Ala. 2000). The

Supreme Court quickly and summarily reversed, ruling that the white voters lacked

standing because "[l]ike the appellees in Hays, they had neither alleged nor produced

any evidence that any of them was assigned to his or her district as a direct result of

having 'personally been subjected to a racial classification. '" 531 U.S. at 30. The

Court explicitly rejected the contention of the white voters that they were "entitled

to a presumption of injury-in-fact because the bizarre shapes of their districts reveal

10


that the districts were the products of an unconstitutional racial gerrymander." Id.

This holding likewise requires dismissing Mr. Carroll's complaint, because his

assertions seek to have this Honorable Court rule that there should be "a presumption

of injury-in-fact" that Mr. Carroll experiences based on programs established to aid

native Hawaiians and Hawaiians. The Supreme Court was clear that it would not

allow standing based on any such unsubstantiated presumptions, and this holding is

dispositive of the present case.

Mr. Carroll's attempted reliance upon Wooden v. Board of Regents of the

University System of Georgia, 247 F.3d 1262 (11 th Cir. 2001), is equally unavailing.

Mr. Carroll contends that "he has and continues to be treated differently and less

favorably because of his race" and analogizes his situation to that of Plaintiff Craig

Green in the Wooden case. Opening Brief at 16. But as Judge Ezra said in his

opinion below, Mr. Carroll's situation is not similar to that of Plaintiff Green, who

had applied for admission to the University of Georgia, and had been excluded

through a process that utilized race as a criteria and hence had alleged "direct

exposure to unequal treatment." 247 F.3d at 1280.

Instead, Mr. Carroll's "position is most similar to the other applicants who

were denied standing. OHA has not denied him equal protection or the opportunity

to compete on equal footing because he has not been personally subjected to any

racial classification at this stage. The mere existence of a racial classification system

11


does not personally impact each and every individual who is aware of or has an

interest in such classification." 188 F.Supp.2d at 1237.

C. Mr. Carroll Is Not "Able and Ready" to Obtain Any of the Benefits He Alleges He Is Being Denied.

At page 20 of his Opening Brief, Mr. Carroll cites the cases of International

Brotherhood of Teamsters v. United States, 431 U.S.324 (1977), and Gifford v.

Atchison, Topeka and Santa Fe Railway Co., 685 F.2d 1149 (9th Cir. 1982), for the

proposition that a person can challenge a program even if the person has not applied

for the program, and that he "stand[s] ... ready, willing, and able, for the State ... to

promote ... [his] interests without reference to race." Judge Ezra addressed this issue

in some detail in his opinion, 188 F.Supp.2d 1219, at 1228-29, and explained that in

order to demonstrate the requisite injury, [o]ne must be 'able and ready' to make use

of the benefits. Otherwise, under Mr. Carroll's broad interpretation, there would be

no meaning to the standard. It would apply in every case." Id. at 1228 n.13.

This "able and ready" language comes from the case of Northeastern Florida

Chapter of the Associated General Contractors of America v. City of Jacksonville,

508 U.S. 656, 666 (1993), which holds that plaintiffs must establish that they are

"able and ready" to compete for a governmental program before they can meet the

standing requirements to challenge the requirements governing such a program in

court. Plaintiffs must thus demonstrate they have suffered a cognizable

nonspeculative personal injury by being prevented from being considered for a

12


program that they would otherwise be eligible to be considered for. They must also

show that the race-based standard they are challenging is the cause for their inability

to be considered for the program and that the court has the power to provide relief (or

"redress") in the context of the complaint they have filed. Mr. Carroll meets none of

these standards. Although he clearly has a philosophical disagreement with the

criteria he is challenging, he has not demonstrated that he is "able and ready" to be

considered for (or even that he is interested in pursuing) any OHA program if the

Native-Hawaiian-ancestry requirement were eliminated. See, e.g., Lofton v.

Butterworth, 93 F.Supp.2d 1343 (S.D.Fla. 2000)(ruling that homosexual plaintiffs

who had not actually filed an application for adoption did not have standing to

challenge Florida's statute barring adoptions by homosexuals because they had not

demonstrated that they actually wanted to adopt a child). In sharp contrast, the

employees in the Teamsters and Gifford cases were "able and ready" to compete for

promotions "[j]ust by virtue of being company employees." 188 F.Supp.2d at 1228.

Mr. Carroll is asking the federal courts to issue an advisory opinion. standing.

Mr. Carroll's admission that he "has neither submitted an application to OHA

nor asked this occur to order OHA to provide him with any benefit, program andlor

advice" is, by itself, enough to show that a ruling in his favor would not benefit

Carroll, because he is not asking for anything that is now denied to him. Mr. Carroll

has not made any argument that he is "personally impacted" as the United States

13


Supreme Court requires for standing.

D. The Relief Sought by Mr. Carroll Would Not Provide Redress for His Alleged Injuries.

Even if one could somehow find a legally cognizable injury in Mr. Carroll's

complaint, his claim would have to be dismissed under the redressibility prong of the

three-part standing test that Mr. Carroll acknowledges applies here. See also, e.g.,

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Even if all the programs

Mr. Carroll dislikes were to be declared unconstitutional, such a court ruling would

not lead to the creation of a master plan for Caucasians or the creation of an

organization to hold property in trust for Caucasians. See Carroll Opening Brief at

12-13. It would be totally speculative to conclude that such a ruling would lead to

any better or different governmental treatment for Mr. Carroll and other Caucasians,

and since this Honorable Court is unable to issue a ruling that would improve Mr.

Carroll's situation, its ruling would be no more than an advisory opinion, which

would run afoul of the case-or-controversy requirement in Article III of the U.S.

Constitution.

v. CONCLUSION

Mr. Carroll's lawsuit presents a generalized grievance inappropriate for

resolution by the Courts. Cases like Valley Forge and Adarand hold that it is

inappropriate for litigants to bring generalized political grievances to the courts for

resolution. Unless a government program causes a particularized injury to a litigant,

14


the matter should be resolved in the political branches. A litigant must have some

real stake in the litigation beyond his philosophical position. Carroll does not have

standing to bring this lawsuit and the decision of the District Court should be

affirmed.

DATED: Honolulu, Hawaii, _____________ _

15

SHERRY P. BRODER JON M. VAN DYKE MELODY K. MacKENZIE

Attorneys for Defendants-Appellees OFFICE OF HA W AllAN AFFAIRS


TABLE OF AUTHORITIES

Rules, Statutes & Constitutions

Hawaii Constitution, Article XII (5) & (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 3,4

Hawaii Revised Statutes, Chapter 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 3

Caselaw

Adarand Constructors, Inc. v. Mineta, 122 S. Ct. 511 (2001) ..................................... 7,8,9,

14

Adarand Constructors, Inc. v. Pena, 16 F.3d 1537 (loth Cir. 1994) ............................... 8,9

Adarand Constructors, Inc. v. Slater, 228 F.3d 1147 (loth Cir. 2000) .............................. 7

Allen v. Wright, 468 U.S. 737 (l984) ...................................... 6,7

Carroll v. Nakatani, 188 F. Supp.2d 1233 (D. Hawaii 2002) . . . . . . . . . . . . . . . . . . . . . .. 5,6,9,

11,12,13

Gifford v. Atchison, Topeka and Santa Fe Railway Co., 685 F.2d 1149 (9th Cir. 1982) ................................ 12,13

Heckler v. Mathews, 465 U.S. 728 (1984) ...................................... 7

International Brotherhood o/Teamsters v. United States, 431 U.S. 324 (1977) ....................................... 12,13

-l-


Kelley v. Bennett, 96 F. Supp.2d 1301 (M.D. Ala. 2000) . . . . . . . . . . . . . . . . . . . . . . . .. 10,11

Lofton v. Butterworth, 93 F. Supp. 2d 1343 (S.D. Fla. 2000) . . . . . . . . . . . . . . . . . . . . . . . . .. 13

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ........................................ 14

Northeastern Florida Chapter of the Associated General Contractors of America v. City of Jacksonville, 508 U.S. 656 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 12

Shaw v. Reno, 509 U.S. 630 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 5,9

Sinkfield v. Kelley, 531 U.S. 28 (2000) ........................................ 10

United States v. Hays, 515 U.S. 737 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 5,6,9,10

Valley Forge Christian College v. Americans Unitedfor Separation of Church and State, 454 U.S. 464 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 4,5,6,7,14

Wooden v. Board of Regents of the University System of Georgia, 247 F.2d 1262 (11 th Cir. 2001)...................... ......... 11

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