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No. 02-15483

IN.THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

JOHN CARROLL, ) )

Plaintiff-Appellant ) )

vs. ) )

JAMES NAKATANI, in his capacity) as ChairpersonlDirector of the State ) ofHawai'i Dept. of Agriculture, et al.,)

) Defendants-Appellees )

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

) Plaintiff, )

vs. ) )

STATE OF HAWArI, eta/., ) )

Defendants. ) )

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

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HA WAr I

Dist. Ct. Civ. No. CV -00-00645 DAE-KSC

ANSWERING BRIEF OF DEFENDANTS-APPELLEES OFFICE OF HAWAIIAN AFFAIRS

CERTIFICATE OF SERVICE

SHERRY P. BRODER #1880 Davies Pacific Center, Suite 800 841 Bishop Street Honolulu, Hawaii 96813 Telephone No.: (808) 531-1411

JON M. VAN DYKE # 1896 2515 Dole Street Honolulu, Hawaii 96813 Telephone No.: (808) 956-8509

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:

MELODY K. MACKENZIE #1799 579 Kaneapu Place Kailua, Hawaii 96734 Telephone No.: (808) 262-6301


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 1 0-1 (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. 1 0-3( 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

Dis~iss ("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. EOR at 181, Depo. at 9:2-10: 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 ORA'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 ofOHA, 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.

EORat 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 [ s]' 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 o/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.2dat 1237; see also Valley Forge Christian College, 454 U.S. at 489-490

n. 26 (disapproving the proposition that every citizen has" 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/rom 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 ofSCC'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 (10th 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 Havs 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 "[0 ]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.l3.

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 "O]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 aHA

nor asked this occur to order aHA to provide him with any benefit, program and/or

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

14


\

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

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 HAWAIIAN AFFAIRS


No. 02-15565

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

JOHN CARROLL, ) )

Plaintiff-Appellant ) )

vs. ) )

JAMES NAKATANI, in his capacity ) as ChairpersonlDirector of the State ) ofHawai'i Dept. of Agriculture, et ai.,)

) Defendants-Appellees )

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

) Plaintiff, )

vs. ) )

STATEOFHAWAI'I,etai., ) )

Defendants. ) )


APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HA WAr I


ANSWERING BRIEF OF DEFENDANTS-APPELLEES OFFICE OF HAW AllAN AFFAIRS

CERTIFICATE OF SERVICE

SHERRY P. BRODER #1880 Davies Pacific Center, Suite 800 841 Bishop Street Honolulu, Hawaii 96813 Telephone No.: (808) 531-1411

JON M. VAN DYKE # 1896 2515 Dole Street Honolulu, Hawaii 96813 Telephone No.: (808) 956-8509

Attorneys for Defendants-Appellees Office of Hawaiian Affairs


Additional Counsel for Defendants-Appellees Office of Hawaiian Affairs:

MELODY K. MACKENZIE # 1799 579 Kaneapu Place Kailua, Hawaii 96734 Telephone No.: (808) 262-6301


TABLE OF CONTENTS

3


,

TABLE OF AUTHORITIES

4


I. STATEMENT OF ISSUE PRESENTED FOR APPEAL

The issue presented for review is whether or not the District Court's decision

denying Appellant Patrick Barrett standing to raise his claims should be affirmed

because Mr. Barrett 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 Article

XII, Sections 5 and 6 of the Hawai' i State Constitution, which were added to the State

Constitution in the general election of November 1978. As subsequently explained

by the Hawai'i State Legislature in Hawai'i Revised Statutes (HRS) sec. lO-l(a):

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.

The purposes for OHA include "the betterment of conditions" of all persons of Native

Hawaiian ancestry, and it is also intended to serve as receptacle for federal

reparations. HRS sec. 1 0-3( 1 ),(2),(6).

In his deposition taken on Thursday, March 8, 2001, SER -, Mr. Barrett

acknowledged that he had never been deprived of any right, privilege, or entitlement


because of any preference given to persons of Hawaiian ancestry pursuant to Article

XII of Hawai' i' s Constitution or any provision of the Hawai' i Revised Statutes. He

specifically stated that, although he made an initial attempt to apply for a $10,000

business-start-up loan from the Office of Hawaiian Affairs (OHA), he did not respond

when the OHA staff said they needed additional information from him before they

could process the application. Barrett Tr. 3-9-01 8:3-10:18 When pressed, Mr.

Barrett said "there's no particular reason" why he had not responded to the request

for additional information from the OHA staff, id. 10:25, and later he acknowledged

that the request for further information, which he had not responded to, had arrived

three months previously. Id. ~0:15-19. He also stipulated that he had "not prepared

a business plan as yet" for the business that he was thinking of starting with start up

funds, id. 14:4-5, and that he had not sought funds from any other source. Id. 14: 12-

24. He also testified that he had submitted an application to the Hawaiian Homes

Commission, and that they had written back to him in a timely fashion, saying that

his application "was under consideration" and had not been denied. Id.57:2-9. He

testified that he has never attempted to gather plants, or practice the Hawaiian

religion, or hunt for resources, nor has ever been denied the right to do so, for any

reason whatsoever. Id. 60:10-62:12; 88:25-89-1. Although he has alleged that he had

the status of a taxpayer, id. 6:2-9, he acknowledged that he has not been employed in

4


any fashion since 1975, ide 7:5-6, 15:7-8, that he is 100% disabled, ide 17:4-6, and

that his sole income consists of Social Security disability payments from the federal

government. Id. 16:7-12.

Based on these undisputed facts, Chief Judge David A. Ezra of the U.S. District

Court for the District of Hawai' i ruled that Mr. Barrett "does not have standing to

challenge OHA' s NHRLF program." Carroll v. Nakatani, 188 F .Supp.2d 1219, 1226

(D.Hawai'i). Judge Ezra ruled that to establish standing a plaintiff "must be able to

demonstrate that he would benefit from a business loan if one were awarded to him,

in other words, he must have some real stake in the litigation above and beyond his

philosophical position." Id. Mr. Barrett did not meet this criteria because he could

not "establish that he is 'ready and able' to benefit from an OHA business start-up

loan. He has shown no real initiative in starting a new business - he has not sought

alternative sources of financing (as is required by OHA, even for Hawaiians), he has

not formulated even the most basic of business plans, and could offer no real details

about his proposed business .... " Id. at 1227.1

I Judge Ezra explained that Mr. Barrett's failure to complete an OHA loan application prior to filing his lawsuit might provide evidence that he was not "ready and able," "but alone it is not dispositive." Id. at 1224 n. 7. Judge Ezra also emphasized that Mr. Barrett's disability was not a factor in the standing analysis:

Of course disabled persons can, and do, run successful businesses. The holding in this case is based entirely on Plaintiff s inability to

5


The present case was consolidated by the District Court on December 15,2000

with a similar case filed by John Carroll, which is now before this Honorable Court

as No. 02-15483. Although they were consolidated, the District Court issued separate

opinions on the standing of the two plaintiffs, because their factual situations were

somewhat different. The ruling below finding that Mr. Carroll did have standing is

found at Carroll v. Nakatani, 188 F .Supp.2d 1233 (D.Hawai'i 2002).

III. SUMMARY OF ARGUMENT

Mr. Barrett acknowledges at pages 16-17 of his Opening Brief that Article III

of the U.S. Constitution requires that "in order meet the standing requirements, he

must (1) have suffered an 'injury-in-fact' (2) defendants must have caused the injury,

and, (3) the injury must be one that is redressable by the court. See Lujan v.

Defenders of Wildlife, 504 U.S. 555,56-61 (1992)." See also Valley Forge Christian

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

(1982». But his next sentence misstates the law, when he says that "a party

challenging a racially disparate governmental benefit program need only demonstrate

that he is able and ready to apply for the benefit and that a discriminatory policy

establish that he actually intends to start a copy business as evidenced by his failure to take any of the necessary preliminary steps to starting a business by anyone who is generally interested in doing so.

Id. at 1227 n. 10.

6


prevents him from doing so on an equal basis. Compare, Northeastern Florida

Chapter of Associated General Contractors of America v. Jacksonville, 508 U.S. 656

(1993)." In fact, the Northeastern Florida Chapter case requires a plaintiff to be

"able and ready" to compete for the governmental benefit, not just "able and ready"

to apply for it. To challenge a racial preference with regard to construction projects,

for instance, one must be a contractor with the financial capability to complete such

a project if awarded the contract. Similarly, to challenge a racial preference in a

medical school, one must have earned a bachelor's degree and have taken the

requisite courses needed to undertake medical studies. See Carroll, 188 F .Supp.2d

at 1227 ("Thus, for example, in Regents of Univ. of Cal. v. Bakke, 438 U.S. 265

(1978), the plaintiff need not have shown that he would be admitted to the medical

school but for the race-based criteria, but he must establish that he would be 'ready

and able' to attend the medical school ifhe were admitted.") Because Mr. Barrett has

failed to establish that he is "able and ready" to take advantage of an OHA business

loan, he does not have the requisite standing to challenge the criteria governing such

loans.

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.

7


In this lawsuit, Mr. Barrett has challenged the constitutionality of the

provisions of Article XII of the Hawai' i Constitution regarding the Office of

Hawaiian Affairs (OHA), but he has not identified any particularized injury that he

has suffered by virtue of the provisions he is challenging. Mr. Barrett has asserted

a classic example of a "generalized grievance," 188 F .Supp.2d at 1228, which is

inappropriate for adjudication in a federal court, and he has not identified any

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

error, other than the alleged psychological consequence presumably produced by

observation of c~nduct with which one disagrees." Valley Forge Christian College

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

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

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

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

188 F.Supp.2dat 1237; see also Valley Forge Christian College, 454 U.S. at 489-490

n. 26 (disapproving the proposition that every citizen has "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").

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

Mr. Barrett's central argument is based on Northeastern Florida Chapter of

Associated General Contractors of America v. Jacksonville, 508 U.S. 656 (1993).

That decision clarified the standing requirements for a person challenging an alleged

racial preference, but it does not eliminate those requirements altogether. A litigant

still must be "able and ready" to take advantage of the benefits at issue, and Mr.

Barrett simply does not meet that requirement.

The Supreme Court has said that challenges can be brought to race-conscious

programs by individuals who have been denied the ability "to compete on an equal

footing." Texas v. Lesage, 528 U.S. 18,21 (1999)( citing Northeastern Florida

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

508 U.S. 656, 666 (1993)). But Mr. Barrett cannot avail himself of this standing

criteria, because he has not demonstrated that he has, in fact, been excluded from

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competing for any program based on his race or ethnic status.

Neither Lesage nor Northeastern Florida Chapter changed the first prong of

the standing requirement - that the plaintiff suffer an "injury in fact." Northeastern

emphasized that: "To establish standing, therefore, a party challenging a set-aside

program like Jacksonville's need only demonstrate that it is able and ready to bid on

contracts and that a discriminatory policy prevents it from doing so on an equal

basis." 508 U.S. at 666 (emphasis added). In order to assert the type of "injury in

fact" recognized in Lesage and North Florida Contractors ("the inability to compete

on an equal footing"), plaintiffs thus must still show that they are "able and ready"

to compete. Plaintiffs must, therefore, demonstrate that they would be qualified and

eligible to obtain the benefit were it not for an unlawful discriminatory policy. This

is amply demonstrated by factual setting o fNortheas tern Florida Contractors, where

the plaintiff represented member-contractors who regularly bid on construction

contracts in Jacksonville and who would have bid on contracts set aside pursuant to

the city's ordinance were they so able. 508 U.S. at 668. In other words, plaintiff's

members were "able and ready" to compete.2 To meet this standard, Mr. Barrett

2 Although not appearing specifically in the case facts, it can be assumed that the plaintiff in Lesage had at least obtained his undergraduate degree and taken the appropriate qualification examination before applying for the doctoral program in counseling psychology at the University of Texas; the Court notes that 80 applicants had higher undergraduate Grade Point Averages and 152 applicants had higher Graduate Record Examination scores than the plaintiff. Lesage, 528 U.S. at 19.

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cannot claim standing based simply on an abstract whim that he wishes to "compete

on an equal footing" for the opportunity to obtain OHA benefits. Mr. Barrett must

assert and ultimately prove that he is "able and ready" to participate in the OHA

programs that he asserts are unconstitutionally race-based, and he simply has not done

so.

As outlined above in the Statement of Facts, Mr. Barrett stated in his deposition

that in September 2000, he filled out an application for a $10,000 business start-up

loan, that he mailed it to OHA, that it was returned to him with a post-it note

requesting more information, and that he did nothing further with this application.

Barrett Depo 3-9-01 Tr. 8:7-10:1. In other words, Mr. Barrett did not even apply to

OHA for benefits, and he certainly has not denied any benefit because of his race.

But more significant is Mr. Barrett's inability to establish that he is "able and

ready" to compete for a loan or utilize one if granted to him. Mr. Barrett explained

in his deposition that he had not worked since 1975 when he was injured and had not

operated a business on his own since 1975. Id. 15:9-16:6. He asserted that he was

thinking of starting a xerography shop to be located in a big store, but the only step

that he had taken in furtherance of his "business" was to talk to a clerk at the

xerography shop in Office Depot. Besides having a general estimate of the cost of

paper, Mr. Barrett had not determined the cost of rent, equipment leasing, or any other

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supplies for such a shop and had not prepared a business plan. Id. 11 :2-14: 11. Mr.

Barrett acknowledged that he had obtained the loan application fully six-months prior

to filling it out initially and sending it to OHA. During that six months period,

however, Mr. Barrett undertook no investigation as to costs, expenses, materials,

supplies, or personnel relating to the running a business. Id. 42 :2- 43: 11. Moreover,

Mr. Barrett did not approached any other financial institution or the Small Business

Administration for a loan. Id. 14:11-24, 17:8-19. Finally, Mr. Barrett has a limited

income and no financial resources besides some slight interest on his modest bank

account. Given these facts, Mr. Barrett simply is not able and ready to compete for

a loan through any reputable financial institution including OHA' s business start-up

loan program.

Cases that deny standing for persons situated like Mr. Barrett -- i. e., plaintiffs

who seek to challenge an allegedly racially discriminatory program but have not

suffered any injury themselves - include Sinkfield v. Kelley, 531 U.S. 28, 30

,(2000)(ruling that the white voters lacked standing because "[l]ike the appellees in

[United States v.) Hays, [515 U.S. 737 (1995)], 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"'); United States v. Hays,

515 U.S. 737 (1995)( denying standing to plaintiffs who did not live in the

congressional district that was the focus of the racial gerrymandering claim and who

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had not personally been subjected to a racial classification); Jaghory v. New York

State Dept. of Education, 131 F.3d 326 (2d Cir.1997)(denying standing to an

individual seeking to challenge his exclusion, based on national origin, from the

"Fifth Pathway" program, because the medical licensing board used its discretion to

place him in the same position that he would have been in had he been permitted to

enter the Fifth Pathway program); Wilson v. Glenwood Intermountain Properties,

Inc., 98 F.3d 590 (10th Cir. 1996)(denying standing to individuals seeking to

challenge Brigham Young University's requirement of sex-segregated housing units

because the individuals were not BYU students and hence would not have been

eligible for the units in any event); Grahek v. City of St. Paul, 84 F .3d 296 (8th Cir.

1996)( denying standing to three white males challenging a hiring procedure utilizing

separate lists for minority candidates, because the use of the lists did not interfere

with the City's fair consideration of the white candidates); 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); Reuter .v. Mayor and City Council of

Baltimore, 1996 U.S.Dist. LEXIS 5900, at *9 (D.Md. 1996)(denying standing to an

individual seeking to challenge a minority set-aside program, because no minority

businesses competed against the plaintiff and hence the "Plaintiff's ability to compete

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for City contracts has not been impaired as a result of the enforcement of the

ordinance"). Mr. Barrett is in precisely the same position as the plaintiffs in these

cases, all of whom were denied standing to sue. He seeks to challenge a policy on

constitutional ground, but has failed to demonstrate that he has been injured by the

policy or will benefit in any manner if it is declared unconstitutional. In such a

situation, he does not have standing to challenge the policy.

At page 20 of his Opening Brief, Mr. Barrett cites the case of International

Brotherhood o/Teamsters v. United States, 431 U.S. 324 (1977), 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 at 1228-29, and explained that in order

to demonstrate the requisite injury, "[0 ]ne must be 'able and ready' to make use of the

benefits. Otherwise, under Plaintiff s broad interpretation, there would be no

meaning to the standard. It would apply in every case." Id. at 1228 n.13. The

employees in the Teamsters case were "able and ready" to compete for promotions

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

in contrast, does not have anything akin to the close employee-employer relationship

existing in Teamsters, and has nothing directly to gain from this lawsuit. He is simply

asking the federal courts to issue an advisory opinion on an abstract legal question.

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Mr. Barrett'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 (quotingfrom Heckler

v. Mathews, 465 U.S. 728, 739-40 (1984)).3

3 Also providing instruction is the recent court action in the Adarand litigation. In Adarand Constructors, Inc. v. Mineta, 122 S. Ct. 511, 513 (2001), the U.S. Supreme Court dismissed certiorari as improvidently granted, concluding 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." Petitioner Adarand had tried to maintain a broad attack on a variety of race-conscious programs, but the Supreme Court agreed with the government's position that the petitioner should not be allowed to challenge procurement programs in jurisdictions in which petitioner did not do business.

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v. CONCLUSION

The U.S. Supreme Court has stated repeatedly that injuries must be personal and specific

before cases challenging governmental action can be brought to federal courts. "The injury alleged

must be, for example, "'distinct and palpable,'" and not' abstract' or 'conjectural' or 'hypothetical. '

The injury must be 'fairly' traceable to the challenged action, and relief from the injury must be

'likely' to follow from a favorable decision." Allen v. Wright, 468 U.S. at 751 (citations omitted).

Barrett's complaint to this Honorable Court meets none of these requirements, but is rather a classic

example of a "generalized grievance" which is inappropriate for judicial resolution, and which,

instead, should be resolved through the political branches of our government. Even when a "plaintiff

has alleged redressable injury sufficient to meet the requirements of Art. III," the Supreme Court has

declined to adjudicate the dispute if the allegation presents "'abstract questions of wide public

significance' which amount to 'generalized grievances,' pervasively shared and most appropriately

addressed in the representative branches." Valley Forge Christian College v. Americans United, 454

U.S. 464,474-75 (1982). But Barrett demonstrates no injury whatsoever, and so he does not trigger

the minimum requirements needed to access federal court action.

Plaintiffs must demonstrate they have suffered a cognizable nonspeculative

In its earlier decision, Adarand Constructors v. Slater, 228 F .3d 1147, 1160 (lOth Cir. 2000), the Tenth Circuit had also sharply restricted the programs that Adarand could attack, requiring a demonstration of actual injury and prohibiting "a generalized challenge to the policy of maximizing contracting opportunities for small disadvantaged businesses." The Tenth Circuit had also previously ruled that Adarand did not have standing to challenge "the provisions of the SCC program pertaining to women-owned business enterprises (WBE)." Adarand Constructors, Inc. v. Pena, 16 F.3d 1537, 1543 (lOth Cir. 1994).

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.

16


personal injury by being prevented from being considered for a 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. Barrett 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.

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,

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, -----------------------------

SHERRY P. BRODER

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18

JON M. VAN DYKE MELODY K. MacKENZIE

Attorneys for Defendants-Appellees OFFICE OF HA W AllAN AFFAIRS


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

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