To review what happened before phase 3:
NOW BEGINS THE HISTORY OF THE ARAKAKI#2 LAWSUIT DURING PHASE 3, BEGINNING NOVEMBER 2005
On November 10, 2005 the State of Hawaii and Department of Hawaiian Homelands filed with the 9th Circuit Court of Appeals a motion for a stay of their mandate ordering the lawsuit back to the Honolulu District Court for further proceedings regarding the expenditure of state tax dollars by the Office of Hawaiian Affairs. The motion for a stay is to allow time for defendats to file a petition for a writ certiorari with the U.S. Supreme Court, asking the Supreme Court to hear an appeal of the decision that state taxpayers have standing. Defendants' concept is that if the Supreme Court decides plaintiffs do not have standing, then that will terminate the entire lawsuit; and it is better to decide that issue first, before large expenditures of time and effort are wasted on proceedings that would be moot in case the Supreme Court eventually rules plaintiffs have no standing. On November 21 the 9th Circuit Court granted the motion for a stay.
STATE DEFENDANTS-APPELLEES' AND HHCA/DHHL DEFENDANTS-APPELLEES' MOTION FOR STAY OF MANDATE PENDING THE FILING OF A PETITION FOR WRIT OF CERTIORARI
https://www.angelfire.com/hi5/bigfiles/arakaki29mtnstaycert111005.pdf
Further proceedings at Honolulu District Court are now suspended until the Supreme Court decides whether to grant certiorari (solely on the issue of taxpayer standing). Plaintiffs and defendants will file briefs with the Supreme Court arguing whether certiorari should be granted. If it is granted, then both sides will file additional briefs in the Supreme Court arguing the issue of standing; oral arguments would take place in Washington, and nothing further could happen until a decision is announced. If certiorari is not granted, then the stay will presumably be vacated by the 9th Circuit, and the mandate to the Honolulu District Court will then be implemented, to conduct further proceedings regarding whether it is constitutionally permissible for the State of Hawai'i to give tax dollars to the Office of Hawaiian Affairs for a racially exclusionary group of beneficiaries..
------------------
Pursuant to the motion for a stay, granted by the 9th Circuit Court on November 21, 3006, the Attorney General of the State of Hawai'i filed with the U.S. Supreme Court on February 2, 2006 a petition for a writ of certiorari, on behalf of Governor Lingle and the State of Hawai'i. The petition asks the Supreme Court to decide whether the Arakaki plaintiffs have standing as state taxpayers to challenge a federal law, and other procedural issues. For about 5 weeks the Attorney General's office chose not to make its petition for certiorari available in electronic form. (The U.S. Supreme Court requires that documents filed with them must be printed by old-fashioned methods rather than printed by a computer directly from a word processing program. Although the Attorney General's office undoubtedly created its document on a computer and printed it by computer for delivery to a printing company to be printed the old-fashioned way for the Supreme Court; nevertheless the Attorney General's office refused to make the document available in electronic form. Thus anyone wanting to read the petition would need to go to the courthouse to get a copy made, at great expense.) However, after an additional request, the document was finally made available in electronic form on March 9, 2006. The State of Hawaii is the only defendant in Arakaki #2 who has filed anything with the U.S. Supreme Court regarding this lawsuit.
--------------
State of Hawaii PETITION FOR WRIT OF CERTIORARI filed February 2, 2006.
12 preliminary pages including table of contents and table of authorities. 21 pages of substantive argument, 197 pages of appendices including portions of the U.S. Constitution, Hawaii Revised Statutes, Hawaii statehood Admission Act, Hawaiian Homes Commission Act, and earlier pleadings or rulings in this Arakaki#2 lawsuit at the District Court and 9th Circuit Court.
QUESTION PRESENTED
Whether state taxpayers have standing to challenge
the actions of state government or state agencies that
expend, or involve the use of, state taxpayer dollars,
simply because they pay taxes to the state?
REASONS FOR GRANTING THE PETITION
I. The issue of whether state taxpayers have
standing to challenge the actions of state government
simply because they pay taxes to the
state presents an important question of federal
law that has not been, but should be, settled
by the United States Supreme Court
II. The Ninth Circuit's ruling allowing state
taxpayer standing conflicts with the decisions
of at least five other circuits
III. Even if state taxpayers could satisfy the
requirements of Article III, prudential concerns
dictate dismissal of state taxpayer suits
because the asserted harm is a "generalized
grievance" shared in substantially equal
measure by all or a large class of citizens
CONCLUSION
For the foregoing reasons, Petitioner respectfully asks
that certiorari be granted in this case to resolve the very
important and fundamental state taxpayer standing
questions presented by this petition, and to eliminate the
direct conflict between the Ninth Circuit and at least five
other circuits.
At the very least, given that this Court's eventual
ruling in the DaimlerChrysler Corp. v. Cuno/Wilkins v.
Cuno case could effectively reverse the Ninth Circuit's
state taxpayer standing precedent, this Court should,
respectfully, at minimum hold this petition pending this
Court's ruling in the Cuno case. See Stern, Gressman,
Shapiro & Geller, Supreme Court Practice (7th Ed. 1993)
at 249 ("In most [GVR] situations, the certiorari papers
are held by the Court pending its plenary ruling, following
which the summary reconsideration order is entered."). In
the event this Court in the Cuno case does indeed adopt
Petitioner's position, or otherwise contradicts or narrows
the broad state taxpayer standing doctrine adopted by the
Ninth Circuit, this Court could then simply grant this
certiorari petition, vacate the Ninth Circuit's decision (to
the extent it granted plaintiffs state taxpayer standing to
pursue some of their claims), and remand to the Ninth
Circuit for reconsideration in light of the ruling in the
Cuno case.
STATE OF HAWAII PETITION FOR WRIT OF CERTIORARI filed February 2, 2006
https://www.angelfire.com/hi5/bigfiles2/arakaki2scsthiptcert020206.pdf
--------------
On behalf of the Arakaki plaintiffs, attorney H. William Burgess filed with the U.S. Supreme Court on March 3, 2006 a CONDITIONAL CROSS-PETITION FOR A WRIT OF CERTIORARI.
QUESTIONS PRESENTED
1. Whether Cross-Petitioners have standing as
beneficiaries of Hawaii's ceded lands trust: to challenge
federal laws which require the present trustee (State of
Hawaii) to breach its fiduciary duties (i.e., the duty of
impartiality and the duty not to comply with illegal trust
terms); and to sue Hawaii state officials to enjoin them
from breaching the same fiduciary duties;
2. Whether Cross-Petitioners have standing as state
taxpayers: to challenge federal laws which require the
State of Hawaii to engage in racial discrimination; and to
sue to enjoin state officials from implementing the federally
mandated racial discrimination; and
3. Whether Cross-Petitioners have standing as state
taxpayers (in addition to the right to challenge direct
appropriations of tax revenues to the Office of Hawaiian
Affairs, properly upheld by the Court of Appeals) to sue to
enjoin state officials from racial discrimination in other
ways which increase their state tax burden, such as: by
issuing general obligation bonds or by transfers characterized
as "settlement" or "trust revenues" or by lease of
public lands at nominal consideration.
If this Court grants the petition for writ of certiorari
filed by the Defendant-Appellee Governor of the State of
Hawaii, then it should also issue a writ of
certiorari to review the questions presented in this conditional
cross-petition.
The petition filed by Mr. Burgess is available for download in pdf form, below. It consists of 12 preliminary pages (including table of contents), 30 pages of new substantive argument, and 118 pages of appendices which include the Annexation Act (1898), portions of the Organic Act (1900) and the Admission Act (1959); and various documents previously submitted to the U.S. District Court in Honolulu and to the 9th Circuit Court.
ARAKAKI PLAINTIFFS CONDITIONAL CROSS-PETITION FOR A WRIT OF CERTIORARI.
https://www.angelfire.com/hi5/bigfiles2/arakaki2sccndcrptcert030306.pdf
-----------------
On behalf of the Arakaki plaintiffs, attorney H. William Burgess filed with the U.S. Supreme Court on March 7, 2006 a BRIEF IN OPPOSITION TO STATE'S PETITION FOR A WRIT OF CERTIORARI. The brief filed by Mr. Burgess is available for download in pdf form, below. It consists of a total of 18 pages covering the following points:
QUESTIONS PRESENTED
1. Whether this already long-delayed case, 4 years
old and still enmeshed in litigating the threshold issue of
standing, should be "held" further pending this Court's
decision in Daimler-Chrysler v. Cuno.
2. Whether the time has come for this Court, respondents'
last hope for a just and speedy adjudication, to
take charge, resolve the standing questions and allow this
important case to move forward to judgment on the merits.
RESPONSE TO PERCEIVED MISSTATEMENTS
A. Respondents have standing, not "simply
because they pay taxes to the state," but because
they are denied equal treatment which
causes injury to their pocketbooks
B. Following annexation, Hawaiians' numbers
increased steadily and they achieved political
success
C. Admission Act §5(f) says "one or more". It does
not require any additional special treatment
for native Hawaiians or for any one of the
other four purposes
D. It is doubtful that the people of Hawaii
adopted the 1978 OHA amendments
E. The OHA laws and HHCA deny respondents
the opportunity to compete for benefits on an
equal basis. They are able and ready to apply
if the state should cease using the racial classification
CONCLUSION
Piecemeal review of just the one "standing" issue
raised by the petitioner would not only add further delay
to this already unconscionably-delayed case, but might
even foreclose indefinitely the practical ability of anyone
in Hawaii to end the existing regime of invidious discrimi-nation
by the Hawaii state government and its officials.
Justice in this case has been denied for 4 years.
Respondents pray that this Court will take charge; grant a
writ of certiorari to both the petitioner and the respondents/
cross-petitioners; resolve all the standing questions;
and allow this important case to move forward to judgment
on the merits.
ARAKAKI PLAINTIFFS BRIEF IN OPPOSITION TO STATE'S PETITION FOR A WRIT OF CERTIORARI
https://www.angelfire.com/hi5/bigfiles2/arakaki2scbrfopptcert030706.pdf
-------------------
On March 9, 2006, 20 states filed an amicus curiae brief in support of the Governor of Hawaii's petition for certiorari. They state the same question as the Governor and make generally the same arguments as she did. Following the table of contents and table of authorities there are 9 pages of substantive argument regarding the following points:
QUESTION PRESENTED:
Whether state taxpayers have standing to challenge the actions of state government or state agencies that expend, or involve the use of, state taxpayer dollars, simply because they pay taxes to the state?
1. The Ninth Circuit's decision directly conflicts with precedent in the Second, Sixth, and Tenth Circuits and has created uncertainty in the law
2. The Ninth Circuit's evisceration of Article III's particularized injury requirement in cases initiated by state taxpayers dramatically undermines state sovereignty.
AMICUS BRIEF BY 20 STATES IN SUPPORT OF THE STATE OF HAWAII PETITION FOR A WRIT OF CERTIORARI, filed March 9, 2006:
https://www.angelfire.com/hi5/bigfiles2/arakaki2sc20stamicus030906.pdf
-------------------
What's next? The Governor and any of the other cross-respondents have until April 6th to file a brief or briefs in opposition to the cross-petition; and the plaintiffs have 10 days thereafter to reply to new points raised in the opposing brief or briefs. By mid April, the two petitions for certiorari and all briefs should be in the hands of the Supreme Court justices for their consideration.
The Arakaki #2 lawsuit must await a decision by the U.S. Supreme Court whether to grant certiorari on the issue of plaintiffs' standing as state taxpayers. If certiorari is denied, then presumably the case will be sent back to the U.S. District Court in Honolulu for further proceedings under Judge Mollway pursuant to the order of the 9th Circuit Court that over-ruled Judge Mollway's earlier dismissal of the case (However, it is always possible that the State or other defendants might find some other way to further delay the proceedings). In the very unlikely event that the Supreme Court grants certiorari, then further documents will be filed with the Supreme Court and oral arguments will probably be scheduled on the issue of "standing."
=================
On May 8, 2006 the U.S. filed a brief in opposition to plaintiff's cross-petition, for the purpose of arguing that the U.S. should not be a party to this lawsuit. That brief and some commentary is provided later. But first, some news reports about what has happened so far in the lawsuit, and how Hawaiian Homestead leases are being awarded at an accelerated pace.
=================
http://www.hawaiireporter.com/story.aspx?46c33d29-8a7c-41b4-b3cb-f9bfa5987a0b
Hawaii Reporter, March 16, 2006
Can Citizens Challenge Race-based Giveaways?
Both Sides, and 20 Other States, Want the Supreme Court's Answer
By H. William Burgess
Arakaki v. Lingle: Latest filings in the U.S. Supreme Court
On Feb. 2, 2006, Hawaii Gov. Linda Lingle petitioned the U.S. Supreme Court for a writ of certiorari, arguing that state citizens, "simply because they pay taxes to the state" may not challenge her and other officials' giveaway of public money, land and privileges exclusively for one race. The petition asks the high court to grant certiorari (that is, review the judgment of the Ninth Circuit) and resolve the "very important and fundamental state taxpayer standing questions" presented.
The plaintiffs, Earl Arakaki and 13 other Hawaii residents, welcome the governor's petition as an opportunity for the Supreme Court to resolve all standing questions.
On March 3, 2006, the plaintiffs filed a Conditional Cross-Petition for a Writ of Certiorari, asking the Supreme Court, if it grants the Governor's petition, to also grant theirs; and review all the "standing" orders including those dismissing plaintiffs' "very important and fundamental" trust beneficiary standing, as well as the unprecedented orders restricting their state taxpayer standing.
On March 7, 2006, the plaintiffs filed a Brief in Opposition pointing out that they do not sue "simply because they pay taxes"; but because the state does not treat all taxpayers equally. It singles out plaintiffs and other taxpayers similarly situated and denies them the benefit of the part of their taxes used exclusively for those of the favored racial ancestry.
The aggregate injury to the state treasury and to the pocketbooks of Arakaki plaintiffs, and other taxpayers similarly situated, is over $1 billion to date and escalating.
This case is 4 years old and still bogged down in litigating the threshold issue of standing. Arakaki plaintiffs ask the Supreme Court to grant both petitions, settle all standing issues and allow this case to move forward to judgment on the merits.
On March 9, 2006, 20 other states filed an amicus curiae brief in support of the Governor of Hawaii's petition. They argue that “certiorari is necessary to restore certainty to the law.”
What's next? The governor and any of the other cross-respondents have until April 6th to file a brief or briefs in opposition to the cross-petition; and the plaintiffs have 10 days thereafter to reply to new points raised in the opposing brief or briefs. By mid April, the two petitions for certiorari and all briefs should be in the hands of the Supreme Court justices for their consideration.
Stay tuned. If the high court accepts certiorari, the idea that everyone should play by the same rules could soon be reinstated in the Aloha state.
For more information, see
http://www.aloha4all.org
H. William Burgess is a resident of Honolulu and the founder of Aloha for All, a group that is working to educate the community about the potential problems with the Akaka Bill. He can be reached via email at:
hwburgess@hawaii.rr.com
---------------------
http://starbulletin.com/2006/04/15/news/story07.html
Honolulu Star-Bulletin, April 15, 2006
New lease on life
The state begins a program to give Hawaiians 6,000 land leases over five years
By Mark Niesse
Associated Press
Hawaiian Henry Kupihea hoped for 23 years that the state would someday give him property to build a home.
He got his wish last weekend when the state awarded 160 land leases to Hawaiians on Kauai in an effort to put the islands' native people back on the land.
"I was always on the waiting list, waiting to come home," Kupihea said Thursday. "It's so beautiful there. The ocean and the mountains are five minutes apart."
Kupihea, who is 50 percent Hawaiian, said he and many other Hawaiians need this kind of help because they would have a hard time financing a home by themselves. He looks forward to escaping $1,400 monthly rents for him and his four children.
The Department of Hawaiian Home Lands distributed the land leases for $1 per year last Saturday, part of an effort to give out 6,000 leases in five years, more than were issued in the first 80 years of the program, which started in 1921.
About 1,300 residential leases have been awarded since 2003.
The latest are part of Kauai's largest development for native Hawaiians.
The leases come from 200,000 acres statewide that were set aside by Congress in 1921, said Lloyd Yonenaka, spokesman for the department.
"The wrongdoings to the Hawaiian people put them at a disadvantage. There is a desire by many to see that wrong made right," said Micah Kane, chairman of the Department of Hawaiian Home Lands.
Any resident who is at least 50 percent Hawaiian is eligible to sign up for the lease program. The state has been trying to give out the leases more quickly, and it is offering programs to help people finance the mortgages for houses built on the land.
The Hawaiians who receive the leases still must pay for the house, but it could cost less than half as much after the land is already purchased, Yonenaka said.
"The price of a home in Hawaii is astronomical," he said. "It'll help relieve the pressure on the market for affordable homes for everyone."
More than 700 people, including Gov. Linda Lingle, attended the meeting last Saturday when the state announced who would receive the leases. They were allocated first to the families who had been on the waiting list for the longest amounts of time.
The New Home Ownership Assistance Program provides home-buyer counseling and ownership readiness training. Another program gives Hawaiians more time to raise money for the home after they have been granted the lease.
About 18,000 people are on the residential waiting list for Hawaiian land leases, Yonenaka said.
"This provides incentives for families to improve their quality of life," Kane said.
The Piilani Mai Ke Kai subdivision will be built in three phases on 71 acres on the coastline in Anahola in eastern Kauai.
Infrastructure improvements such as waterlines, roads and electricity will be paid for by the Department of Hawaiian Home Lands. Construction on the first 80 lots is expected to begin in a few weeks, and the first homes could be completed in about a year and a half.
"We're very happy for those who were awarded homestead leases," said Kauai Mayor Bryan Baptiste. "Many of them had been waiting years for this to happen, and now their dreams of owning a home have come true."
=================
On May 8, 2006, the Solicitor General filed a brief for the United States in opposition to the cross petition, arguing that, although the Admission Act requires the State of Hawaii to continue to carry out the Hawaiian Homes Commission Act, and by doing so the State spends tax moneys using a racial classification and also breaches the ceded lands trust, the Plaintiffs lack standing to sue because: The U.S. "does not require the State of Hawaii to impose taxes to support those undertakings" and the HHCA and Admission Act "extinguished any trustee role that the United States might once have had."
QUESTIONS PRESENTED
1. Whether cross-petitioners have standing to sue the United States and challenge the constitutionality of a federal statute based on an alleged injury as a state taxpayer where the cause of that injury is not fairly traceable to the United States.
2. Whether cross-petitioners have standing as alleged trust beneficiaries to sue the United States for a breach of trust where they identify no trust for which they are beneficiaries and the United States is trustee.
ON CONDITIONAL CROSS-PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION
https://www.angelfire.com/hi5/bigfiles3/arakaki2scUSbfoppos050806.pdf
OR, the brief can also be downloaded directly from the Aloha For All webpage maintained by plaintiffs' attorney H. William Burgess, at:
http://www.aloha4all.org/documents/60508USBriefinOppNo05-1128FINAL.pdf
--------------------
On May 17, 2006 plaintiffs attorney H. William Burgess filed a reply brief in response to the May 8 U.S. opposition to the cross petition. The reply brief explains why the United States must be a party to this litigation and why plaintiffs have standing. Some major arguments are:
"The Admission Act §4 and the compact requiring the State of Hawaii to adopt and carry out the HHCA, cause the United States to violate the Equal Protection component of the Fifth Amendment and 42 U.S.C. §1985;
and cause the State of Hawaii to violate the Equal Protection component of the Fourteenth Amendment, H.R.S. §708-875 and also 42 U.S.C. §1985.
Thus the very thing which makes the United States an important party to this case: its mandate that the State discriminate and its retained powers over the corpus and administration of the ceded lands trust; also puts the
United States and the State of Hawaii, or their responsible officials, squarely within the definition of conspirators under 42 U.S.C. §1985 and accessories under the model penal code.
In the absence of the U.S. as a party, the Court cannot
enjoin State officials from carrying out the HHCA or the
OHA laws without exposing them to a risk of suit by the
U.S. for breach of the 1959 compact to adopt the Hawaiian
Homes Commission Act. This could be particularly adverse
for the 7,350 or more existing homesteaders because,
without the U.S. in the case and bound by the Court's
judgment, the U.S. would still hold the sword over the
heads of State officials. This would discourage and proba-bly
prevent State officials, if Plaintiffs prevail, from
allowing homesteaders to acquire the fee simple ownership
of their lots.
PLAINTIFFS' REPLY BRIEF TO U.S. OPPOSITION TO PLAINTIFFS CONDITIONAL CROSS-PETITION:
https://www.angelfire.com/hi5/bigfiles3/arakaki2screpbrfUSop051706.pdf
===============
http://honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20060516/NEWS23/605160341/1001
Honolulu Advertiser, Tuesday, May 16, 2006
OHA hails high court's rejection of Ohio case
By Ken Kobayashi
Advertiser Courts Writer
A unanimous decision by the U.S. Supreme Court in an Ohio case yesterday is being touted by the Office of Hawaiian Affairs and the state as the end of a taxpayer lawsuit challenging the use of state general funds for the Native Hawaiian organization.
But the lawyer who represents the taxpayers disagrees.
In a 9-0 ruling, the Supreme Court rebuffed efforts by a group of taxpayers in Toledo, Ohio, to challenge nearly $300 million in tax breaks for DaimlerChrysler AG's new Jeep plant.
U.S. Chief Justice John Roberts said the alleged injury to the taxpayers was mere conjecture, and that they had no standing to challenge tax or spending decisions "simply by virtue of their status as taxpayers."
"It's dead," OHA attorney Robert Klein said about the taxpayer lawsuit challenging OHA funding. "There's absolutely nothing for the district judge (in Hawai'i) to consider anymore."
But H. William Burgess, lawyer for the taxpayers group that includes former Honolulu police officer Earl F. Arakaki and about a dozen others, said the high court's decision deals with issues different from the ones raised in his challenge.
Hawai'i Attorney General Mark Bennett agreed with Klein, saying the Supreme Court "definitely stated state taxpayers standing does not exist as a doctrine."
Burgess, however, said his clients and other taxpayers are singled out for "disadvantageous treatment" because they have to pay taxes to support programs, including OHA, but are denied the right to obtain the benefits because of their ancestry.
"I'm confident that it won't have any effect (on his case)," he said.
Burgess filed the lawsuit, now called Arakaki v. Lingle, challenging the constitutionality of government funding for the Hawaiian Home Lands program and OHA because their programs are aimed at benefitting residents with Hawaiian ancestry.
In 2004, U.S. District Judge Susan Oki Mollway threw out the lawsuit, but the 9th U.S. Circuit Court of Appeals last September reinstated only part of the suit, limiting it to the taxpayers challenging state general fund money going to OHA.
OHA gets about $2.8 million a year from the state general fund, a fraction of the agency's $28.5 million annual operating budget, OHA officials have said.
Bennett's office asked that the U.S. Supreme Court essentially hold off reviewing the appeals court ruling until yesterday's decision because both cases involved the issue of whether taxpayers have legal standing to challenge how the state spends it money.
Bennett said he believes the U.S. Supreme Court will now vacate the appeals court ruling in the coming months, a move that essentially would end the taxpayer suit against OHA.
He said Hawai'i, as well as other states, filed a friend-of-the-court brief urging the Supreme Court to declare the Toledo taxpayers did not have legal standing.
Yesterday's ruling was "exactly what we were hoping for," Klein said.
The decision was characterized as a victory for business.
The message from the Supreme Court ruling is that states "will not be held hostage to lawsuits" brought by people with "no direct connection to the issue at hand," said W. Frank Fountain, DaimlerChrysler's senior vice president for government affairs and public policy.
To lure a $1.2 billion Jeep assembly plant to the area, the city of Toledo and two local school districts gave the company a 10-year exemption from property taxes, and the company received additional investment tax credits against the state's corporate franchise tax.
The court disagreed with the taxpayers' argument that their local and state tax burdens were increased by the tax breaks.
"A taxpayer-plaintiff has no right to insist that the government dispose of any increased revenue it might experience as a result of his suit by decreasing his tax liability or bolstering programs that benefit him," the chief justice wrote. "To the contrary, the decision of how to allocate any such savings is the very epitome of a policy judgment."
------------------
http://starbulletin.com/2006/05/19/editorial/editorial02.html
Honolulu Star-Bulletin, May 19, 2006
EDITORIAL
'Hawaiian-only' foes may need new strategy
THE ISSUE
The U.S. Supreme Court has disallowed people the right, as taxpayers, to challenge city and state expenditures in court.
STATE programs that provide assistance to Hawaiians have gained protection by a U.S. Supreme Court ruling that taxpayers cannot challenge state expenditures in court. The ruling should bring an end to a lawsuit alleging that such programs are racially discriminatory, but the programs still might be legally vulnerable in the absence of Hawaiian sovereignty.
While the ruling in an Ohio case appears to doom the Hawaii lawsuit, it could prompt the programs' adversaries to change strategy. Their only recourse might be to find plaintiffs who can claim they specifically -- not hypothetically -- were denied benefits, much as children who claimed they were denied admission to Kamehameha Schools because of racial discrimination.
The Supreme Court has long disallowed people to challenge particular federal expenditures by mere virtue of being federal taxpayers. Recognizing that precedent, a three-judge panel of the 9th U.S. Circuit Court of Appeals last year upheld District Judge Susan Mollway's dismissal of a challenge to federal money going to Hawaiian programs.
However, the panel ruled that Earl Arakaki and other plaintiffs could challenge the funneling of state tax dollars to the Office of Hawaiian Affairs. Only one-tenth of OHA's budget comes from state money; most comes from the Hawaiian Home Lands trust, which Mollway and the appellate judges shielded from the Arakaki lawsuit.
The Supreme Court on Monday unanimously rejected a lawsuit by a group of Ohio taxpayers challenging nearly $300 million in city and state tax breaks for DaimlerChrysler AG's new Jeep plant in Toledo. That should bring a finishing touch to the Arakaki suit.
The ruling affords city and state programs the same protection that federal programs have had against taxpayer lawsuits.
=====================
On Monday June 12, 2006 the U.S. Supreme Court ruled on both petitions for certiorari. The rulings were announced on the "order list" published for that date:
http://www.supremecourtus.gov/orders/courtorders/061206pzor.pdf
(ORDER LIST:547 U.S.)
MONDAY,JUNE 12,2006
[page 1]
CERTIORARI --SUMMARY DISPOSITIONS
05-988 LINGLE,GOV.OF HI V.ARAKAKI,EARL F.,ET AL.
The petition for a writ of certiorari is granted.The
judgment is vacated and the case is remanded to the United
States Court of Appeals for the Ninth Circuit for further
consideration in light of DaimlerChrysler Corp.v.Cuno ,
547 U.S.___(2006).The Chief Justice took no part in the
consideration or decision of this petition.
[page 8]
CERTIORARI DENIED
05-1128 ARAKAKI,EARL F.,ET AL.V.LINGLE,GOV.OF HI,ET AL.
The petition for a writ of certiorari is denied.The Chief
Justice took no part in the consideration or decision of this
petition.
----------------
** Comment by Ken Conklin:
While the two rulings are a blow to the Arakaki plaintiffs, they do not necessarily mean the case is over. The case will go back to the Ninth Circuit. Both side will file further legal briefs and then the 9th Circuit 3-judge panel whether the DaimlerChrysler case changes its earlier decision which upheld plaintiffs’ standing as state taxpayers to challenge appropriations of tax moneys to OHA.
The Supreme Court in DaimlerChrysler eliminated state taxpayer standing suits where the plaintiffs are suing “merely because they pay state taxes” but do not suffer any concrete pocketbook injury different from that suffered by state taxpayers generally. If the federal courts adjudicate those kinds of claims, they would be forever second-guessing decisions of state governments.
Arakaki plaintiffs’ claims are not “merely because they pay taxes”, but because they are excluded, solely because they lack the favored racial ancestry, from the benefit of their state taxes paid to OHA. Those taxpayers with the favored ancestry benefit from the taxes paid by plaintiffs. The Constitution bars states from using any racial classification unless it passes strict scrutiny, i.e., it is narrowly tailored to serve a compelling state interest. Federal courts regularly adjudicate claims that state governments and their officials engage in racial discrimination which causes genuine pocketbook injuries to plaintiffs.
The fact that Chief Justice Roberts did not participate in consideration or decision of either of these petitions is probably a recusal based on the fact that he was attorney for the State of Hawai'i arguing for the defendants in the Rice v. Cayetano case.
---------------
http://www.indianz.com/News/2006/014445.asp?print=1
Indianz.com, Tuesday June 13, 2006
U.S. Supreme Court intervenes in Native Hawaiian case
Native Hawaiians suffered a big political defeat last week but the U.S. Supreme Court offered some legal hope for the sovereignty movement on Monday.
Just days after the Senate killed the Native Hawaiian recognition bill, the justices intervened in a Native Hawaiian case. In a short order, the high court ordered new proceedings in a lawsuit filed by non-Natives against the state of Hawaii.
The lawsuit accuses the state's Office of Hawaiian Affairs of violating the U.S. Constitution by setting aside money for Native Hawaiian-only programs. The 9th Circuit Court of Appeals last August ruled that the non-Natives, as taxpayers, have legal standing to bring the case.
But a fresh ruling from the Supreme Court has changed the landscape. In a unrelated case, the justices ruled unanimously that a group of taxpayers in Ohio couldn't challenge the state's spending decisions simply because they are taxpayers.
In response, the justices vacated the 9th Circuit's ruling in the Native Hawaiian lawsuit and sent the case back to the appellate court for "further consideration" in light of their recent May 15 ruling.
And in a significant development, Chief Justice John G. Roberts "took no part in the consideration or decision of this petition," yesterday's order stated. Although no reason was given, he previously defended the state of Hawaii before the Supreme Court by arguing that Native Hawaiians deserve the same treatment as American Indians and Alaska Natives.
There is no guarantee that the 9th Circuit will dismiss the case in favor of Hawaii. Even if the lawsuit is thrown out, the non-Natives could try to push the issue of Native-only funding in the state courts.
But reconsideration gives the state some rest in its ongoing legal battle to preserve Native Hawaiian programs, services and benefits. In the last six years, the state has lost four major lawsuits -- including the one that Roberts took on -- filed by non-Natives who say Native-only programs are illegal because they are based on race.
The most recent case involves a private school that restricts admission to Native Hawaiians. A three-judge panel of the 9th Circuit ruled that the policy violates the U.S. Constitution but the full court has since decided to rehear the controversy.
Advocates for Native Hawaiians argue that federal recognition of a Native governing entity will resolve these kinds of disputes. By extending the self-governance policy to Native Hawaiians, they hope to protect the land, culture, heritage and rights of the island's first inhabitants.
A procedural move in the Senate prevented the recognition bill from moving forward, however. After two days of debate last week, supporters secured 56 votes but that tally fell short of the 60 votes needed to clear the measure for an up or down vote.
"I am disappointed that we did not overcome the procedural obstacles to bring the bill to the floor, but I am heartened by the fact that 56 Senators supported our efforts," said Sen. Daniel Akaka (D-Hawaii), the primary sponsor of S.147, the Native Hawaiian Government Reorganization Act. "I have always said that we had the votes to enact this bill on an up or down vote."
Conservative Republicans rallied against the bill, saying it creates a new government based solely on race. They said the trust relationship that exists between the United States and American Indians and Alaska Natives cannot be extended to Native Hawaiians.
The Supreme Court, and the 9th Circuit, have never ruled directly on the issue of federal recognition for Native Hawaiians. Their decisions have said resolution of the matter resides with Congress.
The case is Lingle v. Arakaki, No. 05-988. Case documents and briefs can be found on the Native American Rights Fund site [Tribal Supreme Court Project].
http://www.indianz.com/my.asp?url=http://www.narf.org/sct/caseindexes/current/linglevarakaki.html
The case that prompted the reconsideration is DaimlerChrysler Corp. v. Cuno [Wikipedia Entry].
http://www.indianz.com/my.asp?url=http://en.wikipedia.org/wiki/DaimlerChrysler_Corp._v._Cuno
** Note from Ken Conklin: There are a large number of internet links provided at the bottom of this article, regarding the Akaka bill and issues related to this lawsuit. See the bottom of
http://www.indianz.com/News/2006/014445.asp?print=1
-----------------
http://honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20060614/NEWS01/606140353/1001
Honolulu Advertiser, Wednesday, June 14, 2006
Supreme Court rules in favor of OHA
By Ken Kobayashi
Advertiser Courts Writer
The U.S. Supreme Court has rejected a taxpayer lawsuit challenging the use of state general funds for the Office of Hawaiian Affairs.
In its ruling, the high court indicated on Monday that the payment of taxes alone isn't enough to provide a group of Hawai'i residents with the legal standing needed to challenge the OHA funding.
Attorney General Mark Bennett and OHA officials yesterday said they were pleased with the high court's actions.
"We always felt state taxpayer standing was not a viable doctrine, so we're gratified that our legal strategy has been vindicated by the Supreme Court ruling," Bennett said.
The lawsuit is the last pending challenge to the constitutionality of government funding for OHA.
The high court's actions provide some relief to OHA and other government programs for Native Hawaiians that came increasingly under fire following the U.S. Supreme Court's 2000 decision in a case known as Rice v. Cayetano, in which the court ruled unconstitutional OHA's requirement that voters for its trustees must have Hawaiian blood.
In the wake of that landmark decision, former police officer Earl Arakaki and more than a dozen other residents filed a lawsuit challenging government funding for OHA and the Department of Hawaiian Home Lands.
BACK TO 9TH CIRCUIT
After Monday's ruling, H. William Burgess, a lawyer for the taxpayer group, said other challenges may be filed later by someone denied benefits because they don't have Hawaiian blood.
Bennett and OHA administrator Clyde Namu'o said the state and OHA will contest those challenges.
"We believe that the Office of Hawaiian Affairs is constitutional and we would vigorously defend any future lawsuit challenging either the Office of Hawaiian Affairs, the Department of Hawaiian Home Lands or any other program that benefits Native Hawaiians," Bennett said.
As part of the ruling, the Supreme Court set aside an appeals court decision that had allowed part of the suit to go forward. It also granted the state's request to overturn the appeals court decision and ordered the 9th U.S. Circuit Court of Appeals to consider the case in view of a Supreme Court decision last month that ruled that Ohio tax-payers don't have legal standing to sue the state of Ohio over tax breaks for DaimlerChrysler.
The court on Monday also rejected a request by the lawyer for the taxpayers seeking to have the entire lawsuit reinstated.
DOES OHIO CASE APPLY?
Namu'o, who estimated OHA has spent about $395,000 in legal costs in defending itself in the case, said the organization would also vigorously oppose any future lawsuits.
Burgess said he was disappointed by the high court's rulings, but said he still believes the appeals court will allow its decision to stand. He said the Ohio decision does not apply to his case.
The suit was dismissed by U.S. District Judge Susan Oki Mollway, but a part of the case dealing with state general funds to OHA was reinstated by the appeals court in August. OHA estimated at the time that it received $2.8 million, or about 10 percent of its annual operating budget, from state general funds.
Last month, the high court issued a 9-0 ruling that essentially halted efforts by a group of taxpayers in Toledo, Ohio, who were challenging nearly $300 million in tax breaks for DaimlerChrysler AG's $1.2 billion Jeep assembly plant.
At the time, Bennett and Robert Klein, OHA's lawyer, said the decision signaled an end of what had become known as the Arakaki lawsuit.
Burgess yesterday disagreed with the assessment that the high court's actions end the case. He said the Ohio ruling doesn't apply because in the Arakaki case, the taxpayers are treated differently and excluded from certain benefits because of their ancestry.
But Bennett said the Ohio ruling eliminated the basis of the taxpayer standing in the Arakaki case.
"I believe all that's left is the housekeeping order from the 9th Circuit (dismissing the Arakaki case)," Bennett said.
ROBERTS OPTED OUT
The U.S. Supreme Court Web site reported the high court's actions Monday.
The brief orders said, without explanation, that Chief Justice John Roberts Jr. did not participate in the decisions.
Before he was appointed chief justice last year, Roberts was a private lawyer who was hired by the state to defend OHA's Hawaiians-only voting restriction in the Rice v. Cayetano case.
A HISTORY OF THE CASE:
# March 2002: Earl Arakaki and about a dozen others file a lawsuit challenging constitutionality of government-supported Department of Hawaiian Home Lands and Office of Hawaiian Affairs, both of which benefit people of Hawaiian ancestry.
# January 2003: U.S. District Judge Susan Oki Mollway dismisses the lawsuit.
# August 2005: 9th U.S. Circuit Court of Appeals affirms the dismissal, but reinstates a portion of the lawsuit challenging state general funds going to OHA. The amount is about $2.8 million, 10 percent of OHA's annual $28.5 million operating budget.
# May 15, 2006: U.S. Supreme Court rules that taxpayers in Toledo, Ohio, have no legal standing to challenge nearly $300 million in tax breaks for DaimlerChrysler AG's new Jeep plant.
# Monday: The U.S. Supreme Court grants Hawai'i's appeal and overturns the 9th Circuit ruling. The court denies a request by lawyers for taxpayers asking that the entire Arakaki lawsuit be reinstated. The court sends case back to 9th Circuit for further consideration in view of the DaimlerChrysler decision.
-----------------
http://starbulletin.com/2006/06/14/news/story06.html
Honolulu Star-Bulletin, June 14, 2006
9th Circuit is told to reconsider OHA ruling
The lawsuit seeks to halt state funding for Hawaiian programs
By Mark Niesse
Associated Press
A lawsuit seeking to cut off public money used for native Hawaiian programs has suffered a setback in the U.S. Supreme Court.
The Supreme Court on Monday told an appeals court to reconsider whether taxpayers have the right to sue over how the government spends their money.
"It's likely the court will dismiss the case," said Clyde Namuo, administrator for the Office of Hawaiian Affairs. "That's a favorable ruling for us."
The Supreme Court ordered the 9th U.S. Circuit Court of Appeals to review whether taxpayers have standing to sue over lawmakers' tax or spending decisions.
The decision was prompted by a ruling in another case, in which the high court sided against a group of Ohio taxpayers who objected to nearly $300 million in tax breaks for a new DaimlerChrysler AG Jeep plant.
A lawyer for the Hawaii taxpayers making the claim, H. William Burgess, said the case is far from settled.
The 9th Circuit Court could stand by its decision last September that taxpayers do have legal standing to challenge state funding of Hawaiians-only programs, he said.
"In our case ... the state discriminates against them as taxpayers by making them pay taxes but denying them benefits," Burgess said. "You can't treat people unequally."
If the appeals court dismisses the lawsuit, Burgess said he may refile it with new plaintiffs who could show they were discriminated against by exclusive Hawaiian programs.
The lawsuit, originally filed four years ago, contended that programs through the Office of Hawaiian Affairs should not receive state funding on the grounds that they benefit only people of native Hawaiian ancestry.
U.S. District Judge Susan Oki Mollway threw out the lawsuit in 2004, but it was partially reinstated by the 9th Circuit Court last September, limiting it to the taxpayers challenging general fund money going to OHA.
The agency, created by the state in 1978, receives about $2.8 million a year from the state general fund. Its total annual operating budget is about $28.5 million.
====================
On September 19, 2006 plaintiffs' attorney H. William Burgess filed with the 9th Circuit Court a supplemental brief defending the concept that plaintiffs have standing as state taxpayers, despite the Supreme Court's decision in DaimlerChrysler. This brief argues that "rather than closing the federal courthouse to all state taxpayers, the Court in DaimlerChrysler clarified and restated existing law upholding their standing where they show particularized, pocketbook injuries caused by tax and spending in violation of their fundamental constitutional rights"; and that the Arakaki plaintiffs have shown particularized pocketbook injuries caused by the fact that they are taxed to support state government programs which exclude them as beneficiaries solely on account of race.
CITIZENS’ SUPPLEMENTAL BRIEF ON REMAND
RE: IMPACT, IF ANY, OF DAIMLERCHRYSLER
https://www.angelfire.com/hi5/bigfiles3/arakaki29plbrdaimchry091906.pdf
============================
On February 9, 2007 the 9th Circuit Court of Appeals fulfilled its duty to reconsider its earlier decision on plaintiffs' standing in view of the Supreme Court's decision on DaimlerChrysler. As noted above, the State of Hawaii had filed a petition for writ of certiorari to the Supreme Court, asking for a review of the 9th Circuit decision upholding the Honolulu Circuit Court's decision that plaintiffs have standing as state taxpayers. Plaintiffs, various defendants, and a group of 20 states filed briefs on this matter. The Supreme Court vacated the 9th Circuit's previous decision on taxpayer standing and remanded the case to the 9th Circuit for reconsideration in light of DaimlerChrysler. Now, on February 9, 2007 the 9th Circuit has decided that indeed the DaimlerChrysler decision causes the 9th Circuit to reverse its previous decision upholding taxpayer standing and to overturn the Honolulu District Court's decision granting taxpayer standing to the plaintiffs. The 9th Circuit was not willing to make a final decision; but only rules that plaintiffs do not have standing as taxpayers. The case is now remanded to the Honolulu District Court for further proceedings on whether plaintiffs have any basis for standing.
The 9th Circuit decision of February 9, 2007 makes very interesting reading, because it includes a clear and concise summary of all the major issues in this case and of the rulings to date and the reasons for those rulings. The decision was originally posted on the 9th Circuit website at
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/ECF932AC9FA86A2E8825727D000220DB/$file/0415306.pdf?openelement
9TH CIRCUIT COURT OF APPEALS DECISION OF FEBRUARY 9, 2007 ON REMAND FROM THE SUPREME COURT, AND FURTHER REMANDING THE CASE TO THE HONOLULU DISTRICT COURT:
https://www.angelfire.com/planet/bigfiles40/arakaki29stndngremand020907.pdf
-------------------
At first the Honolulu Advertiser posted a "breaking news" item on its website on Friday February 9, 2007 implying that the case is now finished. But the following day both Honolulu newspapers published full-length articles accurately reporting the news and describing what happens next. News reports follow, in chronological order.
-------------------
http://www.hawaiireporter.com/story.aspx?317759a4-1b7f-4ee6-9791-38a32d5a0008
Hawaii Reporter, February 9, 2007
Ninth Circuit Issues Ruling in Arakaki vs. Lingle
Plantiffs Challenged the Office of Hawaiian Affairs' Ability to Use Taxpayer Funds for Native Hawaiian-Only Programs
By H. William Burgess
The Ninth Circuit Court of Appeals' panel decision on Arakaki v. Lingle issued on Friday, February 9, 2007, says that in view of the Daimler-Chrysler decision, "it appears to us that there are no plaintiffs who have standing to challenge the Office of Hawaiian Affairs funding" but "we are unwilling to make that final judgment on this record'. "Accordingly, we remand to the district for further proceedings."
This leaves the case about where it was after the 2005 decision of the Ninth Circuit and the Supreme Court's Daimler-Chrysler decision in 2006.
Plaintiffs still maintain they have standing as state taxpayers because, unlike the Ohio taxpayers in Daimler-Chrysler, the Arakaki plaintiffs suffer an injury different from Hawaii taxpayers generally.
The Arakaki plaintiffs are taxed to support racial discrimination against themselves. Taxpayers of the favored degree of Hawaiian ancestry suffer no such injury because they are eligible for the benefit of their taxes.
So, what's next? We could again petition the Supreme Court for certiorari or just wait until the case is remanded to the District Court and proceed there, possibly with amendments; or we could file a new suit.
I continue to think we will ultimately prevail.
Ultimately in Hawaii we all be entitled to play the game by the same rules.
------------------
http://the.honoluluadvertiser.com/article/2007/Feb/09/br/br6419085732.html
Honolulu Advertiser, Breaking News, Posted at 4:34 p.m., Friday, February 9, 2007
Appeals court rejects Hawai'i taxpayers' suit
Advertiser Staff
The 9th U.S. Circuit Court of Appeals today rejected a lawsuit by a group of Hawai'i taxpayers challenging state general funds going to the Office of Hawaiian Affairs.
The decision by the appeals court is in line with a U.S. Supreme Court decision last year that indicated payment of taxes alone isn't enough to provide the taxpayers with the necessary legal standing to challenge the state funding.
The high court sent the case back to the appeals court, paving the way for today's ruling.
The challenge was filed by Earl Arakaki and about a dozen other taxpayers who contended government money for OHA is unconstitutional because the organization was set up to benefit only those people with Hawaiian ancestry.
--------------------
http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20070210/NEWS20/702100352/1170/NEWS
Honolulu Advertiser, Saturday, February 10, 2007
Court rules against bid to halt funding of OHA
By Ken Kobayashi
Advertiser Courts Writer
A federal appeals court yesterday ruled against a group of Hawai'i taxpayers challenging the use of state general funds for the Office of Hawaiian Affairs.
The move is in line with a U.S. Supreme Court decision last year that indicated payment of taxes alone isn't enough to establish the taxpayers have the necessary legal standing to challenge the state funding.
Yesterday's decision by a three-member panel of the 9th U.S. Circuit Court of Appeals also found that the taxpayers did not have standing to challenge the state funding.
But instead of dismissing the taxpayer lawsuit, the appeals court sent the case back to U.S. District Judge Susan Oki Mollway.
H. William Burgess, lawyer for Earl Arakaki and about a dozen other Hawai'i taxpayers, said he wasn't happy with the ruling. He said the appeals court could have found that last year's U.S. Supreme Court ruling, in an Ohio case, did not apply and ruled that his clients could pursue their lawsuit.
He said he will argue that point when the case is sent back to Mollway.
State Attorney General Mark Bennett said he was pleased that the appeals court ruled in favor of the state on all "substantive issues." But he said the appeals court could have ordered that the case be dismissed instead of sending it back to the trial court. Bennett said he didn't know what was left for Mollway to decide.
Bennett said he anticipates that Mollway soon will hold a conference with the lawyers on how to proceed with the case.
The decision is the latest development in the taxpayer lawsuit alleging that the use of government money for OHA is unconstitutional because the organization benefits only those of Hawaiian ancestry.
Mollway initially threw out the lawsuit, filed in 2002, challenging government money to OHA and the Department of Hawaiian Home Lands. But in 2005, the appeals court reinstated the portion of the suit dealing with OHA, which gets about 10 percent of its operating budget from state general fund money.
In June last year, the U.S. Supreme Court rejected that part of the suit and indicated that the payment of taxes alone isn't enough to give the residents legal standing.
The high court cited a previous ruling that threw out an Ohio taxpayer lawsuit challenging $300 million in tax breaks for a DaimlerChrysler Jeep assembly plant.
The high court sent the Hawai'i case back to the appeals court to issue a ruling based on the Ohio case, which led to yesterday's decision.
"In light of the Supreme Court's decision in DaimlerChrysler, we now hold that plaintiffs, as state taxpayers, lack standing to bring a suit claiming that the OHA programs that are funded by state tax revenues violate the Equal Protection Clause of the Fourteenth Amendment," the panel's unanimous opinion said.
"Although it is not clear that any plaintiffs have standing in any other capacity to challenge the OHA programs, we remand to the district court for further proceedings."
The 36-page opinion was written by appeals Judge Jay Bybee, who wrote the decision for a three-member panel that Kamehameha Schools' admissions policy of giving preference to Hawaiians violated federal law. A larger panel of the 9th Circuit later reversed that ruling.
OHA Chairwoman Haunani Apoliona yesterday said she was pleased with the decision, but warned that Hawaiians must gain political status to ward off future legal challenges.
"Although we have prevailed in the legal battle, we must continue our efforts to recognize Native Hawaiians as an indigenous people with a sovereign identity," she said.
-------------------
http://starbulletin.com/2007/02/10/news/story02.html
Honolulu Star-Bulletin, February 10, 2007
OHA challenge set back
A court rules against taxpayers trying to stop state funding of pro-Hawaiian activities
By Mary Adamski
The 9th U.S. Circuit Court of Appeals ruled yesterday against a group of Hawaii taxpayers who say that the state unconstitutionally discriminates against non-Hawaiians by giving money to programs that only benefit Hawaiians.
The federal appeals court stopped short of dismissing the 2002 lawsuit but overturned its own earlier decision by finding the 14 taxpayers lack legal standing to challenge state funding of the Office of Hawaiian Affairs. The court sent the case back to U.S. District Court in Honolulu to determine if any of the plaintiffs are eligible "in any other capacity."
State and OHA attorneys said they expect the decision will put an end to the suit.
OHA attorney Sherry Broder said, "I consider this a victory for the Office of Hawaiian Affairs and native Hawaiians. The court found in favor of native Hawaiians."
But H. William Burgess, lawyer for Earl Arakaki and 13 others, said "it's not the end."
Burgess appealed the case to the appellate court after U.S. District Judge Susan Oki Mollway dismissed the lawsuit in 2004. In September 2005 a three-member panel of the 9th Circuit reinstated it, ruling that taxpayers could challenge the state for giving general fund money to OHA.
Last May, a U.S. Supreme Court ruling in a similar case appeared to doom the Hawaii taxpayers' challenge. The high court rejected a lawsuit by a group of Ohio taxpayers who challenged nearly $300 million in state and city tax breaks for DaimlerChrysler AG to build an auto plant in Toledo.
A month later, the Supreme Court instructed the appellate court to reconsider the Hawaii taxpayers' standing.
"Our case is different," Burgess said. "You have to have some specific injury to invoke court jurisdiction. Just because you pay taxes, you can't have a court decide on every state decision. In DaimlerChrysler the plaintiffs didn't suffer injury different from other Ohio taxpayers.
"In our case the plaintiffs have to pay taxes to support racial discrimination against themselves," Burgess said. "They suffer a specific pocketbook injury because not all taxpayers are eligible for the benefits. Taxpayers of Hawaiian ancestry don't suffer any injury because they are eligible for benefits."
"I still think ultimately we will prevail. This is just a bump in the road," he said.
State Attorney General Mark Bennett said, "We hoped the 9th Circuit would end the lawsuit. We're disappointed they continued it for further proceedings. We are pleased that on every substantive issue, the 9th Circuit ruled in our favor.
"We believe it's a short procedural delay. There's no possible basis on which plaintiffs can proceed with this lawsuit."
OHA Chairwoman Haunani Apoliona applauded the ruling but said it underscores the need for federal legislation that provides political recognition for native Hawaiians.
She called for passage of the Native Hawaiian Government Reorganization Act, known as the Akaka Bill after its author, U.S. Sen. Daniel Akaka. "It will benefit not only native Hawaiians, but the entire state of Hawaii," she said in a press release.
OHA receives about 10 percent of its $28.5 million operating budget from the state.
The lawsuit originally also named the Department of Hawaiian Home Lands. Mollway dismissed the agency as a defendant, saying the program was mandated by federal law and that state taxpayers had no standing to challenge federal law.
Case At A Glance
At issue: Fourteen taxpayers sued the state, saying it is discriminatory to use tax funds to pay for Hawaiians-only programs.
The ruling: The 9th U.S. Circuit Court of Appeals rules that the plaintiffs did not have legal standing to file the lawsuit.
What's next: The appeals court sent the case back to U.S. District Court in Honolulu where the plaintiffs vowed to continue to pursue their complaints.
-----------------
http://starbulletin.com/2007/04/18/news/story06.html
Honolulu Star-Bulletin, April 18, 2007
Federal judge says 16 suing OHA lack standing
By Debra Barayuga
Sixteen taxpayers who challenged the constitutionality of state funding of the Office of Hawaiian Affairs had no standing to bring their claims, a federal judge has ruled.
U.S. District Judge Susan Mollway's order Monday in the long-running Arakaki v. Lingle case brings to an end the lawsuit that initially began in March 2002 as Arakaki v. Cayetano, said Sherry Broder, one of three attorneys representing the state.
The plaintiffs disagree and intend to file an amended complaint by April 30, said plaintiff attorney H. William Burgess. "It ain't over yet," he said.
Before the court dismisses a case for lack of standing or lack of a party, the filing of an amended complaint is allowed, Burgess said, adding, "It's not unusual."
The 5-year-old case has gone through the 9th U.S. Circuit Court of Appeals and the U.S. Supreme Court, which essentially ended the case last year after it issued a decision in Daimler Chrysler Corp. v. Cuno, ruling that there was no taxpayer standing in cases of this sort, Broder said.
The U.S. Supreme Court sent it back to the 9th Circuit, which issued a new opinion and sent it back to Mollway to issue a final judgment.
The appellate courts essentially found that the plaintiffs had suffered no individualized injury as taxpayers. To challenge governmental programs, the taxpayer must demonstrate that they have suffered "a particularized concrete injury that is redressable by the court's judgment," said Broder, quoting the 9th Circuit.
After asking the parties to submit briefings on any remaining issues and following discussions with the parties, "this court determines that there are no such issues, as no plaintiff has standing to challenge OHA funding," Mollway wrote in her order.
While she indicated that a motion to add parties to the complaint would be denied, Mollway gave the plaintiffs until April 30 to file an amended complaint to preserve the record.
-------------
http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20070419/NEWS23/704190337/1001/NEWS
Honolulu Advertiser, Thursday, April 19, 2007
Lawsuit over OHA funds is dismissed
Associated Press
The Office of Hawaiian Affairs scored a major legal victory when a federal judge dismissed a lawsuit that sought to stop the state from funding the agency's Hawaiians-only programs.
U.S. District Judge Susan Oki Mollway has held that the 16 taxpayers who challenged the constitutionality of the funding had no standing to bring their claims, according to lawyers in the case.
OHA attorney Sherry Broder said the ruling Monday brings to an end the lawsuit filed by the plaintiffs in March 2002.
But lawyer H. William Burgess, representing the plaintiffs, said the court granted him permission to file an amended complaint by April 30, which he intends to do.
Burgess, contacted by the Associated Press, would not say what changes he plans to make to the complaint.
The case has been reviewed by the U.S. Supreme Court and the 9th U.S. Circuit Court of Appeals.
The high court told the appeals court last June to reconsider whether taxpayers have the right to sue over how the government spends its money. In February, the appeals court ruled that taxpayers don't have the power to sue the state on the issue.
The case was then sent back to district court for further proceedings.
Broder said the Supreme Court and the appeals court explained that the plaintiffs had suffered no individualized injury as taxpayers and so couldn't sue.
"The federal courts have concluded that these plaintiffs are not hurt by the activities of OHA and thus they do not have standing to bring a legal challenge to OHA," Broder said.
The court held that the concerns of the plaintiffs are political grievances best left to the legislative and executive branches of government, she said.
================
Om April 30, 2007 plaintiffs attorney H. William Burgess filed an amended complaint to convert the lawsuit to a class action on behalf of all property owners who have no Hawaiian native ancestry or less that 50% native ancestry, arguimg that their property taxes are higher than necessary because of illegal racial discrimination in the form of zero or negligible property taxes assessed to residents of the Hawaiian homesteads, and other tax discrimination.
---------------
H. WILLIAM BURGESS #833
2299C Round Top Drive
Honolulu, Hawai`i 96822
Telephone: (808) 947-3234
Fax: (808) 947-5822
Email: hwburgess@hawaii.rr.com
Attorney for Plaintiffs
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
EARL F. ARAKAKI, et al.,
Plaintiffs, v. LINDA LINGLE, et al., State Defendants, HAUNANI APOLIONA, et al., OHA Defendants, MICAH A. KANE, et al., HHCA/DHHL Defendants, THE UNITED STATES OF AMERICA, and JOHN DOES 1 through 10, Defendants. STATE COUNCIL OF HAWAIIAN HOMESTEAD ASSOCIATION and ANTHONY SANG, SR., Defendant/Intervenors, HUI KAKO’O’AINA HO’OPULAPULA, BLOSSOM FEITEIRA AND DUTCH SAFFERY, Defendant/Intervenors. |
))))))))))))))))))
))))))))) |
CIVIL NO. 02-00139 SOM/KSC
PLAINTIFFS’ MOTION FOR LEAVE TO FILE AMENDED COMPLAINT; MEMORANDUM IN SUPPORT; EXHIBIT A: AMENDED COMPLAINT; CERTIFICATE OF SERVICE HEARING DATE:___________ TIME:____________ JUDGE: SUSAN OKI MOLLWAY |
PLAINTIFFS’ NOTICE AND MOTION FOR LEAVE
TO FILE AMENDED COMPLAINT.
Please take notice that Plaintiffs will move the court in her courtroom in the U.S. District Court, 300 Ala Moana Blvd., Honolulu, Hawaii on the __ day of May, 2007, at _____ o’clock ___m., or as soon thereafter as counsel may be heard, for leave to file an amended complaint substantially in the form attached hereto as Exhibit A.
This motion is based Rule 15 F.R.Civ.P., which provides that leave to amend shall be freely given when justice so requires, and on the attached memorandum in support and the records and files of this case.
DATED: Honolulu, Hawaii, April 30, 2007.
________________________
H. WILLIAM BURGESS
Attorney for Plaintiffs
MEMORANDUM IN SUPPORT OF MOTION
FOR LEAVE TO FILE AMENDED COMPLAINT
Rule 15 (a) F.R.Civ,P. provides that leave to amend “shall be freely given when justice so requires.”
However, unlike amendments as of course, amendments under the second portion of subdivision (a) may be made at any stage of the litigation.[FN11] The only prerequisites are that the district court have jurisdiction over the case and an appeal must not be pending.[FN12] If these two conditions have been satisfied the court will proceed to examine the effect and the timing of the proposed amendments to determine whether they would prejudice the rights of any of the other parties to the suit.[FN13] If no prejudice is found, then leave normally will be granted.[FN13.1]
6 Federal Practice and Procedure, Wright and Miller § 1484
The Ninth Circuit has stated it even more forcefully:
Our analysis would not be complete without recognizing the strong policy favoring leave to amend. In dismissing for failure to state a claim, "a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir.2000) (en banc) (internal citations omitted).
Knevelbaard Dairies v. Kraft Foods, Inc. 232 F.3d 979, 997 (9th Cir. 2000)
Thus, the standard is whether the pleading can possibly be cured by the allegation of other facts. As to the proposed new Count I, the only possible answer is yes, any defect can easily be cured by rewording. The complaint as filed March 2002 at paragraph 62(c) alleges that “The exemption of Homestead lots from real property taxes also harms Plaintiffs as taxpayers.” That language unambiguously put the present Defendants on notice that Plaintiffs were seeking redress for being deprived of the real property tax exemption. They can not claim surprise or prejudice or even any possible monetary loss since they do not collect real property taxes.
As to joining the counties as defendants, Rule 19 is couched in mandatory terms: A person who is subject to service and whose joinder will not deprive the court of jurisdiction “shall be joined as a party” if “in the person’s absence complete relief cannot be accorded among those already parties.”
As to the proposed rewordings of Counts II and III, the same plaintiffs are still seeking the same redress from the same defendants arising out of the same nucleus of facts. The arguments and theories are somewhat revised but, the rules do not and could not prevent the court from being exposed to other theories and, if they are valid, justice requires that they be adopted by the court. In Sherman v. Hallbauer, C.A.5th, 1972, 455 F.2d 1236, plaintiffs switched the legal theory on which they based their case in their memorandum in opposition to summary judgment. The court granted summary judgment for defendant on the basis of the theory set forth in the original complaint. The appellate court reversed stating that the summary judgment memorandum should have been construed as a motion to amend the pleadings and since it presented a strong theory supporting plaintiffs' case, summary judgment should not have been entered.
Fed. R. Civ. P. Rule 54(c) provides in relevant part, “every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the party’s pleadings. There can be no dispute that plaintiffs state a valid claim for relief from the racially discriminatory real property tax exemption. That relief can be granted by enjoining the counties to give the same exemption to Plaintiffs and all others similarly situated or to give it to no one.
As to Count II the Plaintiffs did not and do not complain merely by virtue of paying taxes. The gravamen of much of the complaint is in the biased way the government spends its tax money and allocates other public property. Giving tax credits to attract new business is not illegal. Racial discrimination is, unless it passes strict scrutiny. DaimlerChrysler did not repeal the Fifth or Fourteenth Amendments or the civil rights laws forbidding race discrimination. The court should, at a minimum, permit Plaintiffs to present evidence and full briefing before entering a final judgment.
As to Count III, DaimlerChrysler has no effect since federal trust law was in no way involved. The Ninth Circuit did not adopt this court’s trust theory (that beneficiaries only have standing to challenge mismanagement, and not to challenge partiality or compliance with illegal trust terms) but based its affirmance on the fact that Plaintiffs do not have standing to sue the U.S. because the U.S. is no longer the trustee. The amended complaint specifically alleges what has always been true, that the U.S. and the State and the counties or their respective officials are engaged in a mutual plan that unlawfully deprives Plaintiffs and others similarly situated, on racial grounds, of their rights as trust beneficiaries and as taxpayers and threatens to deprive them of their sovereignty as citizens.
Plaintiffs respectfully ask the court to allow Plaintiffs to file an amended complaint substantially in the form attached hereto and give the claims therein full and just hearing.
Dated: Honolulu, Hawaii this 30th day of April, 2007.
____________________
H. WILLIAM BURGESS
Attorney for Plaintiffs
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the date set forth below, the foregoing document(s) will be duly served upon the following parties via process server, facsimile, hand delivery, U.S. Mail or certified U.S. Mail, postage prepaid.
MARK J. BENNETT, ESQ.
CHARLEEN M. AINA, ESQ. GIRARD D. LAU, ESQ. Dept. of Attorney General State of Hawaii 425 Queen Street Honolulu, Hawai`i 96813 Attorneys for State Defendants, and HHCA/DHHL Defendants SHERRY P. BRODER, ESQ. Jon Van Dyke, Esq. Melody K. Mackenzie, Esq. 841 Bishop Street, Suite 800 Honolulu, Hawai`i 96813 Attorney for Defendant Trustees of the Office of Hawaiian Affairs Robert G. Klein, Esq. BECKY T. CHESTNUT, Esq. Five Waterfront Plaza, Suite 400 500 Ala Moana Boulevard Honolulu, Hawaii 96813 Attorney for Defendant-Intervenor SCHHA |
EDWARD H. KUBO, JR., ESQ.
HARRY YEE, ESQ. Office of the United States Attorney PJKK Federal Building 300 Ala Moana Blvd. Suite 6100 Honolulu, Hawaii 96850 Attorneys for Defendant, United States of America ELLEN J. DURKEE, ESQ. STEVEN MISKINIS, ESQ. AARON P. AVILA, ESQ. U.S. Department of Justice Environmental & Natural Resources Division, Appellate Section P.O. Box 2795 (L’Enfant Station) Washington, D.C. 20026 Attorney for Defendant, United States of America Yuklin Aluli, Esq. AMBER WILLIAMS, ESQ. 415-C Uluniu Street Kailua, Hawaii 96734 Attorneys for Defendant-Intervenors |
Dated: Honolulu, Hawaii this 30th day of April, 2007.
____________________
H. WILLIAM BURGESS
Attorney for Plaintiffs