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
University of Hawaii School of Law Library - Jon Van Dyke Archives Collection
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
University of Hawaii School of Law Library - Jon Van Dyke Archives Collection
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
University of Hawaii School of Law Library - Jon Van Dyke Archives Collection
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
University of Hawaii School of Law Library - Jon Van Dyke Archives Collection
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
University of Hawaii School of Law Library - Jon Van Dyke Archives Collection
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
University of Hawaii School of Law Library - Jon Van Dyke Archives Collection
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
University of Hawaii School of Law Library - Jon Van Dyke Archives Collection
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
University of Hawaii School of Law Library - Jon Van Dyke Archives Collection
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
University of Hawaii School of Law Library - Jon Van Dyke Archives Collection
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
University of Hawaii School of Law Library - Jon Van Dyke Archives Collection
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
University of Hawaii School of Law Library - Jon Van Dyke Archives Collection
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
University of Hawaii School of Law Library - Jon Van Dyke Archives Collection
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
University of Hawaii School of Law Library - Jon Van Dyke Archives Collection
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
University of Hawaii School of Law Library - Jon Van Dyke Archives Collection
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
University of Hawaii School of Law Library - Jon Van Dyke Archives Collection
\
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
University of Hawaii School of Law Library - Jon Van Dyke Archives Collection
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. ) )
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 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
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
University of Hawaii School of Law Library - Jon Van Dyke Archives Collection
TABLE OF CONTENTS
3
University of Hawaii School of Law Library - Jon Van Dyke Archives Collection
,
TABLE OF AUTHORITIES
4
University of Hawaii School of Law Library - Jon Van Dyke Archives Collection
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
University of Hawaii School of Law Library - Jon Van Dyke Archives Collection
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
University of Hawaii School of Law Library - Jon Van Dyke Archives Collection
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
University of Hawaii School of Law Library - Jon Van Dyke Archives Collection
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
University of Hawaii School of Law Library - Jon Van Dyke Archives Collection
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
University of Hawaii School of Law Library - Jon Van Dyke Archives Collection
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
8
University of Hawaii School of Law Library - Jon Van Dyke Archives Collection
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
9
University of Hawaii School of Law Library - Jon Van Dyke Archives Collection
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.
10
University of Hawaii School of Law Library - Jon Van Dyke Archives Collection
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
11
University of Hawaii School of Law Library - Jon Van Dyke Archives Collection
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
12
University of Hawaii School of Law Library - Jon Van Dyke Archives Collection
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
13
University of Hawaii School of Law Library - Jon Van Dyke Archives Collection
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.
14
University of Hawaii School of Law Library - Jon Van Dyke Archives Collection
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.
15
University of Hawaii School of Law Library - Jon Van Dyke Archives Collection
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
University of Hawaii School of Law Library - Jon Van Dyke Archives Collection
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
17
University of Hawaii School of Law Library - Jon Van Dyke Archives Collection
18
JON M. VAN DYKE MELODY K. MacKENZIE
Attorneys for Defendants-Appellees OFFICE OF HA W AllAN AFFAIRS
University of Hawaii School of Law Library - Jon Van Dyke Archives Collection