Arakaki v. Cayetano, Civil No. 02-00139 SOM/KSC.

• Decision Date: 18 June 2002
• Docket Number: Civil No. 02-00139 SOM/KSC.
• Citation: 299 F.Supp.2d 1107
• Parties: Earl F. ARAKAKI, et al., Plaintiffs, v. Benjamin J. CAYETANO in his official capacity as Governor of the State of Hawaii, et al., Defendants.
• Court: U.S. District Court — District of Hawaii

299 F.Supp.2d 1107

Earl F. ARAKAKI, et al., Plaintiffs, v. Benjamin J. CAYETANO in his official capacity as Governor of the State of Hawaii, et al., Defendants.

Civil No. 02-00139 SOM/KSC.

United States District Court, D. Hawai`i.

June 18, 2002.

H. William Burgess, Patrick W. Hanifin, Im Hanifin Parsons, LLLC, Honolulu, HI, for Plaintiffs.

Charlene M. Aina, Gerard D. Lau, State of Hawaii, Attorney General, Honolulu, HI, for Benjamin J. Cayetano, State Officials, Hawaiian Homes Commissioners.

Thomas A. Helper, U.S. Attorney's Office, Honolulu, HI, for United States of America.

Sherry P. Broder, Davies Pacific Center, Honolulu, HI, for Trustees of the Office of Hawaiian Affairs.

Robert G. Klein, McCorriston Miller Mukai MacKinnon, Honolulu, HI, for Defendant-Intervenor SCHHA.

ORDER DENYING PLAINTIFFS' MOTION FOR RECONSIDERATION OF THE ORDER DISMISSING THEIR PUBLIC LAND TRUST CLAIMS

MOLLWAY, District Judge.

I. INTRODUCTION.

On May 8, 2002, this court granted in part and denied in part a motion to dismiss ("Order"), 299 F.Supp.2d 1090, 2002 WL 32346742. The court found that Plaintiffs had taxpayer standing to assert equal protection challenges to the provision of benefits ("Benefits") by the Office of Hawaiian Affairs ("OHA"), the Department of Hawaiian Home Lands ("DHHL"), and the Hawaiian Homes Commission ("HHC") to Hawaiians and to native Hawaiians. However, the court found that Plaintiffs lacked standing to assert claims for breach of the public land trust created by section 5(f) of the Admissions Act.

To the extent the court dismissed their public land trust claims for lack of standing, Plaintiffs now move for reconsideration of the order. Plaintiffs fail to justify reconsideration of the order dismissing their public land trust claims. Their motion for reconsideration is denied.

II. RECONSIDERATION STANDARD.

Courts have established three grounds justifying reconsideration of an order: (i) an intervening change in controlling law, (ii) the availability of new evidence, and (iii) the need to correct clear error or prevent manifest injustice. Decker Coal Co. v. Hartman, 706 F.Supp. 745, 750 (D.Mont.1988); All Hawaii Tours v. Polynesian Cultural Ctr., 116 F.R.D. 645, 649 (D.Haw.1987), rev'd in part on other grounds, 855 F.2d 860, 1988 WL 86203 (9th Cir.1988). These grounds are set forth in Local Rule 60.1, which allows reconsideration of interlocutory orders upon the following grounds: (a) discovery of new material facts not previously available; (b) intervening change in the law; or (c) manifest error of law or fact.

III. ANALYSIS.

Plaintiffs argue that this court erred in finding that they lack standing to assert claims as beneficiaries of the public land trust created by section 5(f) of the Admissions Act.¹ Plaintiffs' arguments are unpersuasive.

A. Plaintiffs Did Not Timely Argue that They Are Proceeding on a Theory of Direct Injury. Even if Their Arguments Were Timely, They Are Insufficient For Standing Purposes.

Until recently, Plaintiffs had not asserted that they were victims of actual discrimination. See Order at 1095 n. 4, 1104-05. They did not, for example, assert that they had applied for Benefits and were turned down solely because of their race. Instead, Plaintiffs previously argued that injuries were based solely on the expenditure of their state taxes on allegedly racially discriminatory programs and the state's alleged breaches of a public land trust created to benefit them as well as others. On this motion for reconsideration, however, Plaintiffs assert what they say are "direct injuries" for purposes of the standing analysis. See Motion at 5. This argument is untimely and unpersuasive.

Plaintiffs raised the issue of direct injury through several supplemental declarations filed after the briefing period for the motion to dismiss closed. Plaintiffs claim that Rule 6 of the Federal Rules of Civil Procedure allows them to file such declarations. Even assuming that Rule 6 allows the filing of supplemental declarations after the briefing period has closed but before the hearing on a motion, those declarations clearly violated Local Rule 7.6. Local Rule 7.6 requires declarations and affidavits to contain only facts, not conclusions and argument. This court may disregard any declaration or affidavit not in compliance with Local Rule 7.6. The supplemental declarations of Patricia Carroll and Roger Grantham did not contain only facts, but instead were filled with speculative conclusory statements and argument.

For example, Carroll and Grantham postulated that, if the State did not fund the Benefits, Carroll could have a better graduate education and Grantham's daughter could have air conditioning in her classroom. But Carroll and Grantham never established that, but for the funding of the Benefits, money would actually be spent on the programs they identified. Even assuming that the money spent on the Benefits would be used for public education if it were not spent on the Benefits, there is no way of determining how that money would be used to further public education. That money might, for example, be used to enhance the state's special education or extracurricular programs. It is pure speculation and argument for Carroll and Grantham to conclude that they have suffered an injury because money now spent on the Benefits might be allocated in a manner that enhances Carroll's graduate education and adds air conditioning to Grantham's daughter's classroom. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (to have standing to maintain a claim, a plaintiff must demonstrate: 1) an injury in fact — an invasion of a legally protected interest that is concrete and particularized, as well as actual or imminent, not conjectural or hypothetical; 2) a causal relationship between the injury and the challenged conduct — an injury that is fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court; and 3) a likelihood, not mere speculation, that the injury will be redressed by a favorable decision); San Diego County Gun Rights Comm. v. Reno, 98 F.3d 1121, 1126 (9th Cir.1996). Accordingly, even though Plaintiffs say that they have suffered "direct injuries," those injuries are clearly insufficient to meet the requirements for standing.²

B. Plaintiffs Do Not Establish Their Entitlement to Proceed Based on Trust Beneficiary Standing.

Citing Com. of Pennsylvania v. Board of Dirs. of City Trusts of Philadelphia, 353 U.S. 230, 77 S.Ct. 806, 1 L.Ed.2d 792 (1957), Plaintiffs contend that they have trust beneficiary standing to assert a claim challenging the restriction of Benefits to Hawaiians and native Hawaiians as being racially discriminatory and therefore illegal. Pennsylvania held that the government, while acting as trustee of a public land trust, cannot enforce privately created racial classifications. Id. at 231, 77 S.Ct. 806. Pennsylvania, however, does not establish that Plaintiffs are entitled to trust beneficiary standing, as Pennsylvania involved a challenge by persons who claimed to have been victims of actual discrimination, not trust beneficiaries claiming that a trust term was illegal. Id. In Pennsylvania, the plaintiffs had actually applied for admission to the school that received the trust's funds for the benefit of "poor white male orphans." Id. The two plaintiffs were not admitted to the school based on their race, as they were not "white." They were victims of actual discrimination for standing purposes. Id. As there is no question that Plaintiffs here have not suffered any actual discrimination, Pennsylvania is inapplicable and Plaintiffs' citation to Pennsylvania does not establish a manifest error of law or fact by this court.³

Plaintiffs cite sections 166 and 214 of the Restatement of Trusts 2d for the propositions that a trustee has a duty not to comply with an illegal trust term, and that a trust beneficiary may sue to enforce the duties of the trustee "to him." These provisions do not purport to speak to the issue of federal court standing. Indeed, by referring to a trustee's breach of a duty "to him," the provisions appear to be referring more to direct injuries than to general challenges as to legality brought by members of the public. See Restatement (Second) of Trusts § 214, cmt. b (1959) ("A particular beneficiary cannot maintain a suit for a breach of trust which does not involve any violation of duty to him").

The Ninth Circuit has not broadly approved of trust beneficiary standing for members of the public to assert claims that the section 5(f) trust is being breached. At most, the Ninth Circuit has permitted native Hawaiians to attempt to compel Hawaii to abide by the terms of the section 5(f) trust. See Price III, 928 F.2d 824. In allowing native Hawaiians to assert claims that Hawaii was breaching the public land trust by comingling funds, expending none of those funds on native Hawaiians, and using the funds for purposes other than those listed in section 5(f), the Ninth Circuit cited section 391 of the Restatement of Trusts 2d. The Ninth Circuit was citing that provision for the proposition that the native Hawaiian claims were consistent with the common law of trusts that allows beneficiaries to assert breaches of trusts even though the trustee may, consistent with the trust instrument, use the trust solely to benefit others. Id. at 827. Section 391 states that, absent a "special interest" in the enforcement of a charitable trust, a member of the public may not maintain an action for the enforcement of that trust. Restatement (Second) of Trusts § 391 (1959).⁴ Although Price III did not deem the section 5(f) trust to be a charitable trust for which section 391 is applicable, the Ninth Circuit's citation of section 391 implies that some type of "special interest" is needed for a member of the public to bring a suit for...