Carroll v. Nakatani

• Decision Date: 02 September 2003
• Docket Number: No. 02-15565.,No. 02-15483.,02-15483.,02-15565.
• Citation: 342 F.3d 934
• Parties: John CARROLL, Plaintiff-Appellant, v. James NAKATANI, in his capacity as Chairperson/Director of the State of Hawaii Department of Agriculture; Paul Lamahieu, in his capacity as Chairperson/Director of the State of Hawaii Department of Education; Timothy E. Johns, in his capacity as Chairperson/Director of the State of Hawaii Department of Land and Natural Resources; Seiji Naya, in his capacity as Chairperson/Director of the State of Hawaii Department of Business Economic Development & Tourism; Kazu Hayashida, in his capacity as Chairperson/Director of the State of Hawaii Department of Transportation; Raymond Sato, in his capacity as Chairperson/Director of the State of Hawaii Department of Accounting and General Services; State of Hawaii; Benjamin J. Cayetano, in his official capacity as the Governor of the State of Hawaii; Office of Hawaiian Affairs; Charles Ota; Collette Machado; Nalani Olds; Nani Brandt; Clayton Hee; Gladys Brandt; Dante Carpenter; Ilei Beniamina; and Hannah Springer, in their capacities as Trustees of the Board of Trustees of the Office of Hawaiian Affairs, Defendants-Appellees. Patrick Barrett, Plaintiff-Appellant, v. State of Hawaii; Benjamin J. Cayetano, in his official capacity as Governor, State of Hawaii, Defendants-Appellees, Ilio`Ulaokanani Coalition, Inc.; Victoria Holt-Takamine; Piilani Smith; Wayne Kaho`Onei Panoke; Momi Kamahele; State Council of Hawaiian Homestead Association; Anthony Sang, Sr.; Office of Hawaiian Affairs; Trustees of the Office of Hawaiian Affairs, Rowena Akana, Huanani Apoliona, Don Cataluna, Linda Dela Cruz, Clayton H.W. Hee, Colette Y. Machado, Charles Ota, Oswald K. Stender, in their official capacity as Trustees of the Office of Hawaiian Affairs, Defendants-Intervenors-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

342 F.3d 934

John CARROLL, Plaintiff-Appellant, v. James NAKATANI, in his capacity as Chairperson/Director of the State of Hawaii Department of Agriculture; Paul Lamahieu, in his capacity as Chairperson/Director of the State of

Hawaii Department of Education; Timothy E. Johns, in his capacity as Chairperson/Director of the State of Hawaii Department of Land and Natural Resources; Seiji Naya, in his capacity as Chairperson/Director of the State of Hawaii Department of Business Economic Development & Tourism; Kazu Hayashida, in his capacity as Chairperson/Director of the State of Hawaii Department of Transportation; Raymond Sato, in his capacity as Chairperson/Director of the State of Hawaii Department of Accounting and General Services; State of Hawaii; Benjamin J. Cayetano, in his official capacity as the Governor of the State of Hawaii; Office of Hawaiian Affairs; Charles Ota; Collette Machado; Nalani Olds; Nani Brandt; Clayton Hee; Gladys Brandt; Dante Carpenter; Ilei Beniamina; and Hannah Springer, in their capacities as Trustees of the Board of Trustees of the Office of Hawaiian Affairs, Defendants-Appellees.

Patrick Barrett, Plaintiff-Appellant, v. State of Hawaii; Benjamin J. Cayetano, in his official capacity as Governor, State of Hawaii, Defendants-Appellees, Ilio`Ulaokanani Coalition, Inc.; Victoria Holt-Takamine; Piilani Smith; Wayne Kaho`Onei Panoke; Momi Kamahele; State Council of Hawaiian Homestead Association; Anthony Sang, Sr.; Office of Hawaiian Affairs; Trustees of the Office of Hawaiian Affairs, Rowena Akana, Huanani Apoliona, Don Cataluna, Linda Dela Cruz, Clayton H.W. Hee, Colette Y. Machado, Charles Ota, Oswald K. Stender, in their official capacity as Trustees of the Office of Hawaiian Affairs, Defendants-Intervenors-Appellees.

No. 02-15483.

No. 02-15565.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 14, 2003 — San Francisco, California.

Filed September 2, 2003.

COPYRIGHT MATERIAL OMITTED

William S. Helfand, Magenheim, Bateman & Helfand, P.L.L.C., Houston, Texas, for appellant Barrett.

Paul D. Hicks, Law Offices of Richard Lee, Honolulu, Hawaii, for appellant Carroll.

Girard D. Lau, Deputy Attorney General, Honolulu, Hawaii, for the appellees.

Sherry P. Broder, Honolulu, Hawaii; Robert G. Klein and Philip W. Miyoshi, McCorriston, Miller, Mukai, MacKinnon, L.L.P., Honolulu, Hawaii, for the intervenors.

Appeals from the United States District Court for the District of Hawaii; David A. Ezra, District Judge, Presiding. D.C. Nos. CV-00-00641-DAE, CV-00-00645-DAE(KSC).

Before: PROCTER HUG, JR., ARTHUR L. ALARCÓN, and SUSAN P. GRABER, Circuit Judges.

OPINION

HUG, Circuit Judge.

This case stems from the Supreme Court's recent decision, Rice v. Cayetano, holding that the ancestry classification "Hawaiian," as provided in Article XII of the Hawaiian State Constitution, is race-based. 528 U.S. 495, 514-15, 120 S.Ct. 1044, 145 L.Ed.2d 1007 (2000). In Rice, the Supreme Court issued a narrow ruling that limiting voter eligibility to elect the trustees to the Office of Hawaiian Affairs, a state agency, to "Hawaiians" violated the Fifteenth Amendment. Id. at 517, 120 S.Ct. 1044. The Rice Court expressly assumed, but did not decide, the validity of the underlying administrative structure and the allocation of benefits based upon Hawaiian classification. Id. at 521-22, 120 S.Ct. 1044.

Patrick Barrett ("Barrett") and John Carroll ("Carroll") now challenge this allocation of benefits. Barrett and Carroll claim Article XII of the Hawaiian Constitution, and the statutes implementing it, violate the Equal Protection clause of the Fourteenth Amendment because it restricts benefits to only those classified as "native Hawaiians"¹ or "Hawaiians."² Neither Barrett nor Carroll is Hawaiian or native Hawaiian. We address whether the district court properly dismissed for lack of standing Barrett and Carroll's equal protection challenges to Article XII of the Hawaiian State Constitution.

I. BACKGROUND

On October 3, 2000, Barrett filed his original complaint in the District of Hawaii. He claims that Article XII of the Hawaiian State Constitution violates the Fourteenth Amendment because it permits the allocation of government benefits on the basis of race. He challenges the Article's creation of two state agencies and their implementation of particular benefit programs, specifically the Office of Hawaiian Affairs ("OHA") and its business loan program, and the Hawaiian Homestead Commission ("HHC") and its homestead lease program.³ Barrett seeks a declaration that he and all races are entitled to seek the government rights and benefits created by Article XII. Barrett's case was consolidated by the district court on December 15, 2000, with companion-appellant Carroll.

On October 2, 2000, Carroll filed his original complaint in the District of Hawaii. He claims that Article XII and Hawaii Revised Statute chapter 10 violate the Fourteenth Amendment by classifying individuals and allocating government benefits on the basis of race. He challenges the Article's creation and funding of the OHA. Carroll seeks a declaration that these provisions invidiously discriminate on the basis of race, and requests the court to enjoin the state from allocating benefits through the OHA on the basis of race.

The district court granted summary judgment against Barrett on July 12, 2001. The court concluded that Barrett lacked standing to challenge the OHA's business loan program because he did not suffer an injury in fact. The court also concluded that Barrett lacked standing to challenge HHC's homestead lease program because he failed to demonstrate that a ruling in his favor would likely redress his grievance due to his decision not to include the United States as a party. The United States has reserved to itself through the Hawaiian Admission Act of 1959 the right of consent before any alteration of the system of Hawaiian homestead leases can be made. Barrett strategically avoided the inclusion of the United States as a party until after the unfavorable summary judgment order.

On July 19, 2001, Barrett filed before the district court a motion to reconsider the order granting summary judgment. Barrett raised two new issues to justify reconsideration, neither of which was previously raised or briefed before the district court. First, Barrett claimed that once the district court determined that federal law was implicated in this case, it was required to notify the United States under 28 U.S.C. § 2403 and allow it the opportunity to intervene. Second, Barrett contended that if § 2403 was not implicated, or if the United States declined its right to intervene, the court should nevertheless join the United States as a party pursuant to Federal Rule of Civil Procedure 19(a).

On September 18, 2001, the district court denied Barrett's motion for reconsideration. It held that Barrett's failure to advance these arguments at the appropriate time justified denial. It also offered alternative holdings to deny Barrett's motion. The district court concluded that notification was not necessary under 28 U.S.C. § 2403(a) because the purpose of the rule is to ensure that courts not rule on the constitutionality of an Act of Congress without first receiving input from the United States. Here, Barrett invoked § 2403(a) to remedy his own legal and strategic shortcomings of standing. Additionally, in the district court's opinion, § 2403(a) does not apply because the district court did not "directly" hold that the constitutionality of any Acts of Congress were drawn into question. Finally, the court concluded that fairness concerns required denial because throughout the litigation, Barrett maintained that he was not challenging the constitutionality of any federal law.

The district court likewise rejected Barrett's Rule 19(a) joinder argument. Barrett consistently sought to avoid inclusion of the United States in his lawsuit. It held that reasons of fairness prevented joinder at this late time to cure his standing problem. The court also noted that the purpose of Rule 19 would not be served by joinder because the rule is intended to protect the interest of absent parties, not cure defects in standing that could have otherwise been remedied much earlier.

Lastly, the court held that Barrett's injury was not redressable because there was no likelihood that a favorable ruling from the district court would enable Barrett to compete on an equal footing. The only reason for the homestead lease program is to benefit native Hawaiians. If declared unconstitutional, nothing guarantees the State would continue to operate the program.

The district court granted summary judgment against Carroll on February 22, 2002. The court concluded that Carroll lacked standing to challenge the constitutionality of Article XII and chapter 10 because he did not demonstrate any injury from the denial of equal treatment. The district court concluded that Carroll presented only a generalized grievance against the OHA's allocation of benefits to Hawaiians and native Hawaiians. The court rejected Carroll's contention that his standing claim of "representational harm" was analogous to standing in voting rights cases.

Jurisdiction before this court is proper under 28 U.S.C. § 1291.

II. STANDARD OF REVIEW

Standing is a question of law reviewed de novo. Bernhardt v. County of Los Angeles, 279 F.3d 862, 867 (9th Cir.2002).

A grant of summary judgment is reviewed de novo. Oliver v. Keller, 289 F.3d 623, 626 (9th Cir.2002). The appellate court must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court properly applied the relevant substantive law. Id.

The district court's denial of a motion for reconsideration is reviewed for an abuse of discretion. Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 883 (9th Cir.2000).

III. STANDING

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