Hoohuli v. Ariyoshi

Decision Date30 August 1984
Docket NumberNo. 83-1772,83-1772
Citation741 F.2d 1169
PartiesJosiah L. HOOHULI, et al., Plaintiffs-Appellants, v. George ARIYOSHI, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Mitsuo Uyehara, Honolulu, Hawaii, for plaintiffs-appellants.

Charlotte E. Libman, Honolulu, Hawaii, for defendants-appellees.

Appeal from the United States District Court for the District of Hawaii.

Before TIMBERS, * WALLACE, and SKOPIL, Circuit Judges.

SKOPIL, Circuit Judge:

The district court dismissed plaintiffs' complaint 1 for lack of jurisdiction on

the ground that the eleventh amendment barred the relief requested. In ruling on a motion for reconsideration, the court alternatively held that principles of qualified immunity shielded the defendants. We affirm in part and reverse in part.


Appellants are eleven residents 2 of the State of Hawaii and a tax-payers' advocacy group known as the Tax Payers Union. They brought this action under 42 U.S.C. Sec. 1983 and the fourteenth amendment to the United States Constitution alleging unlawful discrimination. Appellants claim injury as a result of a system established by the State of Hawaii to disburse benefits to residents who have descended from the aboriginal inhabitants of the islands.

The benefits program complained of had its genesis in 1978 when the Hawaii electorate approved an amendment to the Constitution of the State of Hawaii. Hawaii Const. art. XII. To implement Article XII, the state legislature established the Office of Hawaiian Affairs ("OHA") for the purpose of addressing the needs of residents who are descendants of the original occupants of the islands. See Hawaii Rev.Stat. Ch. 10.

Consistent with Article XII, the legislature defined two distinct classes of people to benefit from the programs: 3

"Hawaiian" means any descendant of the aboriginal peoples inhabiting the Hawaiian Islands which exercised sovereignty and subsisted in the Hawaiian Islands in 1778, and which peoples thereafter have continued to reside in Hawaii;

"Native Hawaiian" means any descendant of not less than one-half part of the races inhabiting the Hawaiian Islands previous to 1778, ... and which peoples thereafter continued to reside in Hawaii.

Hawaii Rev.Stat. Secs. 10-2(4) and (5). "Hawaiians," then, are persons of any percentage descent from the original inhabitants. "Native Hawaiians" are those of 50% or more descent. Nine of the individual plaintiffs in this case are alleged to be "native Hawaiians." The remaining two individual plaintiffs are neither "Hawaiians" nor "native Hawaiians."

Plaintiffs alleged injury in their capacity as taxpayers. They complained that their tax dollars were being spent on a program which disbursed benefits based on impermissible racial classifications. They argued that the classification "Hawaiian" set forth in section 10-2(4) and disbursement of benefits based on that classification violated the privileges and immunities, due process and equal protection provisions of the fourteenth amendment, as well as 42 U.S.C. Sec. 1983. They did not argue that "Native Hawaiian" is an impermissible classification. Plaintiffs asked for an injunction to prevent the defendants from spending tax monies from the state general fund for the benefit of the racial class "Hawaiians." Plaintiffs also asked for an accounting, to be followed by an order against the defendants, all of whom are state officials, requiring them to pay back into the state treasury from their own pockets any money that may have already been spent on "Hawaiians." Plaintiffs also requested costs and attorney fees.

On September 25, 1981 the district court granted the defendants' motion to dismiss. The court ruled that the action was, in essence, against the State of Hawaii, and that a state is not a "person" within the meaning of 42 U.S.C. Sec. 1983. The court also ruled that the complaint failed to make Plaintiffs appealed.

                out any other justiciable claim, and dismissed for lack of jurisdiction.  Upon plaintiffs' motion for reconsideration, the district court acknowledged that the complaint did state a claim for violation of the fourteenth amendment.  The court denied the motion, however, because it adhered to its earlier view that the action was essentially against the state and not the individually named defendants.  With regard to plaintiffs' prayer for monetary relief, the court found it "undoubtedly true that the state is the entity with ultimate responsibility for the funding."    Because the district court was persuaded that the state was the real party in interest, it also ruled that injunctive relief was barred by the eleventh amendment.  The district court ruled in the alternative that, even if the complaint be read as against the named defendants and not the state, the action was barred by the doctrine of qualified immunity

1. Is this action barred by the eleventh amendment?

2. Are defendants shielded by the doctrine of qualified immunity?

3. Do the Tax Injunction Act or principles of comity bar this action?

4. Do plaintiffs have standing as taxpayers?


Our review of a dismissal for lack of subject matter jurisdiction is de novo. Societe de Conditionnement v. Hunter Engineering Co., Inc., 655 F.2d 938, 941 (9th Cir.1981).

1. Eleventh Amendment

The eleventh amendment provides:

The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

The Supreme Court has recognized that the amendment reflects the fundamental principle of sovereign immunity as a limitation on the grant of judicial authority in Article III. E.g., Ex parte State of New York No. 1, 256 U.S. 490, 497, 41 S.Ct. 588, 589, 65 L.Ed. 1057 (1921). Thus, despite the limited terms of the amendment, federal courts cannot entertain an action brought by a citizen against his or her own state. E.g., Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). 4 Absent consent by the state or abrogation by Congress, 5 an action in which the state is the named defendant is prohibited by the eleventh amendment. See, e.g., Florida Department of Health v. Florida Nursing Home Association, 450 U.S. 147, 101 S.Ct. 1032, 67 L.Ed.2d 132 (1981); Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978).

An important exception to this general rule was recognized in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). There, the Supreme Court held that the eleventh amendment did not bar The Young exception is only applicable, however, where prospective relief is sought. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). In Edelman, appellants sought an injunction as well as damages. The Court held that injunctive relief was proper but the monetary relief, as a form of retroactive relief, was not. Id. at 664-65, 94 S.Ct. at 1356-57. Edelman represents an effort to balance the immunity of the states with the need to fulfill the underlying purpose of Ex parte Young. See Pennhurst, 104 S.Ct. at 910-11. Because Edelman reminds us that not all forms of relief are permitted, we must determine whether any of the forms requested by plaintiffs are barred.

                the federal courts from enjoining a state official from enforcing a state statute which allegedly violated the fourteenth amendment.  Id. at 155-58, 28 S.Ct. at 452-53.  Under the theory of Young, an action against a state official is not one against the state.  The eleventh amendment is thereby avoided.  See Pennhurst State School and Hospital v. Halderman, --- U.S. ----, 104 S.Ct. 900, 908-09, 79 L.Ed.2d 67 (1984).  "[T]he Young doctrine has been accepted as necessary to permit the federal courts to vindicate federal rights and hold state officials responsible to 'the supreme authority of the United States.' "    Id. 104 S.Ct. at 910, quoting Young, 209 U.S. at 160, 28 S.Ct. at 454;  see, e.g., Quern v. Jordan, 440 U.S. 332, 337, 99 S.Ct. 1139, 1143, 59 L.Ed.2d 358 (1979);  Scheuer v. Rhodes, 416 U.S. 232, 237, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974)

We find that the Young exception to the eleventh amendment is applicable to this case. The named defendants are all state officials rather than the state or its agencies. The complaint alleges violations of the fourteenth amendment directly and through section 1983. Clearly the requested injunction is not barred by the eleventh amendment. 6 See, e.g., Edelman, 415 U.S. at 664, 94 S.Ct. at 1356; Ex parte Young, 209 U.S. at 155-58, 28 S.Ct. at 452-53.

We have more difficulty with plaintiffs' requests for an accounting and repayment. The district court was of the view that the relief requested would ultimately be paid by the state. Were that true, of course, such relief would be barred. A suit seeking to impose a liability which ultimately must be paid by the state is barred by the eleventh amendment. Edelman, 415 U.S. at 663-68, 94 S.Ct. at 1355-58; Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945); cf. Goodisman v. Lytle, 724 F.2d 818, 820 (9th Cir.1984) (award of prospective relief that requires ancillary payment from state treasury is not barred).

We need not decide if the monetary relief requested would inevitably be paid out of funds from the State Treasury. The request for relief is barred for a different reason. We find that plaintiffs, by requesting repayment to the state rather than damages for themselves, are seeking to protect the interests of the state. Plaintiffs lack standing to assert the interests of the state.

"[A] general standing limitation imposed by federal courts is that a litigant will ordinarily not be permitted to assert the rights of absent third parties." Flast v. Cohen, 392 U.S. 83, 99 n. 20, 88 S.Ct. 1942,...

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