Office of Hawaiian Affairs v. Hcdch

• Decision Date: 27 October 2009
• Docket Number: No. 25570.,25570.
• Citation: 121 Haw. 324,219 P.3d 1111
• Parties: OFFICE OF HAWAIIAN AFFAIRS, Rowena Akana, Haunani Apoliona, Dante Carpenter, Donald Cataluna, Linda Dela Cruz, Colette Machado, Boyd P. Mossman, Oswald Stender, And John Waihe`e, IV, in their official capacities as members of the Board of Trustees of the Office of Hawaiian Affairs, Pia Thomas Aluli, Jonathan Kamakawiwo`ole Osorio, Charles Ka`ai`ai, and Keoki Maka Kamaka Ki`ili, Plaintiffs-Appellants, v. HOUSING AND COMMUNITY DEVELOPMENT CORPORATION OF HAWAI`I (HCDCH), Robert J. Hall, in his capacity as Acting Executive Director of HCDCH, Charles Sted, Chair, Stephanie Aveiro, Francis L. Jung, Charles King, Lillian B. Roller, Betty Lou Larson, Theodore E. Liu, Travis Thompson, Taiaopo, Tuimaleialiifano, Members of the Board of Directors of HCDCH, State of Hawai`i, and Linda Lingle, in her capacity as Governor, State of Hawai`i, Defendants-Appellees.
• Court: Hawaii Supreme Court

219 P.3d 1111

121 Haw. 324

OFFICE OF HAWAIIAN AFFAIRS, Rowena Akana, Haunani Apoliona, Dante Carpenter, Donald Cataluna, Linda Dela Cruz, Colette Machado, Boyd P. Mossman, Oswald Stender, And John Waihe`e, IV, in their official capacities as members of the Board of Trustees of the Office of Hawaiian Affairs, Pia Thomas Aluli, Jonathan Kamakawiwo`ole Osorio, Charles Ka`ai`ai, and Keoki Maka Kamaka Ki`ili, Plaintiffs-Appellants, v. HOUSING AND COMMUNITY DEVELOPMENT CORPORATION OF HAWAI`I (HCDCH), Robert J. Hall, in his capacity as Acting Executive Director of HCDCH, Charles Sted, Chair, Stephanie Aveiro, Francis L. Jung, Charles King, Lillian B. Roller, Betty Lou Larson, Theodore E. Liu, Travis Thompson, Taiaopo, Tuimaleialiifano, Members of the Board of Directors of HCDCH, State of Hawai`i, and Linda Lingle, in her capacity as Governor, State of Hawai`i, Defendants-Appellees.

No. 25570.

Supreme Court of Hawai`i.

October 27, 2009.

As Amended November 24, 2009.

Yuklin Aluli, Kailua, Richard Naiwieha Wurdeman, Mililani B. Trask, and Dexter K. Kaiama, for plaintiff-appellant Osorio.

Mark J. Bennett, Attorney General, and William J. Wynhoff and Kimberly Tsumoto Guidry, Deputy Attorneys General, for defendants-appellees State.

MOON, C.J., NAKAYAMA, ACOBA, and RECKTENWALD, JJ.; and Circuit Judge CHAN, In Place of DUFFY, J., Recused.

Opinion of the Court by MOON, C.J.

On July 15, 2009, defendants-appellees State of Hawai`i (State), the Housing and Community Development Corporation of Hawai`i (HCDCH) and its executive director and board of directors, as well as Linda Lingle, in her capacity as Governor of the State [hereinafter, collectively, the State] filed a motion to dismiss the claims of plaintiff-appellant Jonathan Kamakawiwo`ole Osorio (who is the only remaining plaintiff-appellant in the above-captioned case,<sup>1</sup> which was remanded from the United States Supreme Court on May 4, 2009), contending, inter alia, that Osorio's claims "are not justiciable" inasmuch as: (1) he lacks standing to pursue the instant case; (2) the case is no longer ripe for adjudication; and (3) Osorio seeks an impermissible advisory opinion.<sup>2</sup> At the outset, we observe that the State's arguments set forth in its motion, discussed more fully infra, focus on the justiciability of Osorio's claims, not merely his appeal. However, were we to grant the State's requested relief, i.e., grant its motion to dismiss, we would effectively be dismissing Osorio's appeal and, thereby divest this court of jurisdiction to address the substance of the arguments presented therein, i.e., the justiciability of Osorio's claims — a result that the State presumably could not have intended. We, therefore, deny the State's motion to dismiss Osorio's appeal and retain jurisdiction over this case. In so doing, we are mindful of our duty to consider, sua sponte, jurisdictional issues such as standing and ripeness. Akinaka v. Disciplinary Bd. of Hawai`i Supreme Court, 91 Hawai`i 51, 55, 979 P.2d 1077, 1081 (1999) (holding that "although neither the parties nor the trial court considered the question of standing, this court has a duty, sua sponte," to determine whether the plaintiff has standing (citations omitted)); see also Kapuwai v. City & County of Honolulu, 121 Hawai`i 33, 39, 211 P.3d 750, 756 (2009) (holding that "[i]t is axiomatic that ripeness is an issue of subject matter jurisdiction"). Accordingly, inasmuch as the parties have "briefed" the issues of standing and ripeness in their memoranda in support of, and in opposition to, the motion, we address the justiciability of Osorio's claims, i.e., whether (1) Osorio has standing to prosecute his complaint against the State, (2) the case remains ripe for adjudication; and/or (3) Osorio seeks an impermissible advisory opinion.

In his memorandum in opposition to the State's motion, filed August 5, 2009, Osorio argues, inter alia, that he: (1) "has standing to proceed in this matter as a Hawaiian"; (2) raises claims and issues that are ripe; and (3) does not seek an impermissible advisory opinion. On August 14, 2009, the State, with the permission of this court, filed a reply to Osorio's memorandum in opposition, essentially providing further support for the threshold issues of justiciability that it had raised originally in its motion.

Based on the discussion below, we hold that (1) Osorio has standing in this case, but (2) his asserted claims are not ripe for adjudication. Thus, we vacate the circuit court's January 31, 2003 judgment and remand the case for entry of a judgment dismissing Osorio's claims against the State without prejudice.

I. BACKGROUND

As this court stated in Office of Hawaiian Affairs v. Housing and Community Development Corp. of Hawai`i [hereinafter, OHA v. HCDCH], 117 Hawai`i 174, 177 P.3d 884 (2008):

[T]he instant action arises from the [State's] efforts in the mid-1990s to transfer certain parcels of ceded lands to private entrepreneurs for the purpose of residential development. On August 11, 1995, the plaintiffs [ (including Osorio) ] filed suit, seeking an injunction against the [State] from selling or otherwise transferring to third parties two specific parcels of ceded lands located on the islands of Maui and Hawai`i, as well as any ceded lands from the public lands trust. Alternatively, the plaintiffs [ (including Osorio) ] sought a declaration that the State was not authorized to alienate ceded lands from the public lands trust or, if the trial court ruled the State was so authorized, a declaration that ... such alienation would not limit the claims of native Hawaiians to the ceded lands.

On December 5, 2002, the trial court ruled in favor of the [State], concluding that the plaintiffs' [including Osorio's] claims were barred by the doctrines of: (1) sovereign immunity; (2) waiver and estoppel; and (3) justiciability-specifically, political question, ripeness, and the mandate against advisory opinions. Nevertheless, the trial court also concluded that the State had the express authority to alienate ceded lands from the public lands trust. [A Hawai`i Rules of Civil Procedure (HRCP)] Rule 54(b) [(2007)] judgment was, thereafter, entered on January 31, 2003, and the plaintiffs [ (including Osorio) ] appealed.

117 Hawai`i at 180-81, 177 P.3d at 890-91 (footnote omitted).

On appeal before this court, the plaintiffs (including Osorio) challenged the aforementioned determinations made by the trial court. Id. at 181, 177 P.3d at 891. We reversed the trial court's judgment, holding, inter alia, that: (1) the Joint Resolution to Acknowledge the 100th Anniversary of the January 17, 1893 Overthrow of the Kingdom of Hawaii [hereinafter, the Apology Resolution], which was signed into law by then-President Bill Clinton on November 23, 1993 as Public Law No. 103-150, 107 Stat. 1510 (1993),³ gave rise to a fiduciary duty on the part of the State — as trustee of the ceded lands — to preserve the corpus of the public lands trust until "such time as the unrelinquished claims of native Hawaiians have been resolved"; (2) the plaintiffs' (including Osorio's) claims were not barred by the doctrine of sovereign immunity; (3) the claims were ripe; and (4) the action did not present a nonjusticiable political question. Id. at 197-210, 217, 177 P.3d at 907-21, 927. Accordingly, we

remand[ed] th[e] case to the circuit court with instructions to issue an order granting the plaintiffs' [ (including Osorio's) ] request for an injunction against the [the State] from selling or otherwise transferring to third parties (1) the parcel of ceded land on Maui [ (the Leiali`i parcel) ] and (2) any ceded lands from the public lands trust until the claims of the native Hawaiians to the ceded lands has been resolved.

Id. at 181, 177 P.3d at 891.

Thereafter, the State petitioned the United States Supreme Court for a writ of certiorari and, on October 1, 2008, the Court granted the State's petition. Oral argument was held before the Court on February 25, 2009. On March 31, 2009, the Court issued its decision in Hawai`i v. Office of Hawaiian Affairs, ___ U.S. ___, 129 S.Ct. 1436, 1445, 173 L.Ed.2d 333 (2009), wherein it held that the Apology Resolution could not be read to "create a retroactive `cloud' on the title [of the ceded lands] that Congress granted to the State of Hawai`i in 1959." ___ U.S. at ___, 129 S.Ct. at 1445. However, the Court stated that it "ha[d] no authority to decide questions of Hawaiian [i.e., state] law or to provide redress for past wrongs except as provided for by federal law." Id. Accordingly, the Court reversed the judgment of this court and remanded the case "for further proceedings not inconsistent with [its] opinion." Id.

The plaintiffs (excluding Osorio) and the State [hereinafter, collectively, the parties] forwarded a joint letter to this court on May 4, 2009, advising that "the parties [ (except Osorio) had] reached a tentative settlement contingent upon S.B. 1677, C.D. 1,[⁴] becoming law." In response thereto, on May 15, 2009, we ordered that the parties and Osorio "shall inform this court as soon as possible, but no later than July 17, 2009, whether there is any effective settlement in this matter, and, if so, whether any claims remain in this case." In accordance with this court's May 15, 2009 order, the parties filed a joint motion, on July 15, 2009, seeking dismissal of the plaintiffs' (excluding Osorio's) appeal, pursuant to HRAP Rule 42(b),⁵ inasmuch as S.B. 1667 had become law, and, thus, the settlement agreement between the parties was final. See supra note 1.

II. DISCUSSION

A. Standing

1. The State's and Osorio's Arguments

The State argues that this court should dismiss Osorio's remaining claims because he lacks standing to "advance any claims on behalf of native Hawaiians or to assert any injury to or breach of any duty owed to native Hawaiians." More specifically, the State argues that Osorio does not have standing as he is not a beneficiary of the section 5(f)...