Office of Hawaiian Affairs v. Cayetano, No. 23309.

• Decision Date: 28 August 2000
• Docket Number: No. 23309.
• Citation: 94 Haw. 1,6 P.3d 799
• Parties: OFFICE OF HAWAIIAN AFFAIRS, Rowena Akana, Haunani Apoliona, Donald Cataluna, A. Frenchy Desoto, Louis Hao, Clayton Hee, Collette Machado, Hannah Springer, and Mililani Trask, in their Capacity as Trustees of the Office of Hawaiian Affairs, Petitioners, v. Benjamin J. CAYETANO, in his Capacity as Governor of the State of Hawai`i, Respondent.
• Court: Hawaii Supreme Court

6 P.3d 799

94 Haw. 1

OFFICE OF HAWAIIAN AFFAIRS, Rowena Akana, Haunani Apoliona, Donald Cataluna, A. Frenchy Desoto, Louis Hao, Clayton Hee, Collette Machado, Hannah Springer, and Mililani Trask, in their Capacity as Trustees of the Office of Hawaiian Affairs, Petitioners, v. Benjamin J. CAYETANO, in his Capacity as Governor of the State of Hawai`i, Respondent.

No. 23309.

Supreme Court of Hawai'i.

August 28, 2000.

William C. McCorriston, Robert G. Klein, and Jonathan H. Steiner, of McCorriston, Miho, Miller, Mukai, on the briefs, Honolulu, for petitioners.

Earl I. Anzai, Attorney General, Girard D. Lau and Charleen M. Aina, Deputy Attorneys General, on the briefs, for respondent.

MOON, C.J., LEVINSON, NAKAYAMA, and RAMIL, JJ. with ACOBA, J., Concurring Separately.

Opinion of the Court by RAMIL, J.

This is an original proceeding brought by Petitioners Office of Hawaiian Affairs and its trustees (OHA) and Respondent Governor Benjamin Cayetano, in his official capacity as Governor of the State of Hawai`i (Respondent), on an agreed statement of facts pursuant to Hawai`i Revised Statutes (HRS) § 602-5¹ and Hawai`i Rules of Appellate Procedure (HRAP) Rule 18² to answer the following questions:

1. Did the United States Supreme Court's recent opinion and judgment in Rice v. Cayetano, 528 U.S. 495, 120 S.Ct. 1044, 145 L.Ed.2d 1007 (2000)] create a "vacancy" that "occurs through any cause other than expiration of the term of office" under Haw.Rev.Stat. § 13D-5 as to those OHA trustees who were elected in 1996 and/or 1998?³

2. If the answer to question 1 is yes, so that the vacancy "shall be filled in accordance with section 17-7,"⁴ A. When does (or did) the vacancy occur?

B. Who is authorized under Haw.Rev. Stat. § 17-7 to fill the vacancy?

C. What is the time period the person (or persons) authorized to file the vacancy has (or have) to fill the vacancy?

For the reasons set forth below, we conclude that Rice v. Cayetano did not automatically create any vacancy in the Office of Hawaiian Affairs pursuant to HRS § 13D-5. We agree with Respondent's contention that the trustees became de facto trustees as a result of the issuance of Rice v. Cayetano, but Respondent presents no legal authority to support his contention that a finding that the trustees are de facto trustees automatically creates vacancies, which must be filled in accordance with HRS § 17-7.⁵ Neither HRS § 13D-5 or HRS § 17-7 create vacancies. The statutes set forth only the procedure to follow when a vacancy occurs. Thus, the answer to Question 1 is "NO." Because there are no vacancies in the Office of Hawaiian Affairs Board of Trustees as a result of the Rice v. Cayetano decision, it is unnecessary for the court to answer the remaining questions.

I. BACKGROUND

Petitioners Hannah Springer, Haunani Apoliona, and Collette Machado were elected as members of the board of trustees of OHA in the November 1996 election. Their terms expire this year, and they must run in the November 2000 election if they wish to retain their seats. Petitioners Rowena Akana, A. Frenchy DeSoto, Louis Hao, Clayton Hee, and Mililani Trask were elected as members of the board of trustees of OHA in the November 1998 election. Their terms do not expire until 2002. The Respondent appointed Petitioner Donald Cataluna to the OHA board of trustees on January 25, 2000, in accordance with HRS § 17-7, after the resignation of the OHA trustee from Kauai. If Petitioner Cataluna wishes to retain his seat, he must run in the November 2000 election.

In March 1996, Harold Rice applied to vote in the November 1996 special election for OHA trustees. The State denied his application because Rice is not of Hawaiian ancestry, a statutory qualification for participating in the election. Thereafter, Rice filed a complaint against Respondent in the United States District Court for the District of Hawai`i challenging the voting requirements for OHA trustees as violative of the Voting Rights Act of 1965, the Civil Rights Act of 1871, the fourteenth and fifteenth amendments to the United States Constitution, and article I, section 5 and article II, section 1 of the Hawai`i Constitution. Rice sought the following relief: (1) the convening of a three-judge district court panel, as required by 28 U.S.C. § 2284, to hear and determine the case; (2) a preliminary and permanent injunction enjoining the State from conducting any election in which the franchise is qualified by race; (3) a declaratory judgment that the qualification for voting complained of violates the fourteenth and fifteenth amendments to the United States Constitution, the Civil Rights Acts of 1866 and 1871, the Voting Rights Act of 1965, and article I, section 5 and article II, section 1 of the Hawai`i Constitution; (4) a declaratory judgment that the present trustees of OHA were unconstitutionally and unlawfully elected and have no power to act in furtherance of the laws of the State of Hawai`i; (5) an order directing the State of Hawai`i to pre-clear any future voting changes pursuant to Section 3(c) of the Voting Rights Act of 1965, 42 U.S.C. § 1973a, by submitting such to the court or the United States Attorney General; and (6) an award of costs to Rice.

On February 26 and 28, 1997, Rice and the State filed cross-motions for partial summary judgment on Rice's claim that the voting requirements for OHA elections violated the fourteenth and fifteenth amendments. The district court granted summary judgment in favor of the State, concluding that the method of electing OHA trustees as provided by state law met constitutional standards and did not violate the United States Constitution's ban on racial classification. Rice v. Cayetano, 963 F.Supp. 1547 (D.Haw.1997). Rice appealed from the decision, and, on June 22, 1998, the United States Court of Appeals for the Ninth Circuit issued an opinion affirming the district court decision. Rice v. Cayetano, 146 F.3d 1075 (9th Cir. 1998). The Ninth Circuit specifically noted that Rice had abandoned his claims under the Voting Rights Act and the Civil Rights Act and had not challenged the constitutionality of the underlying programs or of OHA itself.

The United States Supreme Court granted Rice's application for certiorari, 526 U.S. 1016, 119 S.Ct. 1248, 143 L.Ed.2d 346 (1999), and, on February 22, 2000, the Supreme Court issued an opinion reversing the appellate decision and holding that the race-based voting restriction under review was prohibited by the fifteenth amendment.⁶ Rice v. Cayetano, 528 U.S. 495, 120 S.Ct. 1044, 145 L.Ed.2d 1007 (2000). In rendering its decision, the Court noted that "[t]he validity of the voting restriction is the only question before us. As the court of appeals did, we assume the validity of the underlying administrative structure and trusts, without intimating any opinion on that point." Rice, 528 U.S. at ___, 120 S.Ct. at 1059. On February 29, 2000, the Supreme Court issued a judgment that states in relevant part:

[I]t is ordered and adjudged by this Court that the judgment of the above court in this cause is reversed with costs and the case is remanded to the United States Court of Appeals for the Ninth Circuit for further proceedings in conformity with the opinion of this court.

The case was subsequently remanded from the United States Court of Appeals to the district court. On April 4, 2000, Rice and the State entered into the following stipulation:

1. Judgment in this court be entered declaring only that denying plaintiff Harold F. Rice the right to vote in elections of trustees for the Office of Hawaiian Affairs because he is not "Hawaiian" violated the Fifteenth Amendment;

2. Other than to apply for costs and move for an award of reasonable attorney's fees, plaintiff seeks no further relief in this case;

3. No further issues or claims remain in this case to be decided or resolved.

On April 11, 2000, the district court issued an order approving the stipulation, and judgment was entered on April 18, 2000. Thus, although Rice sought a declaratory judgment that the present trustees were unconstitutionally and unlawfully elected and had no power to act in furtherance of the laws of the State of Hawai`i, in addition to his fifteenth amendment claim, the federal proceeding addressed only the validity of the race-based voting restriction in relation to the fifteenth amendment.⁷ No court issued any decision as to whether the present trustees have power to act as trustees.

On March 30, 2000, OHA and Respondent submitted this case on an agreed statement of facts, asking this court to answer the questions set forth above. According to the agreed statement of facts, Respondent takes the following position:

Respondent Governor Cayetano, in his capacity as Governor of the State of Hawai`i, has publicly taken the position that the elections of the eight elected OHA Trustees were invalid, and that the positions held by the eight elected OHA Trustees are therefore vacant, and that Respondent Cayetano has the authority to appoint replacement trustees to fill those alleged vacancies pursuant to Haw.Rev.Stat. § 17-7.

The official OHA position is as follows:

The OHA Trustees have publicly taken the position that there has been no express judicial determination that the elections of the current OHA Trustees were invalid or that the results of those elections are void, and that there is thus no vacancy which the Governor can fill, and therefore the current incumbent Trustees continue to serve legitimately through and until the termination of their current term of office.

The parties agree that their difference of opinion creates an "actual controversy" within the meaning of HRS § 632-1.⁸

OHA contends that the first question submitted to this court for decision must be answered "No" because the Rice decision did not create any vacancy under HRS § 13D-5, the decision being limited to the very narrow issue of the constitutionality of the "Hawaiians only" voting restriction....