Opposition Brief — Hall v. Hawaii

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FIL

G SEP P1988

No. 88-212 siti taentan: sa

=GEERR

In The

Supreme Court of the United States

October Term, 1988

Rosert W. Hatt,

Appellant,

State or Hawan, University or Hawan, tHE WituiamM S.

RicHarpson ScuHoou or Law, Ausert J. Simone, STEPHEN

G. Bess, Guapys A. Branpt, Grecory Dreta Cruz, JULIA

FrouuicH, Ropert M. Fustrmoro, James G. Gary, DANIEL

M. IsHn, Kennetu N. Kato, Stantey Y. Muxar, WALTER

R. Steicer, Burt S. Tsucurya, Roprn Campaniano, Marvin

J. AnpEerson, Ricuarp 8. Mituer, JupirH M. KirKEnpDaALL,

Wruramson B.C. CuHanc, IRENE Ryprnski, Lawrence H.

Kam, Bone Uate, Write Dominco, Dean Kavuxka, JEREMY

T. Harrison, JaMEs H. DanNENBERG, Ronatp C. Brown,

AND JOHN E. Picxkron,

Appellees.

fa’

ON APPEAL FROM THE INTERMEDIATE

COURT OF APPEALS OF THE STATE OF HAWAII

fay

MOTION TO DISMISS OR AFFIRM

fa’

Warren Price, ITI*

Attorney General

State of Hawaii

*Counsel of Record

Steven 8S. MicHakEts

Deputy Attorney General

Room 405, State Capitol

Honolulu, Hawaii 96813

(808) 548-4740

Counsel for Appellees

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

or call collect (402) 342-2831

1i/o2

a.)

QUESTIONS PRESENTED

1. Whether appellant has properly invoked this

Court’s mandatory appellate jurisdiction under 28 U.S.C.

§ 1257(2) when, rather than drawing in question on fed-

eral grounds the validity of a state statute, appellant chal-

lenges the application of preclusion arising out of a fed-

eral judicial decree, 7.e., Hall v. State, 791 F.2d 759 (9th

Cir. 1986) (‘‘Hall I’’)?

2. Whether, assuming the above does not bar review,

appellant may obtain review of claimed federal constitu-

tional improprieties in the state court’s disposition of fed-

eral preclusion defenses when such claimed wrongs were

not timely raised in or passed upon by the lower state

courts in the case?

‘

3. Whether, assuming the papers whereon appeal was

taken may be treated as a petition for certiorari, or man-

datory appellate jurisdiction exists despite the foregoing,

the Court lacks jurisdiction under the independent and

adequate state ground doctrine or under the Constitution’s

Eleventh Amendment?

4. Whether, assuming the above do not bar review,

any substantial question is presented by a state court’s

application of the doctrine of federal merger and bar and

collateral estoppel when (a) claims arising under federal

law, and upon which state law provides no greater pro-

tection, were decided on their merits in the prior federal

proceeding; (b) claims arising under state law against the

defendants in the prior proceeding in their individual

capacities and arising out of the identical set of transac-

tions were not dismissed pursuant to United Mine Work-

ers v. Gibbs, 383 U.S. 715 (1966); (ce) the present federal

and state claims arise in a factual context that is ma-

terially identical to that presented in the prior federal ac-

tion; and (d) all defendants in the present state court pro-

ceeding are in privity with those in the earlier filed fed-

eral action?

5. Whether, even assuming appellant has properly

alleged error in the state court’s application of federal pre-

clusion principles, appellant on the record developed in the

state court has standing or is able to show prejudicial

error in light of numerous alternative grounds for affirm-

ing the judgment, including, but not limited to, the facial

defects in appellant’s state court complaint, the undisputed

record on summary judgment, and the recent decision of

Peers Tee

iil

the Supreme Court of Hawaii adverse to appellant in State

of Hawaii v. Hall, No. 12636?"

* Appellant, who appears pro se, is a 53 year-old white male

resident of the State of Hawaii who applied in admission years

1984-86 to the William S. Richardson Schoo! of Law at the Uni-

versity of Hawaii at Manoa, an agency of the State of Hawaii.

See Haw. Rev. Stat. §§ 304-5, 304-6, 304-62 (1985). Appellees

in this appeal include the State of Hawaii, the University of

Hawaii, the School of Law, and twenty-six University officers

and student members of the admission committees of the

School of Law named in their official and individual capacities.

See Kentucky v. Graham, 473 U.S. 159, 165-168 (1985). The

officials and student committee members include Albert J. Si-

mone, President of the University of Hawaii since August 8,

1985, and Acting President since June 1, 1984; Stephen G. Bess,

Gladys A. Brandt, Gregory Dela Cruz, Julia Frohlich, Robert M.

Fujimoto, James G. Gary, Daniel M. Ishii, Kenneth N. Kato,

Stanley Y. Mukai, Walter R. Steiger, Burt S. Tsuchiya, and Robin

M. Campaniano, members at various times of the Board ol

Regents of the University of Hawaii; Marvin Anderson, at vari-

out times the Chancellor of the University of Hawaii at Manoa;

Richard S. Miller, Dean of the School of Law in admission

year 1984; Judith Kirkendall, Registrar at various times for the

School of Law, Williamson B.C. Chang and Irene Rypinski, mem-

bers of the School of Law faculty and admissions committee in

admission yeat 1984; Lawrence H. Kam, Assistant Dean and

member of the admissions committee in admissions years 1984-

86; Ronald C. Brown and John E. Pickron, members of the faculty

and admission committee in admission years 1985-86; Bode

Uale, Willie Diomingo, and Dean Kauka, students at the School

of Law and members of the admission committee in admission

year 1984; Jeremy T. Harrison, acting Dean of the School of

Law in admission year 1985, and Dean of the School of Law

in admission year 1986; and James H. Dannenberg, Deputy

Attorney General and later First Deputy Attorney General through

about May 1986, who acted as co-defense counsel for defendants

in Hall | up until his appointment as a District Judge for the

District of Honolulu, State of Hawaii, and resignation from the

Department of the Attorney General.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED i

TABLE OF CONTENTS _.. I ee viene . iv

TABLE OF AUTHORITIES Vv

OPINIONS INVOLVED 2

PERU UTIEIE cscs ee nes als clcestledenideanitnien 3

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED 3

STATEMENT OF THE CASE Www. . 6

ARGUMENT . slanienaanacetliapeasoae. 12

I. Appellant Has Not Drawn In Question a State

111.

lV.

Statute and Therefore the oo Appe llate

Jurisdiction Fails. ene aiediiaubieaee

Appellant’s Federal Constitutional Claim Was

Not Properly Presented in the Courts Below. ..

A ppellant’s Claims in this Court are Barred by

the Independent and Adequate State Ground

Doctrine and the Eleventh Amendment.

Appellant’s Challenge to the Lower Courts’

Analysis of Federal Preclusion Doctrine is In-

Se a tet ee eee,

In Light of the Substantial Alternative Grounds

for Entry of Judgment, Review Should Be

Denied. icVinat

Co aI Eee A a a EE

TABLE Ol’ AUTHORITIES

Page

Aguiar v. Hawaii Housing Authority, 55 Haw.

Sa ee ec ee ED | wertscatetnnennntntimcaien 26

Airgo, Inc. v. Horizon Cargo Transp., Inc., 66

Haw. 590, 670 P.2d 1277 (1983) 20... 17

Ala Moana Boat Owners v. State, 50 Haw. 156,

I re ee Oe pits eens 17

Anderson v. Creighton, 107 S. Ct. 3084 (1987) 000... 26

Bailey v. Anderson, 326 U.S. 203 (1945) 0... 16

Bankers Life and Casualty Co. v. Crenshaw, 108 8S.

Ct. 1645 (1988) WW. SIRT Real - aeabisibatidaaadbecedea 17

Big Island Small Ranchers Assoc. v. State, 60

Haw. 228, 588 P.2d 430 (1978) .. 95

Bullen v. DeRego, 724 P.2d 106 (Haw. 1987) . 24)

Charleston Federal Savings & Loan Association

w. Aidaracm, TIA TTB. BES CEPI) cccccenccseccsstsctatieneienes 15

City Bank v. Saje Ventures II, 748 P.2d 812

CHE. Bint, RD eeecccentntee annie 16

City of Los Angeles v. Heller, 475 U.S. 797 (1986)

2) ee sitiiia ibaa oinanebanain . 23

County of Oneida v. Oneida Indian Nation, 470

Ce 2 ee: ee . 20

Costa v. Able Distributors, Inc., 3 Haw. App. 486,

GR ae Sk Ce ateeeeeeeeenieak 26

Demorest v. City Bank, 321 U.S. 36 (1944) 19

Department of Banking v. Pink, 317 U.S. 264 (1942) 1d

District of Columbia Court of Appeais v. Feld-

— ww Lis S Fh - ; aeeeneeeermmnmee. re 16

Ex Parte Young, 209 U.S. 125 (1908) Bs 21

Figueroa v. State, 61 Haw. 369, 604 P.2d 1198 (1979) 26

TABLE OF AUTHORITIES—Continued

Page

Frishy v. Schultz, 108 8. Ct. 2495 (1988) . 18

Garrity v. New Jersey, 385 U.S. 493 (1967) 15

Gibb v. Spiker, 718 P.2d 1076 (Haw. 1986) 26

Hall v. State of Hawaii, 791 ¥ 2d 759 (Oh Cir.

had gg eee ee passim

Hall v. State of Hawaii, 756 P2d 1048 (Haw.

1988) (**/all I1’*) ieee 2, 10,11, 15, 21

Harnett v. Billman, 800 V.2d 1308 (4th Cir. 1986) 23

Heath v. Alabama, 474 U.S. 82 (1985) . 16

Hishon v. King & Spaulding, 467 U.S. 69 (1984) 295

Hoover v. Romwin, 467 U.S. 588 (1984) 25

Hulsman v. Hemmeter Corp., 65 Haw. 58, 647

P.2d 713 (1982) spdimnidinmsitiness | 23

Illinois v. Gates, 462 U.S. 213 (1983) 16

Island Tobacco Co. v. RJ. Reynolds Tobacco Co..

63 Haw. 289, 627 P.2d 260 (1981) : 19

Jacober v. Sunn, 715 P.2d 813 (Haw. App. 1986) 26

Johnson v. Santa Clara County, 107 S. Ct. 1442

Julius Rothschild & Co. v. State, 66 Haw. 76, 655

P.2d S77 (1982) (per curiam) tartans ———

Kentucky v. Graham, 473 U.S. 159 ee eee Fee

Kingsley Pictures Corp. v. Regents, 360 U.S. 684

fe ee ke ae

Kremer v. Chemical Construction Corp., 456 US.

461 (1962) salcslscaadehantatetannsiy' 4a

Lawlor v, National Screen Service, 349 US. 32°

TES E NE 5 aay

vil

TABLE OF AUTHORITIES—Continued

Page

Logan v. Zimmerman Brush Co., 454 U.S. 422 (1982) 19

Makanui v. Doe, 721 P.2d 165 (Haw. App. 1986) 26

Marrese v. American Academy of Orthopaedu

Surgeons, 470 U.S. 373 (1985) , 23

Martin-Trigona v. United States, 779 F.2d 72

(D.C. Cir. 1985) 22

Martinez v. California, 444 U.S. 277 (1980) 19

Maruwland v. United States. 381 U.S. 41 (1965) be

Met 'arthy wv. Ye mpuh u. 5 Haw. App. 45, 678 P2d

11 (1984) ll

McGoldrick vr. ompaqne Generals . ou LS. 430

(1940) 4

Merrill Dow Pharmaceuticals Co. rv. Thompson,

478 U.S. 804 (1986) JA

Meyer v. Territory. 36 Haw. 75 (1942) mh

Michigan v. Long, 463 U.S. 1082 (1983) IS

Mizoguchi v. State Farm Mutual Auto Ins. Co.,

66 Haw. 373. 663 P.2d 1071 (1983) lj

Murdock v. City of Memphis, 89 U.S. (20 Wall)

590 (1875) Is

Nakano v. Matayoshi, 6S Haw. 142, 706 Pd 814

(1085) 19

Nevada v. lmted States. 463 U.S. 110 (1083) Zz

Nal we s @. City of Moss Point, 701 Od ab (5th

Cir. LOSS) 73

Olim v. Wakinekona,. 461 U.S. 238 (1983) 25

Oshorn v. Bank of the Lnited States, 9 Wheat.

738 (1824) 24

Vill

TABLE OF AUTHORITIES—Continued

Page

Papasan v. Allain, 478 U.S, 265 (1986) 20, 21, 25

Parklane Hosiery Co. v. Shore, 439 U.S. 322 ( 1979) _ 22, 23

Pennell v. City of San Jose, 108 8. Ct. 849 (1988)... 24

Pennhurst State School and Hospital vr. Halder-

man, 465 U.S. 89 (1984) 00 8 18, 20, 28

Perry Education Association v. Pe rry Local Edu-

cators’ Association, 460 US, 37 S oe

Posadas de Puerto Rico Association v. Tourism

Co., 478 U.S. 328 (1986) 18

Regents of the University of California v. Bakke,

438 U.S. 265 (1978) : Se HT

Regents of the Universia of Michigan v. Ewing,

474 U.S. 214 (1986) 25

Rose v. Oba, 717 P.2d 1029 (Haw. 1986) teeta. Sa

Saunders v. Shaw, 244 U.S. 317 (1917) | ae

Sharma v. State, 66 Haw. 632, 673 P2d 1030 _—

cert. denied, 469 U.S. 836 (1984) = nS ih eg,

Silkwood v. Kerr-McGee Corp., 464 U.S, 238 (1984) 15, 16

Simou v. Eastern Kentucky Welfare a Org. .

426 U.S. 26 (1976) paeiialaicaossenicaasiensies aaa

Stanley v. Georgia, 394 U.S. 557 (1969) - iaiiiaianciaiaig ae

State of Hawaii vr. Hall, 66 Haw. 300, 660 P2d

33 (1983) (per curiam) . RSS = 7

State of Hawaii v. Hall, No. 12636 (Haw. titel

fe a a OE oe ea a 27

State v. Mueller, 66 Haw. 616, 671 P.2d 1351 (1983) 19

State v. Tookes, 67 Haw. 608, 699 P24 983 (1985)... = 49

Straub v. City of Baxley, 355 U.S. 313 (1958) 0D

TABLE OF AUTHORITIES—Continued

Page

United Mine Workers v. Gibbs, 383 U.S. 715 (1966) ..... 9

United States v. Carolene Products Co., 304 U.S.

144 (1938) ms iS acaniaamaeseanedl 19

United States v. Mendoza, 464 U.S. 154 (1984) 22

Washington v. Davis, 426 U.S, 229 (1976) 10, 19

Waugh v. University of Hawai, 63 Haw. 117, 621

P.2d 957 (1980) 26

Webb v. Webb, 451 U.S. 493 (1981) 18

Wilder v. Tanouye, No. 12167 (Haw. App. Mar.

17, 1988) 27

Wygant v. Jackson, 476 U.S. 267 (1986) 25

CONSTITUTIONAL PROVISIONS:

U.S. Const., Art. I] 3, 14

U.S. Const., Eleventh Amendment 3, 18, 19, 20, 21, 23

Haw. Const. art. I, § 5 (1978) 4

Haw. Const. art. 1, §6 (1978) 4

MS ee 4

Haw. Const. art. X, 41 (1978) i)

STATUTES :

15 U.S.C. § 1 (1982) 9

18 U.S.C. § 245 (1982) i)

hh eee meenes . 3, 4,18

28 T.S.C. § 1257(2) (1982)

28 U.S.C. § 1257(3) (1982)

12, 14, 15

TABLE OF AUTHORITIES—Continued

Oe Ms © ROME ccoakcbsdecrnieleianmsniconencal eet 8

UE SD) ey |. 4 eR Cae ae rete 12

ee Ween PARE ORD oe cee ela ae 25

42 U.S.C. § 1981 (1982)

42 U.S.C. § 1982 (1982)

42 U.S.C. § 1983 (1982)

RS Rae Se ce ccc ca ace biccslsoe 9

Re Cass. sce secede ceslntieecrasin 9

RS UAL: Se RD cae es iatatebis 9

Haw. Rev. Stat. § 91-1(4) (1985) 26

Haw. Rev. Stat. ¢ 304-5 (1986) ill

Haw. Rev. Stat. § 304-6 (1985) ill

Haw. Rev. Stat. § 304-62 (1985) cc cccccsccccssssmeccesecnsceeen il

caw. Rov. Stat. 6378 (1066) 25

Haw. Rev. Stat. § 378-2(1) (1985) onc ccccsasssccessssasesnee 5)

Haw. Rev. Stat. § 480-2 (1985) ow. nadibbiecenninotaatinah tasted 4)

maw. Rev, Stat, 6 490-3 (1985) 5

Haw. Rev. Stat. § 480-4 (1985) nec ccccsscseacsemmeens ea 4)

Haw. Rey. Stat. § 662-15(4) (1985)

tan

Court RULEs:

U.S. S. Ct. R. 15.1(g)

Haw. R. Civ. P. 56(f)

TABLE OF AUTHORITIES—Continued

Page

OTHER AUTHORITY:

Restatement (Second) of Judgments § 24, com-

eee EE Dx ccnsnscbscisccnslnininsns siesta sirpiannabesisnsnante 1]

Restatement (Second) of Judgments § 27, com-

pa CE) aise eencsteercsssscenssnasntcenacneipnnacnaaotnccennn 22

No. 88-212

In on

Supreme Court of the United States

October Term, 1988

ray

Roserr W. Hatt,

Appellant,

Strate or Hawau, Universitry or Hawau, THE Wituiam 8S.

RicHarpson Scuoou or Law, Aveert J. SIMONE, STEPHEN

G. Bess, Guapys A. Branpt, Grecory Deta Cruz, JULIA

I’RoHLICH, Ropert M. Fustmoro, James G. Gary, DAnreL

M. IsHu, Kennetu N. Kato, Stantey Y. Muxkar, WALTER

R. Sreicer, Burr S. Tsucnrya, Ropixy CaMpaNIANO, Marvin

J. Anperson, Ricuarp S. Minuer, Jupira M. Krrkenpat1,

WituraAmson B.C. CuHanc, Irene Rypinski, LAwrence H.

Kam, Bope Uate, Wittig Dominco, Dean Kavuxa, JEREMY

T. Harrison, James H. Dannenserc, Ronaup C. Brown,

AND JOHN E. Pickron,

Appellees.

ty.

ON APPEAL FROM THE INTERMEDIATE

COURT OF APPEALS OF THE STATE OF HAWAII

ray

MOTION TO DISMISS OR AFFIRM

ray

Appellees, in their respective capacities, pray that

this Court dismiss this appeal for want of jurisdiction, or

for want of a properly presented or substantial federal

question, or that the Court affirm the judgment below. If

nae

the Court treats the papers whereon appeal is taken as a

petition for certiorari to review the judgment of the In-

termediate Court of Appeals entered May 26, 1988, appel-

lees further pray that certiorari be denied.

)

OPINIONS INVOLVED

The opinion of the Intermediate Court of Appeals of

the State of Hawaii in appeal No. 11992 (‘*Hall II’’) is

reported at 756 P.2d 1048 (Haw. App. 1988), and is re-

printed in the Appendix to the Jurisdictional Statement

(‘‘J.S. App.’’) 1. The order of the Supreme Court of

Hawaii denying appellant’s Application for Writ of Cer-

tiorari is not reported and is reprinted at J.S. App. 20.

The order of the Cireuit Court for the First Cireuit of the

State of Hawaii of which review was sought in the state

court proceedings below is not reported and is reprinted

in Appendix ‘‘A’’ to the Motion to Dismiss or Affirm

(‘‘Motion App.’’).

The unappealed judgment of the United States Court

of Appeals for the Ninth Cireuit in appeal No. 85-1698

(“Hall I’’), is reported at 791 I°.2d 759 (9th Cir. 1986),

and is reprinted at J.S. App. 26. The order of the United

States District Court for the District of Hawaii in Civil

No. 84-1072, from which Hall I arose, is not reported and

is reprinted at J.S. App. 22.

The judgment of the Supreme Court of Hawaii in ap-

peal No. 12636 (Haw. Aug. 18, 1988) (‘‘Hall III’’) is not

reported and is reprinted in Motion App. ‘‘D.”’

———————————ewn

JURISDICTION

The judgment of the Intermediate Court of Appeals

of the State of Hawaii was entered on May 26, 1988, and

a timely filed application for writ of certiorari was denied

by the Supreme Court of Hawaii on June 13, 1988. The

jurisdictional statement was timely filed on August 4,

1988. Although this appeal is not barred by the terms of

Pub. L. No. 100-352, 102 Stat. 662, this case is without this

Court’s jurisdiction for numerous reasons relating to,

inter alia, the limits on the authority conferred by 28

U.S.C. § 1257, Article III, and the Eleventh Amendment.

These jurisdictional matters are briefed below.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

Article III, section 2, clause 1 of the United States

Constitution provides in relevant part:

The Judicial Power [of the United States] shall ex-

tend to... Cases... [and] to Controversies ....

Section 1257 of Title 28, United States Code, provides

in relevant part:

Final judgments or decrees rendered by the highest

court of a State in which a decision could be had, may

be reviewed by the Supreme Court as follows:

(2) By appeal, where is drawn in question the

validity of a statute of any state on the ground of

its being repugnant to the Constitution, treaties

or laws of the United States, and the decision is

in favor of its validity.

(3) By writ of certiorari, . . . where any title

right, privilege or immunity is specially set up or

claimed under the Constitution, treaties or stat-

utes of, or commission held or authority exercised

under, the United States.

Although no state statute, regulation, or rule, has been

properly drawn in question within the meaning of 28

U.S.C. § 1257, the following provisions of Hawaii law are

relevant to the preclusion issues presented by the instant

appeal, and are reprinted for the convenience of the Court

and appellant.

Article I, § 5 of the 1978 Hawaii Constitution provides:

No person shall be deprived of life, liberty or prop-

erty without due process of law, nor be denied the

equal protection of the laws, nor be denied the enjoy-

ment of the person’s civil rights or be discriminated

against in the exercise thereof because of race, reli-

gion, sex, or ancestry.

Article I, section 6 of the 1978 Hawaii Constitution

provides:

The right of the people te privacy is recognized and

shall not be infringed without the showing of a com-

pelling state interest. The legislature shall take af-

firmative steps to implement this right.

Article I, section 8 of the 1978 Hawaii Constitution

provides:

No citizen shall be disfranchised, or deprived of any

of the rights or privileges secured to other citizens, un-

less by the law of the land.

Article X, section 1 of the 1978 Hawaii Constitution

provides:

The State shall provide for the establishment, support

and control of a statewide system of public schools

free from sectarian control, a state university, public

libraries and such other educational institutions as

may be deemed desirable, including physical facilities

therefor. There shall be no discrimination in public |

educational institutions because of race, religion, sex |

or ancestry; nor shall public funds be appropriated

for the support or benefit of any sectarian or private

institution.

Seetion 378-2(1) of the Hawaii Revised Statutes (1985)

provides :

It shall be an unlawful discriminatory practice: (1)

For any employer to refuse to hire or employ or to

bar or discharge from employment, or otherwise to

discriminate against any individual in compensation

or in the terms, conditions, or privileges of employ-

ment because of race, sex, age, religion, color, an-

cestry, physical handicap, marital status, or arrest and

court record.

Sections 480-2, 480-3, and 480-4, of the Hawaii Re-

vised Statutes (1985) provide in selected part:

Unfair methods of competition and unfair or decep-

tive acts or practices in the conduct of any trade or

commerce are unlawful.

This chapter shall be construed in accordance with

judicial interpretations of similar federal antitrust

statutes.

Every contract, combination in the form of trust or

otherwise, or conspiracy, in restraint of trade or com-

merce in the State, or in any section of this State is

illegal.

STATEMENT OF THE CASE

1. This ease arises out of efforts of the William 8.

Richardson School of Law at the University of Hawaii to

provide ‘‘expanded opportunities for Hawaii’s students

1 As is true for

to acquire education and training in law.’

most law schools, ‘‘|ejach year many more qualified per-

sons apply ... than can be admitted,”’ and, in 1984-86, from

300 to 350 of the 400 to 450 applicants each year were re-

jected as the 80 seats in each elass were filled.2) Appellant

Robert W. Hall, a white male Hawaii resident whose un-

dergraduate grade point average (GPA) and Law School

Admission Test (LSAT) scores made if mathematieally

impossible for him to gain admission? was denied admis-

1 Haw. Sen. Stand. Comm. Rep. No. 797-71, 1971 Haw. Sen. j.

1144, 1145 (legislative history of Law School enabling Act).

2 Affidavit of Jeremy T. Harrison dated June 27, 1986, at 14

(“Harrison Aff.) (1 Record on Appeal 242), Motion App. C-33,

see also Aff. of Williamson Chang dated Dec. 13, 1984, at 7 21,

No. 84-1072 (D. Haw. Dec. 14, 1984) (“Chang Aff.”) (1 R.A.

281), Motion Anp. C-31. Under two protective orders issued

on July 18, 1986, and October 1, 1986, of which appellant had

notice at all relevant times, if appellant chose to defend against

appellees’ motion for summary judgment by relying on these

filed affidavits, the lower courts were to “consider the affi-

davit[s} in [their] entirety in ruling upon the motion.” 2 R.A.

182, 185; 6 R. 333-34. These ‘‘rule of completeness” provisions

were brought into play because appellant, by pointing to state-

ments in the appellees’ *:i:davits taken out of context, sought

to prove to the state cou shat material fact questions existed.

See, e.g. Affidavit of Robert VV. Hall dated July 3, 1986, at {© 11,

16-20, 23-26, relied on, Mem. in Opp. © 23 (Haw. Cir Sept. 16,

1986), 6 R.A. 260; Amended Complaint © 38, No. 86-1646 (Haw

Cir. May 2, 1986), Motion App. B-21, reincorporated and relied

on, Mem. in Opp. 719 (Haw. Cir. Sept. 15, 1966), | RA. 2

(Chang Aff.). See generally Order (Haw. Cir. Jan 14 1987), Mo-

tion App. A-3.

3 Harrison Aff. 1 7, Motion App. C-36; Chang Ar *

App. C-31. +

sion to the regular class in these three admission vears.*

Given his background of business success and lack of social

disadvantages, appellant was also rejected from the Law

School’s ‘‘Pre-Admission Program,’? which is modeled

upon programs approved by Regents of the University of

California v. Bakke, 438 U.S. 265 (1978), and its progeny.

Appellant in all three years also failed to disclose or ex-

plain material facts relating to a 1980 incident at the Wai-

kiki Yacht Cub, in which, in the words of the Supreme

Court of Hawaii, appellant ‘fired a gun wildly into a

crowd of people, hitting three people below the waist and

narrowly missing a fourth,’’® and which led to appellant’s

indictment on four counts of attempted murder and re-

lated weapons charges upon which appellant was acquitted

on a theory of ‘‘pathological intoxication’? from white

wine.’ In at least his 1984 Application, Appellant also

overstated his undergraduate GPA by stating the average

* See id.

* See Harrison Aff. 115, 7, Motion App. C-36, 37; Chang Aff.

‘14-16, Motion App. C-29, 30.

® State v. Hall, 66 Haw. 300, 301, 660 P.2d 33, 34 (1983). The

Law School became aware of the criminal action against appel-

lant after the filing of the 1984 application but before the 1984

civil action in Hall I. See Chang Aff. © 12, Motion App. C-29.

Under clearly stated Law School application forms, appellant

was informed in each of the three years in which he applied

that signing the application warranted that “the information

you have given to the Law School is complete and truthful, and

that no information reasonably relevant to your admission to

the School has been purposely withheld.” Id.; see also Harri-

son Aff. 17 9, 14, 17-23, Motion App. C-36-39, 40-43 (admission

criteria in 1985 and 1986 and appellant’s refusai in all three ad-

mission years to admit or explain the 1980 shooting incident).

’ Id. at 303, 660 P.2d at 35. Appellant's own criminal defense

attorneys admitted, in pleadings in the criminal action, in evi-

(Continued on following page)

only of grades received at Chaminade University, where

he was scheduled to be vraduated in 1984, while failing to

refer to substantially lower grades he had received from

State Teachers College at the University of Maryland at

Towson, in 1951-54, and at evening college at Armstrong

College, Savannah, Georgia, in 1955-09. Harrison Aff.

q 11, 12, Motion App. (*.37, 38; see also Chang Aff. © 15

(Motion App. C-29)- Appellant also did not explain this

overstatement in subsequent application years, although tis

materiality was made clear to him prior to the filing of

his application im 1985. Harrison Aff. "* 14-16, Motion

App. C-29. After his rejections, the Appellant filed two

lawsuits to overturn the Law School’s adverse decisions.

(Continued from previous page)

dence below, that appellant's temporary lack of capacity was

demonstrated by “scientific, unbiased tests thoroughly conduct-

ed and analyzed,” manifesting “the skepticism appropriate under

the circumstances.” Memorandum in Support of Motion tor

Judgment of Ac quittal Based on Physical Disorder, Cr. No. 54332

(Haw. Cir. Jan. 4, 1982), Ex. 1 to Det. Reply Mem. 7 R.A. 41.

in an action to seal the records in the criminal case, the

Supreme Court of Hawaii rejected on the merits appellant's

claim that the acquittal in Cr. 54332 was not based on “patho-

logical intoxication” and held there was “no constitutional or

statutory basis for sealing the record.” State v. Hall, No. 12636

(Haw. Aug. 18, 1988), Motion App. D. The preclusive effect

of the state Circuit Court's denial in November, 1987, of the

motion to seal was timely raised in the state Court of Appeals

in this case, see Appellees’ Motion for Retention of Oral Argu-

ment, No. 11992 (Haw. App. May 23, 1988) (and accompanying

documents), but was not reached by the state Court of Appeals

in the case now beiore this Court. Should this Court need to

reach the effect under 28 U.S.C. § 1738 of appeal No. 12636,

the state court order, appellant's brief, and the affidavit of Dep-

uty Prosecutor Thomas Pico, see Motion App. D, E, F, inira, are

printed here. The affidavit of Mr. Pico was presented below in

this case in the state Court of Appeals and the appellant's brief

in No. 12636, although not so presented, assists In explaining

the August 1988 order. See Maryland v. United States, 381 US

41, 53 n.38 (1965).

2. In the first case, filed in United States District

Court in autumn 1984, and dismissed on summary judg-

ment in January 1985, the United States Court of Appeals

for the Ninth Cirenit on June 10, 1986 upheld the entry of

summary judgement against Mr. Hall on a host of federally

based claims* against appellees or their privies. The effect

of these claims, if granted, would have been to force the

Law School to jump appellant over dozens of applicants

with hicher qualifications who were denied admission, or

to restrain enforcement of Hawaii laws that bar those who

do not graduate from law school from sitting for the

Hawaii bar examination. Hall v. State of Hawau, 791

F.2d 759 (9th Cir. 1986) (‘‘Hall I’’), J.S. App. 26, 30

(eoneurrine with the distriet eourt’s conelusion ‘‘that

Hall’s federal claims entirely lacked a fonndation’’); see

also id. at 22-25 (district court order); Motion App. C

(complaint from Civil No, 84-1072 (D. Haw.)).

a. The Court of Appeals also rejected claims aris-

ing under Hawaii law brought against apnellees or their

>rivies in their individual ecanacities. These claims were

not barred by sovercign immunity and Pennhurst State

School and Hosp. vr. Halderman, 465 U.S. 89 (1984)

(‘‘Pennhurst I1’’), nor did the Ninth Cirenit exercise its

discretion to dismiss claims without prejudice under United

Vine Workers v. Gibbs, 383 U.S. 715 (1966). See Hall I,

791 F.2d at 761, J.S. App. 31.

* These claims purported to arise under 42 U.S.C. §§ 1981,

1982, 1983, 1985, 2000d, and 2000e (civil rights and employment

discrimination); 18 U.S.C. § 245 (criminal law): 20 U.S.C. § 1681

(sex discrimination); 15 U.S.C. §1 (antitrust); and the Equal

Protection and Due Process Clauses of the Constitution.

—————eeaeEeEeeeee ees

3. Appellant did not seek review in this Court of his

loss in the inferior federal courts. Instead, he filed a

new action in the courts of Hawaii. See Complaint, Hall

». State. No. 86-1646 (Haw. Cir. filed May 2, 1986) (‘Tall

11”), Motion App. B. Appellees pleaded merger and

har and collateral estoppel, as well as numerous other de-

fenses hased on governing etandards and a record of undis-

puted material facts? The state trial Court eranted sum-

mary judement hased on ‘‘arguments advanced at the hear-

ine. the memoranda and evidence filed herein, and the

records and previous orders herein and in Hall [7),” and

the Intermediate Court of Appeals affirmed. Hall v. State

of Hawaii. 756 P.2d 1048 (Haw. App. 1988) (‘‘Hall IT’’).

a. The state Court of Appeals reasoned that, because

of jurisdiction exercised by the federal courts in Hall I,

‘<all of Hall II’s federally based claims are barred,’’ J.S.

App. 14. The court held. further, that ‘‘[e]ven if Hall has

a cause of action for violation of any right he might have

under the state constitution or the statutes he has cited,

he would be collaterally estopped from proving that the

result of the constitutional or statutory violation was to

® The sole evidence of purported unlawful discrimination sub-

mitted in Hall | was an appendix to a 1983 university report

addressing admissions at the Law School, which contained crit-

icism that the facially non-discriminatory criteria for admission

to the Pre-Admission program “as a practical matter translate

‘nto motivated applicants who are other than Caucasian, Chinese,

japanese and Korean.” Ex. E-14 to Complaint, Hall 1, 4 R.A. 47.

Appellees had urged the Ninth Circuit to reject this evidence as

insufficient under Washington v Davis, 426 U.S. 229 (1976), and

the Court of Appeals did not even mention it in rejecting the

claims in Hall |. See 791 F 2d at 761. This evidence was also

the sole basis for appellant's claim of discrimination in Hall Il,

and we likewise urged its rejection in that action.

nulawfully discriminate against him.’’ 7d. 16. Althouch

judgement in the Ninth Cirenit in all T was entered after

appellant’s rejection in all three years (June 10, 1986),

the Hawaii appellate court reasoned that, even if the date

of judgment in the federal district court (Jannary 23, 1985)

was the operative date for federal preclusion purposes,

appellant was barred because ‘‘Hall IT presents no dis-

cernible change in the ‘material operative facts’ from those

complained of in Hall 1."?) J.S. App. 17 (quoting Restate-

ment (Second) of Judaments § 24, comment (f) (1982)).

The court held all defendants in Hal! I] other than a

Deputy Attorney General who defended Hall 7. and who

was charged in Hall IIT with libel, were in privity with

those in Hall J, and that the libel claim was barred by the

absolute privilege for statements ‘‘in preparation for Hall

I’s defense.”’ J.S. App. 18-19 (citing MeCarthy v. Yem-

puku, 5 Haw. App. 45, 678 P.2d 11 (1984)). At no time

in the state trial court did appellant preserve any federal

constitutional objection to the entry of judgment on the

basis of the preclusive effect of Hall J, and neither the

of Hall | was stated in his Memorandum in Opposition to Mo-

tion to Dismiss, Or in the Alternative, For Summary Judgment,

No. 86-1646 (Haw. Cir. filed Sept. 15, 1986), in the following

words:

The defendants’ argument that the federal court com-

plaint and the state court complaint are the same is first

moot, since the federal court refused to take jurisdiciton

[sic] over the entire Amended Complaint in Civil No. 84-

1072. Second the representation is belied by a paragraph

by paragraph reading of both amended complaints, the

best evidence from which to make that comparison.« The

federal court Amended Complaint in Civil No. 84-1072 is

(Continued on following page)

state Court of Appeals nor the Supreme Court of Hawaii

passed on such a claim in their recent opinions and orders.

-—_—_—_——0

ARGUMENT

This appeal should be snmmarily dismissed. Although

the appeal escapes the forthcoming elimination of man-

datory review it fails to draw in question a state statute

within the meaning of 28 U.S.C. § 1257(2), and, aceord-

inely, the Court’s mandatory jurisdiction fails. Even were

a state statute drawn in issue, or the authority under 28

U.S.C. § 2103 empioyed to treat the papers whereon appeal

(Continued from previous page)

attached hereto as Exhibit “VV”. The plaintiff requests that

the court take judicial notice of the Amended Complaint

in Civil No. 84-1072 and make a paragraph by paragraph

comparison unless the court is willing to reject the de-

fendants’ “same cause of action” argurnent out of hand.

The instant Amended Complaint is an entirely re-written

complaint covering three years of admissions applications,

new evidence, and new state claims; the federal complaint

covered just one admissions year. One paragraph does

not make a complaint.

Id. at 13 918, 6 R.A. 281; see also id. at 4, 7 1, 2, 6 R.A. 267,

268. Appellant stated constitutional opposition to entry of

judgment on factual claims in Professor Chang’s and Dean Har-

tison’s affidavits, but did not clearly object on federal consti-

tutional grounds to a preclusion bar. He stated:

The Circuit Court does not have the statutory or the con-

stitutional right to deorive the plaintiff of a trial by jury

on the Amended Complaint by the substitution of a sum-

mary judgment hearing where the court has already denied

discovery. The plaintiff claims all of his due process and

constitutional rights unfettered by the Hawaii Rules of

Civil Procedure.

Id. at 11, © 16, 6 R.A. 274.

is taken as a petition for certiorari, appellant fails to

demonstrate, at least with respect to his constitutional

claims, how the foundation for presentation of those claims

was laid in the courts below. Although as a general mat-

ter a state court’s rulings upon the preclusive effect of a

federal judicial decree present questions that may be re-

viewed in this Court under 28 U.S.C, ¢ 1257(3), none of

appellant’s federal claims in this ease should be deemed

reviewable let alone substantial. Appellant’s principal

claim—that the state courts overenforced the judgment

in Hall I by precluding the presentation of parallel state

law causes of action—ultimately seeks this Court’s effort

to extend the scope of state law in contravention of the

well-established independent and adequate state ground

doctrine and the rule of Pennhurst State School and Hos-

pital v. Halderman, 465 U.S. 89 (1984), that official-capa-

city claims against state officials arising under state law

are not cognizable in the Courts of the United States.

Even if the Court were to reach the merits of appel-

lant’s attack on the state Court of Appeals’ application of

settled preclusion principles, further review would be in-

appropriate. Given the record, the state courts did not

misapply the privity or ‘‘change in cireumstanees’’ doe-

trines, and, for this reason, appellant’s attempts to revive

his federal causes of action are meritless. Appellant’s

attack on the Court of Appeals’ decision to bar the state

law claims set forth in Hall II, as well as embodying these

faults, misinterprets the ‘‘jurisdictional incompetence’?

afforded by the Eleventh Amendment, and, therefore.

ignores the impact of the state-law individual capacity

claims adjudicated in Hall I as well as the issue preclusive

consequences, under a variety of state law doctrines with

which Hawaii courts are uniquely familiar, of the judg-

ment in Hall J on appellant’s state claims. Indeed, in

light of the record showing appellant, given his relative

qualifications for admission to the study of law, would not

be benefitted even if a preclusion bar were lifted, this is

not a case where Article TIT standing is supported, and,

thus, review should be denied.

I. Appellant Has Not Drawn in Question A

State Statute and Therefore the Mandatory

Appellate Jurisdiction Fails.

Under 28 U.S.C. § 1257(2), no appeal lies where there

is not ‘‘drawn in anestion the validity of a statute of any

state on the eround of its being repugnant to the Con-

stitution, treaties or laws of the United States.’’ Nowhere

in the jurisdictional statement does appellant identify

which, if any, state statute is drawn in question, and, more

important, how on federal grounds any such statute has

been drawn in question. Appellant argues the judgment

constitutes ‘‘affirmance of the admissions rules and regu-

lations of the University of Hawaii which have the effect

of law,’’ Juris. Stmnt. 18, but ‘‘not every government ac-

tion which has the effect of law is legislative action.”’

Perry Education Association v. Perry Local Educators’

Association, 460 U.S. 37, 43 (1983). Whether or not for

purposes of federal law, namely, 28 U.S.C. § 1257(2), the

admission policies of the School of Law constitute a ‘‘stat-

ute of any state,’ what is challenged in this appeal is

not the federal validity of the School of Law’s admission

policies, but that of the Hawaii Intermediate Court of

Appeals’ decision, in applying the doctrine of federal pre-

clusion, not to even reach appellant’s attack upon those

policies. In this ease, even assumine. arquendo, that Uni-

versity of Hawaii admission policies, for purposes of

§ 1257(2), are state statutes, here the state Court of Ap-

peals’ express refusal to reach the federal validity of those

statutes by reason of the compulsion of the federal com-

mon law of preclusion precludes review by way of 28

U.S.C. § 1257(2). See Garrity v. New Jersey, 385 U.S.

493, 495-96 (1967); cf. Silkwwood v. Kerr-McGee Corp., 464

U.S. 238, 247 (1984) (no appeal when issue is decided

‘‘without reference to the [purported] state statute’’). Tn-

deed, appellant’s basis for mandatory jurisdiction is at

the least doubly flawed, for there is no indication in the

record that appellant preserved his appeal to this Court

by making the ‘‘explicit and timely insistence,’’ through-

out the state trial court proceedings and on appeal to the

state Court of Appeals, that ‘‘a state statute, as applied,

is repugnant to the federal Constitution, treaties or laws.’’

Charleston Federal Savings & Loan Association v. Alder-

son, 324 U.S. 182 (1945). Appellant notes only that the

issue necessary to preserve § 1257(2) review here was

raised in the Supreme Court of Hawaii on the application

for certiorari. Juris. Stmnt. at 7. Appellant’s cited grounds

"Appellees concede that the issue under § 1257(2) is not gov-

erned by whether such policies must be promulgated as formal

rules under the state Administrative Procedure Act, see infra p. 26,

cf. Department of Banking v. Pink, 317 U.S. 264, 268 (1942)

(whether state judgment is final is controlled by federal law).

eee

of error in the Intermediate Court of Appeals, id. at 8,

however, are bereft of any basis for preserving a manda-

tory appeal here, and, indeed, the questions presented here

do not advert to any claim that would require notation of

probable jurisdiction, even if the claims are otherwise with-

in the Court’s jurisdiction or are substantial. Given the

‘‘nolicy that statutes authorizing appeals are to be strictly

construed,’’ Silkwood v. Kerr-McGee Corp., 464 U.S. at

247, the present appeal should be dismissed.

II. Appellant’s Federal Constitutional Claim Was

Not Properly Presented in the Courts Below.

This Court has made clear that, regardless of the

souree by which review of state court judgments is ob-

tained in this Court, ‘‘[e]ven if [this Court] were not

jurisdictionally barred from considering claims not pressed

or passed upon in the state court, as has sometimes been

stated, ... the long-standing rule that this Court will not

consider such claims creates, at the least, a weighty pre-

sumption against review.’’ Heath v. Alabama, 474 US.

82, 87 (1985): see Illinois v. Gates, 462 U.S. 213, 218-22

(1983): S. Ct. R. 15.1(¢); 21.1(h). Moreover, it is insuffi-

cient to raise the question properly for the first time in

a state appellate court, if it is the practice of the state

appeals courts not to consider issues not properly pre-

served in the inferior state courts. See Bailey v. Ander-

son, 326 U.S. 203, 207 (1945); cf. District of Columbia

Court of Appeals v. Feldman, 460 U.S. 462, 484 n.18 (1983).

Hawaii appellate courts follow the general rule that they

will not, except for important reasons, consider federal

questions presented for the first time on appeal. See,

e.g., City Bank v. Saje Ventures II, 748 P.2d 812, 816

(Haw. App. 1988) (citing, e.9., Mizoguchi v. State Farm

Mutual Auto. Ins. Co., 66 Haw. 373, 383, 663 P.2d 1071,

1077 (1983)). See also Ala Moana Boat Owners v. State,

50 Haw. 156, 158, 434 P.2d 516, 518 (1967) (on require-

ments for briefing issues in the state appellate courts).

Appellant’s constitutional claim that his ‘‘federal due

process rights and access to the court’s rights’’ are

abridged by the state courts’ application of federal pre-

clusion doctrine, Juris; Stmnt. i, were not properly pre-

sented in the state trial courts, a point appellees pressed

in the state Court of Appeals. See Appellees’ Answering

Brief at 25 n.9, No. 11992 (Haw. filed July 15, 1987) (citing

Airgo, Inc. v. Horizon Cargo Transp., Inc., 66 Haw. 590,

596, 670 P.2d 1277, 1281-82 (1983)). Indeed, appellant vir-

tually admits this to be so by seeking an exemption from

the pressed or passed upon rule under Saunders v. Shaw,

244 U.S. 317, 320 (1917). Juris. Stmnt. at 6. Saunders,

however, is inapt, because appellees throughout asserted

the effect of Hall I, as the state trial court briefs, see

supra n.10, the state trial court order, Motion App. A,

and the state appeals court decision, J.S. App. 11-12, show.

Here the judicial act complained of was not ‘‘done un-

expectedly at the end of the proceeding, when the plaintiff

in error no longer had any right to add to the record.’’

Saunders, 244 U.S. at 340. Appellant was on notice from

the beginning that appellees sought to end the case on the

basis of Hall I, and could have timely opposed entry of

judgment in the trial court on the ground that doing so

would violate purported rights to procedural due process

or a federal right of access to the courts. He did not do

so. See Bankers Life and Casualty Co. v. Crenshaw, 108

a i

S. Ct. 1645, 1650 (1988) (quoting Webh v. Webb, 451 U.S.

493, 501 (1981)). The state courts on appeal for this very

reason did not pass on any federal constitutional claim

arising out of their construction of preclusion doctrine.

Though such claims are meritless, neither should this

Court.

III. Appellant’s Claims in this Court are Barred

by the Independent and Adequate State

Ground Doctrine and the Eleventh Amend-

ment.

It has heen the law for more than a century that un-

der 28 U.S.C. ¢ 1257 this Conrt has no jurisdiction to re-

view a state court decision that rests upon an indepen-

dent and adequate state ground. Murdock v. City of Mem-

phis, 89 U.S. (20 Wall.) 590, 686 (1875). Although the

rule is frequently invoked in the favor of a_prevail-

ing plaintiff to prevent review by a nonprevailing de-

fendant, see Michigan ». Long, 463 U.S. 1032 (1983), the

principles underlving the rule, ‘‘!rjespeet for the inde-

pendence of state courts, as well as avoidance of render-

ing advisory opinions,’’ 77. at 1040, apply equally when

ineluded within the federal question under review—here

the breadth to be given the federal judgment in Hall T in

precluding state law causes of action—are issues gov-

erned by state law, on which the decisions of the state

courts are dispositive. See, e.g., Posadas de Puerto Rico

Association v. Tourism Co., 478 U.S. 328, 339 n.6 (1986) ;

Kingsley Pictures Corp. v. Regents, 360 U.S. 684, 688

(1959); cf. Frisby v. Schultz, 108 S. Ct. 2495, 1501 (1988)

(reversing lower federal court view of state law).

Appellant urges that it was federally improper for the

lower state courts to extend the preclusive consequences

of Hall I’s rulings upon appellant’s federal canses of ac-

tion to those claims arising under parallel provisions of

the Hawaii constitution and statutes. The essence of the

state court’s ruling, however, is that ‘‘fe]ven if Hall has

a cause of action under the state constitution or the stat-

utes he has cited, he would be collaterally estopped from

proving that the result of the constitutional or statutory

violation was to unlawfully discriminate against him.’’

See J.S. App. 16. Necessarily ineluded within this deter-

mination is a finding, as a matter of Hawaii law, that the

cited state laws out of which appellant’s purported state

law rights arose provide, in the instant cirenmstances, no

ereater protection than their federal counterparts. This

finding, of course, is consistent with Hawaii precedent.

E.q., Nakano v. Matayoshi, 68 Haw. 142, 152-53, 706 P.2d

814, 821 (1985) (citing United States ». Carolene Products

Co., 304 U.S. 144, 152-53 n.4 (1938)); State v. Tookes, 67

Haw. 608, 615, 699 P.2d 983, 988 (1985) (citing Washinag-

ton v. Davis, 426 U.S. 229, 239 (1976)); State v. Mueller,

66 Haw. 616, 671 P.2d 1351 (1983) (citing Stanley v. Geor-

gia, 394 U.S. 557 (1969)); Island Tobacco Co. v. R.J. Rey-

nolds Tobacco Co., 63 Haw. 289, 297, 627 P.2d 260, 266-67

(1981) (federal antitrust standards). The state court’s

decision not to extend the rights conferred by state law in

such a manner as would render Hall I of no issue preelu-

sive effect is thus a matter over which this Court has no

jurisdiction. Demorest v. City Bank, 321 U.S. 36, 42

(1944) ; see generally Logan v. Zimmerman Brush Co., 454

U.S. 422, 482 (1982) (citing Martinez v. California, 444

U.S. 277 (1980)).

This is particularly so in light of the very principles

behind the Eleventh Amendment which appellant wrongly

believes have been unfairly applied. Neither the Eleventh

Amendment, nor the doctrine of sovereign immunity, to be

sure, protect state officials in their individual capacities

from claims for damages based on state law. See Papasan

v. Allain 478 U.S. 265, 278 n.11 (1986). However, ‘‘it is

difficult to think of a greater intrusion on state sover-

eignty than when a federal court instructs state officials

on how to conform their conduct to state law.’’ Pennhurst

IT, 465 U.S. at 106. Under the Eleventh Amendment, every

federal court is obligated to ‘‘ ‘examine each claim in a

ease to see if the court’s jurisdiction over that claim is

barred by the Eleventh Amendment.’ ’’ County of Oneida

v. Oneida Indian Nation, 470 U.S. 226, 251 (1985). Here,

except insofar as he asserts that the rule applied by the

lower courts is wrong on its face—that a claim arising

under state law may never be barred by litigation upon

parallel federal claims—appellant seeks a federal writ

directed to state judges in breach of now-settled pre-

cepts of Eleventh Amendment jurisprudence that bar en-

forcement of state-created rights through exercises of the

judicial power of the United States. Under the law cor-

rectly viewed, however, if this Court finds that the pre-

clusion theories adopted by the lower courts are not

facially erroneous, this Court’s inquiry is at an end. In-

deed, any claim against the State, the University, the Law

School, or for damages from appellees in their official ca-

pacities, or for equitable enforcement of state law, cannot

he aided by this Court in light of the Amendment. See

Papasan, 478 U.S. 265, 277-78.

IV. Appellant’s Challenge to the Lower Courts’

Analysis of Federal Preclusion Doctrine is In-

substantial.

Even if the Court may properly reach appellant’s at-

tack on the state Court of Appeals decision, that attack

is wholly unworthy of this Court’s attention. As to ap-

pellant’s federal claims, appellant’s claimed grounds of

error are totally without merit. Appellant would make

a nullity of Ex Parte Young, 209 U.S. 123 (1908), in any

case in which state law claims could be pleaded upon the

same subject matter. Under appellant’s theory, even if

he had won in Hall I, appellees could wipe out that fed-

eral order by bringing a declaratory judgment proceeding

in state court to exonerate themselves under state law.

See Juris. Stmnt. at 10 (asserting that Hall J is a ‘‘moot

judgment’’). Although ‘‘Young’s applicability has been

tailored to conform as precisely as possible to those spe-

cifie situations in which it is ‘necessary to permit the

federal courts to vindicate federal rights,’ ” Papasan, 478

U.S. at 277, it remains a central feature of our constitu-

tional jurisprudence. Moreover, it is black letter law

that the Eleventh Amendment did not protect the Hall I

defendants in their individual capacities, see 478 U.S. at

278 n.11, and those defendants, and their privies, are en-

titled to the full benefit of their federal victory. Given this

fact, there is no issue that appellant’s federal claims as

to all defendants in Hall IJ for admission years 1984

through 1986, when the case was still pending in the fed-

eral courts, were barred. Even if one takes January 1985

—the date of entry of judgment in the federal district court

—as the relevant date, but see Lawlor v. National Screen

Service, 349 U.S. 322 (1955), appellant points to no change

in the “material operative facts” relating to his federal

claims in admission years 1985-86. J.S. App. 18; see also

Restatement (Second) of Judqments §27 comment ¢

(1982); Nevada v. United States, 463 U.S. 110, 130-31

(1983) (following second Restatement). Indeed, if any-

thing, because appellant’s objective qualifications (under-

graduate grades and LSAT scores) did not improve, and,

by reason of appellant’s continued dissembling over the

1980 Waikiki Yacht Club incident and prior grades, appel-

lant’s relative qualifications diminished. The decision to

bar plaintiff's claims as to admission years 1985 and 1986

is fully consistent with decisions in the courts of appeals,

see Harnett v. Billman, 800 F.2d 1308, 1315 (4th Cir. 1986) ;

Martin-Triqona v. United States, 779 F.2d 72, 73 (D.C. Cir.

1985), and appellant points to no true conflict with a deci-

sion of a court of appeals or of a sister state court. Appel-

lant’s claim that “those who were never parties to the origi-

nal litigation appear to be at risk’’ (Juris. Stmnt. 16) is

plainly inapt. Appellant clearly was a “party to the origi-

nal litigation,’’ and no claim could be made that the privity

analysis set forth in Nevada v. United States, 463 U.S. at

136-43, was violated below. See id. at 136-37 (no dispute

that original parties and ‘‘their successors can rely on the

decree”). Moreover, it has been the law since at least

Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979), that

mutuality of parties is not necessary to obtain issue pre-

clusion against a private litigant by reason of a federal

judgment. Cf. United States v. Mendoza, 464 U.S. 154,

163 (1984) (mutuality when preclusion is sought against

the sovereign).

Appellant’s real complaint, apparently, is over the

extension of Hall I’s bar to his state law claims. Juris.

Stmnt. 13. But appellant ignores at least two points that

are each sufficient to destroy any claim that, under the

circumstances here,’if. was inappropriate to bar the state

law claims. First, the Eleventh Amendment protects

States. It does not protect state officials in their individ-

ual capacities, and pendent claims arising under state law

may still be heard in the federal courts against state of-

ficials in such capacities, Pennhurst I] notwithstanding.

Indeed, under Hawaii law, when a state employee is exon-

erated, “it follows that the employer would also be im-

mune.” Hulsman v. Hemmeter Corp., 65 Haw. 58, 61-62,

647 P.2d 713, 717 (1982) ; cf. City of Los Angeles v. Heller,

475 U.S. 797, 799 (1986) (per curiam). Dismissal of ap-

pellant’s individual capacity state claims in Hall J barred

any judgment against appellees here. Second, the essence

of issue—as opposed to claim—preelusion is that it bars

relitigation of facts previously decided “and necessary to

the outeome of the first action” even “upon a different

eause of action.” Parklane Hosiery Co., 439 U.S. at 326

n.5. Claims that a jurisdictional competency requirement

applies to limit the merger and bar effect of a federal

adjudication that, because of the lack of State consent,

could not reach state claims against a State, cf. Marrese

v. American Academy of Orthopaedic Surgeons, 470 U.S.

373, 383 n.3 (1985), do not by their own terms apply to

collateral estoppel. Where, as here, appellant’s state

claims were defeated on collateral estoppel grounds, deci-

sions such as Nilsen v. City of Moss Point, 701 F.2d 556,

562 (5th Cir. 1983), are totally inapplicable.

Any claim, even if properly presented, that applica-

tion of the doctrines of merger and bar and collateral

estoppel oa this record are unconstitutional cannot be

taken seriously. The right to present one’s claims may

well enjoy certain constitutional protections, but those

protections, in this context, extend only to the right to ‘‘a

‘full and fair opportunity’ to litigate the claim or issue.”’

Kremer v. Chemical Construction Corp., 456 U.S. 461, 480-

81 (1982) (emphasis added). No claim can be made—par-

ticularly when appellant did not appeal from Hall /—that

’

appellant did not receive the ‘‘process due’’ in federal

court. On this record, no substantia! federal issue is pres

ent, and added review of the claims ought to be denied.”

V. In light of the Substantial Alternative Grounds

for Entry of the Judgment, Review Should Be

Denied.

“‘The familiar rule of appellate court procedure in

federal courts [is] that, without a cross-petition or appeal,

a respondent or appellee may support the judgment in his

favor upon grounds different from those upon which the

court below rested its decision,’’ McGoldrick v. Com-

pagqnie Generale, 309 U.S. 430, 434 (1940), and that this

Court need not be bound by a state court’s determination

that a complaint states a federal claim. See Straub v.

City of Baxley, 355 U.S. 313, 318 (1958). Moreover, in

eases arising from the state courts, litigants must show

, 7?

more than ** ‘unadorned speculation that reversal on a

federal defense would give rise to relief as a matter of

state law. Pennell v. City of San Jose, 108 8S. Ct. 849, 855

(1988) (quoting Simon v. Eastern Kentucky Welfare

2 If the State courts rejected Hall’s claims on state law grounds,

see |.S. App. 18-19, no federal issue is raised. See Merrell Dow

Pharmaceuticals Co. v. Thompson, 478 U.S. 804, 818 (1986)

(dissenting op.); Osborn v. Bank of the United States, 9 Wheat.

738, 824 (1824).

Rights Org., 426 U.S. 26, 46 (1976)). The laws governing

this Court’s authority make clear that the Court ‘‘shall

give judgment ... without regard to errors or defects

which do not affect the substantial rights of the parties.

See 28 U.S.C. § 2111 (1982).

Although the court below chose to decide this case on

the basis of federal preclusion principles, appellant’s

complaint and the record below could not possibly give

rise to any valid claim. As a matter of federal law, once

the amended complaint is stripped of ‘‘legal conclusion[s]

couched as ... factual allegation[s],’’ Papasan, 478 U.S.

at 286, appellant’s concerns over the School of Law’s sys-

tem of weighting the GPA or LSAT score are wholly

frivolous in light of Reagents v. Ewina, 474 U.S. 214 (1986)

Appellant’s other claims seek relief from the very sort of

‘*lelompetitive consideration of race and ethnie origin,’

U'mversity of California Reaents v. Bakke, 438 U.S. 265.

420 (1978) (op. of Powell, J.): id. at 324, 328 (op. of Bren

nan, White, Marshall, and Blackmun, J.J.), that the Court

has upheld. See also Wuaant v. Jackson. 476 U.S. 267, 283

n.11 (1986) (op. of Powell, J.): Johnson v. Santa Clara

County, 107 S.Ct. 1442, 1452 (1987). Appellant has no claim

for employment discrimination, see Hishon v. King &

Spauldina, 467 U.S. 69, 74 & n.5 (1984): Haw. Rev. Stat.

ch. 378 (1985). nor for breach of the antitrust laws, see

Hoover v. Ronwin, 467 U.S. 588 (1984): Bia Island Small

Ranchers Assoc. v. State, 60 Haw. 228, 588 P.2d 430 (1978)

(same). Nor has appellant shown any property right (or

derivative federal or state richt to a hearing), see Olin v.

Wakinekona, 461 U.S. 238, 250 (1983): Sharma wv. State.

66 Haw. 632, 673 P.2d 1030 (1983), cert. denied, 469 U.S.

836 (1984). Even in the state courts, all of appellant’s claims

i |

for damages would be barred by sovereign immunity, see

Figueroa v. State, 61 Haw. 369, 604 P.2d 1198 (1979)

(state constitutional claims); Makanui v. DOE, 721 P.2d

165 (Haw. App. 1986) (federal constitutional claims) ;

see also Julius Rothschild & Co. v. State, 66 Haw. 76, 659

P.2d 877 (1982) (per curiam) (tort claims); Meyer v.

Territory, 36, 75, 77 (1942) (contract claims) ; Jacober v.

Sunn, 715 P.2d 813, 821 (Haw. App. 1986) (statutory

claims); Haw. Rev. Stat. § 662-15(4) (1985) (intentional

tort claims), or by officer’s immunity, see Anderson v.

Creighton, 107 S.Ct. 3034 (1987); Bullen v. DeRego, 724

P.2d 106 (Haw. 1987) (following federal immunity anal-

ysis for state law claims). It is also quite clear, whether

the University is an ‘‘agency’’ for purposes of the state

Administrative Precedure Act, see Waugh v. University

of Hawaii, 63 Haw. 117, 621 P.2d 957 (1980), that it is

exempted by the ‘‘internal management’’ exclusion from

having to promulate its admission policies by means of

public rule-making procedures. See Haw. Rev. Stat.

§$91-1(4); Aguiar v. Hawaii Housing Auth., 55 Haw. 478,

488 n.17, 522 P.2d 1255, 1262 n.17 (1974); see also Rose v.

Oha, 717 P.2d 1029 (Haw. 1986); Gild v. Spiker, 718 P.2d

1076 (Haw. 1986). On summary judgment, it was undis-

puted that appellant was mathematically incapable of

being admitted to the regular class in the years in which

he applied to the Law School, and that appellant’s record

raised independent compelling reasons to deny an offer

of admission. In response appellant rested ‘‘‘on the

hope that a jury may disbelieve factually uncontested

proof,’? Costa v. Able Distributors, Inc., 3 Maw. App.

486, 489, 653 P.2d 101, 104 (1982), and, under the discre-

tion conferred by Rule 56(f), Haw. R. Civ. P., which is

identical to its federal counterpart, failed to show

‘** “how postponement of a ruling on the motion [would]

enable him, by discovery or other means, to rebut the

movants’ showing.’’? Wilder v. Tanouye, No. 12167 (Haw.

App. Mar. 17, 1988). Appellant was simply not a victim

of unlawful state action. Further review could not pos-

sibly give rise to a victory for appellant, either in this

Court or in the courts below.’® Accordingly, review should

be denied.

—n —- Q--—-———_-- --

CONC JUSION

For the reasons above, the appeal should be dis-

missed for want of jurisdiction, or for want of a properly

presented or substantial federal question, or the judg-

ment affirmed. If the Court chooses to treat the papers

whereon appeal is taken as a petition for certiorari, the

Court should deny the petition.

Respectfully submitted,

Warren Price, ITI*

Attorney General

State of Hawaii

*Counsel of Record

Steven S. MIcHAELs

Deputy Attorney General

Room 405, State Capitol

Honolulu, Hawaii 96813

(808) 548-4740

Counsel for Appellees

3 Although the order in appeal No. 12636, Motion App. D, is

not fully dispositive of this case, it clearly limits, until reversed,

appellant’s claims. See 28 U.S.C. 1738.

APPENDIX

A-1

APPENDIX A

CORINNE K. A. WATANABE 1429

Attorney General

State of Hawaii

ROBERT A. MARKS 2163

STEVEN S. MICHAELS 3852

Deputy Attorneys General

Hawaii State Capitol, Room 405

415 South Beretania Street

Honolulu, Hawaii 96813

Telephone: 548-4740

Attorneys for Defendants

Ist CIRCUIT COURT

STATE OF HAWAII

FILED

1987 JANUARY 14 P 1:38

B. NAKAMAEJO

CLERK

IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

STATE OF HAWAII

Civil No. 86-1646

ROBERT W. HALL, an individual,

Plaintiff,

vs.

STATE OF HAWAII, a State of

the United States, et al.,

Defendants.

A-2

ORDER GRANTING DEFENDANTS’

MOTION TO DISMISS, OR IN THE

ALTERNATIVE FOR SUMMARY JUDGMENT,

DENYING PLAINTIFE’S MOTION TO

STRIKE AND FOR SANCTIONS,

DENYING PLAINTIFF’S SECOND

MOTION TO STRIKE, OBJECTION,

AND FOR SANCTIONS, AND DENYING

ALL OTHER MOTIONS FILED BY

PLAINTIFF

Date: November 18, 1986

Time: 10:30 a.m.

Judge: Hon. Robert G. Klein

ORDER GRANTING DEFENDANTS’ MOTION TO

DISMISS, ORIN THE ALTERNATIVE FOR

SUMMARY JUDGMENT, DENYING PLAINTIFEF’S

MOTION TO STRIKE AND FOR SANCTIONS,

DENYING PLAINTIFF’S SECOND MOTION TO

STRIKE, OBJECTION, AND FOR SANCTIONS AND

DENYING ALL OTHER MOTIONS FILED BY

PLAINTIFF

The Defendants’ Motion to Dismiss, or in the Altern-

ative, for Summary Judgment, filed on June 27, 1986, and

the Plaintiff’s Motion to Strike and for Sanctions, filed

October 29, 1986, and Second Motion to Strike, Objection |

and for Sanctions, filed on November 5, 1986, as well as |

various other motions brought by Plaintiff, came on for

hearing on November 18, 1986 at 10:30 a.m. before the

Honorable Robert G. Klein. Present at the hearing were

Steven S. Michaels and Robert A. Marks, Deputy Attor-

neys General, appearing for the Defendants, and Robert

W. Hall, appearing for himself.

The Court, having considered the arguments advanced

at the hearing, the memoranda and evidence filed herein,

A-3

and the records and previous orders herein and in Hall v.

State of Hawaw, No. 84-1072, (D. Hawaii, judgment en-

tered January 23, 1985), aff’d, 791 F.2d 759 (9th Cir. 1986)

(‘‘Hall I’’), hereby finds and concludes as follows:

1. Kxercising the discretion afforded the Court by

Rule 56(f), Hawaii R. Civ. P., the Court has reviewed the

affidavits submitted in connection with the motions dis-

posed of here, and finds that plaintiff has not sufficiently

set forth what admissible evidence giving rise to a genuine

issue of material fact would be produced by additional dis-

covery. See Hall v. State of Hawaii, 791 F.2d at 761.

2. At the hearirg on the motions disposed of here, the

Court gave the Plainti‘f additional leave to provide a clear

and concise affidavit setting forth a basis under Rule 56

(f), Hawaii R. Civ. P., for this Court to refuse the appli-

eation for judgment. The Court refrained from deciding

the instant motions until December 8, 1986, so that Plain-

tiff would have an added opportunity to assert his rights

under Rule 56(f), Hawaii R. Civ. P. No additional affi-

davits were submitted by Plaintiff.

3. With respect to the Plaintiff’s various motions to

strike, the Court finds that the Defendants’ attorneys

acted in good faith and within the letter and the spirit of

Exhibit A to Rule 2, Hawaii Sup. Ct. R. The Court also

finds that the evidence advanced by the Defendants in con-

nection with their Motion to Dismiss, or in the Alternative

for Summary Judgment, and the other motions disposed

of here, is relevant to those motions and properly subject

to consideration in connection with those motions.

4. After a review of the record in this action, in

Hall I, and the applicable law, the Court finds that the

A-4

Amended Complaint fails to state a claim upon which relief

can be granted, and, in any event, within the meaning of

Rule 56, Hawaii R. Civ. P., there are no material facts in

dispute and Defendants are entitled to judgment as a mat-

ter of law.

5. The Court further finds that the Defendants’ Mo-

tion to Dismiss, or in the Alternative for Summary Judg-

ment, is adequately supported whether the Plaintiff’s var-

ious motions to strike are granted or denied.

Now, therefore, it is hereby ORDERED, ADJUDGED

AND DECREED as follows:

1. The Defendants’ Motion to Dismiss, or in the

Alternative for Summary Judgment is granted, and any

and all claims appearing in Plaintiff’s Amended Complaint

are dismissed with prejudice.

2. The Plaintiff’s Motion to Strike and for Sane

tions, and the Plaintiff’s Second Motion to Strike, Objec-

tion and for Sanetions are denied.

3. All other motions filed by Plaintiff in this action,

whether or not properly noticed for hearing, are denied.

DATED Honolulu, Hawaii, January 13, 1987

/s/ ROBERT G. KLEIN

ROBERT G. KLEIN

JUDGE OF THE ABOVE-ENTITLED

COURT

APPROVED AS TO FORM:

DECLINED—RH

ROBERT W. HALL

Plaintiff pro se

B-1

APPENDIX B

ROBERT W. HALL

583 Kamoku Street, #2605

Honolulu, Hawaii 96826

(808) 942-1766

Pro Se

IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

STATE OF HAWAII

CIVIL NO. 86-1646

ROBERT W. HALL, an individual,

Plaintiff,

vs.

STATE OF HAWAII, a State of the United States;

UNIVERSITY OF HAWATITI, a Hawaii corporation and a

land-grant college; THE WILLIAM S. RICHARDSON

SCHOOL OF LAW, a division of the University of

Hawaii; ALBERT J. SIMONE, as an individual and in his

capacity as acting President or President of the Univers-

ity of Hawaii; STEPHEN G. BESS, as an individual and

as a Regent of the University of Hawaii; GLADYS A.

BRANDT, as an individual and as a regent or as the

Chair of the Board of Regents of the University of

Hawaii; GREGORY DELA CRUZ, as an individual and

as a regent of the University of Hawaii; JULIA FROH-

LICH, as an individual and as as Chair or regent of the

Board of Regents of the University of Hawaii; ROBERT

M. FUJIMOTO, as an individual and as a regent of the

University of Hawaii; JAMES G. GARY, as an individual

and as a regent of the University of Hawaii; DANIEL M.

ISHIT, as an individual and as a regent of the Univer-

sity of Hawaii: KENNETH N. KATO, as an individual

and as a regent of the University of Hawaii; STANLEY

Y. MUKAI, as an individual and as a regent of the Uni-

versity of Hawaii; WALTER R. STEIGER, as an indi-

B-2

vidual and as a regent of the University of Hawaii; BURT

K. TSUCHIYA, as an individual and as a regent of the

University of Hawaii; ROBIN COMPANIANO, as an in-

dividual and as a regent of the University of Hawaii;

MARVIN J. ANDERSON, as an individual and as Chan-

cellor of the University of Hawaii; RICHARD 8S.

MILLER, as an individual and as Dean of the School of

Law; JUDITH M. KIRKENDALL, as an individual and

as Registrar and Director of Student Affairs of the School

of Law; WILLIAMSON B.C. CHANG, as an individual

and as a member of the Admissions Committee of the

School of Law; IRENE RYPINSKI, as an individual and

as a member of the Admissions Committee of the School

of Law; LAWRENCE H. K.AM, as an individual and as a

member of the Admissions Committee of the School of

Law; BODE UALKE, as an individual and as a member of

the Admissions Committee of the School of Law; WILLIE

DOMINGO, as an individual and as a member of the Ad-

missions Committee of the School of Law; DEAN

KAUKA, as an individual and as member of the Admis-

sions Committee of School of Law; JEREMY T. HAR-

RISON, as an individual and as the acting Dean and as

Dean of the School of Law; JAMES H. DANNENBERG,

as an individnal and as a deputy attorney general of the

State of Hawaii; RONALD C. BROWN, as individual and

as Chair of the Admissions Committee of the School of

Law; JOHN E. PICKRON, as an individual and as a

member of the Admissions Committee of the School of

Law; JOHN DOES 1-20, JANE DOES 1-20, DOE PART-

NERSHIPS 1-20, DOE CORPORATIONS 1-20, DOE

GOVERNMENTAL ENTITIES 1-20, and DOE ENTI-

TIES 1-20,

Defendants.

tS SD.

B-3

AMENDED COMPLAINT FOR

DAMAGES, DECLARATORY AND

INJUNCTIVE RELIEF OR IN THE

ALTERNATIVE, AN APPLICATION

FOR A WRIT OF MANDAMUS;

SUMMONS

DEMAND FOR JURY TRIAL

ist CIRCUIT COURT

STATE OF HAWAII

FILED

1986 MAY—2 PM 1:03

H. SETO

CLERK

AMENDED COMPLAINT FOR DAMAGES,

DECLARATORY AND INJUNCTIVE RELIEF

OR IN THE ALTERNATIVE AN APPLICATION

FOR WRIT OF MANDAMUS

The plaintiff ROBERT W. HALL, pro se comes now

with this complaint and petitions this court for an injune-

tion or in the alternative, for a writ of mandamus against

the above-named defendants in their official capacity, and

also in their individual capacities, and as reasons and

grounds therefore, plaintiff alleges the following facts:

GENERAL—APPLICABLE TO ALL COUNTS

1. The plaintiff prays for all the relief to which he

is entitled, whether specifically named in this complaint or

not. This action arises under Article I, Section 8; the

First, Fifth and Fourteenth Amendments to the Constitu-

tion of the United States; and the laws of the United

States including but not limited to the Civil Rights Act of

1866, 1870, and 1871: Title IX of the Education Amend-

B-4

ments of 1972; Title 1 of the Civil Rights Act of 1968;

Titles VI of the Civil Rights Act of 1964; all of the above

as amended and as hereinafter more fully appears. The

matter in controversy exceeds, exclusive of interest and

costs, the sum of ten thousand dollars.

2. The jurisdiction of this court is also invoked as

being a suit in equity authorized by law to be brought to

redress the deprivation under color of unconstitutional

state law, statute, regulation, custom and usage of a state

of rights, privileges, and immunities seenred by the laws

and Constitution of the United States, viz., Sections 1983

and 1985 of Title 42 of the United States Code and the

Fourteenth Amendment to the Constitution of the United

States providing for the equal rights of citizens and of all

other persons within the jurisdiction of the United States,

as amended and as hereinafter more fully appears.

3. The jurisdiction of this court is also invoked under

Article I, Section 4, Due Process and Equal Protection ;

Article I, Section 6, Rights of Citizens; Article IT, Section

2), Construction, Article TIT, The Legislature, Section 1,

Legislative Power: Article V, Section 5, The Judiciary,

Administration: Artiele IX, Edueation, Section 1, Public

Education; Section 4, University of Hawaii; Section 5,

Board of Regents: Powers, providing for equal rights of

citizens and all other persons within the jurisdiction of the

State of Hawaii; the Hawaii Administrative Procedures

Act, Chapters 91; the Publie Agency Meetings and Records

law, Chapter 92; the Hawaii Fair Employment Practice

Law, Title 21, Chapter 378-1 et seq., Hawaii Revised Stat-

utes; Chapters 304 (Universityof Hawaii), 661 (Actions

By and Against the State), 662 (State Tort Liability Act),

and 663 (Tort Actions), Hawaii Revised Statutes; state

B-5

and federal common law, and contract law: all of the above

as amended and as hereinafter more fully appears.

4. The jurisdiction of this court is also invoked under

the Hawaii Revised Statutes, Trade Regulation and Prae-

tice, Monopolies; Restraint of Trade, Section 480-4(a) and

Section 480-9.

5. The jurisdiction of this court is also invoked under

the Hawaii State Constitution and tort laws and is a com-

plaint for slander and libel leading to defamation, and for

the constitutional and statutory invasion of privacy. Juris-

diction is claimed but is not limited to Article 1, Section 6

of the Hawaii State Constitution, applicable tort law and

20 USC Subsection 1232(g), Family Educational and Pri-

vacy Rights.

6. The jurisdiction of this court is also invoked as a

request for declaratory judgment under Chapter 632, HRS,

for the purpose of determining a question in actual con-

troversy between the parties, to wit, whether the practice

of the defendants in denying plaintiff, on account of equal

opportunity, his age and his race, his national origin, and

his economic circumstance, the right to be admitted to and

pursue courses of study at the state and federally sup-

ported University of Hawaii constitutes a denial of the

right of the plaintiff to the equal protection of the laws

under the Fourteenth Amendment to the United States

Constitution and the laws of the United States and the

laws and Constitution of the State of Hawaii.

7. All of the parties to this action, both plaintiff and

defendants, are citizens of the United States and on infor-

mation and belief, are citizens of the State of Hawaii. The

plaintiff is a resident of the State of Hawaii. On informa.

B-6

tion and belief, the defendants are or were at the time the

allegations of this complaint occurred, residents of and

domiciled in, said state.

8. Defendant ALBERT J. SIMONE is the duly ap-

pointed, qualified, formerly acting, and now President of

said university, and as such governs and controls the sev-

eral colleges and schools of said university by the power

vested in him by the Board of Regents; STEPHEN G.

BESS, GLADYS A. BRANDT, GREGORY DELA CRUZ,

JULIA FROHLICH, ROBERT M. FUJIMOTO, JAMES

G. GARY, DANIEL M. ISHII, KENNETH N. KATO,

STANLEY MURAI, WALTER R. STEIGER, BURT Is.

TSUCHIYA ead ROBIN COMPANIANO are or were all

regents of the said university during a period of time cov-

ered by the allegations of this complaint, with power under

the Hawaii Revised Statute section 26-11, to formulate

policy, and to exercise control over the university through

its executive officer, the president of the university;

MARVIN J. ANDERSON is the former Chancellor of the

Manoa campus of the University of Hawaii and possessed

the power and the responsibility to appoint investigatory

committees and to review the actions of the Admissions

Committee of the School of Law; RICHARD 8S. MILLER

is the former Dean of the School of Law who made a final

review of the recommendations of the Admissions Commit-

tee during his term office; JEREMY T. HARRISON is

the current Dean of the School of Law; JUDITH M.

KIRKENDALL is the Registrar and Director of Student

Affairs who makes the recommendations to the Admissions

Committee with regard to initial qualifications or disquali-

fication; WILLIAMSON B. C. CHANG, IRENE RYPIN-

SKI, LAWRENCE H. KAM were the faculty members,

B-7

and BODE UALE, WILLIE DOMINGO, and DEAN

KAUKA were the student members of a six member Ad-

missions Committee of the School of Law for the 1984-85

school year admissions selection who possessed the author-

ity to pass upon the eligibility of applicants who seek to

enroll as students therein, including plaintiff; RONALD

C. BROWN, LAURENCE KAM and JOHN PICKRON

were the faculty members of the Admissions Committee

for the School of Law for the 1985-86 school year admis-

sions selection; Defendant STATE OF HAWAII is a state

of the United States of America; THE UNIVERSITY OF

HNAWAITI (hereinafter ‘‘University’’) is a corporation

and a federally funded land-grant college existing under

the laws of the State of Hawaii; and THE WILLIAM S.

RICHARDSON SCHOOL OF LAW (hereinafter ‘‘School

of Law”’ or ‘‘Law School’’) is a law school of the Univer-

sity of Hawaii.

9. Defendants connected with the State of Hawaii

and the University of Hawaii have the duty under Hawaii

Revised Statute Section 304-1 to govern the university in a

manner consistent with an ‘‘available to all’’ policy man-

dated by the legislature. The University of Hawaii has

been found by a lawful order of the U.S. District Court for

the District of Hawaii dated January 22, 1985 (Hall vs.

State of Hawaii, Civil No. 84-1072), to be an agency of the

State of Hawaii. As an agency of the State of Hawaii,

THE WILLIAM 8S. RICHARDSON SCHOOL OF LAW

is bound by state law to comply with all of the terms and

conditions of the State of Hawaii Administrative Proced-

ures Act (‘‘APA’’), Chapter 91, and Public Agency Meet-

ings and Records, Chapter 92, HRS.

10. Defendants operate as a public, tax supported,

land-grant institution the only law school in the State of

B-8

Hawaii. The tuition of each person admitted to the School

of Law is heavily subsidized by the state and federal gov-

ernments. The School of Law at the University of Hawaii

is accredited and is approved by the national Council of

the American Bar Association on Legal Education and

Admissions to the Bar. The University of Hawaii is en-

gaged in interstate commerce and is a recipient of federal

funds and largess.

11. The University is bound by the guidelines and

instructions of the Law School Admissions Services, Ine.

and the Law School Admission Counsel, Inc. when using

LSAT test scores to grant or deny admission to the School

of Law. The LSAC advises all law schools not to use

LSAT test seores as the sole criterion for admission to the

law School.

12. The University is bound by by academie scientific

ethical and moral considerations to refrain from conduct-

ing psychological, psychometric or admissions experimen-

tal testing on humans without the informed consent of the

test subjects, all of whom with regard to LSAT tests, must

be volunteers.

13. The University and the School of Law have a

legal, ethical and moral duty to use only those tests in the

admissions process, (1) where wholesale cheating has not

occurred, (2) to make a reasonable and prudent effort to

determine that cheating has not occurred with regard to

LSAT test scores presented for admission, (2) that are

valid aceording to psychometric standards and that do

what they purport to do, (3) that do not subject non-volun-

teer humans to psychological or psychometric experimental

testing without their informed consent according to stand-

ards such as those published in the Standards for Eduea-

B-9

tional and Psychological Testing by the American Fiduca-

tional Research Association, American Psychological As-

sociation, National Council on Measurement in Education,

and (4) that do not constitute an outright fraud on those

applicants for admission who are required to take LSAT

tests.

14. The University and the School of Law are bound

by legal, ethical and moral considerations to avoid all dis-

crimination based upon race, national origin, sex and age

and to comply with Hawaii state law including the Hawaii

Administrative Procedures Act (APA) in establishing and

implementing forms, rules and regulations in the admis-

sions process relating thereto.

15. The University and the School of Law are bound

by legal, ethical and moral considerations and by its own

pronouncements to implement forms, rules and regulations

that foster openness and avoid secreey and unwarranted

subjective considerations in the admissions process.

16. This complaint constitutes an allegation of mas-

sive fraud, conspiracy and wrongdoing by the University

and the School of Law and their officials, in their individ-

ual and official capacities, in the operation of the Univer-

sity of the School of Law with particular regard to the ad-

missions process. This complaint constitutes but is not lim-

ited to an allegation that the University authorized and

commissioned a committee to study the admissions process

and then hid the full report from the public when the result

proved embarassing to the University; the University by

its own admission, discriminates with regard to race, na-

tional origin and economic circumstance in granting or

denying admission to the School of Law; the University

B-10

knew or should have known that wholesale cheating is go-

ing on with regard to the LSAT test; the University par-

ticipates, encourages and turns a blind eve to wholesale

LSAT cheating; the University and the School of Law use

an unlawful system or ranking applicants that permits the

maximum subjective ranking of any publicly funded Amer-

ican university known to the plaintiff; the School of Law

admussions committee is stacked in favor of recent grad-

uates of local, public high schools and the University of

Hawaii; the University and the School of Law manipu-

lates admissions rankings based upon a subtle, shrewd and

unlawful form of discrimination; that University pro-

nouncements of Openness and communication with the com-

munity amount to little more than verbal opium for the

masses that cannot be believed by any rational person who

has ever dealt with the University; the University and the

School of Law promote an admissions program that makes

some applicants and taxpayers more equal than other ap-

plicants and taxpayers without sufficient objective evi-

dence to support their established policies; that the Uni-

versity and the School of Law demands to know the politi-

eal affiliations and activities of all applicants; that real

control of the admissions process lies outside the Univer-

sity and the School of Law; and the University and the

School of Law have not complied with and are not in com-

pliance with and refuse to comply with the Hawai Ad-

ministrative Procedures Act (APA), Chapter 91 or the

Public Agency Meetings and Records Act, Chapter 92,

HRS, despite demands from the plaintiff that they comply

with both laws.

17. The plaintiff alleges that the University and the

School of Law through their legal agent, James H. Dan-

creeipaay’ 2

sae Ahaha AF 0s Bate

B-11

nenberg, Deputy Attorney General, prior to the filing by

the defendants of any pleadings before any court of law,

deliberately and willfully slandered and libeled the plain-

tiff with the intent to defame, and with the intent to un-

constitutionally and illegally invade the privacy of the

plaintiff by unlawfully providing information including the

plaintiff’s LSAT score, to Ka Leo, the University of

Hawaii newspaper, and to the daily press, for publication

in violation of the Hawaii constitutional and applicable

Hawaii state and federal laws protecting the rights of the

plaintiff.

18. The plaintiff alleges that the University and the

School of Law refuse to implement lawful procedures as

required by law to redress grievances internally within

the University and refuse to implement lawful procedures

in the administration of the University and the School of

Law; and the University Board of Regents refused and

continue to refuse to hear the grievances of the plaintiff

before or after the filing of litigation despite its lawful

obligation to hear those grievances.

19. The plaintiff alleges that the University and the

School of Law requires the submittal of the results of the

LSAT exam by all applicants and thereby forces non-

volunteer applicants to subject themselves to experimental

psychometric and psychological experimentation on hu-

mans without the informed consent of the applicants. A

- major portion of the LSAT exam is experimental and is

not counted toward the LSAT score. The makers of these

tests are in a profit making business and enjoy enormous

benefits as a proximate result of the coerced LSAT test

taking. In addition, the University knew or should have

known that the LSAT exam is a fraud and does not do

B-12

what it purports to do. The University and the School of

Law unlawfully use the results of the LSAT exam to deny

admission to applicants in violation of the explicit instrue-

tions of the makers of the LSAT exam.

20. The plaintiff has filed a prior action in the U.S.

District Court for the District of Hawaii (Civil No. 84-

1072) that contained some of the allegations contained in

this complaint, but only with regard to his application for

the 1984-85 Law School year. The following year, a new

admissions committee was formed. The district court com-

plaint is currently under appeal before the Ninth Cireuit

Court of Appeals after the distriet court granted the de-

fendants summary judgment. Prior to summary judgment,

the plaintiff withdrew all state law allegations barred by

the Eleventh Amendment of the Constitution of the United

States. This instant action covers the plaintiff’s applica-

tions for both the 1984-85 school year and also his applica-

tions for the 1985-86 and 1986-87 school vears. The de-

cision of the appeals court (or any subsequent appeal)

may or may not have an impact on this action which is

being filed in order to save the plaintiff’s statute of limita-

tions time and in order to bring substantial amounts of

new evidence to the attention of the state court, along with

the state law allegations barred from federal court by the

Eleventh Amendment, in conformance with the State of

Hawaii’s arguments before the district court.

21. THIS COMPLAINT CONTAINS STATE AL-

LEGATIONS AND CLAIMS FOR EVENTS AND IN-

JURIES BARRED BY THE ELEVENTH AMEND-

MENT FROM FEDERAL COURT ADJUDICATION

THAT WERE WITHDRAWN FROM FEDERAL

COURT WITH THE AGREEMENT OF THE DEFEN-

B-13

DANTS; THIS ACTION CONTAINS ALLEGATIONS

AND CLAIMS WITH REGARD TO EVENTS THAT

OCCURRED SUBSEQUENT TO THE FILING OF THE

DISTRICT COURT ACTION, AND THIS ACTION IS

ALSO THE RESULT OF THE RECEIPT BY THE

PLAINTIFF OF SUBSTANTIAL NEW, RELEVANT

INFORMATION THAT THE DEFENDANTS HAVE

ATTEMPTED TO HIDE FROM THE PLAINTIFF

THAT THE PLAINTIFF DID NOT HAVE IN HIS

POSSESSION WHEN CIVIL NO. 84-1072 WAS FILED.

COUNT I

22. Plaintiff was at the time of his application(s) for

admission to the School of Law, a fifty or fifty one-year

old, Caucasion, male, citizen and resident of the State of

Hawaii since 1960, a B.G.S. graduate of Chaminade Uni-

versity of Honolulu, an accredited university, with dis-

tinction, and a 3.83 grade point average (maximum 4.00

scale), who desires to be admitted as a student to said uni-

versity at the current fall session after the cause has been

heard and determined without delay, in order to avoid irre-

parable harm. At the time of his second application for

the 1985-86 school year, the plaintiff had completed three

graduate level courses as an unclassified student with the

School of Psychology at the University of Hawaii earning

two A’s and one B in those courses. At the time of his

1986-87 application, the plaintiff had completed most of the

requirements for an M.S. degree in counseling psychology

at Chaminade University of Honolulu. That course of

study ineluded psychological and psychometric testing.

The plaintiff is ready, willing and able to pay the requisite

uniform fees and conform to the lawful uniform rules and

regulations for admission. The plaintiff is currently com-

B-14

pleting the requirement’s for an M.S. degree in counseling

psychology at Chaminade University of Honolulu and ex-

pects to graduate this summer.

23. On January 29, 1984, on February 25, 1985 and

again on February 27, 1986, the plaintiff applied for ad-

mission to said University School of Law. Plaintiff com-

plied with all the /awful instructions, rules and regulations

of the University and the School of Law. On May 4, 1984

and at several other times subsequently, plaintiff supplied

additional information to the School of Law Admissions

Committee.

24. Plaintiff received a letters from Judith M. Kirk-

endall, Registrar and Director of Student Affairs dated

May 7, 1984 and May 2, 1985 denying the plaintiff admis-

sion to the law seool. The 1986-87 application is still pend-

ing.

25. The information booklet of the School of Law

outlines a Pre-Admission to Law School Program that pro-

vides ‘‘students from disadvantaged population groups

under-represented in the Hawaii Bar with an opportunity

to improve and to demonstrate their ability to do law

school work. The students who are selected from among

applicants with re.ccds not strong enough to justify ad-

mission into the regular program, must nonetheless show

enough promise to indicate potential for successful com-

pletion of law study and significant contribution as law-

yers.’’ The only requirement to continue after the first

vear of work is a 2.00 grade point average with students

earning a 1.6 to 1.99 grade point average admitted under

probation.

26. An October 24, 1983 University Secret Admis-

sions Review Committee Report obtained by the plaintiff

B-15

noted that the School of Law places ‘‘strong emphasis on

three special areas with regard to all applications. First,

whether the applicant has any particular skills which

would qualify him to practice law in a specialty currently

understaffed by the Bar. Thus, for example, someone who

spoke fluent Korean or was particularly knowledgeable

about the law of the sea would stand a better chance for

admission. Second, applicants who come from racial and

ethnic groups currently under represented in the Bar are

also given special consideration. Finally, the duration and

quality of residency in the State of Hawaii is considered a

positive feature. The majority of the applicants are resi-

dents of Hawaii.’’ The secret report further states that

with regard to the Pre-Admissions Program the terms

‘‘economically and educationally disadvantaged’’ as a

practical matter translate into motivated applicants who

are other than Caucasion, Chinese, Japanese and Koreans.

27. Plaintiff alleges that ‘‘anything that departs

from an unqualified and unlimited open policy implies

some sort of ideology of preferences. And what one pre-

fers, one tends to endow with merit.’”? (Kraft, Ivor, Race,

Merit and the Fourteenth Amendment) Such preferences

are clearly unconstitutional, illegal under state and federal

law and are prima facie evidence of the efficacy of the

allegations of the plaintiff.

28. When a classification denies an individual oppor-

tunities or benefits enjoyed by others solely because of his

or her race or ethnic background, it must be regarded as

suspect. The University’s admissions program of explicit

racial classification has never been countenanced by any

court. It tells applicants who are not ‘‘minorities’’ that no

matter how superior or strong their qualifications, they

B-16

will never be allowed the chance to compete for admission

with all other applicants. Racial and ethnic classifications

are inherently suspect and call for exacting judicial seru-

tiny (see, Bakke).

29. In modern history, Hawaii has no history of dis-

crimination towards minorities such as the discrimination

the blacks were subjected to in the southern United States

that warrants any preferential admissions policies or ex-

traordinary measures whatsoever, and in any event, ‘‘pre-

ferential arrangements for minority students cannot be

established on a permanent basis.’ (The Director of the

Office of Civil Rights In Re: DeFunis v. Odegaard record,

82 Wash. 2d 11; 507 P. 2d 1169 (1973), vacated per curiam

as moot, 416 U.S. 312; 94S. Ct. 1704 (1974), pp. 1201-1203

and Kraft, Ivor, Race, Merit and the Fourteenth Amend-

ment, p. 25.) Discrimination on racial grounds is always

and invariably subject to the strictest serutiny. (In Re:

Loving v. Virginia, 388 U.S. 1 [1967]). ‘Judge Lloyd

Shorett of the King County Superior Court, citing Brown,

found that DeFunis had been deprived of equal protection

of the laws under the Fourteenth Amendment, and ordered

his admission to the Law School. ‘In my opinion,’ said

Judge Shorett, ‘the only safe rule is to treat all races alike

and I feel that is what is required under the equal) protec-

tion clause.’ *’ (DeFunis Record, 116 and Kraft, Ivor,

Race, Merit and the Fourteenth Amendment.) If educa-

tional corrections need to be made, the place to make them

is at the secondary level, not at the graduate level. The

only proper way to obtain an education is to earn it. Plain-

tiff has earned an opportunity for an education.

30. Plaintiff alleges that the defendants associated

with the University of Hawaii and the State of Hawaii,

B-17

individually and collectively, have designed and are sup-

porting a system of arbitrary, capricious, administrative

action, along with unlawful procedures, discrimination and

‘*stonewalling’’ with regard to any information on any

aspect of this dispute. In addition, the University of

Hawaii, despite disclaimers to the contrary, has no timely,

established system of review, and there is no practical way

to scrutinize or to challenge the admissions process despite

strict state law guaranteeing open and fair rules and pro-

cedures.

31. The plaintiff alleges that the School of Law oper-

ates a ‘“‘blackball’’ system with regard to admissions where

all members of the admissions committee must agree or an

application is not accepted. Any one member of the faculty

ean also effectively block an application.

32. Defendants have established and are maintaining,

under color of unconstitutional rules of the University and

laws of the State of Hawaii, a policy, custom, and usage of

denying to qualified plaintiff applicant the equal protec-

tion of the laws by refusing him admission to the Univer-

sity School of Law on the basis of race, national origin or

age through the device of protecting certain ‘‘slots’’ for

those of specific race or national origin, and have con-

tinued the policy of refusing to admit qualified Caucasion,

resident of Hawaii applicants into said School of Law,

while at the same time admitting applicants on the basis or

race or national origin with equal or less qualifications

than plaintiff. The plaintiff has not been able to compete

for all of the ‘‘slots’’ in the School of Law classes for two

years in violation of the guidelines laid down by the U.S.

Supreme Court in the Bakke decision.

B-18

33. The procedures of the Defendants as outlined in

this complaint create a multi-layered, subtle, fine-mesh

system of diserimination by which those applicants of a

certain age who were born and raised in Hawaii, who grad-

uated from secondary schools and who attended college in

Hawaii and who are of a particular age, racial and/or

national origin extraction, will more easily pass through

the filter where older Caucasion residents of the State of

Hawaii who did not attend and graduate from secondary

schools in Hawaii will not enjoy the same equal opportun-

ity to compete for all the seats in three vears of Law

School classes, tokenism and disclaimers not withstanding.

34. The plaintiff specifically alleges that the conduct

of the defendants as officials in their official capacities

clearly violates established statutory or constitutional

rights of which a reasonable person would have known.

The defendants are essentially the University of Hawaii,

its School of Law and their respective officials as officials

and as individuals, who are responsible for the implemen-

tation and the perpetuation of these unlawful and unconsti-

tutional practices. Since this action involyes the School of

Law, and not a less legally informed agency such as the

School of Medicine, the officials must be held to high

standards for it is they who have a monopoly and the man-

date in the State of Hawaii, to teach and maintain high

standards of lawful conduct in the exercise of their duties.

35. As a proximate result of the malicious and un-

lawful acts of the defendants which plaintiff HALL has

suffered as outlined in Count I, he should be awarded gen-

eral damages on his behalf and against defendants in the

amount of $50,000; with nominal, special, compensatory or

actual damages in an amount to be proven at trial. In ad-

B-19

dition, as a proximate result of the unlawful, malicious,

secretive, reckless and willful disregard and deprivation

of the lawful and constitutional rights of the plaintiff and

the public trust, HALL should be awarded punitive, or

exemplary damages on his behalf and against the defen-

dants jointly and severally in the amount of $500,000.

COUNT II

36. Paragraphs 1 through 35 are incorporated herein

by referenee. The defendants claim that they use a three-

part method of evaluating applicants, LSAT score, under-

vraduate grade-point average (GPA) and subjective score.

Most mainland publiely funded law schools use a system

where the total number of points that can be obtained runs

over 1,000 points. In the case of the Rutgers Law School

the maximum number of points is 2,188, or 2,868 at the end

of two stages, one of which includes a subjective evalua-

tion. The Rutgers subjective evaluation is based solely

upon (1) edueation, (2) work experience, (3) personal

information inelnding an essay, (4) a recommendation,

and (5) grade inflation (see, Doherty, par. 37 below).

The Hawaii system, however, has a total maximum of only

15 points, five points in each of the three categories. Most

mainland public law schools that strive for fairness and

objectivity no longer use a subjective seore in the admis-

sions process (see, PFYA score used at the University of

Minnesota in McAdams v. Regents of University of Min-

nesota, 508 F.Supp. 354 [1981], at 357). The 1,000 to 2,000

points or so are computed under a formula involving only

the LSAT seore and the undergraduate GPA at some

schools. Those schools who still use a subjective component

use a procedure that is quite different from the procedure

B-20

used at the University of Hawaii, and is similar to that

used at Rutgers. Their procedures do not permit subjec-

tive discrimination. Several schools weight the under-

graduate GPA as counting proportionately more than the

LSAT. The University of Hawaii School of Law has never

published its eriteria for subjective evaluations. That

failure to disclose permits, of conrse, the maximum sub-

jectivity in an evaluation.

37. In Doherty (see, Doherty vs. Rutgers, 651 F.2d

893 [8rd Cir. 1981]), standing to bring an action was de-

termined on the basis that the addition of the maximum

subjective score, 680 points, did not bring Doherty’s seore

above the cut-off point for that year. In the instant ease,

the addition of the maximum subjective score would have

brought the plaintiff well above the eut-off point for any

year.

38. The system used in Hawaii is very shrewd. With

a high point number system, the applicants are neatly

spread in rank. With a total score of fifteen, most appli-

cants are compressed into a limited number of ranks. The

beauty of the Hawaii system in eliminating applicants, is

that a second subjective choice can then be made by pick-

ing and choosing within a numerical rank crowded with

applicants without obvious flagrant discrimination. The

first discriminatory choices are made by manipulating the

subjective score. Another discrimination occurs by over-

weighting LSAT scores that fall below the past ‘‘eut-off’’

point of 27. A score of 25 for example, is assigned a nu-

merical score of -—2, a very heavy weighting for only two

points below the desired minimum or the alleged “cut-off”

score of 27. The evaluation point assignment used at the

B-21

Law School is not spread evenly over the total LSAT point

range of 0 through 48, and is enormously discriminatory

in its application. The question of the use ‘‘eut-off’’

scores, a policy that the School of Law, is another issue

in this complaint. When challenged on that point in Rob-

mson v, Williams (University of Mississippi Law School),

Civil No. WC 74-66-K (N.D. Miss.), the University of

Mississippi Law School immediately caved in and reported,

‘“‘The Law School has ceased to use any minimum LSAT

score in the admission process’’. None of this information

has ever been published or made uniformly public to ap-

plicants. In the plaintiff’s case, a maximum subjective

score of 5 added to his undergraduate grade point average

score of 5 would have given him a 10 seore. The appli-

cation of a negative score with regard to the LSAT score

is challenged herein, but even if this system survives chal-

lenge, the application of the -2 would have given the

plaintiff an 8 score, well within the scores of those accept-

et for admission in both admissions years. This informa-

tion with regard to the system used by the Law School

was obtained from an affidavit filed in Civil No. 84-1072

in U.S. District Court, and is without prejudice to dis-

covery or cross-examination by the plaintiff. Not only

is the School of Law admissions system shrewd, it amounts

to an arrogant, unlawful, private use of public funds.

39. Hawaii separates itself from many mainland law

schools another way. The Law School Admissions Counsel

(LSAC) has published firm instructions that the LSAT

should not be used as the sole criteria for admission or

the denial of admission. The reason for this instruction

is that the LSAT is not a valid predictor of first year law

school suecess. Validity improves (but is still terrible)

if the LSAT is matehed with the undergraduate GPA.

Hawaii ignores that LSAC caution and gets rid of many

of those it does not subjectively want by an LSAT cut-off

point and by overweighting with minus scores, those who

fall below 27. That eut-off is apparently adjusted and

for the last two years, has stood at 27. One way is just

effective as the other for usine the LSAT seore to elim-

inate applicants. There were exceptions, of course, for

those who had special merit. None of this information

is published or routinely provided to prospective appli-

eants.

40. The manner in which the University of Hawaii

uses LSAT scores in the admissions process is unlawful

for several reasons. The first is the perception that most

people have as to what the LSAT test (or any other Edu-

cational Testing Service [ETS] test) is. TheLSAT exam

tests how well a person does on the LSAT exam and noth-

ing more. The LSAT test is not an aptitude test. The

test is a massive fraud, pure and simple. That fraud

has never been adjudicated on the merits in any court.

The vast majoritv of those who do well on the LSAT

exam do well by simply cheating by taking a coaching

course. National LSAT statisties are invalid for several

reasons ineluding the availability of superior coaching

courses in major metropolitan areas and the fact that the

random selection statistical basis of the test is destroyed

by that coaching and several other psychometric reasons.

The coaching courses teach students how to cast out the

wrong answers by process of elimination without ever

knowing why the right answer is right. The better coach-

ing courses have determined by computer analysis, several

patterns in LSAT test construction which can easily be

B-23

taught to students who spend weeks of their time and

who pay a substantial fee. Nothing is learned in the

process except how to heat the test. By definition, such

a test cannot be called an aptitude test. By the statistics

published by its authors (known as correlation statistics),

the exam is also a fraud since it simply does not do what

those who use it purport it will do. It does not fairly pre-

dict first year law school performance, a fact well known

in psychometrie circles.

41. As a proximate result of the malicious and un-

lawful acts of the defendants which plaintiff HALL has

suffered, he should be awarded general damages on his

behalf and against defendants in the amount of $50,000;

with nominal, special, compensatory or actual damages in

an amount to be proven at trial. In addition, as a proxi-

mate result of the unlawful, malicious, secretive, reckless

and willful deprivation and disregard of the lawful and

constitutional rights of the plaintiff and the public trust,

HALL should be awarded punitive, or exemplary damages

on his behalf and against the defendants jointly and sev-

erally in the amount of $500,000.

COUNT ITI

42. Paragraphs 1 through 41 are incorporated herein

by reference. The plaintiff has made several lawful at-

tempts to determine the validity of the admissions proced-

ures used at the University under the APA, Chapter 91,

and Chapter 92, HRS. One such attempt was made on

October 5, 1985 direct to the President of the University

of Hawaii, Albert J. Simone and another was made on De-

ecember 11, 1985 to Judith M. Kirkendall, Registrar and

B-24

Director of Student Affairs at the William S. Richardson

School of Law.

43. Despite the applicability of the APA to all agen-

cies of the State of Hawaii and the finding of the U.S.

District Court for the District of Hawaii on January 22,

1985 that the University is an agency of the State of

Hawaii, the University and the School of Iaw have at all

times, refused and failed to respond to the lawful requests

of the plaintiff to provide evidence that the rules and regu-

lations ineludine the admissions procedures used at the

University and the School of Law were adopted in lawful

compliance with the APA, Chapter 91, HRS.

44. The plaintiff alleges that the rules and regula-

tions of the University in general, and specifically the ad-

missions procedures utilized to exclude the plaintiff from

the School of Law, have not been adopted in lawful com-

pliance with the APA, Chapter 91, HRS.

45. The plaintiff requests declaratory judgment; that

this court issue a judicial declaration as to the validity of

the rules and regulations and other requests outlined in the

October 5 and December 11, 1985 letters, and declare all

University and School of Law admissions rules and regu-

Jations invalid that violate constitutional or statutory pro-

visions, or exceed the statutory authority of the agency, or

were adopted without compliance with statutory rule-

making procedures, in accordance with Section 91-7, HRS.

COUNT IV

46. Paragraphs 1-45 are incorporated herein by ref-

erence. On August 7, 1984, the plaintiff made a request

under HRS Section 92-51 and 92-21, Publie Reeord Access

B-25

& Copying Request. The request was made to Marvin J.

Anderson, in his capacity as Chancellor, University of

Hawaii. The request was ignored.

47. The plaintiff requests that a hearing be sched-

uled, and the court find that the denial was not for just

and proper cause, and that the court grant an order un-

der part 92-52 ordering the appropriate official at the

University to provide the documents requested in the Au-

oust 7, 1984 letter.

COUNT V

48. Paragraphs 1-47 are ineorporate herein by refer-

ence. In September of 1984, counsel for the defendants

James H. Dannenberg spoke to the press about the U.S.

District Court case. These contacts occurred after the

plaintiff had filed Civil No. 84-1072 in U.S. District Court,

but occurred prior to the filing of any pleadings of any

kind by the defendants in the U.S. District Court. One

member of the press that Mr. Dannenberg spoke to was a

reporter by the name of Norman Lee, a reporter for Ka

Leo O Hawaii, the University of Hawaii newspaper. In

that discussion, Mr. Dannenberg provided Mr. Lee with

the information that the plaintiff’s LSAT score was 25,

‘‘two points below the UH law school’s established mini-

mum requirement secore’’. Mr. Dannenberg obtained that

information from the plaintiff’s confidential, personal Uni-

versity records with the cooperation of and in a conspir-

acy with University officials. That information supplied

by Mr. Dannenberg was published by Ka Leo on Septem-

ber 14, 1984 in a front page, headlined article by Mr. Lee.

B-26

49. The information concerning the LSAT score sup-

plied by Mr. Dannenberg to Mr. Lee for publication was

not only as an invasion of the plaintiff’s constitutional and

lawful right to privacy, but also was a deliberate attempt

to libel and slander with the intent to defame, the plain-

tiff.

50. As a proximate result of the malicious and un-

lawful acts of the defendants outlined in Count IV which

plaintiff HALL has suffered, he should be awarded gen-

eral damages on his behalf and against defendants in the

amount of $50,000, nominal, special, compensatory or ac-

tual damages in an amount to be proven at trial. In addi-

tion, as a proximate result of the unlawful, malicious,

secretive, reckless and willful deprivation and disregard

of the lawful and constitutional rights of the plaintiff and

the public trust, HALL should be awarded punitive, or ex-

emplary damages on his behalf and against the defendants

jointly and severally in the amount of $500,000.

COUNT VI

51. The plaintiff specifically alleges that the defen-

dants have conspired under the definition of 42 U.S.C.

Section 1985(3) and 1986 for the purpose of depriving the

plaintiff, directly and indirectly, of equal protection of the

law, that the defendants as conspirators committed the

acts alleged in this complaint in furtherance of the con-

spiracy, and that the plaintiff has been injured in the

form stress and mental suffering, he has been deprived of

the property right to an education, and he has been de-

prived of having and exercising the rights or privileges

of a citizen of the United States as are outlined in this com-

B-27

plaint. The plaintiff alleges that the defendants had actual

knowledge of the discriminatory act by virtue of but not

limited to the filing of Civil No. 84-1072 in U.S. District

Court, and by virtue of correspondence, meetings and

telephone conversations with the plaintiff.

52. As a proximate result of the malicious and un-

lawful acts of the defendants in Count VI which plaintiff

HALL has suffered, he should be awarded general dam-

ages on his behalf and against defendants in the amount of

$50,000; and nominal, special, compensatory or actual dam-

ages in an amount to be proven at trial. Im addition, as

a proximate result of the unlawful, malicious, secretive,

reckless and willful deprivation and disregard of the law-

ful and constitutional rights of the plaintiff and disregard

of the publie trust, HALL should be awarded punitive, or

exemplary damages on his behalf and against the defen-

dants jointly and severally in the amount of $500,000.

COUNT VII

53. Paragraphs 1-52 are incorporated herein by refer-

ence. Defendants have established and are maintaining,

under color of unconstitutional laws or rules of the State

of Hawaii, a policy, custom, and usage of denying to the

qualified Caueasion plaintiff applicant the equal protec-

tion of the laws and are engaging in acts of violation of the

state anti-trust laws, acts of restraint of trade, conspiracy

and monopoly by refusing the plaintiff the educational

opportunity to qualify for the employment of the practice

of law in the State of Hawaii, while at the same time ad-

mitting applicants with equal or less qualifications than

plaintiff. Applicants who are admitted and who graduate

B-28

qualify to take the Bar examination. Plaintiff does not

qualify under current, unconstitutional rules, to take the

Bar examination and to practice as a licensed attorney in

the State of Hawaii.

54. The federal courts have held that whatever vari-

ous states may require before allowing applicants to take

the Bar examination, so long as they are applicable to

every citizen alike, it should be of no concern to the fed-

eral (and presumably state) courts. The plaintiff alleges

that with the unique (among all the fifty states) central

political and administrative control that the state admin-

istration exerts in all aspects of governmental life in

Hawaii, admission to the only ABA approved Law School

in the State of Hawaii is very much a part of this process,

and the applicable rules and reguiations are not applicable

to every citizen alike (see, Hackin v. Lockwood, 361 F.2d

499 [1966]). The applicable rules and regulations in

Hawaii create a system where some citizens are unlaw-

fully treated very specially and with enormous diserimina-

tion over other citizens.

55. The said action of defendants will effectively bar

plaintiff from the luerative practice of law now closed to

him because of a lack of graduation from a law school ap-

proved by the Council of the American Bar Association

on Lega! Education and Admissions to the Bar, and will be

obliged to aecept less remunerative employment. ‘‘As the

High Bench remarked in Brown, ‘education is perhaps the

most important function of state and local governments.’

and debates over education scmetimes go deeper than

debates on race.’’ (Kraft, Ivor, Race, Merit and the Four-

teenth Amendment.)

B-29

56. The said action of defendants also denies the

plaintiff the right and privilege to obtain a heavily sub-

sidized law education in said law school; it places plain-

tiff at great disadvantage with regard to obtaining a law

education within said state, as compared with other resi-

dents and non-residents of said state; it amounts to denial

to plaintiff, a citizen of the United States and of the State

of Hawaii, and others similarly situated of liberty and

property without due process of law, in violation of the

Fourteenth Amendment to the Constitution of the United

States and the Constitution of the State of Hawaii. The

courts have held that denials of licenses can be viewed

about equally as well as complaining of a deprivation of

the personal liberty to pursue the ealling of one’s choice

or of the profits or emoluments deriving therefrom (see,

Eisen v. Eastman, 421 F.2d 560 [19691). In the instant

case, the state requires graduation from their ABA ap-

proved School of Law, the only one in the State of Hawaii,

as a prerequisite to application for a license to practice

law, or to take the bar examination which is also a pre-

requisite to licensing.

57. Plaintiff has been damaged in that kis pleadings

have been stricken in Civil No. 85-0151 (Order Striking all

Pleadings Filed by Robert W. Hall and/or Bertha S. Hall

on Behalf of the Hall Trusts and Enjoining the Further

Unauthorized Practice of Law filed February 4, 1986, Cir-

euit Court of the First Cirenit, State of Hawaii), appar-

ently as a sanction for the alleged unlicensed representa-

tion of inter-vivos trusts for his son where he and his wife

retain a personal interest in the trusts. Civil No. 85-0151

is a foreclosure action with regard to the plaintiff’s prin-

cipal residence. Plaintiff alleges that the unlawful and

B-30

proximate acts of the defendants as alleged in this action

deprive the plaintiff of his lawful and constitutional right

to defend, and the legal knowledge to defend, his personal

and family interests, and that as a result, the defendants

herein must be held accountable for the damages that have

occurred and will likely oceur to the plaintiff by their un-

lawful actions, ineluding responsibility for the imminent

foreclosure of their principal residence, and future, sim-

ilar injuries,

08. As a direct and proximate result of the acts of

the defendants, the plaintiff is suffering irreparable in-

jury and is threatened with irreparable injury in the

future by reason of the acts herein mentioned. Plaintiff

has no timely, practical, plain, adequate remedy to redress

the wrongs and illegal acts herein complained of other

than this suit for a declaration of rights, damages and an

injunction. Any other remedy to which plaintiff could be

remitted would be attended by such uncertainties and de-

lays as to deny substantial relief, would involve a multi-

plicity of suits, cause further irreparable injury, and oe-

casional damages, vexation, and inconvenience, not only to

plaintiff, but to defendants as governmental agencies.

99. As a proximate result of the malicious and un-

lawful acts of the defendants outlined in Count V which

plaintiff HALL has suffered, he should be awarded gen-

eral damages on his behalf and against defendants in the

amount of $50,000, nominal, special, compensatory or ac-

tual damages including interest in an amount to be proven

at trial. In addition, as a proximate result of the unlawful,

malicious, secretive, reckless and willful disregard of the

lawful and constitutional rights of the plaintiff and the

B-31

public trust, HALL should be awarded, punitive, or ex-

emplary damages on his behalf and against the defendants

jointly and severally in the amount of $500,000, all dam-

ages trebled or otherwise multiplied in accordance with

applicable law.

Wherefore, plaintiffs respectfully pray that:

1. This court adjudge, decree, and declare the rights

and legal relations of the parties to the subject matter

here in controversy, in order that such declaration shall

have the foree and effect of a final judgment or decree.

29 This court enter a judement or decree declaring

that the said admissions policy, custom, usage, rules, regu-

lations and practice of the defendants in denying plaintiff

the right to enroll, enter, and pursue courses of study at

the School of Law at the University of Hawaii on account

of his age, race or national origin, or any other unlawful

consideration, is a denial of the equal protection of the

laws as guaranteed by the Fourteenth Amendment to the

Constitution of the United States, and is therefore uncon-

stitutional or unconstitutional or is illegal under appli-

“able state or federal law, as an unlawful admissions pol-

icy or as the admissions policy was applied specifically

to the plaintiff.

3. This court issue a permanent injunction forever

restraining and enjoining defendants and each of them,

from denying plaintiff the right to enroll and pursue

courses of study at the School of Law at the University

of Hawaii on account of the failure of the University and

the School of Law to comply with Chapters 91 & 92, HRS

(see, 56 H. 680, 548 P.2d 253); his age; his length of resi-

dence in the State of Hawaii; the location of the sec-

B-32

ondary schools or colleges he did or did not attend: his

letters of reference or lack thereof; his community ser-

vice or lack thereof; his race; his national origin; or any

other unconstitutional or illegal subjective factors or any

requirement not legally published under Chapter 91, HRS,

in the information hooklet of the Law School of the Uni-

versitv of Hawaii.

4. In the alternative, that this court issue a_per-

manent injunction prohibiting the University of Hawaii

from using the current School of Law admissions proce-

dure while finding the entire admissions process for the

1984-85, 1985-86 and 1986-87 school years unconstitutional,

illegal, null and void.

». That in the alternative, this court then issue a

writ of mandamus requiring the University of Hawaii to

re-select applicants to the School of Law for the 1984-85,

1985-86 or 1986-87 school vears from a group of. applicants

who are legal residents of the State of Hawaii who meet

whatever lawful admissions requirements remain, by lot

or by any other lawful means, and one of that group shall

he the plaintiff.

6. That in the alternative, this court issne a writ of

mandamus compellig defendants to register plaintiff as

a first vear student at the coming fall semester of the

School of Law of the University of Hawaii.

7. That this court enter a judgment or decree de-

claring that the said Hawaii Revised Statute Section 605-

14, conspiracy, custom, usage and practice of the defen-

dants Supreme Court of the State of Hawaii with regard

to the ‘‘unauthorized practice of law’’, is a denial of the

equal protection of the laws as guaranteed by the First,

B-33

Ninth and Fourteenth Amendments to the Constitution of

the United States and in violation of the federal and state

anti-trust, monopoly and restraint of trade laws cited

herein, and is therefore unconstitutional, illegwal, null and

void under the existing federal and state laws, above-

named.

8. That this court issue a permanent injunction for-

ever restraining and enjoining defendants and each of

them, from denying plaintiff the right to represent with

their consent, any member of his family before any fed-

eral or state court of law in the State of Hawaii.

9. That this court enter a judgment in favor of the

plaintiff against defendants jointly and severally for nom-

inal, special, compensatory or actual damages jointly and

severally in an amount to be proven at trial, general dam-

ages of $250,000 and punitive or exemplary damages of

$2,500,000, trebled where applicable.

10. Plaintiff further prays that the court allow him

his costs and compensation for his time in appearing as his

own attorney at the reimbursement of $75.00 per hour, and

such further, other, additional, or alternative relief as may

appear to the court equitable and just.

JURY DEMAND

Plaintiff hereby demands trial by jury pursuant to all

the provisions of Rule 38(b) of the Hawaii Rules of Civil

Procedure.

DATED: Honolulu, Hawaii, May 2, 1986.

/s/ Robert W. Hall

ROBERT W. HALL, Pro Se

C-1

APPENDIX ‘‘C”’

CORINNE K. A. WATANABE 1429

Attorney General

State of Hawaii

STEVEN S. MICHAELS 3852

Deputy Attorney General

State of Hawaii

Hawaii State Capitol

415 South Beretania Street

Honolulu, Hawaii 96813

Telephone: 548-4740

Attorneys for Defendants

(Filed July 27, 1986)

IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

STATE OF HAWAII

CIVIL NO. 86-1646

MOTION TO DISMISS, OR IN THE ALTERNATIVE

FOR SUMMARY JUDGMENT; MEMORANDUM IN

SUPPORT OF MOTION TO DISMISS, OR IN THE AL-

TERNATIVE, FOR SUMMARY JUDGMENT; AFFI-

DAVIT OF JAMES H. DANNENBERG; AFFIDAVIT

OF JEREMEY T. HARRISON; AFFIDAVIT OF STEV-

EN S. MICHAELS; NOTICE OF HEARING OF MO-

TION TO DISMISS, OR IN THE ALTERNATIVE, FOR

SUMMARY JUDGMENT; AND CERTIFICATE OF

SERVICE,

NO TRIAL DATE SET

DATE: JULY 29, 1986

TIME: 9:30 A.M.

JUDGE: EDWIN R. HONDA

[eaption deleted in printing]

C-2

MOTION TO DISMISS, OR IN THE ALTERNATIVE,

FOR SUMMARY JUDGMENT

Come now Defendants, in their individual and official

capacities, by and through their undersigned attorneys,

and pursuant to Rules 7(b)(1), 12(b)(1), 12(b)(2), 12(b)

(6), 54(b), 56(b), and 56(d), Hawaii R. Civ. P., hereby

move to dismiss any and all claims asserted in this action

or such claims as are subject to dismissal, or, in the al-

ternative for summary judgment as to any and all claims

asserted in this action, or such claims as to which summary

judgment may be granted.

Defendants or any of them also seek an express de-

termination that there is no just reason for delay in the

entry of judgment, pursuant to Rule 54(b), Hawaii R.

Civ. P., in the event such a determination should be ap-

propriate.

Defendants or any of them also seek the Court’s deter-

minations pursuant to Rule 56(d) as to what material

facts exist without substantial controversy and what ma-

terial facts are actually and in good faith controverted, if

such determinations are appropriate.

This motion is based upon the Hawaii Rules of Civil

Procedure cited above, the Constitution, statutes, and law

of the United States and the State of Hawaii, the attached

memorandum and affidavits, and the record and files

herein.

C-3

Dated: Honolulu, Hawaii, June 27, 1986.

CORINNE K.A. WATANABE

Attorney General

/s/ Steven S. Michaels

STEVEN S. MICHAELS

Deputy Attorney General

Attorneys for Defendants

C-4

APPENDIX ‘‘C(1)’’

ROBERT W. HALL

583 Kamoku Street, #2605

Honolulu, Hawaii 96826

(SOS) 942-1766

Pro Se

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

ROBERT W. HALL, an individual,

Plaintiff,

Vs,

STATE OF HAWAII, a State of the United States, UNI-

VERSITY OF HAWAII, a Hawaii corporation and a

land-grant college, THE WILLIAM S. RICHARDSON

SCHOOL OF LAW, a division of the University of

Hawai, ALBERT J. SIMONE, as an individual and in

his capacity as President of the University of Hawaii,

STEPHEN G. BESS, as an individual and as a Regent

of the University of Hawaii, GLADYS A. BRANDT,

as an individual and as a Regent of the University of

Hawaii, GREGORY DELA CRUZ, as an individual and

as a Regent of the University of Hawaii, JULIA FROH-

LICH, as an individual and as a Regent of the Univer-

sity of Hawaii, ROBERT M. FUJIMOTO, as an indi-

vidual and as a Regent of the University of Hawaii,

JAMES G. GARY, as an individual and as a Regent of

the University of Hawai, DANIEL M. ISHII, as an

individual and as a Regent of the University of Hawaii,

KENNETH N. KATO, as an individual and as a Re-

gent of the University of Hawaii, STANLEY Y. MU-

KAI, as an individual and as a Regent of the University

of Hawaii, WALTER R. STEIGER, as an individual

and as a Regent of the University of Hawaii, BURT K.

TSUCHIYA, as an individual and as a Regent of the

University of Hawai, TATSUKI SHIRAMIZU, as an

individual and as Secretary of the Board of Regents

C-5

of the University of Hawaii, MARVIN J. ANDERSON,

as an individual and as Chancellor of the University of

Hawaii, RICHARD S. MILLER, as an individual and

as Dean of the School of Law, JUDITH M. KIRKEN-

DALL, as an individual and as Registrar and Director

of Student Affairs of the School of Law, WILLIAM-

SON B.C. CHANG, as an individual and as a member

of the Admissions Committee of the School of Law,

IRENE RYPINSKI, as an individual and as a member

of the Admissions Committee of the School of Law,

LAWRENCE H. KAM, as an individual and as a mem-

ber of the Admissions Committee of the School of Law,

BODE UALE, as an individual and as a member of the

Admissions Committee of the School of Law, WILLIE

DOMINGO, as an individual and as a member of the

Admissions Committee of the School of Law, DEAN

KAUKA, as an individual and as a member of the Ad-

missions Committee of the School of Law, THE SU-

PREME COURT of the State of Hawai, HERMAN

LUM, as an individual and as Chief Justice of the Su-

preme Court of the State of Hawai, EDWARD NAKA-

MURA, as an individual and as an Associate Justice

of the Supreme Court of the State of Hawaii, FRANK

PADGETT, as an individual and as an Associate Jus-

tice of the Supreme Court of the State of Hawaii, YO-

SHIMI HAYASHI, as an individual and as an Asso-

ciate Justice of the Supreme Court of the State of

Hawall, JAMES WAKATSUKI, as an individual and

as an Associate Justice of the Supreme Court of the

State of Hawaii, JOHN DOES 1-20, JANE DOES 1-20,

DOK PARTNERSHIPS 1-20, DOK CORPORATIONS

1-20, DOE GOVERNMENTAL ENTITIES 1-20, and

DOE ENTITIES 1-20,

Defendants.

Pieces

C-6

CIVIL NO. 84-1072

AMENDED COMPLAINT FOR DAMAGES,

DECLARATORY AND INJUNCTIVE RELIEF

OR IN THE ALTERNATIVE AN APPLICATION

FOR WRIT OF MANDAMUS

(Filed Oct. 4, 1984)

NOTICE

THIS AMENDED COMPLAINT AMENDS THE

PLEADING ONLY. THE ORIGINAL EXHIBITS AT-

TACHED TO THE ORIGINAL COMPLAINT REMAIN

A PART OF THE ORIGINAL COMPLAINT AS

AMENDED.

The plaintiff ROBERT W. HALL, pro se comes now

with this complaint and petitions this court for an injunc-

tion or in the alternative, for a writ of mandamus against

the above-named defendants in their official capacity, and

also in their individual capacities, and as reasons and

grounds therefore, plaintiff alleges the following facts:

1. The jurisdiction of this court is invoked under

Title 28, United States Code (hereinafter “U.S.C.”), See-

tion 1331 and this court’s pendent and ancillary jurisdic-

tion. This action arises under Article I, Section 8: the

First, Fifth and Fourteenth Amendments to the Constitu-

tion of the United States; and the laws of the United

States including but not limited to the Civil Rights Act

of 1866, 1870, and 1871; Title IX of the Edueation Amend-

ments of 1972; Title I of the Civil Rights Act of 1968:

Titles VI and VII of the Civil Rights Act of 1964; Title

42, U.S.C., Sections 1981, 1982, 1983 and 1985, all of the

above as amended and as hereinafter more fully appears.

The matter in controversy exceeds, exclusive of interest

and costs, the sum of ten thousand dollars.

C-7

2. The jurisdiction of this court is also invoked under

Title 28, U.S.C., Seetion 1348, this being a suit in equity

authorized by law to be brought to redress the deprivation

under color of unconstitutional state law, statute, regula-

tion, custom and usage of a state of rights, privileges, and

immunities secured by the laws and Constitution of the

United States, viz., Sections 1981, 1982, 1983 and 1985

of Title 42 of the United States Code and the Fourteenth

Amendment to the Constitution of the United States pro-

viding for the equal rights of citizens and of all other

persons within the jurisdiction of the United States, as

amended and as hereinafter more fully appears.

3. The jurisdiction of this court is also invoked un-

der Article I, Section 4, Due Process and Equal Protee-

tion; Article I, Section 6, Rights of Citizens; Article II,

Section 20, Construction, Article III, The Legislature,

Section 1, Legislative Power; Article V, Section 5, The

Judiciary, Administration; Article IX, Education, Section

1, Public Education; Section 4, University of Hawaii;

Section 5, Board of Regents; Powers, providing for equal

rights of citizens and all other persons within the juris-

diction of the State of Hawaii; the Hawaii Fair Employ-

ment Practice Law, Title 21, Chapter 378-1 et seq., Hawaii

Revised Statutes; state and federal common law, and con-

tract law; all of the above as amended and as hereinafter

more fully appears.

4. The jurisdiction of this court is also invoked un-

der Title 28, U.S.C., Section 1337, the district courts having

original jurisdiction or proceeding regulating commerce

or protecting trade and commerce against restraints and

monopolies invoked under the Sherman Anti-Trust Act,

C-8

Public Law No. 190, Public Law 93-528 and the Hawaii

Revised Statutes, Trade Regulation and Practice, Monop-

olies; Restraint of Trade, Section 480-4(a) and Section

480-9.

5. Plaintiffs show further that this is a proceeding

for a declaratory judgment and injunction under Title 28,

U.S.C., Seetion 2201, for the purpose of determining a

question in actual controversy between the parties, to wit,

whether the practice of the defendants in denying plaintiff,

on account of equal opportunity, his age and his race, the

right to be admitted to and pursue courses of study at

the state and federally supported University of Hawaii

constitutes a denial of the right of the plaintiff to the

equal protection of the laws under the Fourteenth Amend-

ment to the United States Constitution and the laws of

the United States and the State of Hawaii.

6. All of the parties to this action, both plaintiff and

defendants, are citizens of the United States and the State

of Hawaii, and are residents of and domiciled in said state.

7. Defendant ALBERT J. SIMONE is the duly ap-

pointed, qualified and acting President of said university,

and as such governs and controls the several colleges and

schools of said university by the power vested in him by

the Board of Regents; STEPHEN G. BESS, GLADYS

A. BRANDT, GREGORY DELA CRUZ, JULIA FROH-

LICH, ROBERT M. FUJIMOTO, JAMES G. GARY,

DANIEL M. ISHII, KENNETH N. KATO, STANLEY

MUKAI, WALTER R. STEIGER, BURT K. TSUCHI-

YA, and TATS! KI SHIRAMIZU are all Regents of the

said university with power under the Hawaii Revised

Statute section 26-11, to formulate policy, and to exercise

C-9

control over the university through its executive officer,

the president of the university; MARVIN J. ANDER-

SON is the Chancellor of the Manoa campus of the Uni-

versity of Hawaii and possesses the power and the respon-

sibility to appoint investigatory committees and to review

the actions of the Admissions Committee of the School of

Law; RICHARD S. MILLER is the Dean of the School

of Law who makes a final review of the recommendations

of the Admissions Committee; JUDITH M. KIRKEN-

DALL is the Registrar and Director of Student Affairs

who makes the recommendations to the Admissions Com-

mittee with regard to initial qualifications or disqualifi-

eation; WILLIAMSON B. C. CHANG, IRENE RYPIN-

SKI, LAWRENCE H. KAM, BODE UALE, WILLIE

DOMINGO, and DEAN KAUKA are the six members of

the Admissions Committee of the School of Law who pos-

sess the authority to pass upon the eligibility of applicants

who seek to enroll as students therein, including plain-

tiff; HERMAN LUM is the Cnief Justice of the THE

SUPREME COURT of the State of Hawaii, EDWARD

NAKAMURA, FRANK PADGETT, Y. HAYASHI and

JAMES WAKATSUKI are Associate Justices who re-

quire that plaintiff be a graduate of a law school approved

by the Council of the American Bar Association on Legal

Education and Admissions to the Bar in order to practice

before the Supreme Court of the State of Hawaii; De-

fendant STATE OF HAWAII is a state of the United

States of America; THE UNIVERSITY OF HAWATLI is

a corporation and a federally funded land-grant college

existing under the laws of the State of Hawaii; THE

WILLIAM S. RICHARDSON SCHOOL OF LAW is a

law school of the University of Hawaii; and THE SU-

C-10

PREME COURT of the State of Hawaii is the judiciary

authority of the State of Hawaii.

8. Defendants conneeted with the State of Hawaii

and the University of Hawaii have the duty under Hawaii —

Revised Statute Section. 304-1 to govern the university in

a manner consistent with an ‘‘available to all’’ policy man-

dated by the legislature. Defendants operate as a public,

tax supported, land-grant institution the only law school

in the entire State of Hawaii. The School of Law at the

University of Hawaii is accredited and is approved by the

Council of the American Bar Association on Legal Edu-

cation and Admissions to the Bar. The University of

Hawali is engaged in interstate commerce and is a re-

cipient of federal funds and largess.

9. Plaintiff is a fifty-year old, Caucasion, male, citi-

zen and resident of the State of Hawaii since 1960, a

B.G.S. graduate of Chaminade University of Honolulu

with distinction and a 3.90 grade point average, who de-

sires to be admitted as a student to said university at the

current fall session after the cause has been heard and

determined without delay, in order to avoid irreparable

harm. The plaintiff is ready, willing and able to pay the

requisite uniform fees and conform to the lawful uniform

rules and regulations for admission.

10. In 1983, plaintiff wrote to the School of Law for

a catalog and an Application for Admission. Plaintiff

received the catalog or information booklet, the Instruc-

tions for Application Form, an Application for Admission

and two Letter of Recommendation forms. (See, Exhibit

‘*A’’, attached)

(-11

TTT On January 29, 1984, plaintiff applied for ad-

mission to said university. Plaintiff complied with all

the lawful instructions, rules and regulations contained

in the information booklet, in the Instructions for Ap-

plicant Form and on the Application for Admission form

sent to the plaintiff by the School of Law, entitling him

to admission, by filing with the proper officials of the

university the requested completed forms, official tran-

scripts of his scholastic records direct from the schools,

colleges and universities attended, and by filing the re-

quired two letters of recommendation or Applicant Ap-

praisal Form (See, Exhibit ‘*B’’ attached). On May 4,

1984, plaintiff supplied additional information to the

School of Law Admissions Committee to the effect that

he expected to graduate from Chaminade University of

Honolulu in June 1984 ‘‘with distinction’? and with a

grade point average of 3.90. (See, Exhibit **C’’, attached.)

12. On May 8, 1984, plaintiff received a letter from

Judith M. Kirkendall, Registrar and Director of Student

Affairs dated May 7, 1984 that denied the plaintiff ad-

mission to the law school. That letter contained a delib-

erately misleading statement that the Admissions Commit-

tee ‘‘carefully examined the qualifications of all the ap-

plicants--more than five for each of the spaces in this

year’s entering class.’’ (See, Exhibit ‘*D’’, attached)

In fact, most applications are routinely eliminated on resi-

leney gronnds. (See, Exhibit **E’’, attached.)

13. On June 15, 1984, plaintiff wrote to the Regis-

trar Ms. Kirkendall requesting ‘‘a clear, precise state-

ment of exactly what the requirements are to be admitted

to the Law School, whether waivers are ever granted and

—C-12

under what conditions waivers are granted with regard

to the requirements for admission, and exactly how I

failed to meet those requirements.’’ The letter further

went on, ‘‘I need this information to correct any areas

where I have not met the standards required of all ap-

plicants. As you know, the road to reach the point where

a person is eligible to simply apply to Law School is long

and costly in both time and money. I did not find the

catalog or the material that was sent to me informative

and | now ask for the information that anyone should

have who is applying for admission to the Law School.’’

(See, Exhibit ‘‘F’’, attached) On July 16, 1984, Plaintiff

received a letter from Ms. Kirkendall that was not re-

sponsive to the original request. (See, Exhibit ‘‘G”’, at-

tached) At about that time, plaintiff also met with Chan-

cellor Marvin .J. Anderson with regard to his Application

for Admission to the School of Law. At that meeting,

Chancellor Anderson promised to arrange a meeting be-

tween plaintiff and the Dean of the School of Law, Rich-

ard S. Miller. No meeting was ever arranged by the Chan-

cellor. Plaintiff did meet briefly with the Dean Miller

plaintiff’s own initiative and was unable to resolve the

dispute. The Chancellor has subsequently refused to an-

swer all telephone calls from plaintiff.

14. On August 7, 1984, plaintiff wrote to Chancellor

Anderson requesting ‘‘full, immediate and complete in-

vestigation of the handling of my application with a reso-

lution to the problem well before the first day of classes.

.. . If any machinery exists at the university that will

handle the current situation out of court, I request that it

be used without delay.’’ (See, Exhibit ‘*H’’, attached)

Chancellor Anderson never replied to that letter. On

August 7, 1984, plaiatiff requested a reconsideration of

plaintiff's Application for Admission to the School of Law

and submitted additional information with regard to his

years of community service. (See, Exhibit ‘‘1’’, attached.)

After a meeting with the Registrar where it was suggested

that plaintiff provide ‘‘ten’’ additional letters of recom-

mendation. Plaintiff attempted to comply with that cur!

ous request and made requests in the community for addi-

tional letters of recommendation for direct submittal to

the Registrar. (See, Exhibit ‘‘P’’, attached.)

15. On August 8, 1984, Ms. Kirkendall wrote to

plaintiff indicating in that letter and in subsequent per-

sonal and telephone conversations that the Admissions

Committee would reconsider plaintiff’s Application for

Admission. (See, Exhibit ‘*.J°, attached)

16. On August 17, 1984, Dean Miller wrote to plain-

‘iff stating that contrary to previous understandings, the

Admissions Committee would not reconsider plaintiff’s

Application for Admission. (*<v, Exhibit ‘‘K’’, attached)

17. On August 23, 1984, plaintiff wrote to the Direc-

tor of Student Services to appeal the decision of the Ad-

missions Committee of the School of Law in accordance

with the procedure outlined in the University of Hawaii

Graduate Information Bulletin. (See, Exhibit ‘*L’’, at-

tached )

18. In subsequent telephone conversations, plaintiff

learned that the committee when formed, would only have

the power to recommend action to the Chancellor who

would not attend the hearings or listen to the evidence,

("-14

that the committee could not offer any assurance of timely

due process or review to the plaintiff and that the scope of

authority of the committee would be too narrow and lim-

ited to offer relief practical relief assuming the plaintiff

proved his ease. As late as September 1, 1984, the first

meeting had not been held between the committee and the

plaintiff. Plaintiff concluded that the University of Ha-

waii had no effective, orderly system of review of appeal,

hat the University of Hawaii was not in a position to

vrant relief commensurate with the claim, that the relief

would not be available within a reasonable time, that the

procedures were one-sided and not fair, that the committee

was only formed to perform perfunctory appearances of

relief as opposed to actual relief and that the relief sought

could not be provided by the committee in order to pre-

vent irreparable injury, and to preserve the Section 1983

rights of the plaintiff until the administrative process was

concluded.

19. The Admissions Requirements and Procedures

as listed in the information booklet and on the Instruc-

tions for Application Form include only two substantive

requirements for admissions to the School of Law other

than submitting the forms and the application fee. They

are found on page 43 of the booklet (See, Exhibit ‘‘A’’,

attached.) and are that each applicant must have earned

a baccalaureate degree from an accredited United States

Institution of higher learning, that each applicant must

take the Law School Admission Test (LSAT), that each

applicant must submit transcripts of his undergraduate

college record to the Law School Date Assembly Service

for processing, and that each applicant must submit two

letters of recommendation on the approved form. No

C-15

other requirements for admission are required according

to the School of Law and applicants are instructed that

personal interviews ‘‘are not considered a part of the ap-

plication procedure’’ and ‘‘Committee members will ap-

preciate reasonable brevity’? with regard to filling out the

application.

20. Plaintiff completed and submitted all of the re-

quired forms and supplied the application fee and all the

required documents prior to the deadline for filing. (See,

Exhibit ‘‘B’’, attached.) Plaintiff has not received any

indication that his application was incomplete and he be-

lieves that his application was complete.

21. Plaintiff met all of the requirements as outlined

in the information supplied to the plaintiff by the School

of Law tor admission to the School of Law. If the uni-

versity has adopted any standards beyond those found in

the information booklet, they have never been communi-

eated to the applicant. Plaintiff alleges that the catalog

is an offering in the nature of a contract which the plain-

tiff accepted in good faith, meeting all the published re-

quirements, and now demands performance on the part

of the School of Law.

22. On August 7, 1984, plaintiff wrote to Chancellor

Anderson with a Hawaii Revised Statute Section 92-51

and 92-21, Publie Record Access & Copying Request where

plaintiff requested a copy of the independent committee

report on admissions that was released to the public in

1983. Plaintiff also requested a copy of the Board of Re-

gents By-Laws and Policies. (See, Exhibit ‘‘M’’, at-

tached.) That letter has never been answered and the

Chancellor will not receive or return telephone calls on

C-16

the subject. The independent committee report was also

requested from Dean Miller who also refused to provide

the information. Plaintiff has since obtained a copy otf

the independent committee report from another source.

(See, Exhibit ‘‘E’’, attached.) Defendant Chancellor An-

derson has refused to provide this report to the press.

(See, Exhibit ‘‘N’’, attached.) Plaintiff has also requested

his final ranking with regard to the subjective score as-

signed to the plaintiff by the Registrar or the Admissions

Committee. The Registrar has refused to provide that

information to the Plaintiff.

23. The information booklet of the School of Law

outlines a Pre-Admission to Law School Program that

provides ‘‘students from disadvantaged population groups

under-represented in the Hawaii Bar with an opportunity

to improve and to demonstrate their ability to do law

school work. The students who are selected from among

applicants with records not strong enough to justify ad-

mission into the regular program, must nonetheless show

enough promise to indicate potential for successful com-

pletion of law study and significant contribution as law-

yers.’’ The only requirement to continue after the first

year of work is a 2.00 grade point average with students

earning a 1.6 to 1.99 grade point average admitted under

probation. (See, Exhibit ‘‘A-2’’, attached.)

24. The report of the independent committee on ad-

missions (See, Exhibit ‘‘I’’, attached.) noted that the

School of Law places ‘‘strong emphasis on three special

areas. First, whether the applicant has any particular

skills which would qualify him to practice law in a spe-

cialty currently understaffed by the Bar. Thus, for ex-

C-17

ample, someone who spoke fluent Korean or was particu-

larly knowledgeable about the law of the sea would stand

a better chance for admission. Second, applicants who

come from racial and ethnic groups currently under rep-

resented iv the Bar are also given special consideration.

Finally, the duration and quality of residency in the State

of Hawaii is considered a positive feature. The majority

of the applicants are residents of Hawaii.’’ (See, Exhibit

‘*Hj-13’’, attached.) The report further states that with

regard to the Pre-Admissions Program the terms ‘‘eco-

nomically and educationally disadvanged’’ as a practical

matter translate into motivated applicants who are other

than Caucasion, Chinese, Japanese and Koreans. Plain-

tiff alleges that ‘‘anything that departs from an unquali-

fied and unlimited open policy implies some sort of ideol-

ogy of preferences. And what one prefers, one tends to

endow with merit.’’ (Kraft, Ivor, Race, Merit and the

Fourteenth Amendment) Such preferences are clearly

unconstitutional, illegal under state and federal law and

are prima facie evidence of the efficacy of the allegations

of the plaintiff.

25. In modern history, Hawaii has no history of dis-

crimination towards minorities such as the discrimination

the blacks were subjected to in the southern United States

that warrants any preferential admissions policies or ex-

traordinary measures whatsoever, and in any event,

‘‘preferential arrangements for minority students cannot

be established on a permanent basis.’’ (The Director of

the Office of Civil Rights In Re: DeFunis v. Odegaard

record, 82 Wash. 2d 11; 507 P. 2d 1169 (1973), vacated

per curiam as moot, 416 U.S. 312; 94 S. Ct. 1704 (1974),

pp. 1201-1203 and Kraft, Ivor, Race, Merit and the Four-

C-18

teenth Amendment, p. 25.) Discrimination on racial

grounds is always and invariably subject to the strictest

scrutiny. (In Re: Loving v. Virginia, 388 U.S. 1 [1967 ]).

‘‘ Judge Lloyd Shorett of the King County Superior Court,

citing Brown, found that DeFunis had been deprived of

equal protection of the laws under the Fourteenth Amend-

ment, and ordered his admission to the Law School. ‘In

my opinion,’ said Judge Shorett, ‘the only safe rule is to

treat all races alike and I feel that is what is required

under the equal protection clause.’’’? (DeFunis Record,

116 and Kraft, Ivor, Race, Merit and the Fourteenth

Amendment.) If educational corrections need to be made,

the place to make them is at the secondary level, not at

the graduate level. The only proper way to obtain an

education is to earn it. Plaintiff has earned an oppor-

tunity for an education.

96. Plaintiff alleges that the defendants associated

with the University of Hawaii and the State of Hawaii,

individually and collectively, here designed and are sup-

porting a system of ‘‘stonewalling’’ with regard to any

information on any aspect of this dispute. In addition,

the University of Hawaii, despite disclaimers to the con-

trary, has no timely, established system of review, and

there is no practical way to scrutinize or to challenge the

admissions process.

27. Plaintiff is currently representing himself in

civil eases before the state and federal courts in Hawaii

as his own attorney. Also involved in several of these

civil eases is his wife and the plaintiff and his wife in

their capacities as trustees for their son. On three sepa-

rate oceasions including one that is now befere the U.S.

C-19

District Court in Civil No. 84-0784, opposing counsel have

filed documents charging that the plaintiff in this case is

engaged in the unauthorized practice of law under the

Hawaii Revised Statutes Section 605-14. In a previous

ease and after instructions by the court, plaintiff was

forced to retain counsel for his wife at an economic hard-

ship to the family despite the fact that at the time, plain-

tiff desired to exercise his constitutional rights and to

represent his family himself and his wife had agreed.

28. On two separate occasions, plaintiff has attemp-

ted to apply the examination for Admissions to the Bar.

(See, Exhibit ‘‘O’’, attached.) On both occasions, plain-

tiff was informed that the Rules of the Supreme Court

of the State of Hawaii (Rule 15) require that an appli-

eant be a graduate of a law school approved by the Council

of the American Bar Association on Legal Education and

Admissions to the Bar in order to practice law in the

State of Hawaii. While the rules are not specific, the

practice at the Supreme Court is to deny a non-graduate

the opportunity to take the examination. The current

rules, practices, policies and usage of the Supreme Court

of the State of Hawaii, when combined with the rules,

practices, policy and common usage of the another branch

of the State of Hawaii, the University of Hawaii, com-

bine to deny plaintiff his constitutional rights to engage

i the trade of his choice in violation of his First, Ninth

and Fourteenth Amendments to the Constitution of the

United States rights and in violation of applicable state

and federal anti-trust, restraint of trade and anti-

monopoly laws.

29. Defendants have established and are maintain-

ing, under color of unconstitutional laws of the State of

C-20

)

Hawaii, a policy, custom, and usage of denying to quali-

fied plaintiff applicant the equal protection of the laws

by refusing him admission to the university School of

Law on the basis of race and national origin through

the device of protecting certain ‘‘slots’’ for those of spe-

cific race or national origin, and have continued fhe policy

of refusing to admit qualified Caucasion, resident of

Hawaii applicants into said School of Law, while at the

same time admitting applicants on the basis or race or

national origin with equal or less qualifications than

plaintiff.

30. Defendants have established and are maintain-

ing, under color of unconstitutional laws of the State of

Hawaii, a policy, custom, and usage of denying to quali-

fied Caucasion plaintiff applicant the equal protection of

the laws and are engaging in acts of violation of the state

and federal anti-trust laws, acts of restraint of trade,

conspiracy and monopoly by refusing the plaintiff the

educational opportunity to qualify for the employment of

the practice of law in the State of Hawai, while at the

same time admitting applicants on the basis of age, race

or national origin with equal or less qualifications than

plaintiff. Applicants who are admitted and who gradu-

ate qualify to take the Bar examination. Plaintiff does

not qualify under current, unconstitutional rules, to take

the Bar examination.

31. The procedures of the Defendants as outlined

in this complaint create a multi-layered, subtle, fine-mesh

system of discrimination by which those applicants of a

certain age who were born and raised in Hawaii, who

graduated from secondary schools and who attended col-

C-21

lege in Hawaii and who are of a particular age, racial

and/or national origin extraction, will pass through the

filter where older Caucasion residents of the State of

Hawaii who did not attend and graduate from secondary

schools in Hawaii will not enjoy the same equal oppor-

tunity for admission to the School of Law and the prac-

tice of law in the State of Hawaii, tokenism and dis-

claimers not withstanding.

32. Defendants have established and are maintain-

ing, under color of unconstitutional laws of the State of

Hawaii, a policy, custom, and usage of a set of require-

ments for admission to the School of Law and for the

practice of law in the State of Hawaii that are deliber-

ately unconstitutionally vague so as to allow the maximum

subjective evaluation of each application in flagrant vio-

lation of constitutional state and federal law, while at

the same time admitting applicants on the basis of age,

race or national origin with equal or less qualifications

than those of the plaintiff.

33. The said action of defendants will effectively

bar plaintiff from the lucrative practice of law now closed

to him because of a lack of graduation from a law school

approved by the Council of the American Bar Association

on Legal Education and Admissions to the Bar, and will

be obliged to accept less remunerative employment. ‘‘As

the High Bench remarked in Brown, ‘education is per-

haps the most important function of state and local gov-

ernments,’ and debates over education sometimes go

deeper than debates on race.’’ (Kraft, Ivor, Race, Merit

and the Fourteenth Amendment.)

U-22

34. The said action of defendants denies to plain-

tiff the right and privilege to obtain a law education in

said law school; it places plaintiff at great disadvantage

with regard to obtaining a law education within said

state, as compared with other residents and non-residents

of said state; it amounts to denial to plaintiff, a citizen

of the United States and of the State of Hawaii, and

others similarly situated of liberty and property without

due process of law, in violation of the Fourteenth Amend-

ment to the United States Constitution.

35. Plaintiff is suffering irreparable injury and is

threatened with irrepaable injury in the future by reason

of the acts herein mentioned. Plaintiffs have no timely,

practical, plain, adequate remedy to redress the wrongs

and illegal acts herein complained of other than this suit

for a declaration of rights and an injunction. Any other

remedy to which plaintiff could be remitted would be

attended by such uncertainties and delays as to deny

substantial relief, would involve a multiplicity of suits,

cause further irreparable injury, and occasion damage,

vexation, and inconvenience, not only to plaintiff, but to

defendants as governmental agencies.

Wherefore, plaintiffs respectfully pray that:

1. This court adjudge, decree, and declare the rights

and legal relations of the parties to the subject matter

here in controversy, in order that such declaration shall

have the force and effect of a final judgment or decree.

2. That this court enter a judgment or decree de-

claring that the said admissions policy, custom, usage

and practice of the defendants in denying plaintiff the

C-23

right to enroll, enter, and pursne courses of study at

the School of Law at the University of Hawaii on ac-

count of his age, race or national origin is a denial of the

equal protection of the laws as guaranteed by the [our-

teenth Amendment to the Constitution of the United

States, and is therefore unconstitutional or is illegal un-

der applicable state or federal law, as the admissions

policy was applied specifically to the plaintiff.

3. That this court issue a permanent injunction for-

ever restraining and enjoining defendants and each of

them, from denying plaintiff the right to enroll and pursue

courses of study at the School of Law at the University of

Hawaii on account of his age, length of residence in the

State of Hawaii, the location of the secondary schools or

colleges he did or did not attend, his letters of reference

or lack thereof, his community service or lack thereof, his

race, national origin, any other unconstitutional or illegal

subjective factors or any requirement not published in

the information booklet of the Law School of the Univer-

sity of Hawaii that apply to persons of all races and na-

tional origin.

4. That in the alternative, that this court issue a

permanent injunction prohibiting the University of Ha-

waii from using the current School of Law admissions

procedure while finding the entire admissions process for

the 1984-85 school year unconstitutional, illegal, null and

void.

5. That this court then issue a writ of mandamus re-

quiring the University of Hawaii to re-select applicants

to the School of Law for the 1984-85 school vear from a

group of applicants who are legal residents of the State

- ee ee ee

U-24

of Hawaii who meet the four basic, above-named require-

ments listed in the School of Law information booklet, and

requiring that the class for the 1984-85 school year be

selected on the basis of the pick of the draw or by lottery

from that group, and one of that group shali te the

plaintiff.

6. That in the alternative, this court issue a writ of

mandamus compelling defendants to register plaintiff as

a first year student at this fall semester of the School of

Law of the University of Hawaii.

7. That this court enter a judgment or decree de-

claring that the said Rule 15(b), policy, custom, usage and

practice of the defendants Supreme Court of the State of

Hawaii in requiring plaintiff to be a graduate of a law

school approved by the Council of the Ameriean Bar As-

sociation on Legal Edueation and Admissions to the Bar

in order to take the Bar examination or to be admitted

to the practice of law in the State of Hawaii, is a denial

of the equal protection of the laws as guaranteed by the

First, Ninth and Fourteenth Amendments to the Consti-

tution of the United States and is in violation of the fed-

eral and state anti-trust, monopoly and restraint of trade

laws cited herein, and is therefore unconstitutional, illegal,

null and void.

8S. That this court issue a permanent injunction for-

ever restraining and enjoining defendants and eaeh of

them, from denying plain: ff the right to take the Bar ex-

amination and if suecessful in passing the Bar examina-

tion, to be admitted to the practice of law in the State

of Hawaii.

C-25

9. That this court enter a judgment or decree de-

claring that the said Hawaii Revised Statute Section 605

14, conspiracy, custom, usage and practice of the defend-

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