# Opposition Brief — Hall v. Hawaii > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_2149%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1988 - **Citation:** 488 U.S. 803 ## Text 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, v. 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’ Vv ON APPEAL FROM THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAII fay Vv MOTION TO DISMISS OR AFFIRM fa’ Vv 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 5 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? ll 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. iv 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 I. 111. lV. Lf 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 16 18 21 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 vi 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 ix 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 13 x 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) Pr tan Court RULEs: U.S. S. Ct. R. 15.1(g) Haw. R. Civ. P. 56(f) xi 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 Vv Roserr W. Hatt, Appellant, v. 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. Vv ON APPEAL FROM THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAII ray MOTION TO DISMISS OR AFFIRM ray Vv 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 ee nae 2 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 |; 4 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. d 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. 6 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. + 7 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) 8 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). 9 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 10 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, ‘