Opposition Brief — Paty v. Price

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No. 91-1273 '

In The

Supreme Court of the United States

October Term, 1991

‘

DOCTOR NUI LOA PRICE, et al.,

Petitioners,

vs

STATE OF HAWAII, et al.,

Respondents.

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Petifion For A Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

.

STATE RESPONDENTS’ BRIEF IN OPPOSITION

.

WARREN Price, III

Attorney General

State of Hawaii

STEVEN S. MICHAELS*

Deputy Attorney General

State of Hawaii

*Counsel of Record

425 Queen Street

Honolulu, Hawaii 96813

(808) 586-1365

Counsel for Respondents

State of Hawaii, Governor

of the State of -Hawaii,

and Chairman, and Members

Board of Land and Natural

Resources, State of Hawaii

(“State Respondents”)

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

OR CALL COLLECT (402) 342-28

QUESTION PRESENTED

Whether the Ninth Circuit properly affirmed the District

Court’s dismissal of claims of “breach of trust” against

the State of Hawaii and its officials, sued in their official

capacities, on the basis that those claims sought payment

from the State fisc of an “accrued liability” and therefore

were barred by the Eleventh Amendment

TABLE OF CONTENTS

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REASONS FOR DENYING THE WRIT IN NO.

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I. The Petition Does Not Raise Any Substantial

Question as to the Application of the Eleventh

Amendment to Claims for Breach of Trust Aris-

ing out of Federal Land Grants................

II. Even if the Petition Presented a Substantial Elev-

enth Amendment Issue, the Judgment is Inde-

pendently Supported .........

CONCLUSION .

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TABLE OF AUTHORITIES

Page

CASES:

Blatchford v. Native Village of Noatak, 111 S. Ct. 2578

(1991)

Dellmuth v. Muth, 491 U.S. 223 (1989) ee.

District of Columbia Court of Appeals v. Feldman, 460

U.S. 462 (1983)

Ex parte Young, 209 U.S. 123 (1908)

Hans v. Louisiana, 134 U.S. 1 (1890)

a : ee Soe, ea ee a ee 10)

In re Estate of Chun Quan Yee Hop, 52 Haw. 4(

(1970)

Linda R.S. v. Richard D., 410 U.S. 614 (1973

Midkiff v. Kobayashi, 54 Haw. 299 (1973)

Nevada v. United States, 463 U.S. 462 (1983)

Papasan v. Allain, 478 U.S. 265 (1986) 2

Smiddy v. Varney, 665 F.2d 261 (9th Cir. 1981)

Ulaleo v. Paty, 902 F.2d 1395 (9th Cir. 1990) ?

United States v. Kubrick, 444 U.S. 111 (1979)

Utah Division of State Lands v. United States, 482

U.S. 193 (1987).....

Welch v. Department of Highways, 483 U.S. 468

(1983)

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Hawaii Admission Act § 5(f

Haw. Rev. Stat. § 171-43.1

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No. 91-1273

°

In The

Supreme Court of the United States

October Term, 1991

+

DOCTOR NUI LOA PRICE, et al.,

Petitioners,

Vs.

STATE OF HAWAIL, et al.,

Respondents.

*

Petition For A Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

+

STATE RESPONDENTS’ BRIEF IN OPPOSITION

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The State of Hawaii, and William W. Paty, Chairman

of the Board of Land and Natural Resources of the State

of Hawaii, Herbert K. Apaka, Jr., Moses W. Kealoha, J.

Douglas Ing, John Arisumi, and Herbert Arata, members

of the Board of Land and Natural Resources of the State

of Hawaii, together with their successors in office, and

Jown Waihee, Governor of Hawaii, pray that the petition

for certiorari in No. 91-1273 be denied.

This petition is related to that in No. 91-1238, and we

respectfully incorporate herein the Petition in that docket

as setting forth the general background of the litigation in

this docket. To that Petition we add as follows.

+

STATEMENT OF THE CASE

The petition in No. 91-1273 arises out of the Ninth

Circuit’s straightforward application of settled Eleventh

Amendment principles to Petitioners’ claims for payment

of “a one time restoration of the [alleged] lost corpus” of

land belonging to the Honolulu Sailors’ Home Society. See

Papasan v. Allain, 478 U.S. 265, 281 (1986). Papasan was

correctly invoked against a breach of trust claim arising

out of the administration of Hawaii’s public trust lands in

Ulaleo v. Paty, 902 F.2d 1395 (9th Cir. 1990), and was

similarly applied correctly in this case, where Petitioners

challenged the State’s refusal to take measures to seize

the Sailors’ Home parcel in the face of three state circuit

court judgments that conclusively determined, as

between the Attorney General, as representative of the

public, and the Sailors’ Home Society, that the Society’s

actions were consistent with the original grant of land to

the Society by the Republic of Hawaii. See Pet. App. 3a

and appendix “F” to the Petition in No. 91-1238.

Although Petitioners advanced a variety of argu-

ments in the Ninth Circuit as grounds why the Eleventh

Amendment was not in play, Petitioners had made no

good record in the District Court on this issue. Indeed,

Plaintiffs’ opposition to the State Respondents’ motion to

dismiss was not even filed until November 27, 1989,

eleven days after the due date in the District Court under

District of Hawaii Local Rule 220. Thus, the Ninth Circuit

did not address any of Petitioners’ arguments in detail,

7 b

and disposed of the case with a summary reference to its

decision in Ulaleo v. Paty, 902 F.2d 1395 (9th Cir. 1990),

supra. See generally Pet. App. 6a-7a.

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REASONS FOR DENYING THE WRIT IN NO. 91-1273

The petition in No. 91-1273 is a plainly meritless

effort to overturn Eleventh Amendment principles which

have repeatediy been affirmed by strong majorities of this

Court. Even if a substantial Eleventh Amendment issue

were presented, however, alternative bases for the judg-

ment warrant the writ’s denial.

I. The Petition Does Not Raise Any Substantial Ques-

tion as to the Application of the Eleventh Amend-

ment to Claims for Breach of Trust Arising out of

Federal Land Grants.

Petitioners frankly concede that their Petition

depends on this Court’s overruling Hans v. Louisiana, 134

U.S. 1 (1890), but this Court has consistently refused to do

so. See, e.g., Dellmuth v. Muth, 491 U.S. 223, 229 n.2 (1989);

Welch v. Department of Highways, 483 U.S. 468, 494 & n.27

(1983). This case presents none of the attributes this Court

has advanced as possible grounds for reconsideration of

established precedent. Petitioners, for example, present

no independent argument that Hans misunderstood the

purpose or history of the Eleventh Amendment, or prior

cases construing the amendment, or that overruling Hans

is necessary to make application of the Eleventh Amend-

ment workable in light of present-day conditions. Indeed,

this case, as does Papasan v. Allain, 478 U.S. 265 (1986), on

which the Ninth Circuit’s decision goes off, makes clear

the necessity for immunity, for this case plainly raises no

issue of structural wrongdoing of the type this Court has

properly described as “prospective” and thus meriting

application of the exception set forth in Ex parte Young,

209 U.S. 123 (1908).

The Ninth Circuit properly applied Papasan v. Allain,

478 U.S. 265 (1986), which rejected “breach of trust”

claims made in connection with Mississippi’s alleged

waste of the Chickasaw Cession Lieu Lands. here, as

here, the petitioners were held barred by the Eleventh

Amendment “[e]ven if the petitioners here were seeking

only the payment of an amount equal to the income from

the lost corpus,” as “such payment would be merely a

substitute for the return of the trust corpus itself.” Id. at

281. If the State of Hawaii improperly failed to “recover”

the Sailors’ Home Society parcel, any official capacity

claims against the State are logically barred under the

Papasan case.

Petitioner’s suggestion that Congress waived

Hawaii's immunity when it enacted Section 5(f) of the

Admission Act (see Pet. at 7), is sheer nonsense. To accept

such argument would be tantamount to holding that,

with respect to lands conferred at Statehood, every State

admitted after the formation of the Union had no immu-

nity from suit to enforce federal conditions imposed upon

the land. Moreover, in this case the argument is partic

ularly inapt, since Congress specified only a suit “by the

United States” as the exclusive remedy for trust breaches

See 73 Stat. at 6. Even if the Equa! Footing Doctrine does

not imply as much as the Petitioners assert in No

91-1238, a point we do not concede, clearly “the strong

presumption . . . against finding an intent to defeat the

State’s title” could not mean as little as the Petitioners in

this case urge. See Utah Division of State Lands v. United

States, 482 U.S. 193, 201 (1987). The short answer to any

“waiver” argument is that Congress did not in any way,

let alone sufficiently, suggest it was waiving Eleventh

Amendment immunity when it passed the Admission

Act. See Dellmuth v. Muth, 491 U.S. at 228 (in assessing

waiver arguments such as those here, “we have applied a

simple but stringent test: ‘Congress may abrogate the

States’ constitutionally secured immunity from suit in

federal court only by making its intention unmistakably

clear in the language of the statute.’ ”).

The notion that the “co-plaintiff” doctrine could be

used to undermine Hawaii's immunity in this partic-

ularly sensitive context (Pet. at 21) has no substance to it.

See Blatchford v. Native Village of Noatak, 111 S. Ct. 2578,

2584 (1991) (“even consent to suit by the United States for

a particular person’s benefit is not consent to suit by that

person himself”).

There is no basis for review of the judgment adverse

to the Petitioners in No. 91-1273.

Il. Even if the Petition Presented a Substantial Elev-

enth Amendment Issue, the Judgment is Indepen-

dently Supported.

Even if the judgment below presented any plausible

Eleventh Amendment issue for review, this Court would

not likely be able to enter any relief for Petitioners, in that

the judgment below is independently supported by

numerous defects in the Complaint.

First, to whatever extent Petitioners could pierce

immunity, their claims would run into the wall of Article

Ill standing, for their effort to have the State “reclaim”

the Sailors’ Home Society land is nothing but an effort of

a citizen “to contest the policies of the prosecuting

authority when he himself is neither prosecuted nor

threatened with prosecution.” Linda R.S. v. Richard D., 410

U.S. 614, 619 (1973).

Second, the fact that the Attorney General acted as

representative of the public in the Sailors Home litigatior.

gives rise to an independent bar under District of Colum-

bia Court of Appeals v. Feldman, 460 U.S. 462 (1983), and 28

U.S.C. § 1738. See Nevada v. United States, 463 U.S. 110

(1983). The Attorney General, under state law, plainly

had the power to act as “parens patriae of charitable

trusts,” see Midkiff v. Kobayashi, 54 Haw. 299, 336, 507 P.2d

724 (1973), and thus “the analogy of a faithless private

fiduciary cannot be controlling for purposes of evaluating

the authority of the [State of Hawaii] to represent differ-

ening interests.” Nevada, 463 U.S. at 142.

Third, Petitioners have not properly alleged that any

of the State Respondents in fact “caused” the loss of

which they complain. Under the doctrine of intervening

causation, which is fully applicable to 42 U.S.C. § 1983

suits, the responsibility, if any, for any “loss” of the

Sailors’ Home parcel lies with the independent judgment

exercised by the Hawaii Attorney General and the State

courts in the Sailors Home litigation. No judgment could

therefore enter in this case against the particular state

officials named in this litigation. See, e.g., Smiddy v. Var-

ney, 665 F.2d 261 (9th Cir. 1981), after remand, 803 F.2d

1469 (9th Cir. 1986). Likewise, Petitioners have not shown

how they suffered any loss that could give rise to an

Article III “controversy” or award of personal money

damages.

Fourth, the action here, which is governed by

Hawaii's two-year statute of limitations for personal inju-

ries, see Haw. Rev. Stat. § 657-7 (1985), is plainly time-

barred, coming at least eighteen years too late to review

the injuries first inflicted by the Seilors Home judgments.

See generally United States v. Kubrick, 444 U.S. 111, 125

(1979) (on limitations).

Fifth, Petitioners’ own allegations virtually admit that

§ 5(f) was not breached. Certainly the possibility of rever-

ter here is not “lands” as the plain meaning of that word

is used in § 5(f) of the Admission Act, and, therefore,

Hawaii had no less discretion to waste this asset than any

other part of the public fisc. Moreover, § 5(f) turns ulti-

mately on application of state law, once the minimal

threshold of a “public use” is demonstrated. In this case,

the Hawaii courts themselves determined that the land

properly was vested in the Sailors’ Home society pur-

suant to Hawaii’s “doctrine of equitable approximation,”

In re Estate of Chun Quan Yee Hop, 52 Haw. 40, 46, 469 P.2d

183 (1970). Indeed, even if Hawaii now owned the full

fee, under Haw. Rev. Stat. § 171-43.1, it would have the

power to dispose of all but naked title to the Sailors’

Home Society without the requirement of compensation

to the public fisc.

Sixth, for the reasons stated by the Petition in No.

91-1238, 42 U.S.C. § 1983 does not afford a remedy here.

—— — - —

CONCLUSION

For the foregoing reasons, the writ in No. 91-1273

should be denied.

Dated: Honolulu, Hawaii, February 27, 1992.

WARREN Price, II]

Attorney General

State of Hawaii

STEVEN S. MIcHAELS*

Deputy Attorney General

State of Hawaii

"Counsel of Record

425 Queen Street

Honolulu, Hawaii 96813

(808) 586-1365

Counsel for Respondents

State of Hawaii, Governor

of the State of Hawaii,

and Chairman, and Members,

Board of Land and Natural

Resources, State of Hawaii

(“State Respondents”)