2007-07-23_George_Kahoohanohano_et_al_v._State_of_Hawaii_et_al_-_Opinion_of_the_court_by_Justice_Acoba

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Kaho'ohanohano v. State Page 15 of 46 113 Hawaii at 103-04, 148 P.3d at 1205-06 (stating that the organization's allegation that the defendant's "conduct has frustrated [the organization's] pursuit of its underlying purpose, because [the defendant's] alleged wrongful practices have threatened its members' ability, inter alia, to provide medically necessary healthcare services and fulfill other aspects of their patients' care . . . sufficiently alleged direct injury to itself" and, therefore, that the organization "possesse[d] standing to bring suit on its own behalf as an organization to address that injury" (footnote and citations omitted)). XXII. The continuing injuries Trustees assert are manifested by the ERS reports for the fiscal years 2002, 2003, 2004, and 2005. Inasmuch as these reports are a matter of public record, and appropriate for judicial notice, their significance bears directly on the instant matter. See Lee v. City of Los Angeles 250 F.3d 668, 689 (9th Cir. 2001) (noting that judicial notice may be taken of public records). Administrative reports can also be subject to judicial notice. See, e.g., Brown v. Valoff 422 F.3d 926, 933 & n.9 (9th Cir. 2005) (taking judicial notice on appeal of an administrative bulletin); Mack v. S. Bay Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir. 1986) (court may take judicial notice of records and reports of state administrative bodies); see also State v. Vliet, 95 Hawaii 94, 112-13, 19 P.3d 42, 60-61 (200 1) (taking judicial notice on appeal of federal agency report in order to ascertain the validity of a scientific principle); Kyllo v. United States, 533 U.S. 27, 36 n.3 (noting, apparently sua sponte, the feasibility of"through-the- wall" technologies by citing to an internet website of a government agency in a Fourth Amendment challenge to a government search). It is noteworthy that for fiscal year 2002, the ERS expressed the following concerns to the Governor: We are concerned about the unfunded accrued liability[(18)]which increased from$991 million in June 2001 to$1.8 billion in June 2002 on an actuarial basis. When using the fair value of assets,the unfunded accrued liability was in excess of$3.3 billion. The use of ERS investment earnings to help balance the State and count governments'budgets and the negative investment returns over the past two years primarily contributed to the increase of the unfunded accrued liability. Employees' Retirement System of the State of Hawaii, Comprehensive Annual Financial Report [(hereinafter ERS Financial Report)] For the Fiscal Year Ended June 30, 2002 at 4 (Dec. 2002) (emphasis added). The following year, the ERS reiterated its concerns as follows: While we are encouraged by the positive results,we remain concerned about the unfunded accrued liability,which increased from$1.8 billion in June 2002 to$2.9 billion in June 2003 on an actuarial basis. The primary reason for the increase in the unfunded accrued liability was the negative investment returns over the prior two years. ERS Financial Report For the Fiscal Year Ended June 30, 2003 at 4 (Dec. 8, 2003). In 2004, the ERS submitted its report and stated as follows: The ERS'unfunded actuarial accrued liability increased to$3.5 billion from$2.9 billion on June 30,2003. The [UAAL]is primarily the result of unfavorable investment returns in FY 2001 and FY 2002,and the previous use of the ERS'excess investment earnings to reduce State and county government contributions to the ERS. ERS Financial Report For the Fiscal Year Ended June 30, 2004 at 9 (Dec. 13, 2004) (emphasis added). Yet again, for 2005, the following was reported: We are pleased to report that total assets grew to$9.2 billion as of June 30,2005 and our investment portfolio generated an 11.3% return during the past fiscal year. While we are encouraged by the positive earnings,the actuarial funded ratio declined to 68.6%at the end of the fiscal year. This is primarily the result of the past diversion of excess investment earnings which prevented the ERS from establishing rainy day fund for the years of poor investment returns. ERS Financial Report For the Fiscal Year Ended June 30, 2005 at 5 (Dec. 29, 2005) (emphasis added). In sum, the ERS reports indicate that because of the legislature's diversion of excess investment earnings to reduction of employer contributions, the ERS has continued to suffer a large unfunded actuarial liability which in turn has and continues to diminish the investment opportunities available to the ERS, and prevented the ERS from "establishing a http://www.state.hi.us/jud/opinions/sct/2007/26178.htm 8/12/2008