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 16 of 46 rainy day fund for the years of poor investment returns." Accordingly, the first prong of the Akinaka standing test, 91 Hawaii at 55, 979 P.2d at 1081 (citation omitted), is satisfied. Cf. Chamber of Commerce of U.S. v. Sec. & Exch. Comm'n, 412 F.3d 133, 138 (D.C. Cir. 2005) (ruling that "loss of the opportunity to purchase a desired produce is a legally cognizable injury" (citing Consumer Fed'n of Am. v. FCC, 348 F.3d 1009, 1011-12 (D.C. Cir. 2003) (holding that injury-in-fact was present where merger would deprive plaintiff of opportunity to purchase desired service); Competitive Enter. Inst. v. Nat'l Highway Traffic Safety Admin., 901 F.2d 107, 112-13 (D.C. Cir. 1990) (noting injury-in-fact where regulations regarding fuel economy foreclosed buyers the opportunity to purchase larger passenger vehicles))). XXIII. The second prong is also met inasmuch as the alleged injuries are "fairly traceable to the [State's] actions." Akinaka, 91 Hawaii at 55, 979 P.2d at 1081 (citation omitted). As Trustees allege, and the ERS' public reports indicate, at the very core of the dispute is the impact of Act 100 on the viability of the retirement system. The third prong is also satisfied inasmuch as a "favorable decision [would] likely provide relief" for Trustee's continuing alleged injury. Id. (citation omitted). First, on its face a claim for a declaratory judgment that "in diverting investment earnings from the ERS, Act 100 unlawfully interfered with and impaired the discretion of[Trustees] in the investment and reinvestment of the funds of the ERS," as Trustees seek, would vindicate Trustees' duties and obligations as fiduciaries. Second, for purposes of deciding standing, on its face a claim for injunctive relief would provide the assurance to the ERS and its members that the legislature would honor its representations that excess investment earnings would be retained by the ERS. On their faces the claims would ensure that the constitutional mandate under article XVI, section 2 would be implemented. Accordingly, because all three prongs of the Akinaka test are satisfied, see Sierra Club, 100 Hawaii at 250, 59 P.3d at 885, Trustees have standing as fiduciaries of the retirement system and its members to challenge legislation that would impair the ERS. XXIV. This holding is consistent with the propositions earlier enunciated in the concurring opinion in Mottl. To reiterate, in that case, the plaintiffs, certain faculty members of the University of Hawaii, and the University of Hawaii Professional Assembly, brought an action against the then-Governor and the State Director of Finance, for declaratory and injunctive relief seeking the restoration to the University of Hawaii funds that had been appropriated for fiscal year 1998, but which had been reduced by the passage of the "payroll lag act." 95 Hawaii at 383, 23 P.3d at 718. The defendants argued, inter alia, that the plaintiffs lacked standing to bring such an action. Id. at 386, 23 P.3d at 721. The defendants also argued that they were entitled to summary judgment inasmuch as their actions were within their constitutional and statutory authority. Id. Subsequently, the circuit court granted summary judgment based on its application of HRS § 37-37 (Supp. 2006), and in part because of"plaintiffs' alleged 'judicial admission' that the 1997 restriction on the University of Hawaii's fourth quarter allotment was legal." Id. at 388, 23 P.3d at 723. On appeal, this court reversed the circuit court's grant of summary judgment, and instead instructed the circuit court to dismiss the plaintiffs' complaint on the ground that the plaintiffs lacked standing for failing to show an injury-in-fact. Id. at 395, 23 P.3d at 730. The concurrence addressed the issue of whether the Board of Regents of the University of Hawaii (BOR) had standing to seek declaratory relief on behalf of the University of Hawaii, a question left unanswered by the Mottl majority. The similarity between the position of the BOR in Mottl and the Board of Education (BOE)in Board of Education v. Waihee, 70 Haw. 253, 768 P.2d 1279 (1989), was evident as to the question of standing. It was observed that the standing of the BOE as a party was never challenged in Waihee. Mottl, 95 Hawaii at 395-96, 23 P.3d at 730-31 (Acoba, J., concurring). In Waihee, this court did not reject the BOE's standing on appeal. See Keahole, 110 Hawaii at 428 n.18, 134 P.3d at 594 n.18 (stating that an appellate court may raise the issue of standing sua sponte). The fact that this court did not do so confirmed the BOE's standing. Thus, as noted in the Mottl concurrence: In a vein somewhat similar to the lawsuit before us, [in WaiheeJ "the plaintiffs alleged the Governor interfered with the [BOE] implementation of the budget approved by the legislature when he imposed a one per cent spending restriction on the [Department of Education(DOE)].The Governor,the plaintiffs maintain[ed],may impose such restrictions only if sufficient funds are not available." Id. at 268,768 P.2d at 1288. In Waihee,no question arose as to the standing of the BOE to bring suit.However,as to the [Hawaii State http://v,,ww.state.hi.us/jud/opinions/sct/2007/26178.htm 8/12/2008