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 21 of 46 makes an important distinction between prospective and retrospective relief. If the relief sought against a state official is prospective in nature,then the relief may be allowed regardless of the state's sovereign immunity. This is true "even though accompanied by a substantial ancillary effect on the state treasury."However,relief that is"tantamount to an award of damages for a past violation of. . . law,even though styled as something else,"is barred by sovereign immunity. Id. (quoting Paty, 73 Haw. at 609-10, 837 P.2d at 1266 (footnotes and citations omitted)) (emphasis added). However, "[s]imply asking for injunctive relief and not damages does not clear the path for suit. The United States Supreme Court has recognized that the difference between retrospective and prospective relief will not in many instances be that between day and night." Id. (quoting Ulaleo v. Paty, 902 F.2d 1395, 1399 (9th Cir. 1990)) (internal quotation marks, other citations, and brackets omitted) (emphasis in original). In Bush, "[w]e decline[d] to adopt the federal courts' narrow view that a claim for relief based on past illegal action is necessarily 'retrospective."' Id. at 482 n.9, 918 P.2d at 1138 n.9 (citation omitted). Instead, we concluded that under our sovereign immunity doctrine, "the crucial inquiry . . . is whether the relief sought for a past violation of law is 'tantamount to an award of damages' or would merely have an 'ancillary' effect on the state treasury." Id. (quoting Paty, 73 Hawaii at 609-10, 837 P.2d at 1266 (citing Papasan v. Allain, 478 U.S. 265 (1985))) (emphasis added). For example, in Paty, native Hawaiian beneficiaries of the ceded land trust sought to nullify a land exchange agreement between the State and a private estate via a constructive trust. The beneficiaries' constitutional claims included, inter alia, breach of trust claims under article XII, section 4, due process claims under article I, section 5, and a claim that the relinquishment of state lands violated article XII, section 7 of the Hawaii Constitution. 73 Haw. at 611 n.23, 837 P.2d at 1267 n.23. This court, in concluding that the claims were barred by sovereign immunity, explained that the relief sought was "in effect a request for compensation for . . . past actions" by the government. Id. at 611, 837 P.2d at 1267. The relief sought would be "essentially equivalent to a nullification of the exchange and the return of the exchanged lands to the trust res" and "[t]he effect on the state treasury would be direct and unavoidable, rather than ancillary, because imposing a constructive trust on lands now held by [the purchaser] would require that the State compensate [the purchaser] for its property. Id. (citing U.S. Const. Amend. V.; Haw. Const. Art. 1, § 20) (emphasis added) (internal quotation marks omitted). 1. At the outset, all parties appear to agree that the State has not expressly waived sovereign immunity in this case. Additionally, Trustees make no claim for monetary damages. Instead, Trustees seek both declaratory and injunctive relief. The injunctive relief sought is not to enjoin Act 100, which has already been implemented, but to "to prohibit future skimming" and to prevent "[a] renewed pattern of legislative skimming."Based on the foregoing allegations, it appears that Trustees seek "prospective" relief based on the past action by the State in implementing Act 100. 2. Thus, the relevant inquiry is "whether the relief sought for a past violation of law is 'tantamount to an award of damages' or would merely have an 'ancillary' effect on the state treasury." Bush, 81 Hawaii at 482 n.9, 918 P.2d at 1138 n.9 (citations omitted). Similar to the situation addressed in Bush, "there is no direct and unavoidable effect on the state treasury" in the instant case. Id. at 481, 918 P.2d at 1137. The relief sought by Trustees would declare the actions by the legislature unconstitutional and enjoin the State from engaging in any future constitutional violations. Any possible effect on the state treasury is not direct, but only "ancillary," to the extent that the State would be prohibited from any future "skimming" from ERS funds. Trustees do not request damages, nor will they obtain any compensation. Thus, the "requested relief is not'a request for compensation for the past action[,]"' id. at 482, 918 P.2d at 1138 (quoting Paty, 73 Haw. at 611, 837 P.2d at 1267), by the legislature. C. As to the State's contention (b), the State maintains that "this [c]ourt has stated that'sovereign immunity may not be invoked as a defense by state officials who comprise an executive department of government when their action is attacked as being unconstitutional."' (Quoting Paty, 73 Hawaii at 607, 837 P.2d at 1265) (citation omitted)). Based on the latter, the State infers that because "Trustees have not sued any 'state official' comprising an executive department of government, their action against the State is barred by sovereign immunity." In response, Trustees essentially assert http://www.state.hi.us/jud/opinions/sct/2007/26178.htm 8/12/2008